Law of Armed Conflict: Class #2 International Conflicts

1. Law of Armed Conflict: Class #2International Conflicts

2. 3 Types of Laws of War • 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 Treatment Governed by Hague and Geneva conventions • Jus post Bellum (Justice after War) • Post conflict resolution – defining a just peace Emerging body of ideas

3. Introduction to International Law • Who are members of the club? Answer = States • Membership “dues” normally require: • Defined Territory • Permanent Population • Recognized Government • Capacity to Conduct International Relations

4. 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

5. 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.

6. Principle Sources of LOAC International Agreements/Treaties Customary International Law LOAC • Consistent state practice + sense of legal obligation (opiniojuris) • 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 • Treaties: • Hague (Means and Methods of war) • Geneva (Respect and Protect victims of war) • Additional Protocols I and II (blurring of Hague and Geneva)

7. S. v Petane

8. Scenario Country X has been engaged in a “mortal combat” with “insurgents” for over five years 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 The insurgents often wear uniforms and fight with military-grade weapons 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

9. Where is this? Mexico Is this armed conflict? If so, what type of conflict is this? International? Non-International? • “There really is an armed conflict in Mexico. There really is a war.” • Mexico City Journalist • Jan 2012 “It’s a real war… We’re not faking. ” - Major of Tijuana What laws apply? What protections apply for the government forces? What protections apply for the members of the drug cartels?

10. 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. Ripped from the Headlines…

11. Contrasting Int. Human Rights Law (IHRL) vs. LOAC vs IHRL LOAC • Obligations on individuals • Specific principles • Enunciates individual and state responsibilities • No state derogation • Protections linked to nationalities or specific statuses (like combatants) • Citizens hold individual rights that their state respects • General principles • Enunciates state responsibilities • Allows for state derogation • Rights given to all

13. Treaty-Based Law of War The LOW (governing IAC) is Highly Codified • 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

14. The Hague • Everyone has to be a “contracting party” them to apply to anyone

15. Common Article 2 Cf. 1929 Geneva Conventions “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

16. Classification and Triggers Background • 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…)

19. 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?

20. 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…)