International Humanitarian Law
International Humanitarian Law
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Date Created: 04/11/14
Lecture 1 Class Introduction and Introduction to IHL International Humanitarian Law o JSIS A 465 o LAW B 595 Overview of the Course How to Define IHL LOW and LOAC How to Define an Armed Conflict What IHLLOAC Rules apply to Armed Conflict How to determine the Status of Participants Definition of War Crime Rules for Command Responsibility Definition of Torture Rules of Engagement and Targeting Accountability Issues National and International Courts Fundamentals of International Law o Highly decentralized system o Effective in many subject areas Trade law Admiralty and maritime law Air transport law When it is in the interest of States o Basic principle of sovereignty o Less effective in armed conflict Sources of International Law o Treaties o Customary Law Martens Clause 1899 Hague Conference 2 Parties to the conflict shall remain bound by the law of nations o Principles of Law Practice to Custom to Law o Writings of Scholars Solis book 0 o OOOOOOOO Latin o Jus Ad Bellum Initiation of Armed Conflict Violation Crime against Peace We put this aside in this course 0 Jus In Bello Conduct of Armed Conflict Means and Methods of Warfare Definitions o IHL LOW LOAC The rules governing the conduct of hostilities and the protection of victims of armed conflict There are pieces of LOAC and LOW that do not pertain to people Characterized both by simplicity and complexity Easily stated in core principles Complex because a single act may be governed by several rules Very difficult to apply in modern conflict Americans tend to believe that Human Rights Law does not apply in conflict while Europeans do We are missing modern uniformed armies Not so much interstate and intrastate 2 Criminals gangs and militias History 0 Classic Greek Unwritten Conventions War is an affair of warriors and noncombatants should be respected Prisoners of war should be offered for ransom rather than being executed or mutilated Certain persons and places are protected including those under the protection of the Gods Pope Innocent II 1132 AD The Crossbow is unchristian Peasants could penetrate royaltyknights Peter Von Hagenbach 1474 First International Trial I was just following orders Lieber Code 24 April 1863 Instructions for US Army in Field First attempt to codify the law of war Professor Lieber of Columbia Univ 157 Articles concerning conduct Article 16 Military necessity does not admit of cruelty or an act of hostility which makes a return to the peace unnecessarily difficult St Petersburg Declaration of 1868 The right of belligerents to adopt means of injuring the enemy is not unlimited Fundamental principle of customary law Incorporated into the preambles of numerous treaties and protocols International Criminal Law OOOOO Includes crimes such as piracy banking violations and drug offenses War Crimes Genodde Crimes against humanity Crime of aggressionCrime against peace Genocide and Crimes against Humanity need not be committed in a time of Armed Conflict Human Rights Law 0 O O 0 Human Rights Law is generally applicable to the States There is a natural tension between the goals of human rights and LOACIHL There is a disagreement on the over law between HRL and IHL The US position that IHL trumps HRL on the battlefield Most analysts and the ICJ agree Why regulate belligerent conduct 0 O O O O O O O Civilized conduct Reciprocity Treating our prisoners well Military efficiency Return to peace National values Declining budgets Limit suffering Deter violations Accept misconduct Islam and IHL 0 Islam differentiates between a combatant and a non combatant and lays out guidelines for the protection of non combatants which are similar to the provisions enshrined in IHL Both laws strongly advocate humane treatment ExamplesTrials O O The Trial of Plenty Horses What were the facts of the case What was the status of the conflict 2 Was it a war Was the Sioux Tribe a nation 2 Who was classified as a combatant Did Plenty Horses commit a crime What was the final ruling of the court Trial of Hermann Goring Crimes against Peace Can you convict someone of a law that did not exist when they committed the crime Nazis Yes 0 Prosecutor v Kupreskic Precedent in International Courts Lecture 2 Codes Conventions Declarations and Regulations Conflict Status Armed Conflict o What rules should be involved Individual Status o Combatant Can engage in hostilities Key Questions o Does IHL sanction the killing of innocents Francis Lieber o Fought at Waterloo o Taught and Columbia o Lieber Code Instructions for US Army in the Field First attempt to codify the law of war 157 articles concerning conduct Article 16 Military Necessity Does not admit of cruelty or an act of hostility which makes a return to peace unnecessarily difficult 2 Does not justify crime Article 57 Combatants Privilege 2 For soldiers the killing wounding or other warlike acts are not criminal Later included in 1907 Hague Regulations Members of the armed forces can directly participate in hostilities 2 You can commit a crime The Lieber Code was applicable only to Union soldiers but the basic principles have become the standard for war time conduct Some departures in Lieber Code 2 Could an officer direct troops to give no quarter if it is impossible to take prisoners 0 During Civil War Yes Humanitarian Law did not really exist at the time 2 Could officers immediately kill violators In the Lieber Code Yes 2 Did the code justify the starving of non combatants In the Lieber Code Yes 2 Did it address obedience to orders 2 Can outposts and pickets be attacked Destruction in War 2 29 The more vigorous wars are pursued the better it is for humanity Sharp wars are brief 2 17 It Is lawful to starve a hostile belligerent armed or unarmed so that it leads to the speedier subjection of the enemy Osama Bin Laden 2001 2 Under the Lieber Code can the president of the US announce that someone is an outlaw to be taken dead or alive No You cannot declare war on a person or an idea Terrorism 1899 and 1907 Hague Peace Conferences 0 Martens Clause Parties to the conflict shall remain bound by the law of nations as they result from the usages established among civilized peoples from the laws of humanity and the dictates of public conscience o Dum Dum Bullets Were outlawed but US and Britain did not join December 3rd of Hague 1899 But the prohibition became custom long ago Are the high veocity bullets we used unnecessary o Penalties for breaches were imposed on the state of the offending individual 0 Still no individual penalties imposed 0 Definition of Spy Hague 07 made an attempt to define Spy A person acting clandestinely or on false pretenses with the intention of communicating with the hostile party Another attempt to codify customary practices on the battlefield IHL Advances thru 1907 o Lieber code first government sponsored document 0 St Petersburg Dec foundation of customary law 0 Red Cross movement Examples Cases 0 Captain Wirz Andersonville Prison Commander 160 witnesses called Food was found nearby Intentional starving Questions Raised 2 What defense Defense of orders 2 What was the applicable law IHL Customary Int l law 2 What were the charges Murder 2 Was he charged with torture as an independent offense 2 Was the sentence reasonable 2 The way it was carried out 2 Why so few courts at the end of the Civil War Amnesty policy Treason 0 General Smith Court Martial 1902 Hell Roarin Jake Kill everyone over 10 Convicted and released from military 2 What is appropriate punishment 0 Major Edwin Glenn 1902 The Water Cure Questions 2 What was he charged with The general order 2 Is the defense of military necessity 2 Was he found guilty Yes 2 Was the sentence reasonable Suspended and fined 0 Private Michael A Schwarz USMC Given a pep talk It is impossible to tell exactly how much influence language like that could have They should have all been convicted Lecture 3 LOAC During the Great War Aftermath of the Great War 19141918 0 O O O O 0 Several treaties called for prosecutions Attempt to try Kaiser Wilhelm 1923 Lausanne treaty prevented any prosecutions Leipzig Trials Justice or Stability National or International Trials First Step towards individual accountability The Interwar Period 0 O 0 League of Nations a failure Keog Briand Pact signed in 1928 They condemn recourse to war Statement of intent without sanctions 1929 Geneva Conventions contained first protections for POW s Japan did not sign But in the 1929 convention was later found to be customary international law Spanish Civil War 0 Not Spanish or Civil Nuremberg 1945 0 Defining moment in the progress of humanity The 1949 Geneva Conventions O O The Geneva conventions are today the most widely ratified treaties and can justifiably be called the hear of international humanitarian law They apply even in the absence of a declared state of war and they fro the first time include provisions to cover what is general known as a civil war Two types of armed conflict internationanon internationa The Four Conventions O O O O GC I Wounded and Sick GC II Shipwrecked Members of the Armed Forces at Sea GC III See below Common Articles Three Minimal protection for victims of internal conflicts and civil war Correct term is noninternational No enforcement or supervisory mechanism Persons taking no active part in the hostilities including members of armed forces who have laid down their arms and those faced hors de combat by sickness wounds detention or any other cause shall be treated humanely Argument Geneva conventions do not apply to those who fail to meet the combatant test in Hague 07 0 To be a combatant Under command or recognized leadership Wear distinctive insignia Carry arms openly Follow the law of armed conflict 0 Question If Geneva does not apply what are the standards for treatment and interrogation War Crimes in NonInternational Armed Conflict o The Yugoslav Tribunal began to develop new law that there should be a single standard and perpetrators should not be treated more leniently in non internationa conflict 0 The Rome Statute of the ICC Article 8 recognizes war crimes and grave breaches of non internationa armed conflict 0 This should be customary law today What is an Armed Conflict From Protocol 1 0 Between armed forces and dissident farmed forces or other organized armed groups which under responsible command exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol 0 A ruling from the ICTY Tadic Case CasesExamples o Stenger and Crusis Cases One guy gave the orders and the other was following them Defense of orders The General was acquitted Giving the orders Question or law vs Question of fact 0 High Command Case Wilhelm Von Leeb and Others 194748 Trial US Tribunal Actions against Russian prisoners German did not ratify 1929 Convention Tu quoque defense you were doing it too An appeal to hypocrisy o Hagendorf Case Shooting from an ambulance 0 Use of the Red Cross Hospital Ship Ship has command center and helicopter capabilities Has it forfeited protection Lecture 4 People and Politics The Politics o Liberation movements were at the table to include the Irish Republican Army o More than 100 states had equal votes o The protocols were designed to supplement and not replace the basic conventions o The US objected under LOAC o Belligerent Status Classic Hague 1907 Definitions o Protocol I International Armed Conflict Designed to supplement not replace the 1949 Conventions opened for signature in 1977 Generally recognized as customary law today Contained core concepts of distinction unnecessary suffering and proportionality US has not ratified Major concern was colonial alien and racist sentiments The laws rights and duties of war apply not only to armies but also to militia and volunteer corps fulfilling the following conditions POW s only lawful combatants o Protocol I New Provisions Requires wearing the distinctive emblem to distinguish themselves from the civilian populations only while they are engaged in an attack or military operation Preview of Unlawful Combatant s 2 Attacks of 911 were directed by non state actors across international borders 2 Non state actors cannot be parties to international conventions including Geneva Conventions of 1949 D How to treat captured members of Al Qaeda 2 Are they classified as prisoners of war 2 Can they be interrogated 2 What is the standard of treatments 2 How long can they be held Protection of the Environment 2 Article 35 and 55 It is prohibited to employ methods of warfare which are intended or may be expected to cause widespread long term and sever damage to the natural environment El Recall that this came after the US experience in Vietnam Agent Orange Article 56 of Protocol I Works or installations containing dangerous forces namely dams dykes and nuclear electrical generation stations shall not be made the object of attack even where those objects are military objectives if such attack may cause the release of dangerous forces and consequent severe losses amongst the civilian population Mercenaries El Article 47 includes a paid fighter who is neither a national of a party to the conflict or a resident of the territory of a party to a conflict But there are general protections to be treated humanely in all circumstances and prohibition of torture 0 Protocol II Non International Armed Conflict US has not ratified Generally accepted as customary law 0 Protocol III Red Crystal 0 CasesExamples Prosecutor v Dusko Tadic El Low level camp guard Problem for Discussion Conflict Status El Prisoner delivered to secret US facility in Poland as he was recently taken from Pakistan with the consent of the government He comes with a guard and a sworn affidavit indicating he is a member of Al Qaeda The US position has been that he can be held indefinitely What type of conflict Not technically state vs state Not technically international conflict What is the War on Terror Probably non internationa armed conflict What rights does he have If he is a combatant POW status If he is not a combatant no rights Depends on US interpretation of Protocol I and recognition of his card carrying status International Armed Conflict between two contracting states All of Geneva conventions and Protocol I generally apply Non Internationa Armed Conflict Common Article 3 will apply In most cases domestic law also applies The line of demarcation may not be easy Boxer Rebellion nota war US troops received combat pay 59 medals of honor awarded to US combatants International Armed Conflict Declaration of War not required Many conflicts short of war 2 Can be difficult to determine with isolated strikes by international forces Transformed Conflicts US begins withdrawal from Iraq What of a second or third country aiding host state against insurgents What of an outside country aiding rebels Norms are changing If an armed group attacked a second state with the support of acquiescence of the first state What is an armed conflict Dual Status Conflict What of violent Peace Keeping Missions If a French soldier commits a crime in the field what law applies Non State Actors A Qaeda The obligations created by international humanitarian law apply not just to states but to individuals and non state actors such a rebel faction or secessionist movement Minimum degree of organization The exact amount is not settle in law Cross border attacks have been the subject of ICJ cases Criminal Justice or Military Model British and Spanish use criminal justice model in face of repeated terrorist bombing After 911 the US turned to military model 2 Initial Bush Admin response It is an international conflict Al Qaeda is not a party to the Geneva conventions The conventions do not apply US Military Practice LOACIHL apply to all conflicts however the are characterized Basic protections including the Common Article apply US Code of Military Justice will apply word wide for US solders and Marines and recently amended to cover civilians operating within the force Lecture 5 Combatants in Armed Conflict Why is this important 0 It determines rights and responsibilities of a fighter and ac on o It determines right of the person when captured 0 Insurgents may not recognize these rules 0 Enemy conduct may not be relevant to the responsibility of individuals from civilized states that are bound by the law Individual Status 0 Every person in enemy hands must have some status and O 0 some degree of humanitarian protection On all Article 2 Common Battlefields there are combatants and others Even with a US soldier at a McDonalds in Kansas City 2 years at Article 2 and cancelled afterwards Iraq Never in Afghanistan because Taliban was not a government Combatants can lawfully kill the enemy and can be attacked at any time o If captured they are entitled to POW status 0 O O O O 0 Question Are there combatants in non internationa conflicts Yes Combatants No Prisoners of War NonInternational Armed Conflicts Controlled by Common Article 3 Traditional View There are no combatants lawful or otherwise hence no POW s There may be government forces rebels insurgents or guerillas and civilians Captured persons are simply prisoners they may be criminally responsible for their actions while fighting but still must be treated humanely Special Status Personnel Medical Personnel Can act in self defense or in defense of the people they39re aiding Chaplains Cannot be armed Can have an armed Chaplin39s assistant Retainees Not JAGs Non combatant members of the armed forces May be subject to attack when mingled with armed forces Should be under instructions not to bear arms May carry defensive weapons but prohibited for chaplains When capture must be given no less favorable treatment 0 Issue Fighting medics and chaplains Taking direct part in hostilities Risk becoming unlawful combatant Forfeit non combatant immunity Become lawful targets If captured and retained may be tried for unlawful pre capture acts Civil War Milton Haney Others entitled to POW Protections O O 0 Recall the four special conditions Militias and Volunteer Corps Insignia must be distinctive Who can directly participate O OOOOO Concept in theory only applies to civilians Civilian is one not associated with the military Situations in which they have their protection suspended Adversely affects military operations Direct casual link between act and harm Designed to cause harm Organized Armed Groups 0 0 Generally present in Common Article 3 noninternational armed conflict but the unlawful combatant is the norm Both State and Non State parties have armed forces distinct from the civilian population Once the fighter is engaged in a continuous combat function he can be lawful target wherever he may be located Example might be those who install IED s Unlawful Combatants and Unprivileged Belligerents O O 0 Terms do not appear in the Geneva Conventions but arguably a de facto status Used regularly during Bush era Concept is often criticized Both Taliban and civilians who take an occasional shot at troops are unlawful combatants The different is that a Taliban fighter can be targeted and killed whenever he can be positively identified Issues Unlawful Combatants o Is this status a war crime in itself 0 The beigerents privilege and POW status rights may be forfeited o If these are criminal acts what type of courts can deal with them 0 What if there are thousands of unlawful combatants in a combat zone The Taliban 0 Bush Admin Argument Conflict international No parties to Geneva Conventions Al Qaeda o 2006 Military Commission Act referred to them as unlawful enemy combatants o 2009 act used the term unprivieged enemy beigerents o What level of protection Is this a war 0 Problem Initially this set aside all legal privliges Former US Policy 0 This is an international armed conflict 0 The al Qaeda fighters who participate are unlawful enemy combatants 0 Hey have a continuous combat function and can be targeted at any time o If captured they are common criminals and not POW s 0 They may be tried in civilian Art III courts or military tribunals Article 5 Tribunals GC III 1949 0 When any doubt arises of status there shall be a competent t bunal o Empowers states to hold incommunicado civilians suspected of activities hostile to its security of their own forces Protected Persons 0 Only civilians in the hands a party to the conflict or the occupying force under GC IV 0 In the absence of GC IV only CA III applies Minimum Jus in Bello Protections 0 Common Article II Lecture 6 The Four Core Principles The Questions 0 What is the conflict status 0 What LOACIHL rules apply 0 What are the individual statuses of those involved 0 This should help determine the rights and responsibilities The Four Core Principle Advantage vs Risk 0 How many noncombatant lives acceptable for a single dangerous insurgent How many for Osama Bin Laden Can the commander risk his own personal Must aircraft ly low to be able to discriminate The risk of hurting civilians may be outweighed by advantage Distinction Similar Discrimination 2 Meant to be indiscriminate 2 Most significant concept 2 Attacks may only be directed at military objectives Persons or things 2 Persons must distinguish themselves 2 Early statement in S Petersburg declaration 2 World War I made statement of the rule necessary 2 Most clearly defined in Protocol I Art 48 1977 2 Non international armed conflict Task o clear distinction may be impossible Those without military advantage will usually resort to guerilla warfare and indiscriminate attacks Examples can be seen in Somalia and in particular in 1992 an the Battle of Mogadishu in October 1993 0 See Black Hawk Down Military Necessity 2 Necessity overrides LOW 2 Grotius The duty of a Christian and humanity itself 2 Lieber Code Article 14 Ensuring the end of war 2 A related issue If war and armed conflict result in abuses such as environmental damage what needs to be done OOOO El Is it necessary to make new law or modify the law or is it a matter of enforcing existing laws and standards The test of reasonableness Links the four core principles together It has an objective element A reasonable and competent commander 0 Acting properly in light of information gathered Latitude should be given for stress under combat conditions Unnecessary Suffering El El El El El Prohibited as well as superfluous injury Designed to protect opposing combatants Balance between destruction of enemy and humanity US requires a legal review of every weapon and weapon system before deployment Nothing the US has can be considered inhumane There is not standard medical tests What about napalm or flame throwers Proportionality El Summary Dinstein the real goal is to minimize civilian causalities and not to eliminate them all together There may always be collateral damage mistake accident or just bad luck Distinction and proportionality are closely related The presence of civilians does not render a target immune from attack The intent of the shooter needs to be evaluated Goldstone recently retracted some findings that Israel acted intentionally in targeting civilians in Gaza But the standard of care and risk is not clear 0 All intertwined o A violation of one is usually a violation of more than one Lecture 7 NO CLASS TODAY Lecture 8 Command Responsibility Obedience to orders is not a defense o Soldier is culpable for obeying manifestly illegal order o Superior can bear responsibility for failing to act In the World War II cases of Field Marshals Leeb and List the standard was developed o Commanders can be responsible for criminal acts they knew or should have known Legal Authority o Customary International Law o Geneva Conventions o Articles 26 of Protocol I to the Geneva Conventions 0 Article 28 of the Statute to the ICC My Lai 1968 0 Killing Civilians o Platoon Commander Guilty Company Commander not o Who was highest ranking on the scene Seven Routes to Trial 1 o Liable for violations he personally commits o Liable for violations he orders subordinates to commit o Disregarding LOAC violations which he should be aware and taking no action to punish o Liable for violations he incites o Liable for violations he fails to control o Liable for violations by subordinates he permits or acquiesces In o By giving manifestly illegal orders Basic Principles Reviewed o Commanders are not responsible for all acts of their subordinates o They are responsible for acts of their subordinates they knew or should have known o Commanders have to anticipate criminality and be aware of troops actions o Remember with authority comes responsibility Rules Ruses and Perfidy o The Trojan Horse Classic case of deception o Basic Principles Treachery terrorism is not new to armed conflict Lieber code Military necessity permits acts of deception but disclaims acts of perfidy Perfidy is an IHL violation and invites the confidence of the enemy o Special Rules for Spies Spies may pass themselves off as part of the enemy force o Deception Authorized 2 Ghillie Suits Dummy Artillery Lecture 9 Targeting Refers to Objects Article II Conflict Involves the four core principles Primarily Art II but could also apply to Art III Only those objects by their nature location purpose or use make an effective contribution to military action Dual Use Targets Term is not found in Geneva Conventions Examples might be power grids ports and railways Was the repeated bombings of Iraqi power grids in 1991 lawful Is there an obligation to use less etha methods like that of a graphite bomb Article 56 of Protocol I Works on installations containing infrastructure shall not be made the object of an attack Direct Participation in Hostilities Additional Protocol I Article 513 provides that civilians are not lawful targets unless they take direct part in the hostiles This can be not only actual combat but support functions and weapons making This has been broadly defined by some countries to justify actions against terrorists The ICRC has issue guidance in the form of a 99 page document Collateral Damage Not defined in any treat or in customary law The principle recognizes that some innocent death and destruction may occur during a lawful attack The difficult choice for the decision maker is to balance military advantage against the risk of innocent lives Classic Targeting Decisions Six Phases Set campaign objectives Target development Weaponeering Force application Execution Combat assessment Lecture 10 Case Study ICC No Notes Lecture 11 Case Study Military Tribunals No Notes Lecture 12 Chemical and Biological Weapons Early Efforts at Prohibition Lieber code Prohibited Poisons Declaration IV of Hague 1899 Conference prohibited Asphyxiating Gases But it applies only to projectiles with the sole object of delivering gas o Germans and chlorine gas over trenches 1925 Geneva Gas Protocol Brief one page document Applies only in armed conflict Prohibits poisonous gases and bacteriological warfare Reinforces 1899 Hague protocol Prohibits first use but not production and stockpiling o Defense only No investigative mechanism US did not ratify until 1975 Biological Weapons Convention Expands prohibitions of 1925 Gas protocol Contains for the first time disarmament provisions for an entire category of arms Soviets claim that had now BW but this was false BWC was rapidly and widely ratifies partly because of the limited combat value and longstanding aversion to the weapons Chemical Weapons Convention Initiated in 1993 the CWC has 23 articles with clear prohibitions on development retention and use 0 Challenged remain indistinguishing innocent industrial and medical chemicals Riot Control Agents are separately controlled by the US Cyber Warfare
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