Law of Armed Conflict: Class #2International Conflicts

• Jus ad Bellum (Justice of War)– Regulates the decision to go to war = 1st Class

Governed by UN Charter + domestic law• Jus in Bello (Justice in War)– Regulates the actions of a State in war

Means and Methods; Targeting and TreatmentGoverned by Hague and Geneva conventions

• Jus post Bellum (Justice after War)– Post conflict resolution – defining a just peace

Emerging body of ideas

3 Types of Laws of War

Introduction to International Law

Membership “dues” normally require:

1.Defined Territory2.Permanent Population3.Recognized Government4.Capacity to Conduct International Relations

• Who are members of the club? Answer = States

Once a Member, you get recognized “rights”

• Sovereignty over territory and authority over its nationals

• Status as a legal entity (acquire property, make contracts, enter into agreements, join international organizations, etc.)

• Can join with other States to make international law

But, membership comes at a cost

• Inherent Tension: Sovereignty is the ultimate benefit of statehood. Inherent to sovereignty is freedom from outside interference. International law, however, seeks to regulate State conduct. States “trade” aspects of sovereignty in order to reap the benefits of the international legal system.

Principle Sources of LOAC

• Consistent state practice + sense of legal obligation (opinio juris)

• Don’t need 100% agreement

• Still Binding on all states unless Persistent Objector

• Can’t object to Jus Cogens– universally accepted norms– genocide, slave trade, torture

LOACInternationalAgreements/Treaties

Customary International Law

• Treaties:• Hague (Means and

Methods of war)• Geneva (Respect and

Protect victims of war)• Additional Protocols I

and II (blurring of Hague and Geneva)

S. v Petane

Scenario

Over 48,000 people have been killed in Country X as a result of fighting and violence; over 5,300 have been kidnapped

The insurgents, with numbers estimated at 100,000, are establishing their own form of government in sections of

Country X, levying taxes against the people, and regulating traffic in certain areas

Country X has been engaged in a “mortal combat” with “insurgents” for over five years

Country X is battling the insurgents with police and with over 40,000 members of its armed forces – the US has been asked

to send in advisors to assist

The insurgents often wear uniforms and fight with military-grade weapons

Where is this?

Is this armed conflict? If so, what type of conflict is this? International? Non-International?

What laws apply? What protections apply for the government forces? What protections apply for the

members of the drug cartels?

Mexico

“It’s a real war… We’re not faking. ”- Major of Tijuana

“There really is an armed conflict in Mexico. There really is a war.”

-Mexico City JournalistJan 2012

Ripped from the Headlines…01/15/12: The Miami Herald reports that Russia's Foreign Ministry has accused the US of breaking international law by keeping terror suspects in indefinite custody without trial at Guantanamo Bay. The ministry says the prison and authorizing indefinite detention represents a "flagrant violation of international law“ and contradicts US obligations under international humanitarian law.

01/17/12: The Washington Times published an article entitled: “Bureaucracy Killing U.S. Troops In Afghanistan: Political Correctness Keep Army Medevac Helicopters Grounded” arguing that Army regulations requiring that Medevac helicopters abide by the Geneva Convention should not be followed in our current conflict in Afghanistan.

Contrasting Int. Human Rights Law (IHRL) vs. LOAC

• Obligations on individuals• Specific principles• Enunciates individual and

state responsibilities • No state derogation• Protections linked to

nationalities or specific statuses (like combatants)

vsIHRL LOAC• Citizens hold individual

rights that their state respects

• General principles• Enunciates state

responsibilities• Allows for state

derogation• Rights given to all

Treaty-Based Law of War

• Key LOW Treaties: – Hague IV: 43 parties– Geneva Conventions (I-IV): 194 parties– UN Charter: 192 parties– *Additional Protocol I: 170 parties– *Additional Protocol II: 165 parties– *Ottawa (landmines): 156 parties– *Rome Statute (ICC): 114 parties– *Dublin (cluster bombs): 49 parties

*US not a party

The LOW (governing IAC) is Highly Codified

The Hague

• Everyone has to be a “contracting party” them to apply to anyone

Common Article 2

“If, in time of war, a belligerent is not a party to the Convention, its provisions shall, nevertheless, be binding as between all the belligerents who are parties

~ Article 25

Cf. 1929 Geneva Conventions

Classification and Triggers

• Issue: What law applies? – “Right type of conflict?”

– Four possibilities: • International (interstate) armed conflict• Wars of national liberation in pursuit of the right of

self-determination• Non-international (internal) armed conflict• Peacetime disturbances (riots, banditry…)

Background

Non-International Armed Conflict

• Common Article 3• State v. Insurgent or

Non-State• Only CA 3 applies• Not full body of GC• “Mini-convention”• No Prisoners of War• No Combatant Privilege

• Domestic Law applies

Pictet: Armed Conflict:1) organized military force?2) subject to some authority?3) control territory?4) Respect the law of war?4) Does the State respond with regular armed forces?

Classification and Triggers

• Issue: What law applies? – “Right type of conflict?”

– Four possibilities: • International (interstate) armed conflict

•Wars of national liberation in pursuit of the right of self-determination• Non-international (internal) armed conflict• Peacetime disturbances (riots, banditry…)