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Week 5 – International Law on War and Warfare

Law of War has two components:

jus ad bellum
jus in bello

jus ad bellum
History of legality of war governed by notion of just war

Demise of import of ‘just war' driven by:
• secularization of states
• absolute sovereignty of states
• decline of natural law – rise of positive (state-made) law
• emergence of European ‘power politics' – classical period, balance of power

League of Nations Covenant tried to limit resort to force (3 mo cooling off period)
Kellogg-Briand Pact(1929) – Pact of Paris – condemned use of war as an instrument of national policy

Wars are disputes between states
• peaceful (diplomatic, etc) relations must be severed

but
• sometimes expedient to call armed conflict something other than ‘war'

UN Charter (Art 2(4)) declares ‘use of force against the territorial integrity or political independence of any state, or in any other means inconsistent with the Purposes of the United Nations' illegal

‘Friendly Relations Declaration' (1970) offers specific examples of conduct ‘inconsistent with the purpose of the United Nations'

Charter specifies four exceptions to general prohibition against war:

1) Actions undertaken or authorized by the UN (Chapter VII)
2) Self-defence
3) Fighting a ‘non-international' or civil war

4) (no longer applicable) use of armed force against ‘any state which during the Second World War [was] an enemy of any signatory to the present Charter.'

1) Actions Undertaken or Authorized by the United Nations

Authorized by Ch VII of UN Charter:
• Security Council (SC) to take ‘appropriate action' (including use of armed force) in response to ‘any threat to the peace, breach of peace, or act of aggression'

Actions:
3 types: non-military; military; ad hoc

Art. 40 says in order to prevent ‘aggravation of the situation' SC can ‘call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable....'
•
Non-military: Art. 41 says SC call upon members to effect ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations'

Armed force — Art. 42 says if measures provided for in Article 41 are inadequate, SC may ‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of members of the United Nations'

Ad hoc arrangements
• SC may authorize member states to deploy forces in support of a beleaguered state
• GA may authorize member states to deploy peacekeeping forces in support of a beleaguered state

2. Self-Defence

Art. 51
• says nothing in Charter prevents a state from using force to defend itself & nothing prevents states from going to the aid of an ally until the SC has dealt with the matter
• allows states to use force in self-defence
• self-defence not defined in Charter
• generally accepted definition comes down through customary intl law from Caroline Case – dictates that a state claiming self-defence must show 3 things:
a) must be ‘a necessity of self-defence': action taken must be response to some provocation
• Art. 51 suggests SD may only be exercised after an armed attack
• right to exercise SD in anticipation of attack claimed by some states
2) provocation must have been ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation' – state claiming SD must respond ‘promptly' to armed attack.
3) action taken must be ‘proportionate' to the seriousness of the attack & justified by the seriousness of the danger

Regional Defence Arrangements — Art. 52(1)

Collective Self-Defence — states may collectively defend themselves

3) Civil Wars — not international conflicts an exception to UN Charter prohibition against use of armed force

Rules governing civil wars:
• foreign states generally forbidden from initially aiding the insurgents in a civil war
• but may intervene on behalf of established government
• if established govt gets outside assistance, 3rd parties may intervene on behalf of insurgents

jus in bello

a) Outlaws various objectives, methods, and means of fighting.
b) Seeks to protect the innocent and wounded – humanitarian rules
c) Seeks to punish violators – enforcement

a) unlawful objectives, methods, and means

Unlawful Objectives
• military objectives are lawful targets of armed attack

Targets which may not be attacked or destroyed, but may be captured or seized include:

1) civilians
2) non-active military personnel – wounded troops
3) diplomats & messengers authorized to negotiate with an enemy
4) parachutists other than airborne troops
5) civil defence personnel
6) hospitals, hospital ships, and medical units
7) merchant ships and vessels
8) civilian food, supplies, and crops
9) cultural property
10) religious places
11) highly dangerous installations (i.e. nuclear power plant)

Unlawful Methods
• ‘no quarter' orders
• starvation of civilian populations
• treachery, including use of civilian shields
• perfidious (deceitful) acts

Unlawful Means
• weapons causing unnecessary suffering/superfluous injury are illegal
• inflicting suffering for its own sake or for mere indulgence in cruelty is illegal
• indiscriminate weapons – weapons that cannot be directed with any degree of certainty at military objectives
• superfluous weapons – weapons designed to increase injury and suffering of individuals
• incendiary weapons only when used against:
• civilians or civilian property
• Military targets proximate to concentration of civilians or civilian property

B) Humanitarian Rules Protecting the Innocent and Wounded – ICRC (1978)
• civilians and non-combatants to be treated humanely
• those who surrender or are captured cannot be killed or injured
• wounded and sick are to be cared for
• medical personnel, establishments, transports, and material must be respected
• civilians & captured combatants to be protected against violence & reprisals, and have the right to correspond with their families and to receive relief
• everyone is entitled to fundamental judicial guarantees
I. individual not to be held responsible for acts they have not committed
II. no one to be subjected to physical or mental torture, corporal punishment, or cruel or degrading treatment
• belligerents may not use weapons or methods that cause unnecessary losses or excessive suffering
• belligerents must direct attacks solely against military targets

C) ENFORCEMENT CRIMES AT INTERNATIONAL LAW
• there is an emerging class of offences against the international legal order itself
• perpetrators subject to universal jurisdiction in any state

Crimes recognized in customary international law
• crimes against peace (aggression)
• war crimes
• crimes against humanity (serious & systematic crimes against populations)
• apartheid
• slavery
• piracy
• international terrorism
• genocide (?)
• drug trafficking (?)

War crimes – violations of jus in bello

Crimes against peace and crimes against humanity (defined in Charter of the International Military Tribunal at Nuremberg – later incorporated in Geneva Conventions of 1949)

Crimes against peace
• "the planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties."
Crimes against humanity
• "murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated."

If a treaty does not say otherwise, customary international law provides for universal jurisdiction for enforcement of crimes at international law.

Ad-hoc tribunals may be appointed, but they possess temporally limited jurisdiction over geographically defined crimes.

(Rome) Statute of the International Criminal Court (1998, CIF July 1, 2002)

• driven by experiences in Rwanda and former Yugoslavia
• will be a permanent court trying individuals (not countries) accused of genocide, war crimes & crimes against humanity
• temporally limited jurisdiction: court can only try crimes committed after Rome Statute comes into force
• jurisdiction where states are unable/unwilling to exercise jurisdiction, but only if parties to the Rome Statute, or at request of SC
• 139 signatories to date
• resisted by US
• 81 ratifications so far
• came into force at 60 ratifications (July 1, 2002)
• Canada ratified July 7, 2000