Public International Law - Week 5 PDF

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International Humanitarian Law And War Crimes...

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Week 5 International Humanitarian Law And War Crimes Learning Outcomes • • • •

Gain an understanding of the principles of international humanitarian law (IHL); Learn the provisions of the Geneva Conventions and the Additional Protocols; Understand the dynamics between internal and international armed conflicts and their places under IHL; and Gain an understanding of the general principles of war crimes under international law, including the type, nature of specific crimes, and the prosecution thereof.

International Humanitarian Law Often referred to as ‘laws of war’, ‘international humanitarian law’ (IHL), or ‘law of armed conflict’ (LOAC) – often used interchangeably. These laws were developed to regulate the conduct of combatants in armed conflict and to minimize its impact on the civilian population. The term, ‘IHL’ has gained wide use by academics and civil society because of the need to incorporate ‘humanitarian’ aspects in the rules. Militaries tend to use LOAC which reflects their objectives and perspectives. What is IHL? • • •

Distinguish jus ad bellum and jus in bello: IHL is not the same as the law on the ‘use of force’ (which is primarily concerned with jus ad bellum. That is, the rules governing the decision to engage in force. IHL is primarily concerned with the rules jus in bello which relates to the conduct of war once hostilities have commenced.

According to the International Committee of the Red Cross (ICRC), IHL relates to : International rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict. Definition of International Humanitarian Law IHL can be defined as the branch of international law limiting the use of violence in armed conflicts by: • sparing those who do not or no longer directly participate in hostilities;

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restricting it to the amount necessary to achieve the aim of the conflict, which – independently of the causes fought for – can only be to weaken the military potential of the enemy.

Basic Principles of IHL: • • • • •

the distinction between civilians and combatants, the prohibition to attack those hors de combat, the prohibition to inflict unnecessary suffering, the principle of necessity, and the principle of proportionality.

What are the limitations to IHL? • • • • •

it does not prohibit the use of violence; it cannot protect all those affected by an armed conflict; it makes no distinction based on the purpose of the conflict; it does not bar a party from overcoming the enemy; it presupposes that the parties to an armed conflict have rational aims and that those aims as such do not contradict IHL.

Origins of International Humanitarian Law: The first caliph of Abu Bakr (c632) stipulated: The blood of women, children and old people shall not stain your victory. Do not destroy a palm tree, not burn houses and cornfields and do not cut any fruitful tree. You must not slay any flock or herds save for your own subsistence. IHL and the avoidance of ‘reciprocity’. •

Aside from the moral arguments against killing, there are practical reasons why IHL is necessary, which is to reduce deaths on your own side due to ‘reciprocity’. BVA Roling – former judge of the Tokyo Trials: killing and devastation should be prohibited if only on military grounds. It merely increases hostility and hampers the willingness to surrender.

Henry Dunant and the International Committee of the Red Cross Who was Henry Dunant, and what was his claim to fame? Henry Dunant (born Jean-Henri Dunant; 8 May 1828 – 30 October 1910), also known as Henri Dunant, was a Swiss businessman and social activist, the founder of the Red Cross, and the first recipient of the Nobel Peace Prize. The 1864 Geneva Convention was based on Dunant's ideas. In 1901 he received the first Nobel Peace Prize together with Frédéric Passy, making Dunant the first Swiss Nobel laureate.

During a business trip in 1859, Dunant was witness to the aftermath of the Battle of Solferino in modern-day Italy. He recorded his memories and experiences in the book A Memory of Solferino which inspired the creation of the International Committee of the Red Cross (ICRC) in 1863. Early international conferences and conventions on IHL: • • • •

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1856 Paris Declaration adopted which covered maritime warfare; 1899, the 1st Hague Peace Conference took place and resulted in further conventions covering land and maritime war. 1904 Hague Convention on hospital ships was adopted. 1907 Hague Peace Conference resulted in the adoption of thirteen conventions and one declaration ranging from regulating the opening of hostilities, to the laying of automatic submarine mines, and the Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons. 1954 Hague Convention for the Protection of Cultural Property. 1980 saw the UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, Convention on the Use of Chemical Weapons etc.

IHL is separated into two distinct, but complementary components: 1. The law regarding the protection for those taking part in conflict, including the use weapons of war; and 2. The law regarding civilians or aka non-combatants. 1949 Geneva Conventions: •

1st Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field";

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2nd Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea";

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3rd Geneva Convention "relative to the Treatment of Prisoners of War";

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4th Geneva Convention "relative to the Protection of Civilian Persons in Time of War"

Geneva Protocols: • • •

Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.

The Geneva Convention and Common Articles

Common articles: 1949 convention contain approx. 20 articles known as ‘common articles’ that are ‘common to all four Conventions. They are significant and important and are therefore worthy of reproduction in each convention. For example: Common Articles 2 and 3… Common Article 2: When does an ‘armed conflict’ occur? See, Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Interlocutory Appeal) Case No. IT94-1-AR72, 2 October 1995 at page 70: 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 a State. Common Article 3 – conflicts not of an international character • •

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Article 3 is a significant innovation – nation states will not be able to evade culpability. the 1949 framers determined that there must be some minimal international humanitarian protections for the victims of internal armed conflicts occurring within one state borders and not involving a second nation. Obvious problems of enforceability exist with an external regulatory regime such as article 3 of the GC. Who is going to enforce it? Allegations of Violations of sovereignty are often raised.

Other Common Articles: • •

Common Article 49/50/129/146 – Enacting Domestic Legislation for Grave Breaches Common Article 50/51/130/147 – Grave Breaches • What constitutes ‘grave breaches’? • See, The Trial of Heinz Hagendorf, United States Intermediate Military Government Court at Dachau, Germany, August 8-9, 1946, pages 146-8. Pretended to be a red cross ambo and was shooting at enemy. Held not to be a grave breach. Must look at brutality of act.

Problems with IHL/ LOAC •

Can LOAC/IHL actually end or lessen the frequency of battlefield crimes?

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Peloponnesian War between Athens and Sparta in 380BC: Thucydides – “the strong do what they can and the weak suffer what they must”.

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This is true to all of those who have escaped war crimes throughout history and have never been brought to justice: eg, Joseph Mengele, Idi Amin, Stalin, etc.

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“If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps … at the vanishing point of international law” Geoffrey Best, Humanity in Warfare (1980) 12.

War Crimes – Article 5 of the Rome Statute Article 5 Crimes within the jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression Meaning of War Crimes – see Article 8 of the Rome Statute (ICC Statute) Article 8(1) …as part of a plan or policy or as part of a large-scale commission of such crimes; Article 8(2)(a)(i)-(viii) Grave breaches of the Geneva Conventions: eg wilful killing, torture, biological experiments, unjustified destruction of property, hostage taking etc; Article 8(2)(b)(i)-(xxvi) Other serious violations of the laws and customs applicable in international armed conflict: eg directing attacks against civilians, attacks against peacekeepers, attacking property that is non-military related, killing a wounded combatant, improper use of flag of truce, declaring no quarter to be given, pillaging towns, using poisonous weapons, expanding bullets, committing rape and sexual slavery etc. Article 8(2)(c)(i)-(iv) armed conflict not of an international character… violations of GC common article 3 which are acts committed against non-combatants and hors de combat… Article 8(2)(e)(i)-(xii) Other serious violations of the laws and customs in armed conflicts not of an international character: eg directing attacks against civilians, buildings, peacekeepers, pillaging, rape, sexual slavery etc. NOTE: Articles 8(2)(d) and (f) that require the existence of ‘armed conflict’ as opposed to ‘internal disturbances’ such as ‘riots, isolated, sporadic events…’ Prosecution of breaches of IHL (War Crimes): The Required Nexus • •

connection between the conduct and the ongoing conflict is required. This is called the ‘nexus’ between the conduct and the conflict. That is, there needs to be some connection between the two.

• See: • •

Whether a nexus exists will determine whether the accused will face prosecution for a war crime, or prosecution for domestic law. US v John D Potter, 39 CMR 791 (NBR, 1968) – applied “but for” test Staff Sergeant Frank Ronghi, a US Army 8/2nd Airborne Division – armed conflict had ended when the offence occurred and had nothing to do with the armed conflict.

Specific War Crimes: Some Examples… • • • • • • • • •

Rape and other Gender Crimes; Escaping Prisoners of War; Suicide Attacks; Firing on Mosques; Hostages; Human Shields; Burning bodies; Burying the enemy alive; Nuclear Weapons (?)

Rape and other Gender Crimes • •

Gender crimes, including rape and other forms of sexual violence, were long ignored in LOAC/IHL and were not vigorously prosecuted. The Rome Statute of the ICC declares it a war crime: Article 8(2)(b)(xxii)

Escaping Prisoners of War: • •

It is not a war crime to shoot and kill escaping POWs. POW status is provided under Common Article 2 and specifically, GENEVA CONVENTION III, RELATIVE TO THE TREATMENT OF PRISONERS OF WAR, article 42: The use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances.

Suicide Attacks • • • •

Unlawful where attack targets civilians and even military targets – unlawful along similar lines of perfidy. What violations are committed depends on the bomber’s target and circumstances of the bombing. Obvious problems exist for prosecuting a successful bomber, but bomber’s superior may be indicted for war crimes upon ‘command responsibility’ doctrine. Could make an argument that if target was military, proportionate to the killing of combatants and no issue of perfidy, then suicide attacks could/ might be lawful.

Firing on Mosques:

See, Geneva Convention, Protocol 1 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977: Article 53 — Protection of cultural objects and of places of worship Without prejudice to the provisions of the Hague Convention for the Pro- tection of Cultural Property in the Event of Armed Con ict of 14 May 1954, and of other relevant international instruments, it is prohibited: a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; b) to use such objects in support of the military effort; c) to make such objects the object of reprisals. However, refer to article 53(b) to use such objects in support of military effort, so if the enemy were hiding in such places, then would be ok to use force even if destruction of object resulted. Hostages  Taking of hostages is prohibited by LOAC/IHL and violations of the prohibition constitute a ‘grave breach’;  see Geneva Convention common Article 3(I)(a), and Convention IV article 34. Convention IC Article 47 specifies that the taking of hostages is a grave breach. Also Additional Protocol I, Art 75.2 (C), Protocol II, Article 4.2(c) and the Rome Statute. Human Shields  Prohibited under international law to use civilians as human shields.  Geneva Convention Article 57.7 of Additional Protocol I Burning corpses  Requirement to respect those who have died.  Common article 2 conflict, Additional Protocol I, Article 34.1 Burying the enemy alive 1991 US and Allied forces during ‘hundred-hour war’ as part of the war against Iraq buried many Iraqi soldiers who were in their trenches. The US used special sand plows with cover fire from Bradley Fighting Vehicles. Was this a war crime? Nuclear Weapons  Not unlawful per se, although indiscriminate use on civilian population may not be lawful. See, Shimoda et al v State, Tokyo District Court, December 7, 1963, 355 Hanrei Jiho [Decision Bulletin] 17, 8 Japanese Annual of International Law 231 (1964). Bombings found to be unlawful however surrender document ment that they had no recourse in the courts....