Law of Armed Conflict: Class #2 - PowerPoint Presentation

Slide1

Law of Armed Conflict: Class #2International ConflictsSlide2

Jus ad Bellum (Justice of War)

Regulates the decision to

go to war = 1st Class Governed by UN Charter + domestic lawJus in Bello (Justice in War)Regulates the actions of a State in war Means and Methods; Targeting and Treatment Governed by Hague and Geneva conventionsJus post Bellum (Justice after War)Post conflict resolution – defining a just peace Emerging body of ideas

3 Types of Laws of WarSlide3

Introduction to International Law

Membership “dues” normally require:

Defined TerritoryPermanent PopulationRecognized GovernmentCapacity to Conduct International Relations

Who are

members of the club? Answer = StatesSlide4

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 lawSlide5

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.Slide6

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 ObjectorCan’t object to Jus Cogens

universally accepted norms

genocide, slave trade, torture

LOAC

International

Agreements/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)Slide7

S. v PetaneSlide8

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 areasCountry X has been engaged in a “mortal combat” with “insurgents” for over five yearsCountry 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 weaponsSlide9

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 Journalist

Jan 2012Slide10

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.Slide11

Contrasting Int. Human Rights Law (IHRL)

vs. LOAC

Obligations on individualsSpecific principlesEnunciates individual and state responsibilities No state derogationProtections linked to nationalities or specific statuses (like combatants)

vs

IHRL

LOAC

Citizens hold individual rights that their state respects

General principles

Enunciates state responsibilities

Allows for state derogation

Rights given to allSlide12
Slide13

Treaty-Based Law of War

Key LOW Treaties:

Hague IV: 43 partiesGeneva Conventions (I-IV): 194 partiesUN 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 partyThe LOW (governing IAC) is Highly CodifiedSlide14

The Hague

Everyone

has to be a “contracting party” them to apply to anyoneSlide15

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 25Cf. 1929 Geneva ConventionsSlide16

Classification and Triggers

Issue: What law applies?

“Right type of conflict?” Four possibilities: International (interstate) armed conflictWars of national liberation in pursuit of the right of self-determinationNon-international (internal) armed conflictPeacetime disturbances (riots, banditry…)BackgroundSlide17
Slide18
Slide19

Non-International Armed Conflict

Common Article 3

State v. Insurgent or Non-StateOnly 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?Slide20

Classification and Triggers

Issue: What law applies?

“Right type of conflict?” Four possibilities: International (interstate) armed conflictWars of national liberation in pursuit of the right of self-determinationNon-international (internal) armed conflictPeacetime disturbances (riots, banditry…)Slide21