#11449 - Basics - International Humanitarian Law

International Law

1. Traditional: law governing interactions between states. Only states were liable.

   1. Treaty of Westphalia: 1648. End of the the 30 years war in Europe.

      1. Westphalian system:

         1. Sovereignty of states. Territorial integrity (you must be able to protect your boundaries), and the right of political self determination

         2. Legal equality between states

         3. Principle of non intervention in the internal affairs of another state.

   2. Pacta Sunt Servanda – “treaty must be served.” = assumption of good faith agreement.

   3. Grotius

      1. Founder of IL

      2. “On the Law of War and Peace.” 1625. Principle of Just War.

2. Modern: law that deals with the conduct of states, international organizationas, and some of their relations, as well as relations with persons.

   1. Public International Law areas most linked to IHL

      1. Refugee law: persons outside their country & lacking the protection of their state must get international protection. Refugees must show targeted prosecution, can’t “just” be fleeing from armed conflict.

         1. Refugee Convention (1951) and Protocol (1967).

      2. Human Rights Law: how states treat people on their own territory.

         1. Violations of HRL threaten other states. If state is willing to commit human rights violations against their own citizens, then they will also be willing to engage in such violations outside of their borders. Threat to peace and stability.

         2. States have an interest in not having refugees fleeing to their country.

         3. International Covenants on Civil and Political Rights

         4. International Covenant on Economic, Social and Cultural Rights (no US ratification)

         5. Conventions against Torture, genocide, refugee

         6. Conventions on child rights, disabled persons (US not ratified)

         7. 3 regional systems: Europe, Africa, Americas (US not a party)

Sources

1. Treaties: Legal and binding on those who have ratified. Chief source of IL.

   1. Signing without ratifying = you will not take actions contrary to the objectives of the treaty, but you are not bound to the treaty.

   2. Ratification in the US: President signs, then goes to Senate for “advice and consent.”

   3. Executive Agreement: President can enter without Congress. Same weight as a treaty.

   4. Examples

      1. UN Charter

         1. Governs jus ad bellum – when do we go to war?

      2. Geneva Conventions

         1. Governs jus in bello – how do we act when in war?

         2. 4 in 1949 + APs of 1977

            1. GCI: injured, on land

            2. GCII: injured, at sea

            3. GCIII: POWs

            4. GCIV: civilians

            5. API: IAC

            6. APII: NIAC

            7. APIII: adds red diamond to ICRC

               1. Supplement and codify the GCs

      3. Regional treaties regarding alliances in defense, like NATO

      4. Hague Conventions (1905, 1907)

      5. Landmine Convention (1998)

      6. Rome Statute of ICC (1998)

      7. Cluster Munitions (2009)

2. Declarations – not binding. Political statement. Can’t sign.

   1. Universal Declaration of Human Rights (1948) (later put into treaty form, in the HRL treaties listed above)

3. Custom

   1. ICJ definition of “customary” (38.1(b))

      1. General and consistent practices

      2. followed by a sense of legal obligation

   2. Governments rarely agree that something is CIL, don’t want to be bound. Governments argue that they carry out the rule only because it is good policy, not because they think it’s a legal rule.

      1. Especially important in IHL because we are in a period of normative shift

   3. Used primarily with respect to NIAC

4. Jus Cogans: norms/things that are per se bad. You can’t have a treaty that would violate a jus cogans norm. CIL rule cannot violate jus cogans.

   1. Prohibitions against: genocide, slavery, torture, wars of aggression

5. ICJ opinions

   1. Even without a case, the General Assembly (ordinance of the UN) can ask for an opinion…but countries can decide to act in opposition to the decisions (ex: Israeli wall cases), claiming that their interpretation of binding law is just different

6. ICRC’s role?

   1. To monitor the changing nature of armed conflict

   2. To organize consultations with a view to ascertain the possibility of reaching agreement on new rules

   3. To prepare draft texts for submission to diplomatic conferences

   4. Mainly: a promoter of IHL

Elements of States

1. Territory (implies defense of borders)

2. Population

3. Government

4. Capacity to enter into foreign relations (other states recognize you as a state)

Insitutions/Actors

1. UN General Assembly

2. Secretariat – office of Secretary General that refers situations to attention of the Security Council

3. ICJ – traditional body of the UN (UN Charter Art. 92)

4. Human Rights Council (for both HRL and IHL)

   1. Can take up situations in a particular country, or a theme (like slavery, or internally displaced persons, or effect of war on terror on exercise of human rights)

   2. Special Repporteur or working group is appointed to investigate the topic/country

5. Committees oversee implementation of treaties. Normally committee name is the same as the name of the convention. States must submit reports to committee and then answer questions upon request

6. ICC

Human Rights/ IHL

1. Lex Specialis – “specialized law.” Choice of law question.

2. Lex generalis: Human rights

   1. The lex specialis you apply in targeting (for example) is that of law of war. So to determine whether lex specialis is violated, you must apply the law of war.

   2. In the detention context: lex generalis is covenant provision on deprivation of liberty AND CIL standard prohibiting prolonged arbitrary detention, but this also applies to IHL (POWs)

3. Relationship

   1. Minority view = American view/traditional view

      1. HR doesn’t apply in AC. Binary relationship.

      2. IHL obviously doesn’t apply in peacetime, it says so right in the treaty: you either need a CA2 or CA3. The reverse is also true. HR doesn’t seep into AC because of lex specialis – we have a specific law for armed conflict, so why would we muck it up by bringing in the more general, less tailored body of law?

      3. IHL should control to the exclusion of other more general bodies of law, like HR, because IHL is the lex specialis in situations of armed conflict

   2. Majority view = ICJ, ECHR, HRC/modern view

      1. HR continues to apply in AC, but with special rules for IHL

         1. Example: Torture

            1. Under CAT, plaintiff needs to prove either consent or acquiescence of public official

            2. Under IHL this requirement is relaxted (ICTY, Kunarac) so that non-state actors/rebel groups can be prosecuted

      2. IHL and HR are complementary

         1. ICJ – Israeli Wall opinion

            1. Uses IHL to interpret HR norms (pg 322).

            2. Covenant on Civil and Political rights (ICCPR art. 6): no arbitrary deprivation of life

               1. Interprets notion of “arbitrary” through IHL proportionality test (use IHL to interpret an HR norm)

               2. It may be easier to deprive someone of life with IHL because the “arbitrary” standard may be easier to meet (proportionality) – but this HR still applies

         2. Israeli SC – targeted killings

            1. Uses HR to interpret (and limit) IHL

            2. Court gives 4 conditions for targeted killings to be permissible, including the “unavailability of other means – like arrest”

               1. Even though you could target and kill under IHL, if you could arrest, then HR law mandates that you do so.

               2. Trial is preferable to the use of force

         3. US SC in Hamdan

            1. Mentions HR in a footnote

               1. At a minimum CA3 applies

               2. CA3 references “judicial guarantees recognized as indispensible by civilized peoples.”

               3. CSRTs don’t meet this standard.

               4. To figure out how to meet that standard, military should look to Covenant on Civil and Political Rigths (ICCPR)

4. Extraterriotirality: Do HR obligations apply outside the actual territory of the state party?

   1. Minority (US) = no.

      1. When we do things outside of the US, HR doesn’t apply to us

      2. ICCPR (US has ratified) art. 2: each party to the present covenant…must respect/ensure to all individuals within its territory and subject to its jurisdiction, the rights recognized in the present covenant.

         1. The “and” makes it a one test/requirement

         2. Person must be IN territory AND subject to jursidction to have this apply

   2. Majority (ICJ, ECHR, HRC) = yes

      1. The “and” is really an “or”

         1. Person within territory = rights respected

         2. Person subject to jurisdiction = rights respected

      2. ICJ in Israel wall case, interprets “and” as an “or,” since the occupied areas are subject to Israeli jurisdiction, but not part of Israeli territory

      3. General Comment no. 31 of HRC shows this view

         1. This is authoritative interpretation of the treaty

         2. But not binding on the US (Thanks, but that’s not how we interpret it)

   3. Al Skeini (European Court of Human Rights, 2011)

      1. If a state has effective control of a region, then that state must uphold its HR responsibilities. States should be held responsible for extra-territorial killing.

         1. Analogous to occupation in IHL

         2. But “effective control” in HR has a lower threshold (less control = still triggers HR obligations)

   4. Control over person?

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