Government 1740Government 1740International LawInternational Law

Summer 2008Summer 2008

Lecture 10:Humanitarian intervention,

Laws of War, and Individual Criminal

Responsibility

What is humanitarian intervention?

“The prerogative of a foreign actor (state, a coalition of states, international organization) to act within the territorial jurisdiction of a state to ameliorate or terminate violations of internationally recognized human rights.”

Rwanda Refugee Camp

Humanitarian Intervention and the UN Charter

Article 39 - Security Council authority to “decide what matters shall be taken to restore international peace and security.”

Connection between fundamental human rights and international peace and security

Iraq and the Kurds (1991)• SC: Link between internal repression and international peace and security

• Significant opposition within the Council

• No authorization to use force

Somalia (1992): Intervening in Complex Emergencies

SC authorized intervention under Chapter VII

Authorized “all necessary means” to create a safe environment for aid delivery

UNOSOM - 30,000 troops deployed

Haiti: Intervention to Support Democracy

Security Council authorization

Operations Uphold Democracy (1994) and Secure Tomorrow (2004)

Justifications:

- Threat to international peace

and security

- Humanitarian concerns

- Illegitimacy of regime

NATO Bombing in Kosovo (1998-1999): Intervention by a

Regional Organization

Security Council Res. 1199 – invoked Ch. VII, but did not authorize use of force

NATO bombing campaign Justification:

– Enforcement action?– Collective self-defense?– Humanitarian intervention?

A“Just” Forceful Intervention?

Just War Doctrine:

Competent Authority

Just Cause

Right Intention

Proportionality of Response

Principles of humanitarian intervention:

Security Council? General Assembly? Regional organization?

Halt human suffering

Motive: humanitarian; “clean hands”

Intervention or force employed commensurate with humanitarian objective

Laws of War – Outline:I. Issues of just war fightingII. Principles of just war fighting

A. ProportionalityB. DiscriminationC. Limited means

III. Codification of the laws of warA. Hague Conferences of 1899 and 1907B. Geneva “Red Cross” Conventions of 1949C. Geneva Additional Protocols of 1977

IV. Prisoners of warV. Compliance with the laws of warVI. Individual criminal responsibility

A. CrimesB. Development of International for aC. The ICC

VII. Conclusions

I. Issues of Just War Fighting

What limits does international law place on the way states can fight?

Who, or what, is "the enemy"?

Who is a combatant, and who is not?

How are civilian non-combatants to be treated?

When does a soldier cease to be a combatant?

What is a war crime, and who is responsible?

II. Principles of Just Warfighting

Proportionality

Discrimination

Prohibited Means

Proportionality - of military means to political ends

Article 35(1) of the 1977 Geneva Protocol I to the 1949 Geneva Conventions, Section 1:

"In any armed conflict the right of the parties to the conflict to choose methods or means of warfare is not unlimited."

Discrimination

Direct intentional attacks on non-combatants and non-military targets are prohibited.

Is discrimination possible when modern war involves total mobilization of a society?

Commingling of military targets with population centers?

Prohibited Means

Means that are bad in themselves (malum in se)

Means that are bad because they are prohibited (malum in prohibitum)– Inhumane Weapons– Environmental Warfare– Weapons of Mass Destruction– Nuclear Weapons?

III. Codifying the Laws of War

Hague Conferences of 1899 and 1907

Geneva “Red Cross” Conventions of 1949

Geneva Additional Protocols of 1977

Henry Dunant

Geneva Conventions of 1949

• Convention on Wounded and Sick Members of the Armed Forces in the Field

• Convention on Wounded, Sick and Shipwrecked at Sea

• Convention on Prisoners of War• Convention for the Protection of

Civilian Persons in Time of War

Geneva Additional Protocols of 1977

Focus is on role of non-combatants Applies to non-international conflicts Operations against non-military targets

prohibited Combatants and non-combatants defined Indiscriminate military activity prohibited Variety of other actions prohibited

IV. Prisoners of War POW Status Criteria

Art 4(A) of Geneva Convention on POWs:

– Members of armed forces that are parties to a conflict– Members of militias or other forces belonging to one of the

parties, if they• Are commanded by some one responsible for subordinates• Have a fixed sign recognizable from a distance• Carry arms openly• Conduct operations in accordance with the laws and

customs of war

U.S. Policy Toward ‘Enemy Combatants’

Afghanistan: captured Al Qaeda classified as “detainees of war” or “unlawful combatants”

Iraq: captured Iraqis are being treated as POWs

Determination of POW status

Geneva Convention, Article 5: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

Administration’s view: This is a new war, and the old rules can’t apply exactly.

Are captured Taliban POWs?

“… we concluded they did not have a responsible military command structure, that turbans aren't a recognized uniform that distinguishes them, and although they carry arms openly, everyone in Afghanistan carries their arms openly. They repeatedly failed to observe the customs and laws of war. The whole idea of Geneva is that it's not just a humanitarian treaty to treat people nice: it distinguishes those who are entitled to P.O.W. treatment.”

-Administration Official

V. IR Theories of Compliance

Realism:– States comply with treaties that are in their

interest– Laws of war mirror the distribution of power– Expectations:

• Lots of bans on weapons and tactics that are not militarily useful to the most powerful states

• As the banned weapon or tactic becomes more useful, compliance will decline.

Empirical findings:

Thomas Smith:– IL has primarily addressed low-tech war-fighting

• 1980: UN Convention on Conventional Weapons

• 1997: Convention on the Prohibition of Anti-Personnel Mines

– Does little to specifically regulate high tech weapons• Aerial bombing

• Nuclear weapons

– IL ignores the public health consequences of modern high-tech warfare.

– Compliance does not mean effectiveness

IR Theories of Compliance

Rational functionalism– State interests are central– But states have a strong interest in limiting war

fighting– International agreements can be very useful

• Clarify obligations• Clarify what constitutes a violation• Define appropriate responses to violations.

– Expectations:• The “brighter the line” the better the compliance• Reciprocity: mutual obligation improves compliance

Empirical Findings:

Jim Morrow:

– The importance of reciprocity

– The importance of regime type

– The importance of centralization

IR Theories of Compliance

Constructivism:– Compliance follows from norm internalization– Norms shape understandings of interests– Domestic values may bear on the internalization of

international norms– Expectations:

• Democracies will be better compliers

• Rules prohibiting practices that are malem in se will exert a stronger compliance pull

• Treatment of domestic prisoners will predict treatment of POWs

VI. Individual VI. Individual Criminal Criminal

ResponsibilityResponsibility

Sources of International Law for Establishing Individual

Criminal Responsibility

Customary International Law– E.g., Crimes against humanity

Treaties– E.g., Genocide Convention

Decisions of Tribunals– E.g., Nuremburg, ICTY, ICTR

Individual Responsibility – for What?

Piracy

War crimes

Responsibility for what?

Crimes Against Humanity Genocide

Responsibility for What?

Gross Human Rights Abuses

Terrorism

Individual Criminal Responsibility for Terrorism?

Custom?– Still no broadly accepted legal definition– Omitted from the ICC’s jurisdiction for lack of

agreement on definition– but prominent in Security Council resolutions in the

case of Osama-bin Laden and associates. (resolutions 1267, 1333, 1368, 1373)

Pattern of treaties: try to establish individual criminal responsibility.– International Convention for the Suppression of the

Financing of Terrorism (1999)– International Convention for the suppression of

Terrorist Bombings (1998)

II. Development of II. Development of International ForaInternational Fora

The Nuremburg Model

Legal innovation in Political context

Principles Legacy

Nuremburg Tribunal, 1945-1946

Post Nuremberg Alternatives

Cold War: No institutionalized follow up

Ad hoc Tribunals under the Security Council: the ICTY model

Ad hoc Tribunals that combine national with international elements (Sierra Leone)

The International Criminal Court

National CourtsLaw Courts,London

Supreme Court, Canada

Supreme Court,Egypt

Supreme Court,Pakistan

The International Criminal Court

Background Jurisdiction Complementarity Ratification

US Government Position

Tentative participation Hardening opposition

– Vague authority– Outside of a constitutional structure– Unchecked judicial power of the prosecutor

Several countries have signed Article 98 Agreements with the

United States

John McCain

“I’m not satisfied that there are enough safeguards…[but] I want us in the ICC.”

(BBC Worldservice televised debate, January 25, 2005)

Barak Obama“The Court has pursued charges only in cases of the most serious and systemic crimes and it is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions … deserve full American support and cooperation. Yet… it is premature to commit the U.S. to any course of action at this time.”

“The United States has more troops deployed overseas than any other nation and those forces are bearing a disproportionate share of the burden in the protecting Americans and preserving international security. Maximum protection for our servicemen and women should come with that increased exposure.”

US Public OpinionHow strongly do you

support/oppose the ICC?

somew hat oppose

14%strongly oppose

13%

missing4%

strongly support

32%

somew hat support

37%

(Massachusetts only):

somewhat support

38%

strongly support

41% strongly oppose

9%

somewhat oppose

12%

…Massachusans are strongly in favor

The Effectiveness of International Tribunals

In bringing individuals to justice?

Deterring future atrocities?

Enhancing local, regional peace and stability?

SummarySummary Humanitarian intervention bears a resemblance to Just War justifications for intervention. While controversial, there is a growing debate over “R2P”If force can be justified, it still must be used proportionately, discriminately, and without resort to prohibited weapons and tactics.The laws of war are meant to protect civilians from intentional attack and establish rules for the decent treatment of POWsEgregious violations of the laws of war could constitute a war crime and trigger individual responsibilityMany options exist for the prosecution of war and other international crimes: national courts, foreign courts, ad hoc tribunals, and the ICC.The ICC was designed to supplement rather than supplant national jurisdiction over war crimes.