This means that in rare instances where a State has historically consistently objected to a particular practice or custom of conflict, the principle of customary law forbidding that practice is not considered legally binding for that particular State with regard to that specific practice.[17]. This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. Specifically, it required POWs to give only their names, ranks, and serial numbers to their captors. military commissions are suspended pending the government's appeal in Hamdan v. a. http://mro.massey.ac.nz/xmlui/handle/10179/6984, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, https://casebook.icrc.org/glossary/non-international-armed-conflict, https://www.open.edu/openlearn/society-politics-law/the-use-force-international-law/content-section-2.1.3, http://www.redcross.int/EN/mag/magazine2005_2/24-25.htm, https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf, https://www.soc.mil/ARSOF_History/articles/v12n2_cjsotf_page_1.html, https://digitalample.com/the-clearest-9-11-world-trade-center-footage-on-the-internet/, https://www.wired.com/2012/01/afghan-air-war/, https://www.nato.int/cps/en/natohq/topics_52060.htm, https://www.pbs.org/newshour/world/saddam-statue, https://hiregi.com/2018/07/14/how-many-operation-iraqi-freedom-oif-campaigns-were-there/, http://www.defenselink.mil/home/features/Detainee_Affairs/, https://www.amazon.com/Spymasters-CIA-Crosshairs-Mandy-Patinkin/dp/B018T4TNHY, https://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html, https://www.npr.org/templates/story/story.php?storyId=91425261, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, https://www.businessinsider.com/global-terrorist-attacks-past-20-years-in-maps-2017-5?r=US&IR=T, #23 Caveat Chaos in Kosovo: Divided Allies & Fettered Forces in NATOs KFOR Operation during the 2004 Kosovo Riots, #25 Laws of War Brief (Part 2): The Protections, Rights & Obligations of Civilian Non-Combatants & Military Combatants under the LOAC, NATO APPENDIX 1: The Ukraine NATO Membership & Nuclear Missile Crisis (Part 1), WAR ON TERROR: ISAF APPENDIX 10(b) List of National Caveats Imposed on Armed Forces by the 8 NATO Lead Nations of ISAF Regional Commandsin Afghanistan, 2002-2012, WAR ON TERROR: OEF APPENDIX List of Known National Caveats Imposed by OEF TCNs on National Armed Forces Deployed to Afghanistan, 2001-2012, WAR ON TERROR: Triumphs after Trials Progress Report, 2001-2021, WAR ON TERROR: ISAF APPENDIX 10(a) Table Displaying Caveat-Free or Caveat-Fettered Forces of the 8 NATO/ISAF Lead Nations during 6 Crucial COIN Years, 2007-2012, #40 In Videos: An International, Multilateral, Political & Strategic Failure The Fall of Kabul & the Lamentable Loss of the Anti-Terror & Democratic Republic of Afghanistan, 2001-2021, WAR ON TERROR: ISAF APPENDIX 9 Table Displaying Caveats Imposed by ISAF TCNs on Major and Minor Combat Manoeuvre Units (CMUs), 2006-2012, #36 The Art of Government: Military Servants, Political Masters, The People & the Purpose of the Military, WAR ON TERROR: ISAF APPENDIX 8(b) List of Known National Caveats Imposed on ISAF Major Force Units by TCNs in Afghanistan, 2001-2012, WAR ON TERROR: ISAF APPENDIX 8(a) Table Displaying Known ISAF Major Force Units Constrained by TCNs with National Caveats, 2001-2012, #39 Farewell Fallen Friend: Democratic Afghan Republic, 2001-2021, WAR ON TERROR: ISAF APPENDIX 7(b) List of Known National Caveats by Category Imposed by ISAF TCNs on National Forces, December 2001- December 2012, NATO OAP Caveats in Gulf of Aden (Somalia), Theory: Counter-Insurgency (COIN) Warfare, Theory: Mission Command (Delegation & Trust), UN MINUSCA Caveats in the Central African Republic. 5, 7. Former President George W. Bush explains the rationale of his decision to adopt the enhanced interrogation techniques in his presidential memoir of his term from 2000-2008, stating: At my direction, Department of Justice and CIA lawyers conducted a careful legal review. In order to be a Non-International armed conflict, either: (1) a minimum level of intensity in the hostilities must be reached, e.g. Humane treatment includes: (Military Persons Exempt From Attack, pg. Article 3 of the Geneva Conventions covered, for the first time, situations of non-international armed conflicts. Geneva Convention - History The law is thereforequite simply your State's law. Customary IHL - Practice relating to rule 87 Humane Treatment During the course of this three-day rampage, the vast majority of KFOR military forces stood aside and took very little action to protect the lives of targeted civilian locals from the rioters, nor to prevent entire villages and city apartment blocks of homes from being set on fire, nor to safeguard significant objects of Serbian cultural heritage and worship from destruction including ancient churches and even cemeteries from perverse desecration and destruction during the riots. The intensive inspections program instituted after the [Gulf] war uncovered evidence that the Iraqis had, in fact, been considerably further along in developing nuclear weapons than U.S. intelligence had estimated before the warAs long as the inspections effort continued and the sanctions were strictly enforced, his opportunities to resume the programs for weapons of mass destruction would be very limited. disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature, e.g. Fresh conventions are constantly under negotiation and in the absence of such agreements States are bound by customary international law which is always evolvingThese observations are as applicable today as they were then. It renders the convicts or accused of such crimes to the jurisdiction of all signatory States, regardless of their nationality or territoriality of their crime. The lack of global consensus on these important definitions has meant that, while on the one hand most nations on the world stage absolutely oppose and condemn torture and inhumane treatment of any persons involved in an armed conflict, on the other hand, these nations hold diverse interpretations, understandings and positions on these terms and what they mean in reality and in practice during armed conflict. [1] Winston S. Churchill, Memoirs of the Second World War An abridgement of the six volumes of The Second World War, New York: Houghton Mifflin Company, 1959, p. 12. Intelligence information is much more often imprecise than it is precise[Included in our intelligence analysis was] WMD from the last Gulf War, the [testimony of Saddams defecting] son-in-law who gave information, [and the] monumental reams of intercepted information (cited in DeLong. The 1906 Convention replaced the First Geneva Convention of 1864. This manual is a Department of Defense (DoD)-wide resource for DoD personnel - including commanders, legal practitioners, and other military and civilian personnel - on the law of war. In essence this means that, according to CIL, States acting as Detaining Powers must provide persons under their power with the most humane (human) treatment that each State is capable of providing, including adequate food and medical care, and that they should not submit those persons under their control to unnecessarily unpleasant treatment that States would not like their own military personnel or civilian citizens to undergo themselves if captured, interned or detained by another State or armed group. CIL is considered binding on all states, regardless of whether or not the practices have been enshrined in international treaties or, if the practice is already within international legislation, whether all or a majority of States, have signed on to them. Adherence to the sanctions also gradually weakened as a number of governments France, Russia, Germany, and China, among others angled for oil contracts and other business opportunities with the Iraqis. The fact also remains that terrorists operating within conflict zones are, by intent and design, mass-murdering criminals, who conduct illegal activities using prohibited means and methods, and who, by their very nature and purpose, do not themselves respect or adhere to the rules prescribed in Common Article 3, and give no fundamentally humane treatment to either military or civilian combatants or non-combatants, either in the course of their fighting or upon capture when held in their power. Geneva Convention of 27 July 1929 relative to the treatment of prisoners of war. . Additional Protocol I to the Geneva Conventions of 1977 adds further to this understanding, outlining further in Article 1(4) that self-determination movements of a native population against another States colonial domination, alien occupation or racist regime (discriminating against and/or persecuting one or more ethnic races within the State) may also be considered an International armed conflict under International Law, in accordance with the principles enshrined in the UN Charter.[7]. In Rwanda in 1994 and Bosnia in 1995, UNAMIR and UNPROFOR national contingent forces failed in their preeminent mandated duty to act in a robust military fashion to protect the lives of thousands of non-combatant civilians, sheltering in UN safe areas under their command, from the hostile intent and hostile lethal force actions of Enemy forces towards the local civilian population. This Convention protects wounded and infirm soldiers and medical personnel who are not taking active part in hostility against a Party. That was not true. Nations party to the Convention may not use torture to extract information from POWs. CIL refers to practices in warfare that are so consistently upheld and adhered to by a majority of States on the world stage that they have become generally regarded as law. (2) The laws of war do not apply; the US military has a free hand. A punitive war took place firstly in Afghanistan in 2001 against the Taliban regime hosting and shielding Osama Bin Laden, the leader of the Al Qaeda terrorist network. Adding to this confusion is the fact that this definition of torture provided above does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions (where the meaning of lawful sanctions remains vague and unclear) (Derbyshire, Section Ten: Internees, Detainees and Torture, 149.335 Law of Armed Conflict, op. This variation in interpretation is especially apparent with respect to, or in contrast to, practices of lawful interrogation in response to national security threats or during national security emergencies where the State is seeking to fulfil its primary responsibility and duty to protect the lives of its citizens. Writings of highly-qualified legal experts. Non-International armed conflict, by contrast, is the classification given to all forms of armed conflict that do not conform to, and are hence not covered by, the definition of International armed conflict provided above. About a third of those were questioned using enhanced techniques. cit., p. 4-5). The [New Zealand Defence Force] Manual of Military Law 1929 includes in its section on the Laws of War observations to the effect that there can, in the nature of things, be no finality regarding the law and usages of war. Indeed, Pejic asserts that the GWOT is neither IAC nor NIAC in nature, arguing that it may in some situations be an international armed conflict, in other instances a non-international armed conflict, and in still other cases not an armed conflict in the legal sense at all.[37] As Pejic concludes: Every situation of organized armed violence arising from or in response to terrorism must be examined on a case-by-case basis. The Geneva Conventions of 1949 also laid out rules for protecting wounded, sick or shipwrecked armed forces at sea or on hospital ships as well as medical workers and civilians accompanying or treating military personnel. This. This variation in interpretation is especially apparent with respect to, or in contrast to, practices of lawful interrogation in response to national security threats or during national security emergencies where the State is seeking to fulfil its primary responsibility and duty to protect the lives of its citizens. Humane treatment includes: be treated with respect for their dignity as human beings. [28] Modified images taken from: N. Shachtman, Afghan Air War Hits 3-Year Low, WIRED, 16 January 2012, https://www.wired.com/2012/01/afghan-air-war/, (accessed 1 May 2019); Operations and missions: past and present, North Atlantic Treaty Organization (NATO),25 April 2019, https://www.nato.int/cps/en/natohq/topics_52060.htm, (accessed 1 May 2019); L. Eptako, Then and Now: What Replaced the Toppled Saddam Statue?, PBS Newshour, 26 August 2010, https://www.pbs.org/newshour/world/saddam-statue, (accessed 1 May 2019); and B. The U.N. calls for the humane treatment of prisoners of war, citing talk of summary executions. However, CIL also asserts simultaneously that persons held in custody who are either unable or unlikely to take part in hostilities upon their release from custody by reason of illness, or gravely diminished mental or physical health should be released and directly repatriated as soon as possible (ICRC Customary IHL Rule 99, in NZDF LOAC Manual Chapter 15, ibid., pp. But years later, once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. Nearly all of the major principles of LOAC as well as associated treaty law are now considered CIL, most notably the following treaties: (a) The 1907 Hague Conventions IV (along with its annex of Hague Regulations), VII and IX relating to the Laws and Customs of War on Land; (c) The four 1949 Geneva Conventions relating to International inter-State conflict (but also including Common Article 3 relating to Non-International intra-State conflict in all four conventions), which provide protections to . This agreement extended the protections described in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships. PDF THE LAW OF ARMED CONFLICT - International Committee of the Red Cross [26] Modified images taken from M.E. Had we captured more al Qaeda operatives with significant intelligence value, I would have used the program for them as well (Bush, Decision Points, ibid., pp. According to Pejic, despite the U.S. Supreme Courts ruling of applying Common Article 3 (NIAC law) and Article 75 (IAC law) to detainees of the GWOT (both articles being fundamental principles of CIL), the reality is that: The two articles do notprovide any guidance on many substantive and procedural legal issues, nor on how to resolve practical questions, that arise in relation to captured unlawful combatants.[36]. The horrific suffering Dunant saw impacted him so greatly he wrote a first-hand account in 1862 called A Memory of Solferino. The ICRChas a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs. Despite the U.S. Supreme Courts rulings in 2006 and 2008, however, strong arguments can and have still been made that the former inter-State, International armed conflict classification was, and is, the correct and rightful classification for these extremist and indiscriminately violent detainees captured during the GWOT. To summarize, the law of armed conflict: is a branch of international law; Your email address will not be published. Some of these LOAC obligations have been so universally ratified and accepted as customary norms worldwide over the last century, that they have become extremely powerful and are now internationally regarded as binding on, This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. Last updates June 10, 2019 by Krystyna Blokhina, International Committee for the Red Cross and Red Crescent, 1952 Commentary on the Geneva Conventions, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of 12 August 1949, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949, Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949, Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977, Reference Guide to the Geneva Conventions, List of Nations Ratifying or are Otherwise Party to the Geneva Conventions and/or Protocols, ICL Practice Relating to Rule 157, Jurisdiction over War Crimes, Category: International, Transnational, and Comparative Law, Geneva Conventions and their additional protocols, Disputes arising under the Conventions or the Protocolsare settled by courts of the member nations (Article 49 of Convention I) or by international. Finally, it discusses how occupiers are to treat an occupied populace. Not surprisingly, the disconnect and outright contradiction between the KFOR mission mandate and its key security objectives on the one hand, and the restrictive ROE of contributed KFOR national contingents on the other, had direct and serious consequences during the Kosovo Riots of 2004. The extreme, Islamo-fascist terrorists and insurgents of today do indeed present a new and different brand of non-State and unlawful Enemy combatant in armed conflict in modern times, that was certainly not envisaged in the drafting of the Geneva Conventions in 1949 or the IAC and NIAC Additional Protocols in 1977. Terrorism and The International Law of War #24 Laws of War Brief (Part 1): What is the Law of - MILITARY CAVEATS international treaties, conventions, pacts, agreements and protocols), according to the LOAC, certain obligations and rights apply universally, to all States, and all individuals, at all times due to the binding obligations that exist under Customary International Law (CIL). PDF DoD Directive 2310.01E, 'DoD Detainee Program,' March 15, 2022 The signing Nations agreed to further restrictions on the treatment of "protected persons" according to the original Conventions, and clarification of the terms used in the Conventions was introduced. This means that ratified laws of the LOAC must be applied and adhered to by the nations armed forces at all times during peacetime, during war, and during all the various stages of the war spectrum in-between these conflict poles, ranging from non-kinetic and non-traditional peacekeeping operations, at one end of the spectrum, to overtly kinetic, offensive warfare operations, on the other. 2023, A&E Television Networks, LLC. Experts in the intelligence community told me that without the CIA program, there would have been another attack on the United States.. to inflict lawful pain and suffering on a law-breaking person, who has planned, acted and desired to inflict unlawful pain, suffering and death on innocent multitudes, in order to prevent acts of terrorism and thereby save the lives and limbs of countless, law-abiding citizens? [10], Non-International armed conflicts typically involve civil wars in which: (a) the government of a State is using its regular armed forces to fight against one or more identifiable, dissident armed groups operating within the territory of the State; or (b) armed and hostile fighting is taking place between dissident, rival armed groups within a State, that does not involve the government, but nevertheless requires the government to act to restore security and stability to the State.[11]. Specifically, it required POWs to give only their names, ranks,and serial numbers to their captors. [21] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, ibid., p. 14. Saddam nonetheless continued to play games with the inspectors and the international community. Alluded to briefly in Common Article 3 of the 1949 Geneva Conventions, and then much more fully in Additional Protocol II of 1977, Non-International armed conflict refers to all armed conflict that takes place: In the territory of a High Contracting Party [State] between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. The LOAC also permits the handcuffing or physical restraining of persons for the purpose of interrogating them, as well as isolation methods, so long as these are temporary measures used only when strictly necessary militarily (Ibid., p. 35). 4 of 8) It does not justify prohibited actions (correct) It justifies the use of overwhelming force, but not wanton destruction (correct) Humanity is a principle of the Law of War that addresses the immunity of peaceful populations and civilian objects from attack. Subsequently a preventative pre-emptive war took place in Iraq against Saddam Husseins dictatorship during 2003, which: firstly, had been meeting with senior Al Qaeda leaders; secondly, was cooperating with and housing Al Qaeda members at a chemical and biological weapons-testing laboratory situated at an Iraqi base near the Iranian border (including the notorious Al Qaeda attack-planner, Abu Musab al-Zarqawi); and thirdly, was strongly suspected internationally of having stockpiles of illegal biological and chemical Weapons of Mass destruction (WMD),in addition to nuclear material from its nuclear development programme, that, given the regimes long and proven record of support for terrorism, it was feared Saddam might easily give or sell to Al Qaeda terrorists to enhance and further their attacks in America and around the world (see endnote). Humane treatment | How does law protect in war? - Online casebook A punitive war took place firstly in Afghanistan in 2001 against the Taliban regime hosting and shielding Osama Bin Laden, the leader of the Al Qaeda terrorist network.
the law of war requires humane treatment for military