Portal de Periódicos da CAPES

Interesting Times for International Humanitarian Law: Challenges from the ‘War on Terror’*

2005; Taylor & Francis; Volume: 17; Issue: 1-2 Linguagem: Inglês

10.1080/09546550590520645

1556-1836

Gabor Rona,

Historical and Contemporary Political Dynamics

Click to increase image sizeClick to decrease image size Notes The terms ‘international humanitarian law’, ‘humanitarian law’, ‘law of armed conflict’, ‘jus in bello’ and ‘laws of war’ are interchangeable. The term ‘war’ is somewhat archaic in international law, having been replaced by ‘armed conflict.’ The distinction reflects a change from past times, in which wars were declared, to the present, in which facts on the ground are rightfully given greater emphasis over the declarations of parties to conflict. See, for example, Robert Kagan, ‘Power and Weakness’, Policy Review 113 (June/July 2002). Humanitarian law is a lex specialis – a term used to indicate any specific branch of law that is triggered by special circumstances. Lex specialis prevails over conflicting lex generalis, or generally applicable law. Humanitarian law is a lex specialis applicable in times of armed conflict. Some analysts assert that as a lex specialis, humanitarian law, when applicable, displaces legal regimes that apply in peacetime. This is clearly wrong as to international criminal law, a significant part of which is devoted to war crimes, covering a broader scope of prohibitions than humanitarian law. It is equally wrong with regard to domestic criminal law, which is also capable of covering war crimes and an even broader scope of other prohibitions than are covered by international criminal law. It is also wrong as to human rights law, as enunciated in the International Covenant on Civil and PoliticalRights (ICCPR), UN General Assembly Resolution 2200A16 Dec. 1966 or UN doc. A/6316 1967. The ICCPR recognizes that some rights may be subjectto derogation ‘in time of public emergency which threatens the life of the nation’, but identifies a ‘hard core’ group of rights from which there may be no derogation in any circumstances, including armed conflict. See ICCPR, Article 4. The Geneva Convention of 22 Aug. 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field, 18 Martens Nouveau Recueil (ser. 1) 607, 129 Consol. T. S. 361, entered into force on 22 June 1865. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field of 12 August 1949, 75 UNTS (1950) 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS (1950) 85; Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS (1950) 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS (1950) 287. There are 190 states party to the Geneva Conventions. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, 1125 UNTS (1978) 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS (1978) 609. David Rieff What Is Really at Stake in the US Campaign against Terrorism, http://www.crimesofwar.org/sept-mag/sept-home.html: ‘The crisis of international humanitarian law was an accident waiting to happen. For when law and material reality no longer coincide, it is, of course, law that must give way’. See Carsten Stahn, ‘International Law at a Crossroads? The Impact of September 11’, Heidelberg Journal of International Law 62 (2002) p. 195, citing W. J. Fenrick, ‘Should the Laws of War Apply to Terrorists?’, American Society of International Law Proceedings 79 (1985) p.112: ‘There are times and places when it is appropriate to apply other regimes such as the criminal law of a State at peace… Premature application of the laws of war may result in a net increase in human suffering, because the laws of war permit violence prohibited by domestic criminal law’. See note 3. There are peacetime obligations under humanitarian law, but those are not relevant to the present discussion. The reason there are two separate strands of humanitarian law is sovereignty. States are more willing to accept greater international controls on their international affairs than on their internal ones. Thus, Protocol I Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts runs to 102 articles, plus two annexes of 17 and 28 articles, respectively. There are 161 states party to AP I. (The United States is not a party to AP I, but considers much of its substance as ‘either legally binding as customary international law or acceptable practice though not legally binding’. US Army, Operational Law Handbook 2002 (Charlottesville, VA: 2001) p.5.) Protocol II Additional Relating to the Protection of Victims of Non-International Armed Conflict has 28 articles and no annexes. There are 156 states party to AP II. AP I, Article 1.3 incorporates by reference GC Common Article 2 (CA 2) on scope of application. CA 2 provides: In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. The ICRC is acknowledged to be the guardian of international humanitarian law. It has published extensive commentaries to the Geneva Conventions and their Additional Protocols. See J. S. Pictet, Commentary of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: International Committee of the Red Cross, 1952) p.32. The ‘difference arising between two States’ language suggests the requirement of a causus belli. This interpretation is not universally shared. See Jean-Francois Queguiner, ‘The Contribution of the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia to International Humanitarian Law’ (forthcoming). ‘In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions…’ AP II: Part I. Scope of this Protocol Art 1. Material field of application This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. Pictet, (note 14) p.49. The International Criminal Tribunal for Rwanda also applied these criteria in the determination of armed conflict. See The Prosecutor v. Jean Paul Akayesu, 1998 ICTR-96-4-T para 619. The Akayesu court did not, however, see these criteria as minimum requirements for existence of non-international armed conflict. See also S. Boelaert-Suominen, ‘Humanitarian Law Applicable to All Armed Conflicts,’ Journal of International Law 13 (2000) p.619: ‘In light of the ICTY jurisprudence since 1995, it can be safely concluded that the threshold suggested by the ICRC Commentary has failed to crystallise into customary law.’ Gerald I. A. D. Draper, ‘The Geneva Conventions of 1949,’ Rec de Cours 114 (1965) pp.65, 90. I acknowledge, but exclude as unhelpful, the definition of terrorism found in the 1937 Convention for the Prevention and Punishment of Terrorism: ‘criminal acts directed against a State or intended to create a State of terror in the minds of particular persons, or a group of persons or the general public.’ A comprehensive list of treaties on terrorism can be found at http://untreaty.un.org/English/Terrorism.asp UNGA Res. 51/210-17 Dec. 1996. See Report of the Working Group, Measures to Eliminate International Terrorism, A/C.6/56/L.9 (29 Oct. 2001). Hans-Peter Gasser, ‘Acts of Terror, “Terrorism” and International Humanitarian Law,’ International Review of the Red Cross 84 (Sep. 2002) pp. 553–554: ‘It is much more a combination of policy goals, propaganda and violent acts–an amalgam of measures to achieve an objective’. Chibli Mallat, September 11 and the Middle East: Footnote or Watershed in World History? http://www.crimesofwar.org/sept-mag/sept-home.html: ‘The problem is that terrorism as a concept remains so ill-defined that the idea of attacking it systematically transforms the use of violence–in international and domestic law the prerogative of States–into an open-ended project of endless war. And that, surely, is inconceivable, unless the American government now means to prosecute a series of wars to end all violence in the world’. AP I, Article 1(4). Stahn (note 8) pp.192–94. Ibid., p.189. See also M. Cherif Bassiouni, ‘Legal Control of International Terrorism: A Policy-Oriented Assessment,’ Harvard International Law Journal 43 (2002) pp.83, 99. Jordan J. Paust, ‘There Is No Need to Revise the Laws of War in Light of September 11’, (2002), citing Pan American Airways, Inc. v. Aetna Casualty & Surety Co., (2d Cir 1974) 505 F2d 989, 1013–1015 (‘United States could not have been at war with the Popular Front for the Liberation of Palestine [PFLP], which had engaged in terrorist acts as a non-state, nonbelligerent, noninsurgent actor’). But see Yoram Dinstein, ‘Humanitarian Law on the Conflict in Afghanistan’, American Society of International Law Proceedings 96 (2002) p.23: ‘… a terrorist attack from the outside constitutes an “armed attack” under Article 51 of the (UN) Charter’.) Eyal Benvenisti, Terrorism and the Laws of War: September 11 and its Aftermath, http://crimesofwar.org/expert/attack-apv.html. See also The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72; See also Dinstein: 24, citing Nicaragua v. United States, (1986) ICJ 14, and the General Assembly's Consensus Definition of Aggression, General Assembly Resolution 3314 (1974). Lindsay Moir, The Law of Internal Armed Conflict (Cambridge: Cambridge University Press, 2002) p.31. For analysis of the legal consequences of the killings in Yemen, see Anthony Dworkin, The Yemen Strike: The War on Terrorism Goes Global, http://crimesofwar.org/onnews/news-yemen.html The Prosecutor v. (note 27) Dusko Tadic, 1995 para. 70, p.37. The Prosecutor v. Jean Paul Akayesu, (note 17) 1998 ICTR-96‐4-T, para.619. The Rome Statute of the International Criminal Court, UN doc. A/CONF. 183/9-17 July 1998, 37 ILM (1998) pp.999–1019, Article 8.2(f) contains this requirement, which may be seen as an expression of the drafter's belief that ‘protracted’ is a defining element of non-international armed conflict, or merely that ICC jurisdiction is triggered only in case a non-international armed conflict is protracted. The Prosecutor v. Zejnil Delalic (Celebici Camp Case), Judgment, (1998) IT-96-21, para.184. See Abella Case, Inter-American Commission on Human Rights, Report No. 55/97, Case No. 11.137, 18 Nov. 1997 paras.155–6. Stahn, (note 8) p.188. See note 14. See note 16. Stahn, (note 8) p.192, citing Elizabeth Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (Boston: M. Nijhoff 1996), p.128, and noting the United Kingdom's denial of existence of armed conflict in Northern Ireland. In fact, the UK's ratification of AP I was accompanied by a statement that the term ‘armed conflict’ is distinguishable from the commission of ordinary crimes including acts of terrorism whether concerted or in isolation. See Robert Goldman, Terrorism and the Laws of War: September 11 and Its Aftermath, http://crimesofwar.org/expert/attack-apv.html, noting the 1805 US military action in Tripoli against the Barbary Pirates and that of 1916 in Mexico against Pancho Villa and his band. On the other hand, President Bush and others speaking on behalf of the US administration have clearly suggested that some aspects of the war on terror will not involve armed conflict, permitting us to conclude that in their view, those aspects, at least, will not be covered by humanitarian law. On 20 Sep. 2001, President Bush said in an address to a joint session of Congress and the American people, ‘The war will be fought not just by soldiers, but by police and intelligence forces, as well as in financial institutions’, http://www.whitehouse.gov/news/releases/2001/09/20010920–8.html. National security advisor Condoleezza Rice stated on a Fox News broadcast on 10 Nov. 2002: ‘We're in a new kind of war, and we've made it very clear that this new kind of war be fought on different battlefields’. See http://www.foxnews.com/story/0,2933,69783,00.html See Sec. II.B. 1. The exception to the ‘between States’ requirement for international armed conflict is armed conflicts ‘in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination …’ These are deemed international armed conflict by AP I, Article 1.4. Sweden's Foreign Minister, Anna Lindh, used the term ‘summary execution’ and further stated: ‘Even terrorists must be treated according to international law. Otherwise, any country can start executing those whom they consider terrorists’. Quoted in Walter Pincus, ‘Missile Strike Carried Out With Yemeni Cooperation; Official Says Operation Authorized under Bush Finding’, Washington Times 6 Nov. 2002. See AP I, Article 51.3. The US position on this point is difficult to discern. The Yemen attack notwith standing, the U.S. State Department remains critical of Israeli targeted killings of Palestinian militants. Richard Boucher, Press Briefing, 5 Nov. 2002. The criteria of GC III, Article 4, that the United States invokes to deny POW status to detainees it deems ‘unlawful combatants’ would also appear to apply to the CIA. The CIA is not part of the armed forces of the United States. Only members of the armed forces of a party to the conflict (other than medical personnel and chaplains) are combatants, entitled to participate directly in hostilities. AP I, Article 43.2. This view is probably correct as to Al-Qaeda members detained in relation to the Afghan conflict. It is certainly correct as to others detained outside the context of armed conflict. Section 1-6(b) Army Regulation 190-8, ‘Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Headquarters Departments of the Army, the Navy, the Air Force, and the Marine Corps’ (Washington D.C.: 1 Oct. 1997). See GC IV, Article 27, AP I, Article 75 and CA 3. See also ‘Request by the Center for Constitutional Rights and the International Human Rights Law Group for Precautionary Measures under Article 25 of the Commission's Regulations on Behalf of Unnamed Persons Detained and Interrogated by the United States Government’, filed with the Inter-American Commission on Human Rights, 13 Feb. 2003. ICCPR, Arts. 16 and 4.2. J. S. Pictet, Commentary of the Fourth Geneva Convention (Geneva: International Committee of the Red Cross 1952) 51: ‘[It is] a general principle which is embodied in all four Geneva Conventions of 1949 [that] every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law’. Note, however, that nationals of the detaining authority and of neutral and co-belligerent states are not ‘protected persons’. See GC IV, Article 4. Nevertheless, even they must have some legal status. See ICCPR, Arts. 16 and 4.2. GC III, Article 5. GC IV, Arts. 42, 78. GC IV, Arts. 64–68. GC IV, Article 68. AP I, Arts. 48–49. AP I, Arts. 57–58. Thus, we should not be surprised by these comments attributed to Osama bin Laden, ‘Letter to the American People’, The Observer (24 Nov. 2002) http://www.observer.co.uk/international/story/0,6903,845724,00.html ‘You may then dispute that all the above does not justify aggression against civilians, for crimes they did not commit and offenses in which they did not partake: … the American people are the ones who choose their government by way of their own free will; … (who) have the ability and choice to refuse the policies of their Government and even to change it if they want; … who pay the taxes which fund the planes that bomb us in Afghanistan, the tanks that strike and destroy our homes in Palestine, the armies which occupy our lands in the Arabian Gulf, and the fleets which ensure the blockade of Iraq. These tax dollars are given to Israel for it to continue to attack us and penetrate our lands. So the American people are the ones who fund the attacks against us, and they are the ones who oversee the expenditure of these monies in the way they wish, through their elected candidates.’ See, e.g., Ruth Wedgwood, ‘Propositions on the Law of War after the Kosovo Campaign: Jus Ad Bellum and the Personal Factor in History’, U.S. Naval War College International Law Series 78 (2003) p.435. Asserting the ‘consanguinity of jus ad bellum and jus in bello’, professor Wedgwood states: ‘whether one's framework is utilitarian or pure principle, it is possible to admit that the merits of a war make a difference in our tolerance for methods of warfighting. This teleological view can be incorporated, albeit awkwardly, in the metric for “military advantage” in judging proportionality, for surely we do not value military objectives for their own sake’. See Dino Kritsiosis, ‘On the Jus ad Bellum and Jus in Bello of Operation Enduring Freedom’, 96 American Society of International Law Proceedings 35 (2002), referring to the distinct spheres, histories, methodological traditions, stages of development and circumstances of application of these two legal regimes: ‘As represented in the UN Charter, the laws of the jus ad bellum proceed from the general prohibition of the threat or use of force by member States of the United Nations ‘in their international relations’ (Article 2(4))’, while the jus in bello of the (GCs and APs) applies to such use of force. Thus, the Preamble to AP I declares that ‘the provisions of the Geneva Conventions and of this protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.’ The Rome Statute of the International Criminal Court, Arts. 8.2(b)(i) and (ii) prohibit ‘intentionally directing attacks against the civilian population’ and ‘civilian objects’, respectively; Art. 8.2(b)(iv) prohibits ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ (emphasis added). AP I, Article 51.3. 1899 Hague Declaration (IV, 2) Concerning Asphyxiating Gases and Hague Declaration (IV, 3) Concerning Expanding Bullets, American Journal of International Law 1 (1907) Supplement pp.155-9; 1907 Hague Convention IV Respecting the Laws and Customs of War on Land and its Annexed Regulations, Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Hague Convention VII Relating to the Conversion of Merchant Ships into Warships, Hague Convention VIII Relative to the Laying of Automatic Submarine Contact Mines, Hague Convention IX Concerning Bombardment by Naval Forces in Time of War, Hague Convention XI Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War, American Journal of International Law 2 (1908) Supplement pp.90–127, pp.133–59, pp.167–74, pp.202–16; 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its First Protocol, 249 UNTS pp.240–88, pp.358–64; 1999 Second Hague Protocol, 38 ILM (1999) pp.769–82; 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects and Protocols and 21 Dec. 2001 amended version, 1980 Protocol I on Non-Detectable Fragments, 1980 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 1980 Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons, 1342 UNTS (1983) pp.137–255, 1995 Protocol IV on Blinding Laser Weapons, 35 ILM (1996) p.1218, 1996 Amended Protocol II 35 ILM (1996) pp.1206–17; 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia, UN doc. S/25704 of 3 May 1993, 32 ILM (1993) p.1192; 1994 Statute of the International Criminal Tribunal for Rwanda, UN doc. SC/5974 of 12 Jan. 1995, 33 ILM (1994) p.1598; 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction 36 ILM (1997) pp.1507–19; 1998 Statute of the International Criminal Court, UN doc. A/CONF.183/9-17 July 1998, 37 ILM (1998) pp.999–1019. See Steven R. Ratner, Rethinking the Geneva Conventions, http://www.crimes-ofwar.org/expert/genevaConventions/gc-ratner.html A case in point is the lack of any precise definition of ‘armed conflict’. Every so often a call for precision arises, but ultimately gives way to an understanding that a certain degree of ambiguity is beneficial, so as to assure the laws' protections in close cases. Frederic Megret, ‘War’? Legal Semantics and the Move to Violence ’, European Journal of International Law 132 (April 2002) pp.362–99.