1. Government S-1740 International Law Summer 2006
Humanitarian Intervention, Warfighting and the Laws of War

2. Outline I. What is Humanitarian Intervention?
II. Intervening to protect nationals
III. Intervening to protect non-nationals
IV. Just Conduct of War
Principles and codification of jus in bellum
The Laws Of and In War Post-911

3. 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

4. The Problem of Consensus
Content of international human rights?
When are rights threatened?
Who decides? The “international community”, coalitions, or individual states?
What mode of intervention? What is the role for military force?

5. Dilemmas for International Law
State Sovereignty
Prohibition on the Use of Force
Human Rights

6. Unilateral Force to Protect Nationals
Humanitarian intervention to protect own nationals
Hostage-taking and Rescue Missions
American Hostages in Tehran, 1979

7. Unilateral Force to Protect Non-Nationals
No treaty law exists at all for unilateral humanitarian intervention on behalf of non-nationals.
Evolving or established right under Customary International Law?

8. 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?

9. Iraq and the Kurds (1991)
Established link between internal repression and international peace and security
Significant opposition within the Council
No authorization to use force (Res. 688)

10. Haiti: Intervention to Support Democracy (1993-1995)
Military ouster of an elected regime
SC votes sanctions (Res 841) and blockade (Res 875)
Justification:
Threats to international peace and security
Humanitarian concerns
Illegitimacy of overthrow

11. Somalia (1992): Intervening in Complex Emergencies
SC authorized intervention under Chapter VII
Authorized “all necessary means” to create a safe environment for aid delivery
30,000 troops deployed

12. NATO Bombing in Kosovo (1998-1999): Intervention by a Regional Organization
Security Council Res. 1199
NATO bombing campaign
Justification:
Enforcement action?
Collective self-defense?
Humanitarian intervention?

13. 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

14. Issues of Just War Fighting
Whenever an armed conflict breaks out, certain questions arise:
Who, or what, is "the enemy"?
What happens to treaties between warring states?
What happens to enemy property?
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 limits does international law place on the way states can fight?
What is a war crime, and who is responsible?

15. Principles of Just Warfighting
Proportionality - of military means to political ends.

16. Legal definitions of proportionality
Article 22, §2, Chapter 1 of the Hague Rules of 1907: "The right of belligerents to adopt means of injuring the enemy is not unlimited.“
Article 35(1) of the 1977 Geneva Protocol I to the 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."

17. Principles of Just Warfighting
Proportionality
Discrimination

18. 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?

19. Principles of Just Warfighting
Proportionality
Discrimination
Prohibited Means

20. 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?

21. Codifying the Laws of War
Hague Conferences of 1899 and 1907
Geneva “Red Cross” Conventions of 1949
Geneva Additional Protocols of 1977

22. 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

23. Geneva Additional Protocols of 1977
Focus is on role of non-combatants
Operations against non-military targets prohibited
Non-combatants defined
Indiscriminate military activity prohibited
Variety of other actions prohibited

24. 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

25. Current U.S. Policy Toward Prisoners of War
How are current POWs treated?
Afghanistan: classified as “detainees of war” or “unlawful combatants”
Iraq: captured Iraqis are being treated as POWs

26. Are they POWs? NO
The forces in Afghanistan failed to fulfil the requirements
Rumsfeld: The detainees are “committed terrorists” and therefore not entitled to POW status
YES
The Conventions don’t require fulfilment of the four criteria in a particular way – therefore, they are POWs
POW status does not depend on the grace of the winning belligerent

27. Determination of POW status
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.”
Admin response: This is a new war, and the old rules can’t apply exactly.

28. Military Commissions? Long detentions a “security necessity”?
Detainees can challenge detainment in U.S. Courts (Hamdi v. Rumsfeld & Rasul v. Bush )
Detainee Treatment Act (Dec 2005)
Hamdan v Rumsfeld (June 2006)
What’s to become of the detainees?