Chapter 2: Sources of the Law of Warfare

1. Chapter 2: Sources of the Law of Warfare

2. Regulating War • Traditional view: “silent einemleges inter armes” • However, limitations on war-fighting have existed for centuries: • Religious constraints, e.g., Deut. 20:10-14 • Codes of chivalry • Practical considerations • “Just” war traditions

3. Regulating War • 19th C developments in war led to increased pressure for limits • Larger forces/ conscription • More destructive weapons / wider geographical scope • Increased risk to civilians and civilian property • Growth of peace movements in Europe also influenced spread of humanitarian ideals

4. Competing Views • Kriegsraison • Kriegsraison: Military necessity should always override obligations of international law • Reflected in German Army manual • Others viewed military necessity in a different light • Humanitarian concerns counterbalance military needs and raise the threshold for “necessity”

5. Regulating War • Lieber Code • Codification of Laws of War by Prof. Francis Lieber for Union Army in U.S. Civil War • Recognized that use of force was limited by principle of “military necessity” • Not an international treaty but reflected existing practice • Widely used as a basis for 19th C military manuals

6. Regulating War • Two international bodies of law emerged contemporaneously with 19th C Lieber Code-inspired military manuals • These bodies are the basis of the LOW today • “Hague Law” - rules on the means and methods of war • “Geneva Law” - rules on the protection of wounded, prisoners and (in 20th C) civilians

7. Major Diplomatic Efforts • First Peace Conference (1899) • Second Peace Conference (1907) • Diplomatic Conference of Geneva of 1949 • Diplomatic Conference of Geneva of 1974-1977 • - Each conference built on prior efforts -

8. LOAC Today • Conventional (e.g., Treaty) Law • Customary Law

9. Treaties • Two international bodies of rules emerged contemporaneously with 19th C Lieber Code-inspired military manuals • These bodies are the basis of the LOW today • “Hague Law” - rules on the means and methods of war • “Geneva Law” - rules on the protection of wounded, prisoners and (in 20th C) civilians

10. Hague-Type Treaties • 1907 Hague Regulations (Hague IV) • 1925 Protocol re: use of chemical and biological weapons • 1954 Convention for the Protection of Cultural Property (1954 Hague)

11. Geneva-Type Treaties • 1864/1906/1929 Conventions for the Amelioration of the Condition of the Wounded in Armies in the Field • 1929 Convention re: Treatment of Prisoners of War • 1949 Convention re: Wounded and Sick in the Field (GWS) • 1949 Convention re: Wounded, Sick and Shipwrecked Armed Forces at Sea (GWS Sea) • 1949 Convention re: Treatment of Prisoners of War (GPW) • 1949 Convention re: Protection of Civilians in War (GC or GCIV)

12. 1970’s: Hague & Geneva -Updated and Expanded • 1977 Additional Protocols (to 1949 Conventions) re: • Protection of Victims of International Armed Conflicts (AP I or GP I) • Protection of Victims of Non-International Armed Conflicts (AP II or GP II) • Responds to Various Conflicts and Trends • Including, but not limited to, Vietnam

13. Arms Control Treaties • Arguably, arms control treaties are part of Hague tradition: • 1972 Biological Weapons Convention (BWC) • 1976 U.N. Convention on Environmental Modification (Enmod) • 1980 U.N. Convention on Conventional Weapons (CCW) • 1993 Chemical Weapons Convention (CWC) • No treaty has yet banned nuclear weapons, however

14. Other Relevant Treaties • Neutrality (e.g., Hague V & XIII (1907)) • Naval warfare • e.gHague VI, VII & IX (1907) • Law of sea treaties, including UNCLOS (1982) • Space warfare • Outer Space Treaty (1967) • Moon Treaty (1979) • No specific treaty on air or cyber warfare

15. Post 1977 Treaty Development • Convention on “Certain Conventional Weapons” of 1980 • Based on key principles of humanity in LOAC • Allows for either regulation or prohibition of specific weapons, such as incendiaries • Specialty treaties to ban specific weapons • Antipersonnel landmine ban (signed 1997); cluster munitions (signed 2008) • United States is not a party

16. Post 1977 Treaty Development(continued) • Statutes for War Crimes Tribunals • Building on WW II international tribunals • Beginning with 1993 tribunal for former Yugoslavia • Statutes articulate elements of war crimes and tribunals provide further explanation of the law • Additional Protocol 3 – adoption of secular protective symbol (signed 2005)

17. Interpreting LOAC Treaties • Some treaty rules permit necessity to be considered. • Example: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.” (Article 27, Hague IV)

18. Interpreting LOAC Treaties(continued) • Other rules already reflect a judgment on military necessity. • Example: “The pillage of a town or place, even when taken by assault, is prohibited.” (Art. 28, Hague IV). • Example: “[I]t is especially forbidden … to declare that no quarter will be given….” (Art. 22(d), Hague IV). • Bottom line: • No general “military necessity” exception … • But some rules are not absolute

19. United States and LOAC Treaties • U.S. has sponsored key treaties but then delayed or refused ratification • Additional Protocol I (refused) • Additional Protocol II (delayed, still pending) • 1954 Hague Cultural Property Convention (ratified in 2009) • U.S. recognizes some LOAC treaty provisions as CIL (e.g., AP I art. 75 for IACs) • In other cases, U.S. is a persistent objector

20. Additional Protocol I Issues • Reconfirmed many principles from the four Geneva Conventions and from Hague Law • Influenced by human rights law - greater protection for civilians and civilian objects • Also attempted to address a new type of armed conflict - wars against colonial domination, alien occupation or racist regimes

21. 2 Key U.S. Objections • Wars of liberation treated as IACs • Affords POW status to combatants who do not distinguish themselves from civilians

22. Art. 1, AP I • Treats as an international armed conflict subject to the Geneva Conventions, “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination” • Effectively, allows a non-State actor (an anti-colonial movement) the same status as a State under LOAC

23. Art. 44(3), AP I • Reaffirms that combatants “are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack” • But qualifies this obligation: If a combatant cannot distinguish himself “owing to the nature of the hostilities”, he still retains his status as a privileged combatant, so long as he “carries his arms openly:(a) during each military engagement, and(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.”

24. Art. 44(4), AP I • Also, even if he does not carry arms openly, he may lose his status as a prisoner of war, but “shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war”

25. U.S. Reaction • U.S. government unable to accept expansion of international armed conflict based on the object of conflict and perceived relaxation of rule on distinction • U.S. government sought to find means to join Protocol I, but with reservations etc., but ultimately elected not to sign

26. 1987 Matheson Speech • Denies that Protocol I can serve as baseline of common rules governing U.S. military operations • U.S. will only be bound by rules in Protocol that reflect customary international law • U.S. will focus on reaching agreement with allies on customary international law

27. ICRC CIL Study • Purports to identify a wide range of rules that have now become customary law • Largely drawn from conventional law • Written by ICRC with mandate from international community • Implication is that these rules are binding regardless of whether a country has signed a treaty embodying the rule • Expands application of rules to non-international armed conflicts

28. Customary International Law (CIL) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. Restatement (Third) of Foreign Relations Law of the United States 102(2).

29. Means to Identify CIL • Pronouncements by states that undertake to state a rule of international law • In LOAC, military manuals and regulations may be interpreted as statements of law • Judgments and opinions of: • international judicial and arbitral tribunals • national judicial tribunals • Writings of scholars

30. Questions to Ask in Identifying CIL • Motivation – Did State(s) take an action out of a sense of legal obligation? • Significance of Density – Does it reflect a legal obligation or just a best practice? • Treaties – Do they reflect customary law? If so, what is the significance for non-parties? • “Specially Affected States” – Does their position carry greater weight?

31. Martens Clause: Recognition of CIL in LOAC “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” (Preamble, Hague IV)

32. Sources of CIL in LOAC: Codes • Lieber Code (1863) • Brussels Project of an International Declaration concerning the Laws and Customs of War (1874) • Oxford Manual on the the Laws of War on Land (1880)

33. Sources of CIL: State Practice • Actions (e.g., on the battlefield) • Laws and Regulations • Military Manuals • Legal Opinions and Statements

34. Sources of CIL: Military Manuals • U.S. Army, The Law of Land Warfare (FM 27-10) (1956) • U.S. Navy, Commander’s Handbook on the Law of Naval Operations (NWP 1-14M) (2007) • U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (2004) • Chief of Defense Staff (Canada), The Law of Armed Conflict at the Operational and Tactical Levels (2004)

35. Sources of CIL?: Restatements • San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994) • ICRC Customary International Humanitarian Law Study (2005) • ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009) • HPCR Manual on International Law Applicable to Air and Missile Warfare (2010)

36. U.S. Response to CIL Study • Study reflects flawed methodology • Too much reliance on military manuals versus actual practice • Object to certain rules; still studying others

37. Discussion Points • Why would the U.S. be so concerned about the CIL study? • Could CIL study mature into “law”? How? • Even if the CIL study were not “law”, how can it be usefully employed by practitioners?

38. Human Rights Treaties • Human Rights treaties with impact on the LOAC: • 1948 Convention on the Prevention and Punishment of the Crime of Genocide • 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment • States have taken various approaches to application of Human Rights law to armed conflicts • The U.S. government sees limited application

39. Questions?