As a direct result of the CIAs use of the enhanced interrogation techniques on the terrorist detainees at Guantanamo, over the period of 5 years between 2001-2006, the United States is credited with having saved the lives of countless hundreds of innocent, non-combatant, American and foreign citizens from planned Al Qaeda terrorist attacks around the world. [23] However, because CIL is based on historical experience and general international consensus with regard to legal obligations, norms and practices during armed conflict, it is continually changing as modern conflict evolves, meaning that the CIL legal obligations of States may change without any formal notification at all. My most solemn responsibility as president was to protect the country. Indeed, it seemed to the U.S. government that they were in unchartered LOAC territory faced with a new class of non-State, unlawful combatant, in a new kind of international war against non-State terrorist militants and their State supporters/protectors, that was neither foreseen nor governed by the laws of war contained in the 1949 Geneva Conventions. But as the years went by, Saddam became much more aggressive in limiting the reach of the inspectors, and the inspections for all practical purposes ended in 1998. The 1991 gulf war was the first international conflict that Human Rights Watch examined for violations of the law of war and the first in which military lawyers helped pick targets. I'll also focus on Department of Defense policies with respect to the law of war and the current conflict with Iraq and Iraqi violations of the law of war. This is the original sense of applicability, which predates the 1949 version. Some highlights of these rules are: Male and female prisoners of war received expanded protections in the Convention of 1949 such as: Articles were also put in place to protect wounded, sick and pregnant civilians as well as mothers and children. [4] J. Derbyshire (MAJ, New Zealand Defence Force (NZDF)), 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, Centre for Defence Studies, Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008, p. 5. In sum, Non-International armed conflict (NIAC) largely concerns intra-State conflict that is, armed conflict that occurs within the territory of a State. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. [26] Modified images taken from M.E. To summarize, the law of armed conflict: is a branch of international law; 37,770,554 questions answered * weegy This manual is a Department of Defense (DoD)-wide resource for DoD personnel - including commanders, legal practitioners, and other military and civilian personnel - on the law of war. I approved the use of the interrogation techniques. Finally, it discusses how occupiers are to treat an occupied populace. At the time, some were concerned we werent pushing hard enough. The lack of global consensus on these important definitions has meant that, while on the one hand most nations on the world stage absolutely oppose and condemn torture and inhumane treatment of any persons involved in an armed conflict, on the other hand, these nations hold diverse interpretations, understandings and positions on these terms and what they mean in reality and in practice during armed conflict. In sum, nearly 3,000 people mostly unarmed civilians living and working in a country at peace were killed on this terrible day in human history, and a further 6,000 injured as a result of these terrorist attacks on 9/11.[26]. Specifically, it required POWs to give only their names, ranks,and serial numbers to their captors. It renders the convicts or accused of such crimes to the jurisdiction of all signatory States, regardless of their nationality or territoriality of their crime. The rules help draw a lineas much as is possible within the context of wars and armed conflictsbetween the humane treatment of armed forces, medical staff and civilians and unrestrained brutality against them. 88 - 96, 266) Everyone is Entitled No Degrading or Humiliating Treatment Protected From Violence & Intimidation Shielded From Insults & Public Curiosity Given Respect for Their Persons & Honors No Reprisals Allowed Torture and Coercion (GPS, Art. It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". Note: This article addresses the international humanitarian law, or law of war. Young, How May Operation Iraqi Freedom [OIF] Campaigns Were There?, HIRE G.I., 14 July 2018, https://hiregi.com/2018/07/14/how-many-operation-iraqi-freedom-oif-campaigns-were-there/, (accessed 1 May 2019). Few practices and norms of CIL with regard to conflict and the conduct of war have not been codified into LOAC legislation. 13, 20, 27; FM 27-10, para. 31, 32; But if you see something that doesn't look right, click here to contact us! international treaties, conventions, pacts, agreements and protocols), according to the LOAC, (2) Whether or not a State or individuals are. For information on immigration and links to the 1951 Conventionand 1967 Protocol Relating to the Status of Refugees, see the article aboutImmigration. International armed conflict is defined in Common Article 2 of the Geneva Conventions as: All cases of declared war, or of any other armed conflict, which may arise between two or more of the High Contracting Parties (States), even if the state of war is not recognised by one of them, 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. This is because LOAC constitutes the highest law governing armed conflict in the world today and is the ultimate legal standard internationally for the lawful conduct of war. [25] Derbyshire, History of LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, ibid., p. 35. The Protocol stated all people not taking up arms be treated humanely and there should never be an order by anyone in command for no survivors.. 3 of 8) All of the above [27] M. De Long (Lt. Gen.) & N. Lukeman, A General Speaks Out [originally published as Inside CentCom: the unvarnished truth about the wars in Afghanistan and Iraq], Zenith Press, St. Paul (MN), 2007, p. 68. They charged that Americans had committed unlawful torture. when the government is obliged to use military armed forces against dissident insurgents, instead of simply the police force; or (2) non-government dissident groups must possess organized armed forces sufficient to render them parties to the conflict, meaning that they are operating under some kind of command structure and have the capacity to sustain military operations within the State. When it did, we would open ourselves up to criticism that America had compromised our moral values. The new updates stated all prisoners must be treated with compassion and live in humane conditions. Reuters. This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. USA, Al-Shimari v. CACI Premier Technology, Inc. Central African Republic, Report of the UN Independent Expert, July 2016, Iraq: Situation of Internally Displaced Persons, Syria, Report by UN Commission of Inquiry (March 2017), Israel/Palestine, Accountability for the Use of Lethal Force, UN/Colombia, Human Rights Committee Clarifications and Concluding Observations (2016), International Criminal Court, Trial Judgment in the Case of the Prosecutor V. Jean-Pierre Bemba Gombo, Eastern Ukraine, OHCHR Report on the Situation: November 2016 - February 2017, South Sudan, AU Commission of Inquiry on South Sudan, Treaties, States Parties and Commentaries, Medical personnel, facilities and transports, General Statements on International Humanitarian Law, Chronology of Cases and Documents Relating to Past and Contemporary Conflicts. It requires humane treatment for all persons in enemy hands, without discrimination. The circumstances of each will determine whether it legally and factually meets the qualifying conditions as an armed conflict (international or non-international). Adding to these legal rights, Article 75(3) of API states, moreover, that Detaining Powers are obligated to release detainees only when the circumstances justifying the arrest, detention or internment have ceased. This is a principle supported by CIL which also allows that detainees may be held in detention against their will if there is a good reason to do so, and as long as reason requires (API Art 75(3) and ICRC Customary IHL Rule 99, in NZDF LOAC Manual, During the early 2000s the Bush Administration sincerely believed and asserted,with full support and confirmation from the Pentagon, the Department of Justice and the CIA, that the U.S. government, Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on Pinterest (Opens in new window), Click to email this to a friend (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to share on Reddit (Opens in new window), Click to share on Tumblr (Opens in new window), Click to share on Pocket (Opens in new window), Click to share on Telegram (Opens in new window), Click to share on Skype (Opens in new window). No one size fits all legal approach to terrorism, particularly as to the judicial nature of the situation and the classification of suspected terrorists, is, or has proved to be, feasible in practice., With regard to the highly controversial Iraq War, the U.S. Marine Corps former Deputy Commander of U.S. CENTCOM, Lieutenant General (LTGEN) Michael DeLong, stated in 2007 that: Although we wondered about the timing, we never wondered about the rightness of removing Saddam from power. States comply with the practice out of a sense of legal obligation to an international norm or custom, rather than solely due to their own legal LOAC obligations or national interests. The Geneva Conventions of 1949 also laid out rules for protecting wounded, sick or shipwrecked armed forces at sea or on hospital ships as well as medical workers and civilians accompanying or treating military personnel. The amendments extended protections for those wounded or captured in battle as well as volunteer agencies and medical personnel tasked with treating, transporting and removing the wounded and killed. The complexity of modern conflict today however with wars increasingly involving features of both International and Non-International conflict at the same time has presented some challenges to this clear-cut LOAC categorisation of war in recent times (e.g. Nobelprize.org.History of the Geneva Conventions. Following the 9/11 terrorist attacks against New York and Washington D.C. in the United States in September 2001, America and its coalition of allies went to war against the Al Qaeda terrorist network that had planned and carried out those attacks, and also those States who either hosted and gave refuge to, or materially supported, the terrorist networks leaders and members. All articles are regularly reviewed and updated by the HISTORY.com team. Out of 194 nations in the world today, 190 are states parties to those 1949 Geneva Conventions. disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature, e.g. [30], In a landmark case Hamdi v Rumsfeld, the U.S. Supreme Court overturned the U.S. governments inter-State International LOAC categorisation of the conflicts and ruled instead (with two dissenting judges) that these captured terrorists and insurgents were in fact non-State and unlawful Enemy combatants of intra-State, Non-International armed conflicts, since armed conflict was taking place against a non-State actor, the terrorist network Al Qaeda, in the territory of countries that were party to the Geneva Conventions (e.g. Once armed conflict breaks out, the exact laws of war and regulations that govern the hostility depends largely on its classification as either an International or Non-International armed conflict. The agreements originated in 1864 and were significantly updated in 1949 after World War II. Every Statebound by the treaties is under the legal obligation to search for and prosecute those in its territory suspected of committing such crimes, regardless of the nationality of the suspect or victim, or of the place where the act was allegedly committed. Geneva Convention of 27 July 1929 relative to the treatment of prisoners of war. Al Qaeda terrorists (unlawful combatants under the LOAC) captured in Afghanistan.[34]. Gates states the following in his memoir: None of us doubted in the early 1990s that, just as soon as he could, Saddam would resume the programs he had under way before the [Gulf] war to develop biological, chemical, and nuclear weapons. [23] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, op. Non-International armed conflicts typically involve civil wars in which: (a) the government of a State is using its regular armed forces to fight against one or more identifiable, dissident armed groups operating within the territory of the State; or (b) armed and hostile fighting is taking place between dissident, rival armed groups within a State, that does not involve the government, but nevertheless requires the government to act to restore security and stability to the State. Assess the progress that the U.S. and its allies were making against the Al Qaeda terrorist network, and other terrorist groups, by means of the Global War on Terrorism (GWOT). That view was reinforced by his boasting and his behavior, intended to persuade his own people and his neighbors of that success. International armed conflicts are governed by all four Geneva Conventions in addition to Additional Protocol I, while Non-International conflict is governed by Common Article 3 in the four Geneva conventions in addition to Additional Protocol II, but also leans heavily on internationally-accepted customs or norms with regard to basic human conduct, protections and rights in warfare known as Customary International Law. terrorist attacks, do not comprise armed conflict and are therefore not governed by the LOAC on Non-International armed conflict. [21], Common Article 3: The article common to all four of the Geneva Conventions of 1949, which is also an accepted and established customary norm of CIL, requiring that all persons that are not taking an active part in hostilities within a Non-International intra-State armed conflict be treated humanely in all circumstances, regardless of race, colour, religion, sex, birth, wealth or any other similar criteria. They charged that Americans had committed unlawful torture. In the wake of 9/11, that was a risk I was unwilling to take. It is binding on you as a member of thearmed forces of your State. All of the passengers of the four civilian flights were killed, in addition to thousands of civilians of 115 different nationalities who were working in the buildings. [20], The obligations contained in these treaties, outlined above, are so generally accepted and upheld, they are now regarded as legally binding on all States in the world including States that are not in fact ratifying Parties to the treaties themselves. shelter and sanitation were present in almost all the 150 Civil War military prisons, though not on the same scale. Your email address will not be published. [8], Internal security emergencies within a State, i.e. That view was reinforced by his boasting and his behavior, intended to persuade his own people and his neighbors of that success. Torture has been defined in the Rome Statute as: The intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions (Article 7(2)(e) available to view here: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf). This means that in rare instances where a State has historically consistently objected to a particular practice or custom of conflict, the principle of customary law forbidding that practice is not considered legally binding for that particular State with regard to that specific practice.[17]. cit., p. 4. military commissions are suspended pending the government's appeal in Hamdan v. Indeed, the legal obligations and rights of CIL apply regardless of: (1) Whether or not a state of war is formally considered to exist; (2) Whether or not a State or individuals are participating parties or supporting parties to an armed conflict; and lastly, (3) Whether or not governments of the nations involved have ever ratified particular LOAC treaties. In Hamdi,a U.S. citizen wasaccused of being a member of the Taliban forceson U.S. soil as an "enemy combatant," and was detained by unilateral Executive decision;The U.S. Supreme Court ruled on the validity of his detention. Adherence to the sanctions also gradually weakened as a number of governments France, Russia, Germany, and China, among others angled for oil contracts and other business opportunities with the Iraqis. For under the LOAC, Detaining Powers are clearly permitted to question detainees in order to ascertain their identity and status and to obtain information of military value, and are generally allowed to use skilful interrogation to induce detainees to provide intelligence of worth (NZDF LOAC Manual Chapter 15: Prisoners of War and other persons deprived of their liberty in the course of armed conflict, in Section Nine: Prisoners of War and Other Persons Deprived of Their Liberty, 149.335 Law of Armed Conflict, ibid., p. 36). To better illustrate this point, the following comprises a list of the known various terrorist plots and attacks that were prevented or stopped by the U.S. as a result of the CIAs enhanced interrogation programme during the early 2000s (among many other terrorist plots that remain classified and are therefore unknown to the general public): (1) the 2002 U.S. West Coast Airliner Plot; (6) the 2004 United Kingdom (UK) Urban Targets Plot; Furthermore, according to the U.S. Department of Defense, as a direct result of the enhanced interrogation program the CIA was also able to successfully: (Bush, Decision Points, ibid., p. 171; United States Department of Defense (U.S. DoD), Summary of the High Value Terrorist Detainee Program, Office of the Director of National Intelligence, Washington DC 20511, Military Commission Proceedings at Guantanamo Bay, 2008, http://www.defenselink.mil/home/features/Detainee_Affairs/, (accessed 12 September 2008); U.S. DoD, JTF-GTMO Information on Detainees, Military Commission Proceedings at Guantanamo Bay, 4 March 2005, http://www.defenselink.mil/home/features/Detainee_Affairs/, (accessed 12 September 2008)). This way of thinking resulted in more humane treatment for those officially classified as prisoners of war. Humane treatment includes: be treated with respect for their dignity as human beings. [12] Customary International Humanitarian Law, The Magazine of the International Red Cross and Red Crescent Movement [Magazine], 2005, p. 2, http://www.redcross.int/EN/mag/magazine2005_2/24-25.htm (accessed 28 August 2008). Had we captured more al Qaeda operatives with significant intelligence value, I would have used the program for them as well (Bush, Decision Points, ibid., pp. The Court rejected this argument andheld that consent exised since September 11, 2001, through an Authorization for Use of Military Forces (AUMF), a Congressional resolution which empowered the President to use all necessary and appropriate forces against any nations, organizations, or personsthat he determinedto have planned, authorized,committed, or aided in the September 11, 2001attacks. The ICRChas a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs. General (GEN) Tommy Franks, the U.S. Army former Commander of CENTCOM, has also defended Americas decision to go to war against the Saddam dictatorship in Iraq, stating that: The intelligence, while not precise, was overwhelming. The intensive inspections program instituted after the [Gulf] war uncovered evidence that the Iraqis had, in fact, been considerably further along in developing nuclear weapons than U.S. intelligence had estimated before the warAs long as the inspections effort continued and the sanctions were strictly enforced, his opportunities to resume the programs for weapons of mass destruction would be very limited. We strive for accuracy and fairness. [10] Non-international armed conflict, ICRC Casebook How does Law protect in War?, 2019, https://casebook.icrc.org/glossary/non-international-armed-conflict, (accessed 23 April 2019). In previous blogs I have presented case-studies of Multinational Operations (MNOs) in Rwanda, Bosnia and Kosovo, in which participating national forces bound by government-imposed national caveat constraints failed to use lethal force at the critical and necessary moments in order to fully uphold or pursue the primary security objectives of their security mission mandates. (1) Wounded and sick military personnel on land (Geneva Convention I). In addition to nationally ratified laws of war (e.g. I would have preferred that we get the information another way. [39] C. Weller, Startling maps show every terrorist attack worldwide over the last 20 years, Business Insider, 1 November 2017, https://www.businessinsider.com/global-terrorist-attacks-past-20-years-in-maps-2017-5?r=US&IR=T, (accessed 1 May 2019). 80-81). Indeed, from that moment onwards, waterboarding and many other of the more aggressive enhanced interrogation techniques were no longer sanctioned or used by the CIA program on detainees at Guantanamo. There were two that I felt went too far, even if they were legal. [11] The Use of Force in International Law: Types of Armed Conflict, Open University [Great Britain], 2019, https://www.open.edu/openlearn/society-politics-law/the-use-force-international-law/content-section-2.1.3, (accessed 23 April 2019). This absence of legal entitlement to the LOAC protections afforded to lawful armed combatants was strengthened further by the fact that these Islamist terrorists and insurgents conducted their operations out of uniform, failed to distinguish themselves from the civilian population thereby exposing innocents to harm, deliberately targeted innocent civilians themselves in terrorist attacks, forcibly used civilians as human shields to protect themselves from legitimate military responses provoked by their attacks, and generally showed a marked disdain, contempt and even hatred for the principles, protections and spirit of the laws of war. 2023, A&E Television Networks, LLC. [3] Modified images taken from Kosovo As it really is 1999-2003, Post-War Suffering Serbian Orthodox Diocese of Raska and Prizren, 2019, http://www.kosovo.net/report.html, (accessed 17 January 2019); March Pogrom Kosovo 17-19 March 2004, News from Kosovo Serbian Orthodox Diocese of Raska and Prizren, http://www.kosovo.net/news_pogrom.html, (17 January 2019); Rupert Colville, Kosovo minorities still need international protection, says UNHCR, UNHCR The UN Refugee Agency UK, 24 August 2004, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, (accessed 17 January 2019); and Burning of the Serbian village Svinjare, March 17, Kosovo.net, 2019, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, (accessed 17 January 2019). The result was unanimous adoption in the fall of 2002 of UN Security Council Resolution 1441, which demanded a full accounting of progress in Iraqs weapons programs and a rigorous international inspection effort. Consequently, just as in the past, the laws of war that govern armed conflict in the world today though a little outdated are still practically workable to confront the problematic conflicts of the twenty-first century, no-matter how complex they are and may yet become. Writings of highly-qualified legal experts. Indeed, inevitably, the whole issue comes down to one single question: is it disproportionate and wrong or proportional and right? The extreme, Islamo-fascist terrorists and insurgents of today do indeed present a new and different brand of non-State and unlawful Enemy combatant in armed conflict in modern times, that was certainly not envisaged in the drafting of the Geneva Conventions in 1949 or the IAC and NIAC Additional Protocols in 1977. The controversy especially concerned Americas use of CIA/Department of Justice government-approved enhanced interrogation techniques to extract information from approximately 33 uncooperative detainees on plans for future terrorist attacks and the members and organisational structure of the Al Qaeda terrorist network. Based on what I read and my knowledge of Saddams behavior in the 1980s and early 1990s it seemed highly likely to me that he had resumed working on weapons of mass destruction, that the sanctions were largely ineffective, and that the man was a very dangerous megalomaniac. [28] Modified images taken from: N. Shachtman, Afghan Air War Hits 3-Year Low, WIRED, 16 January 2012, https://www.wired.com/2012/01/afghan-air-war/, (accessed 1 May 2019); Operations and missions: past and present, North Atlantic Treaty Organization (NATO),25 April 2019, https://www.nato.int/cps/en/natohq/topics_52060.htm, (accessed 1 May 2019); L. Eptako, Then and Now: What Replaced the Toppled Saddam Statue?, PBS Newshour, 26 August 2010, https://www.pbs.org/newshour/world/saddam-statue, (accessed 1 May 2019); and B. However, CIL also asserts simultaneously that persons held in custody who are either unable or unlikely to take part in hostilities upon their release from custody by reason of illness, or gravely diminished mental or physical health should be released and directly repatriated as soon as possible (ICRC Customary IHL Rule 99, in NZDF LOAC Manual Chapter 15, ibid., pp. This Convention protects wounded and infirm soldiers and medical personnel who are not taking active part in hostility against a Party. receive humane treatment, to have contact with humanitarian organizations, and . [6] Common Article 2 to the Geneva Conventions 1949. It ensureshumane treatment without discriminationfounded on race, color, sex, religion or faith, birth or wealth, etc. Germany signed the Convention of 1929, however, that didnt prevent them from carrying out horrific acts on and off the battlefield and within their military prison camps and civilian concentration camps during World War II. [33] Under the 1949 Geneva Conventions it is prohibited to torture non-combatant civilians,hors de combatwounded, sick or PW military personnel,or other lawful combatants during an armed conflict. The principle of humane treatment in IHL requires that those who fall into the hands of the enemy be treated with respect for their dignity as human beings. The Geneva Conventions providefor universal jurisdiction, as opposed to a more traditional (and limited) territorial jurisdictionthat was designed torespect thesovereignty of States over their citizens. For under the LOAC, Detaining Powers are clearly permitted to question detainees in order to ascertain their identity and status and to obtain information of military value, and are generally allowed to use skilful interrogation to induce detainees to provide intelligence of worth (NZDF LOAC Manual Chapter 15: Prisoners of War and other persons deprived of their liberty in the course of armed conflict, in Section Nine: Prisoners of War and Other Persons Deprived of Their Liberty. (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth,
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