L9 - int'l humanitarian law Flashcards
(16 cards)
intro
Int’l humanitarian law (IHL) = laws of armed conflict = jus in bello
refers to the body of law which imposes rules on the conduct of armed conflict to mitigate its effect
= mix of customary IL and treaty-based law, though the latter is dominant today
- but also lot of customary around treaties
! breaches of IHL are war crimes
IHL has been controversial bc it seeks to balance military necessity with humanity, but in the process humanizes warfare
- it does not stop warfare/killing, it says it can be human
- criticism: by making it humane, you make it more possible, if it is inhumane it is less likely to happen
IHL = law about killing people
- the name really hides what it is actually about
laws of war = old name, but is a lot more honest, so Yuan regrets IHL is used more
IHL is the result of the merger of…
the law of The Hague + law of Geneva
Law of the Hague = laws of war, these regulate the conduct of war proper
- definition combatants, conduct of military operations, use of certain types of weapons
Law of Geneva = regulates the protection and treatment of those not taking part (civilians) or unable to take part (wounded, POWs) in the fighting
history IHL
Though its modern iteration dates from the 19th century, many societies have historically had rules concerning the treatment of civilians and wounded, and limits on means of war
Some of these traditional rules were embodied in treaties later, while others would constitute war crimes today (e.g. the coup de grâce)
- coup the grace: if someone is dying, suffering, it is admirable to kill him swiftly = today would be a war crime
- views of what morality requires changes
The development of these rules thus tracks not only changing ideas of morality, but also technological change
- rules have had to catch up with new technology (new weapon -> new rules)
- Law usually lags behind new technology (that’s why we have so much new rules as techn develops)
important conventions: Geneva Conventions, the Hague Conventions
+ nr of treaties, e.g.
- Chemical Weapons Convention
- Ottawa Convention (landmines)
*lately some eastern european countries have announced they wanted to withdraw from this, bc fear for Russia = treaty seems to be crumbling (landmines cheap and effective)
*there is a treaty banning nuclear weapons, but doesn’t work bc no country with nukes has signed it
much of the content of these treaties is also mirrored in customary IL, and are thus binding for non-parties
history - the Geneva Conventions
Currently consists of 4 conventions concluded between 1864 and 1949 + 3 additional protocols (optional)
(first, second, third and fourth convention)
- each country has diff set of legal commitments -> need to check which conventions and protocols apply in each specific case
Brainchild of Swiss businessman Henri Dunant in the aftermath of Solferino (battle for Italian independence)
Every country is party to some of it, but not every country is party to all of it
Int’l Committee of the Red Cross = int’l NGO that plays a unique role in ILH as the watchdog of the Geneva Conventions
- private body established under Swiss law - and its members have to be Swiss (nationality)(bc neutral country, but this is really controversial, e.g. bc lot of Jews died in WW2, so not neutral enough)(also sometimes say to impartial: forgotten precepts of humanity/morality)
- each country/territory has an affiliate national Red Cross/Crescent/Crystal committee (independent of ICRC, but associated)
- duties have ranged from POW tracking to protecting the Red Cross symbol (to guarantee respect)
IT (ICRC) HAS LEGAL STATUS
history - the Hague Conventions
1899 = 3 conventions + 3 declarations
1907 = 14 conventions and declarations
not all of them concerned with IHL (two concern the PCA, e.g.)
many of the Hague Conventions either
- expired (IV, 1 of 1899 on aerial bombardment)
- or have been superseded (IV, 2 of 1899 on gas, which was ignored anyway)
Convention II of 1899 (Convention with respect to the Laws and Customs of War on Land) is perhaps the most important one today
- is codification of custom, body of positive law
- it is at the core of IHL of the actual conduct of hostilities
Common Articles 2 and 3
Common Articles 2 and 3 of the Geneva Conventions define their application
(product of 1949 Geneva Convention)(apply to all Geneva Convention, provide when it applies)
Common Article 2
Conventions apply to any inter-state war, declared or not, including wars of national liberation (Protocol I), with the exception of when a belligerent is neither signatory to the Convention nor accepts to abide by them—reciprocity no longer the principle
- protocol 1 not signed by everyone, bc silly that someone can just say they are an army of national liberation and kill soldiers
- exception??? 1145
Common Article 3
provides for a limited set of protections to those taking no active part in hostilities when the hostilities are not of an international character
- civil war, insurgencies etc.
- not always as clear if article 2 or 3 applies
protection of specific groups
certain groups are subject to special protection
- wounded and sick military personnel (First and Second Geneva Conventions) = hors combat
- Prisoners of war (Third Geneva Convention) = hors combat
- Civilians who are protected persons (Fourth Geneva Convention)
hors combat = out of fight
refers to wounded and sick military personnel + prisoners of war
protection of specific groups - wounded and sick
wounded and sick military personnel
= hors combat = out of combat
First and Second Geneva Conventions
“shall be respected and protected in all circumstances”
To be treated humanely, on a non-discriminatory basis
- non-discriminatory: can’t prioritize health of own wounded soldier over that of an enemy soldier
Cannot be hurt, tortured, killed, left without medical care, etc.
Details have to be recorded and transmitted to the other side
Medical establishments must not be attacked, and status to be indicated by distinctive symbol
- cross, crescent or crystal
protection of specific groups - prisoners of war
Third Geneva Convention
Tied to the definition of combatant status—have to be under effective command structure and distinguish themselves from civilians
- POW tied to combatant status: must be distinguished from civilians (some proof you are a combatant) = bc if you’re a soldier on battlefield without uniform makes you easy to shoot
- bc if they don’t dress like soldiers, you basically use civilians as human shield, you need to distinguish yourself so the enemy knows who they can shoot.
If an illegal combatant, enjoys the minimum protections common to all but not the protections given to POW
- if you don’t have official combatant status
essentially: have to be kept alive, in good health, and in dignity
POWs can’t be mistreated, tortured, humiliated etc. (e.g. probably illegal to post video of dead soldier)
can be required to give basic info (name, rank, service nr) but nothing else
can be tried for war crimes against civil law and punished for offences against military discipline
- civil(ian) war: e.g. if they have stolen something
- !!you can’t punish them for fighting for the enemy, that in itself is not a crime (can be held liable for war crime, not for act of being an enemy (not for invading))
have to be released and repatriated after the end of hostilities
protection specific groups - civilians who are protected persons
Fourth Geneva Convention
“in the hands of a Party to the conflict or Occupying Power of which they are not nationals”—does not apply to third party nationals whose country is not at war with the other party
- but occupation extremely controversial, e.g. about what Israel is doing now
- civilians third party still subject to some protections, just not the special rules for civilians
All the essential protections (no torture, etc.), plus prohibitions on e.g. deportations, forced enlistment, destruction of property
Also lays rule for military occupations generally
(rewatch bit before 1215 or smth)
conduct of hostilities
civilians have to be protected from the effect of hostilities
3 key principles:
- principle of distinction
- principle of proportionality
- principle of military necessity
principle of distinction (Additional Protocol I): parties to the conflict have to distinguish between civilians and combatants, and between civilian and military objectives, at all times
-> indiscriminate attacks are prohibited, as are terror attacks and attacks on civilians (if they are specifically targeted, that is)
BUT killing of civilians in/of itself is NOT illegal, if they arise as a side-effect/consequence of an attack on a legitimate military target
- civilian casualties often known as “collateral damage” (Gulf War-era euphemism
principle of proportionality = harm caused to civilians and civilian property must not be excessive in relation to the concrete and direct military advantage anticipated by an attack on military objective
principle of military necessity = belligerents have the right to take measures that are needed to defeat the enemy, subject to all the other constraints (proportionality etc)
also:
use of methods of warfare that cause unnecessary suffering is forbidden (but you can still kill people)
many specific weapons are banned, such as expanding (dum-dum) bullets, anti-personnel mines, toxic gases, blinding laser weapons, incendiary weapons (but only against civilians), weapons injuring fragments not detectable with X-ray etc. etc.
- dum-dum bullet is first to be banned: soft tip, so the tip disintegrates and doesn’t penetrate the body -> less lethal, banned bc it is not lethal enough = it was inhumane bc it caused great suffering (killing effectively seen more acceptable than not killing inefficiently)
- anti-personnel mines banned by treaty, but is really cheap and effective, so treaty is crumbling
- toxic gases -> lung issues, don’t kill that effectively
- blinding laser weapons: seen as causing unnecessary suffering
- weapons injuring by fragments not detectable with X-rays: plastic grenades (bc hard to see for doctors)
!!not to prevent killing, but to prevent ineffective killing or unnecessary suffering
nuclear weapons have an ambiguous status, but the ICJ in the advisory on nuclear weapons did not rule the possibility of them being used lawfully
- it is legal to have them if you had them long enough ago (non-proliferation treaty)
- ICJ: in most cases it violates basic principles IHL bc no distinction and proportionility
- BUT ICJ: wouldn’t say it would always be illegal, see some situations where survival state is at stake and use of nukes is lawful
to remember: nukes come in diff sizes and shapes -> diff implications for proportionality (small nukes not obviously more inhumane than non-nuclear weapons) -> using small nuke can be just fine
+ once you get to bombing cities, no one really cares about law anymore (beyond that stage)
principle of distinction
(Additional Protocol I): parties to the conflict have to distinguish between civilians and combatants, and between civilian and military objectives, at all times
-> indiscriminate attacks are prohibited, as are terror attacks and attacks on civilians (if they are specifically targeted, that is)
BUT killing of civilians in/of itself is NOT illegal, if they arise as a side-effect/consequence of an attack on a legitimate military target
- civilian casualties often known as “collateral damage” (Gulf War-era euphemism
(conduct of hostilities)
principle of proportionality
harm caused to civilians and civilian property must not be excessive in relation to the concrete and direct military advantage anticipated by an attack on military objective
- if you think concrete and direct military advantage outweighs the expected harm to civilians and civilian property, it is fine
- it is about anticipation, what you can expect - not what actually happens. e.g. if you bomb a bunker, you can’t be expected to anticipate a childcare center to be in there -> its fine
- e.g. if you anticipate advantage by taking out key military warehouse, anticipate 3 civilians will die and that this is outweighed by benefit, and apparently the warehouse was empty, it is also fine
how to determine what is proportionate? - no set formula, each army has diff legal tolerance. with law, judges are to decide, assessment is rather hard
- bomb weapons warehouse, it explodes, kills hundred civilians = usually seen as normal, also killing enemy leaders seen as normal
= it is a big grey area that can’t be avoided
(conduct of hostilities)
principle of military necessity
= belligerents have the right to take measures that are needed to defeat the enemy, subject to all the other constraints (proportionality etc)
- idea that quick win will lead to less death, but not always, e.g. nukes probably not okay
- the longer war goes on, the more harmful generally
(conduct of hostilities)
conclusion
IHL provides for
- protections of various groups engaged or not engaged in hostilities
- rules about the conduct of warfare, occupation, etc.
it does NOT prohibit killing or warfare, merely certain forms of killing and certain circumstances in which killing is not allowed
- it wants to take the edge off war
- some see it as window dressing, but war is so much worse without this window dressing
in other words: IHL, as its name indicates, aims to make wars humane
belligerent
party in the conflict
