[7] Additional Protocol I (API) Article 1(4). Within the vast body of International Humanitarian Law (IHL) that exists today, LOAC is the field of law that governs all international relations concerned with armed conflict, and is comprised of all international law relating to the existence and conduct of all armed conflict and military occupation. The new techniques proved highly effective., Of the thousands of terrorists we captured in the years after 9/11, about a hundred were placed into the CIA program. The LOAC also permits the handcuffing or physical restraining of persons for the purpose of interrogating them, as well as isolation methods, so long as these are temporary measures used only when strictly necessary militarily (Ibid., p. 35). One of the treaties created during the 1949 Convention, this defined "Prisoner of War," and accorded such prisoners proper and humane treatment as specified by the first Convention. As military professionals, [Tommy] Franks and I spent many hours examining the reasons for attacking Iraq, and asking ourselves if they were sound. [12] The Additional Protocols, dealing expressly with the two categories of International (Additional Protocol I) and Non-International (Additional Protocol II) armed conflict, were written in 1977 in order to reflect this reality, and to express international concern that the victims of Non-International armed conflict likewise be afforded basic protections under the LOAC, especially given the great danger posed by armed groups to the lives of ordinary civilians in these high-intensity and highly-violent internal conflicts. For much of mankinds history, the ground rules of warfare were hit or miss, if they existed at all. [32] Derbyshire, Section Ten: Internees, Detainees and Torture, 149.335 Law of Armed Conflict, op. While some civilizations showed compassion for the injured, helpless or innocent civilians, others tortured or slaughtered anyone in sight, no questions asked. It requires humane treatment for all persons in enemy hands, without discrimination. Out of 194 nations in the world today, 190 are states parties to those 1949 Geneva Conventions. As a result, the Geneva Conventions were expanded in 1949 to protect non-combatant civilians. unlawful. 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). Afghanistan et al.). Find History on Facebook (Opens in a new window), Find History on Twitter (Opens in a new window), Find History on YouTube (Opens in a new window), Find History on Instagram (Opens in a new window), Find History on TikTok (Opens in a new window). Cornell Law School Legal Information Institute.Henry Dunant Biographical. 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. Since there was no set treaty or law specifically outlining the obligations due to such detainees under the Geneva Conventions when captured by an opposing force, it appeared the problems arising from this new conflict exigency would be best guided by the customs of modern CIL notably, humane treatment consistent with the Geneva Conventions, but subject to military necessity, that of preventing additional, unlawful terrorist attacks against American citizens or those of its allies. Ukraine Diary: Spring flowers bloom in Kyiv's streets, a sign of life returning to the city. (1) Wounded and sick military personnel on land (Geneva Convention I). cit., p. 2; [Boumediene v. Bush, 2008] A. Shapiro, Supreme Court Backs Rights for Terrorist Detainees, National Public Radio NPR, 12 June 2008, https://www.npr.org/templates/story/story.php?storyId=91425261, (accessed 23 April 2019). To summarize, the law of armed conflict: is a branch of international law; This variation in interpretation is especially apparent with respect to, or in contrast to, practices of lawful interrogation in response to national security threats or during national security emergencies where the State is seeking to fulfil its primary responsibility and duty to protect the lives of its citizens. 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. Your email address will not be published. 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. Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. That was not true. 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. Fresh conventions are constantly under negotiation and in the absence of such agreements States are bound by customary international law which is always evolvingThese observations are as applicable today as they were then. Subsequently a preventative pre-emptive war took place in Iraq against Saddam Husseins dictatorship during 2003, which: firstly, had been meeting with senior Al Qaeda leaders; secondly, was cooperating with and housing Al Qaeda members at a chemical and biological weapons-testing laboratory situated at an Iraqi base near the Iranian border (including the notorious Al Qaeda attack-planner, Abu Musab al-Zarqawi); and thirdly, was strongly suspected internationally of having stockpiles of illegal biological and chemical Weapons of Mass destruction (WMD),in addition to nuclear material from its nuclear development programme, that, given the regimes long and proven record of support for terrorism, it was feared Saddam might easily give or sell to Al Qaeda terrorists to enhance and further their attacks in America and around the world (see endnote).[27]. to inflict lawful pain and suffering on a law-breaking person, who has planned, acted and desired to inflict unlawful pain, suffering and death on innocent multitudes, in order to prevent acts of terrorism and thereby save the lives and limbs of countless, law-abiding citizens? This convention produced a treaty designed to protect wounded and sick soldiers during wartime. 81-82 in Geneva Convention III, and pp. The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. [18] Derbyshire, Section Four: When and to Whom Does LOAC Apply, p. 6, and 149.335 Introduction to LOAC in Section One: Introduction to LOAC and Historical Development, p. 16., 149.335 Law of Armed Conflict, ibid. 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. Fresh conventions are constantly under negotiation and in the absence of such agreements States are bound by customary international law which is always evolvingThese observations are as applicable today as they were then. In addition to nationally ratified laws of war (e.g. Alluded to briefly in Common Article 3 of the 1949 Geneva Conventions, and then much more fully in Additional Protocol II of 1977, Non-International armed conflict refers to all armed conflict that takes place: In the territory of a High Contracting Party [State] 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. [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). Subsequently a preventative pre-emptive war took place in Iraq against Saddam Husseins dictatorship during 2003, which: firstly, had been meeting with senior Al Qaeda leaders; secondly, was cooperating with and housing Al Qaeda members at a chemical and biological weapons-testing laboratory situated at an Iraqi base near the Iranian border (including the notorious Al Qaeda attack-planner, Abu Musab al-Zarqawi); and thirdly, was strongly suspected internationally of having stockpiles of illegal biological and chemical Weapons of Mass destruction (WMD),in addition to nuclear material from its nuclear development programme, that, given the regimes long and proven record of support for terrorism, it was feared Saddam might easily give or sell to Al Qaeda terrorists to enhance and further their attacks in America and around the world (see endnote). Israel/Palestine, Operation Protective Edge (Gaza, 13 June - 26 August 2014), Libya, Report of the Office of the UN High Commissioner for Human Rights (2014/15). In response, two Protocols Additional to the four 1949 Geneva Conventions were adopted in 1977. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. In 2006, however, there was a whirlwind of international legal controversy with regard to Al Qaeda and Taliban terrorists and terror-using insurgents captured by the United States and its coalition allies in Afghanistan and Iraq, and held as unlawful combatant detainees in Guantanamo prison. They strengthen the protection of victims of international (Protocol I) and non-international (Protocol II) armed conflicts and place limits on the way wars are fought. Al Qaeda terrorists attack the United States of America: On 11 September 2001 four passenger commercial aircraft were hijacked by Al Qaeda terrorists, in a plot designed and enacted by the central Al Qaeda cell led by Osama bin Laden in Taliban-ruled Afghanistan. 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. In addition, these same national forces also failed to prevent, halt, suppress and punish combatants who committed genocide and crimes against humanity against these non-combatant civilians (see blogs #18 Caveats Endanger & Caveats Kill: National Caveats in UN Operations in Angola, Rwanda & Bosnia-Herzegovina, #20 Betrayal & Barbarism in Bosnia: The UNPROFOR Operation, National Caveats & Genocide in the Srebrenica UN Protected Area, #21 Srebrenica Aftermath: Serb Guilt & Dutch Liability for the Genocide in the UNPROFOR Safe Area in Bosnia,and#22 Recommended Viewing: The UN, National Caveats & Human Carnage in Rwanda). In the following blog, #25 Laws of War Brief (Part 2): The Protections, Rights & Obligations of Civilian Non-Combatants & Military Combatants under the LOAC , I will continue this analysis by presenting what is, to the best of my understanding, the most important, mandatory and need-to-know obligations of the LOAC and CIL on all individual military personnel of national armed forces of all ranks, all Services, and all nations around the world. Counter to expectation, it has in fact been Non-International, rather than International, armed conflict that has predominated in theatres of conflict around the world since the end of WWII, and which still continues to represent the majority of armed conflicts today.
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