Global Human Rights Challenges and Solutions THE LAW OF WAR

Global Human Rights Challenges and Solutions THE LAW OF WAR

The State of Nature State vs. State https://commons.wikimedia.org/wiki/category:thirty_years_war

Let Us Beat Swords into Plowshares, a sculpture by Evgeniy Vuchetich, given by the Soviet Union to the United Nations in 1959 (Wikicommons)

United Nations and armed conflict preventing war Article 2(4) UN Charter All Members 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.

Settlement of disputes under UN system Article 33 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. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

First, try the International Court of Justice Article 36 The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

Security Council decides whether there is a threat Article 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Security Council Sanctions Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Security Council control of armed force Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Self-defence Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of selfdefence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

What could be the problem? Politics How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it. (para. 1) Adam Smith, The Theory of Moral Sentiments (1759) Martens Clause (1899) " Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. "

What happened in Korean War? NK invades SK in 1950 Resolution 83 (1950) Security Council determines that this is a breach of the peace and Recommends [not authorizes ] that the members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area China = Republic of China (PRC added in 1971) USSR was absent for vote Vote 7:1 (Yugoslavia against) Resolution 84 puts US in charge

What is happening in Syria (re Security Council)? Vetoes by permanent members Eg. April 10 Russia has vetoed a resolution on Syria drafted by the United States on the latest apparent chemical weapons attack Attack by France US and UK April 14 Security Council rejected a Russian resolution condemning airstrikes carried out hours earlier. Russia, China and Bolivia voted for the resolution, but eight members voted against and four abstained UN secretary general, António Guterres, condemned chemical weapons and expressed concern the Security Council had been unable to resolve the Syrian conflict, which he called the most serious threat to international peace and security of our times

What is the problem?

Law of War International Humanitarian Law War will continue 4 basic principles of the law of war Distinction parties to the conflict must always make a distinction between the civilian population/objects and combatants/military objectives, directing efforts only against military Proportionality when pursuing military objectives, cannot have civilian casualties that are excessive to the military benefit Military Necessity injury to enemy personnel cannot be more than is absolutely necessary Unnecessary Suffering/humanity: cannot use weapons and tactics that cause unnecessary suffering or damage

What are the Geneva Conventions? Henri Dunant 1859 saw 40,000 deaths in Battle of Solforino (Franco- Austrian) and started movement that became the International Committee of the Red Cross and the First Geneva convention of 1864 dealing with combatants The Four Geneva Conventions in force today were adopted in 1949, and each Convention is designed to provide protection for a category of protected persons such as civilians and medical staff, or those individuals who are no longer part of the conflict such as the wounded, sick, shipwrecked and prisoners of war

The Geneva Conventions Most of the Conventions apply just to international armed conflicts (State v. State) but Common Article 3 is the first set of rules of international law applicable to non-international conflicts (States v. domestic armed forces)

The Conventions develop The Geneva Conventions are supplemented by the 2 Additional Protocols (1977) and a third in 2005: Protocol I increases the protections for victims of international conflict and expands definition of that conflict to cover peoples combatting colonial domination, foreign occupation or racist regimes in the exercise of their right to self-determination Protocol II applies to non-international armed conflicts (State v. non- State armed forces within territory of State) Protocol III (2005) adds the red crystal to red cross/red crescent emblem

Geneva Conventions example of content Article 51 of Protocol I -- Protection of the civilian population (International Armed Conflict) 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited 3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities 4. Indiscriminate attacks are prohibited: not directed at military objective, employ undirectable weapons 5. Includes bombardment of area scattered with both military and civilian targets, attack where excessive civilian damage in relation to military value can be expected 6. Civilian reprisals prohibited 7. Civilians cannot be used as human shields

Green-parties to all Blue-parties to all but PIII Purple-parties to all but PII Yellow-parties to all but PII and III Gold-party to GCs and PIII Red-parties only to GCs WikiCommons open license

Canadian Armed Forces Manual on the Law of Armed Conflict The aim of this chapter is to set out the purpose, components and sources the Law of Armed Conflict (LOAC). There are legitimate reasons for imposing rules on the conduct of armed conflict. In fact, the concept of imposing rules on the conduct of armed conflict dates back to ancient society. Although a complete overview of the history of the LOAC is not included, this chapter allows users of this guide to understand the reasoning behind the adoption of these rules as well as their origin. https://www.fichl.org/fileadmin/_migrated/content_uploads/canadia n_loac_manual_2001_english.pdf

Enforcement Willingness of States Protocol 1, art. 5(1) It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including ' inter alia ' the designation and acceptance of those Powers, in accordance with the following paragraphs. Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict. Red Cross is the alternate and it does the work International courts from Nuremberg to ICC enforce

Enough? Other solutions?

Vietnam US carpet bombed North Vietnam

Kosovo Yugoslavia was party to Protocol I with stricter protection for civilians than the Geneva Conventions US the only NATO member to act in Kosovo actions contra ethnic cleansing not to have ratified Protocol I, so not bound Canadian pilots not assigned as wingmen to US planes because could not take some chances eg. anti-aircraft fire coming from a school or hospital ICTY Prosecutor did not investigate NATO issues

Iraq SCUD missiles against Israel 1991 Modified for distance so less accurate, aimed at Tel Aviv not military targets (indiscriminate)

Iraq Fallujah, Iraq (2004), 4 US contractors killed and mutilated Marines fought their way in with hundreds of civilian casualties World opinion caused pullout Later Marines attack again using howitzers and 2000 lb. bombs, fuel air explosives, most houses hit by US rounds (indiscriminate) B-52 attacks on Basra 1991 directed at Iraqi Republican Guard, but Red Cross and Human Rights Watch disagree

Control of weaponry In 2002, Canadians in Afghanistan ordered by US commander to lay anti-personnel landmines around their camp Canadians refused based on the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti- Personnel Mines and on their Destruction: never under any circumstances to use anti-personnel landmines US laid the mines because not Party to the Convention Canadian forces in Kabul and Kandahar have benefited from the protection provided by anti-personnel landmines laid by Soviet forces during the 1980s but argument no violation of Convention disingenuous because of the word use

Prohibitions on weapons Poisoned or barbed arrows, concealed weapon, fire-tipped weapons, to prevent unnecessary suffering, perfidy, success unknown Law of Manu 1500-200 BCE Crossbow outlawed- 1097 Lateran Synod,, 1139 2 nd Lateran Council, failed Firearms-Tokugawa Shogunate 1607-1867, successful Firearm controls 1523-1543, King Henry VIII, short-lived Chemical and biological weapons, 1925 Geneva Gas and Bacteriological Protocol, largely successful restraining use in WWII Weapons producing non-x-ray detectable fragments, Convention on Certain Conventional Weapons, Protocol 1, successful

Drones Battlefield use between belligerent States probably lawful, discriminating against military targets new weapons Laws of war say civilians should be immune from attack, except those individuals directly participating in the hostilities : probably includes not only persons currently engaged in fighting, but also individuals actively planning or directing future military operations Drone hit on military objective to be lawful, distinguish between combatants and civilians Must have proportionate relationship between loss of civilian life or property and military objective. (Laws of war prohibits targeting civilians, indiscriminate or cause disproportionate civilian loss.) Use against individual terrorists questionable in this way? Seem to be justified as part of war against Al-Quaeda and associates Non-international armed conflict spread across many countries? US argues self-defence

Common Article 3 (1949) In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Protocol II (1977) non-international armed conflict Article 13 -- Protection of the civilian population 1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities. Article 14 -- Protection of objects indispensable to the survival of the civilian population Article 15 -- Protection of works and installations containing dangerous forces Article 16 -- Protection of cultural objects and of places of worship Article 17 -- Prohibition of forced movement of civilians: 1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand Article 18 -- Relief societies and relief actions

Terrorist groups The additional Protocols to the Geneva Conventions also prohibit acts aimed at spreading terror among the civilian population. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited (Protocol I, art. 51(2) and Protocol II, 13(2)).

ISIS How does the law bind armed groups that are not States that are party to the Geneva Conventions? Common art. 3 Customary International Humanitarian Law? Iraq and Syria not subject to ICC

Re-taking Mosul Mosul (Amnesty International report) Coalition and ISIS bound by Common Article 3 ISIS used human shields, took reprisals against 100s of residents who fled Coalition and Iraqi forces used Improvised Rocket Assisted Munitions (IRAMs) with crude targeting capabilities; UNHCHR observed Iraqis took revenge against ISIS members and collaborators Coalition and Iraqi leaflets warning of airstrikes not sufficient warning Offensive displaced about 1 M people extreme lack of amenities, killed 1000s

Until then Martens Clause (1899) " Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. "

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