Government S-1740 International Law Summer 2006

Government S-1740International Law

Summer 2006

Humanitarian Intervention,

Warfighting and the Laws of War

Outline

I. What is Humanitarian Intervention?

II. Intervening to protect nationals

III. Intervening to protect non-nationals

IV. Just Conduct of War

V. Principles and codification of jus in bellum

VI. The Laws Of and In War Post-911

What is humanitarian intervention?

“The prerogative of a foreign actor (state, a coalition of states, international organization) to act within the territorial jurisdiction of a state to ameliorate or terminate violations of internationally recognized human rights.”

Rwanda Refugee Camp

The Problem of Consensus

• Content of international human rights?• When are rights threatened?• Who decides? The “international

community”, coalitions, or individual states?

• What mode of intervention? What is the role for military force?

Dilemmas for International Law

• State Sovereignty

• Prohibition on the Use of Force

• Human Rights

Unilateral Force to Protect Nationals

• Humanitarian intervention to protect own nationals

• Hostage-taking and Rescue Missions

American Hostages in Tehran, 1979

Unilateral Force to Protect Non-Nationals

• No treaty law exists at all for unilateralhumanitarian intervention on behalf of

non-nationals.

• Evolving or established right under Customary International Law?

Humanitarian Intervention and the UN Charter

• Article 39 - Security Council authority to “decide what matters shall be taken to restore international peace and security.”

• Connection between fundamental human rights and international peace and security?

Iraq and the Kurds (1991)• Established link between internal repression and international peace and security

• Significant opposition within the Council

• No authorization to use force (Res. 688)

Haiti: Intervention to Support Democracy (1993-1995)

• Military ouster of an elected regime

• SC votes sanctions (Res 841) and blockade (Res 875)

• Justification:– Threats to international peace

and security

– Humanitarian concerns

– Illegitimacy of overthrow

Somalia (1992): Intervening in Complex Emergencies

• SC authorized intervention under Chapter VII

• Authorized “all necessary means” to create a safe environment for aid delivery

• 30,000 troops deployed

NATO Bombing in Kosovo (1998-1999): Intervention by a

Regional Organization

• Security Council Res. 1199• NATO bombing campaign• Justification:

– Enforcement action?– Collective self-defense?– Humanitarian intervention?

A“Just” Forceful Intervention?

Just War Doctrine:

Competent Authority

Just Cause

Right Intention

Proportionality of Response

Principles of humanitarian intervention:

Security Council? General Assembly? Regional organization?

Halt human suffering

Motive: humanitarian; “clean hands”

Intervention or force employed commensurate with humanitarian objective

Issues of Just War Fighting

Whenever an armed conflict breaks out, certain questions arise: Who, or what, is "the enemy"? What happens to treaties between warring states? What happens to enemy property? Who is a combatant, and who is not? How are civilian non-combatants to be treated? When does a soldier cease to be a combatant? What limits does international law place on the way states can

fight? What is a war crime, and who is responsible?

Principles of Just Warfighting

Proportionality - of military means to political ends.

Legal definitions of proportionality

• Article 22, §2, Chapter 1 of the Hague Rules of 1907:

"The right of belligerents to adopt means of injuring the enemy is not unlimited.“

• Article 35(1) of the 1977 Geneva Protocol I to the 1949 Geneva Conventions, Section 1:

"In any armed conflict the right of the parties to the conflict to choose methods or means of warfare is not unlimited."

Principles of Just Warfighting

• Proportionality

• Discrimination

Discrimination

• Direct intentional attacks on non-combatants and non-military targets are prohibited.

• Is discrimination possible when modern war involves total mobilization of a society?

• Commingling of military targets with population centers?

Principles of Just Warfighting

• Proportionality

• Discrimination

• Prohibited Means

Prohibited Means

• Means that are bad in themselves (malum in se)

• Means that are bad because they are prohibited (malum in prohibitum)– Inhumane Weapons

– Environmental Warfare

– Weapons of Mass Destruction

– Nuclear Weapons?

Codifying the Laws of War

• Hague Conferences of 1899 and 1907

• Geneva “Red Cross” Conventions of 1949

• Geneva Additional Protocols of 1977

Geneva Conventions of 1949

I. Convention on Wounded and Sick Members of the Armed Forces in the Field

II. Convention on Wounded, Sick and Shipwrecked at Sea

III. Convention on Prisoners of WarIV. Convention for the Protection of Civilian

Persons in Time of War

Geneva Additional Protocols of 1977

• Focus is on role of non-combatants

• Operations against non-military targets prohibited

• Non-combatants defined

• Indiscriminate military activity prohibited

• Variety of other actions prohibited

POW Status Criteria

• Art 4(A) of Geneva Convention on POWs:– Members of armed forces that are parties to a conflict– Members of militias or other forces belonging to one of

the parties, if they• Are commanded by some one responsible for

subordinates• Have a fixed sign recognizable from a distance• Carry arms openly• Conduct operations in accordance with the laws and

customs of war

Current U.S. Policy Toward Prisoners of War

• How are current POWs treated?

• Afghanistan: classified as “detainees of war” or “unlawful combatants”

• Iraq: captured Iraqis are being treated as POWs

Are they POWs?

NO• The forces in

Afghanistan failed to fulfil the requirements

• Rumsfeld: The detainees are “committed terrorists” and therefore not entitled to POW status

YES• The Conventions don’t

require fulfilment of the four criteria in a particular way – therefore, they are POWs

• POW status does not depend on the grace of the winning belligerent

Determination of POW status

• Article 5: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

• Admin response: This is a new war, and the old rules can’t apply exactly.

Military Commissions?

• Long detentions a “security necessity”?• Detainees can challenge detainment in U.S.

Courts (Hamdi v. Rumsfeld & Rasul v. Bush - 2004)

• Detainee Treatment Act (Dec 2005)• Hamdan v Rumsfeld (June 2006)• What’s to become of the detainees?