INTERNATIONAL HUMAN RIGHTS LAW

Transcription

1 INTERNATIONAL HUMAN RIGHTS LAW Nuremburg tried for Crimes of aggression Jus Ad Bellum- determining when it is lawful to resort to force War is Outlawed War is outlawed by the United Nations. Article 2.4 of the UN Charter states nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Exceptions UN Security Council Resolution (Art 42) (justified Korean war) if Threats to international peace and security. Self Defense (Art 51) "Nothing in the present Charter shall impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations." 1 1) Purpose- must be defensive 2) Response to Armed Attack- is it, and is it sufficiently grave. 3) Against Responsible Party- Wall case says if no State is responsible there is no right to self defense. 4) Necessity and Proportionality- could they have achieved their goals some narrower way? Proportional including secondary effects? Caroline Doctrine: UK not justified in self D, no imminent danger to justify instant and overwhelming necessity and disproportional 5) Reporting Responsibility to Protect-moral imperative Mandate to Peacefully Resolution: The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. (Art 33) Alternatives to War Diplomacy, Sanctions, Money, ICJ ICJ decisions: Art 94 member parties undertake to comply. Art 96 refered from GA, apply int l conventions, int l custom, general principles of law by civilized nations, domestic precident State Territory, population, gov t, capacity to enter into int l relations Tanker War case- ICJ set very high standard of proof for responsible party, mining US warship, testimony of mine layers, caught in act and 2 eye witnesses observe path of missile. ICJ suggested Iran s guilt highly suggestive but not conclusive of their guilt. Also nothing to suggest Iranian platform was involved with attacks. (thus not necessary) Wetphalian Principles: 1) Sovereignty of states, territorial integrity 2) Legal equality of states 3) Principle of Non Intervention in internal affairs Can only take self defensive measures against another state- Wall case. R2P- NATO bombing Bosnia, no sec coun res, exceptional measure to prevent humanitarian catastrophe, maybe a narrow reading of 2.4, but pure humanitarian motives hard to find R2P not yet customary, noted in Convention on Genocide Humanitarian intervention a right, R2P a responsibility (not Sec Coun should be only source for intervention)

2 Genocide, Ethnic cleansing, war crimes, crimes against humanity (widespread, systematic, and committed as policy) 5 Criteria: 1) Violence must be serious/large scale, 2) Primary purpose must be to halt suffering 3) Military force is last resort, 4) Means must be proportional to ends sought 5) Reasonable prospect of success Should we legitimize more use of force (even for a good cause), maybe there are worse things than violating territorial integrity. UN Declarations of Principles of Int l Law res 2625 Duty to refrain from threat or use of force to violate int l boundaries Duty to refrain from reprisal Refrain from restricting self determination or freedom Refrain from organizing or encouraging irregular forces No state shall support subversive terrorist or violent overthrow Armed Conflict: Triggered by use of force in armed attack. Determined objectively, no declaration of war is required (CA 2), lack of declaration is not dispositive. (no precise definition, move away from formalism) Pros and Cons of Low and High Thresholds (today, w/ terrorism/covert ops less distinct) 2 Low Threshold forac-ihl going to apply, could apply anywhere High Threshold for AC- no chance of dualism, clear, policy law of war should not be different than law of peace, strong uniform human rights laws apply Armed Conflict: IAC- requires resort to armed force or exchange of hostilities between States of some degree of intensity and duration (Tadic) it applies not just at time and place of hostilities (IHL apllies from initiation to peace or peaceful settlement. Do actions amount to AC? Armed Conflict- CA 3 going to apply. Nicaragua. (less grave use of force) NIAC- duration and intensity (here, protracted armed violence?) ICTY Tadic: [W]e find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within the State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory Red Crusader- wrong to fire warning shots because hostage taking by Scotish fisher did not constitute armed attack Corfu Channel- Laying mines, sinking 2 ships during a legitimate innocent passage, and previously firing on ships does not give rise to armed attack (immediacy not a factor) Define force by 1) damage done 2) means of attack 3) qualitative and quantitative (severity, immediacy, directness, invasiveness, measurability) De minimis use of force- OK, Israel used military to save hostages. Probabbly not a breach of 2.4 Need exchange for armed conflict- Yes. Nicaragua- ICJ shipping weapons does not amount to armed attack, thus mining harbor not self defense Bush Doctrine: adapt concept of imminent threat to act preemptively due to nature of conflict Israel attack Irq self preservation, mortal danger, to let enemy strike first fatal blow is suicide, but not immediate threat, Israel had not exhausted diplomatic means or shown Sec Council could not have intervened US in UN Charter Art 51 (Kuwait), Sec Council 678 all necessary means Sec Council 1373: states must cooperate to prevent and suppress terrorism. Need to take all reasonable precautions, if

3 Note: A little bit of an ex post facto determination (protracted and intensity) Threat of Force doesn t give rise to self defense until it reaches imminent attack Preemption: Less grave Use of Force- Red Crusader Corfu Channel, economic, political coercion, lite armed force Most grave armed attack gives rise to right of self defense Pro Bush Doctrine: war changed, fast and rapid immediate danger, weaponry more violent, inability to foresee threats, inherent vague, to be meaningful it may have to be preemptivve Anti Bush: slippery slope, hard subjective test, justifies any conflict In context of Art 51- goal is to prevent use of force, In Iraq Res 1441 no trigger, material breach of 687 Jus in Bello- conduct and application of force in war Clausewitz- rejection of limitations in war, each side goes to extreme, but accountability, reciprocity, moral superiority, and psychology for soldiers. St. Augustine- fair fighting strengthens peace Rationale Disciplines conduct Diminish corrosive moral effects of obligation to kill (need clear rules to distinguish sanctioned killing) Violating law detracts from mission. Not efficient. Can lead to greater resistance, less likely to surrender Jus in Bello- Controlled by GC (1949), AP I&II (1973), Hague (means and method US not a part of- land mines 98, cluster munitions, icc rome Human rights no US- int. conv economic and social deve, rights child, us is genocide, convention against torture Lex Specialis, but some rights are non dirigible plus some UN Decl of Human Rights have become CIL Grotius- means not unlimited, just war Vattel- pragmatic concern backlash Lieber Code Much of CIL has become IHL, CIL binds non- State actors and nonsignatorie US is a Specially Affected State? more active in law and operation of war; US views should get more weight in the determination of customary international law. International Law: Since it lacks binding force, it cannot control. 1) Not really law- Bolton, but O Connel suggest it does control behavior 2) IHL not viable rules,often fails, although others assert that because there are few wars that normatively it has stopped wars 4) Charter has lost effect because not followed. Hague- Means and methods Alternatives to War Diplomacy, Sanctions, Money, ICJ When there is a gap, look to Martens Clause API: 1.2 3

4 Principles: Distinction, Limitation, Proportionality, Mil Necessity, Humane Treatment CA3- applies to 1) enemy civilians in territory, 2) those in occupied territories 3) states must enforce gravebreaches Hors de combat- cannot target Targeting as a justifiable use of force (distinction, limitation, necessity, proportionality) Note: also precautions in attack and reciprocal responsibility Distinction (API 48) between civilians and combatants, civilian and military objects AP I 50- a civilian is any person who is not a combatant (presumed civilian) and protected from attack unless they DPH AP1 50 (3) AP I 51 Indiscriminate attacks prohibited (AP I, 57- must take precautions to distinguish- collateral damage assessments) AP I 52 shall be strictly limited to military activities; civilian objected protected (53/54 cultural objects and objects indispensible to the civilian population) Military Objective 4 Military Objectives: Combatants, and those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage--are permissible objects of attack (including bombardment). (API 52) Military objectives include, for example, factories producing munitions and military

5 supplies, military camps, warehouses storing munitions and military supplies, ports and railroads being used for the transportation of military supplies, and other places that are for the accommodation of troops or the support of military operations. Pursuant to the provisions of Article 25, HR, however, cities, towns, villages, dwellings, or buildings which may be classified as military objectives, but which are undefended (para. 39b), are not permissible objects of attack. FM 27-10, para. 40c, change 1. Hague comments: Art. 23. Destruction of enemy property only as imperatively demanded by the necessities of war. Hague Art. 25. Attack of undefended dwellings or buildings is prohibited Hague Art. 27 Protect, so far as possible, buildings dedicated to art, science, religion, charity, hospitals; provided they are not being used for military purpose [with a responsibility to mark] Limitation (API 35) means and methods not unlimited. Must prevent needless suffering. Necessity (API 52)- only against military objectives for legitimate purpose Hague forbids belligerents to destroy or seize the enemy s property, unless such destruction or seizure be imperatively demanded by the necessities of war. Hague Convention No. IV Respecting the Laws and Customs of War on Land Art. 23(g) Propoportionality (API 51)- don t inflict harm excessive in relation to the concrete and direct military advantage 5