POL 122 Final
"Armed force" and why it matters in applying IHL to terrorism
-States can claim preemptive self-defense and attack back if it is an armed conflict -However, it is argued that a conflict is an armed attack only if it is between two parties hat have signed onto the convention
US position on unlawful combatants
-US has not signed AP I -Guantano Bay -global war on terror does not constitute an interstate war - more of a civil war
Nuclear weapons states (NWS) non-nuclear weapons states (NNWS)
-states possessing nucelar weapons before 1967 -obligations that apply to states who are legal possessors of nuclear weapons -lawful possession is recognized -P5 states: usa, uk, russia, france, china NNWS states who did not have nuclear weapons before 1967 and signed NPT
Just War Theory (principles → 8)
1 - Just Cause ("casus belli") *most important* ~Self defense is ALWAYS a just use of force ~To protect innocent life (protect civilian population from the govt...) ~To protect basic human rights (individuals being persecuted, abused) ~Violations of IL? Use of force against non-compliers 2 - Competent / Legitimate / Right Authority ~Public authority (recognized govt. can only declare/conduct war ~No "private" wars (private militaries or security organizations that could have small militarities and do their own operations) ~Countries cannot use force unless it is in self-defense or if it is approved by UN Security Council (only if they aren't acting in self defense do they need authorization) 3 - Comparative Justice (disagreement if this matters) ~Must have "right" on your side (who's argument is more just) ~Comparing justifications for war ("our cause is more just than yours") ~Highly subjective, prone to politization (difficulty in solving it which makes it unimportant) 4 - Right Intention ~Need to go to war w/ a just cause, and w/out ulterior motives ~Not for material gains, but to solve problem (intentions MUST be true) Ex: 2003 Iraq War(Bush admin had a basket of casus belli, the right intention critique can see and debate what the other intentions could potentially be) 5 - Last Resort (after all other avenues exhausted) ~"Good faith" efforts to peacefully resolve a dispute, and if all fail, may use force ~Avoid delaying tactics (don't wait until situation gets out of hand to intervene) Ex: Rwanda → deteriorated rapidly and in a dyer state that intervention at that point was too late 6 - Probability of success ~No futile causes (fighting for a cause that will likely end badly) ~Dont enter conflict where chances of success are low (&loss of life is high) Ex: Vietnam → Probability of being able to prevent certain goals were very low 7 - Proportionality ~Ad bellum (need to consider whether use of force is proportional to what goals the state needs to attain) [Is war an appropriate response and way to solve a dispute?] →MACRO ~In bello (are in-war tactics proportional to the tactical goals that they are trying to achieve?) → MICRO Ex: small conflict wouldn't be appropriate to threaten nuclear warfare 8 - Discrimination / Distinction ~Distinguishing between combatants and civilians (lawful[when on battlefiled] & unlawful targets) ~In bello (can't target civilians, only combatants) ~Means vs. ends (the ends that you are trying to achieve must be proportional to the means employed) ~How much collateral damage is permissible? (ppl dying)
Collective Security (definition & process of triggering collective security according to Charter)
(An exception of Article 2's ban on use of force) Definition - an attack on one is an attaack on all (all states are a part of one community) -"self policing" of community -Mechanics of triggering collective security (according to charter): [[chapter VII]] ~Threat, breach, act of aggression ~Essential role of UNSC, it is in their hands, states must act unilaterally only UNSC defines an act of aggression ~Resolutions identify acts of aggresion (9 votes w/ no p5 nays) ~UNSC decides what means to employ (sanctions, diplomacy, communications ~Member states authorized to use force and are required to contribute ~Has a limited scope, may only apply to specific event -Broader Ch VII powers: authorize force, peace keeping, humanitarian intervention
Self Defense (role of UN Charter in authorizing self-defense)
(other exception to article 2's ban on self-defense) Role of UN Charter in authorizing self-defense (Ch VII) ~Always have the right to self-defense, but... -May only exercise unilaterally until UNSC intervenes - then must stop and follow UNSC Resolutions -If/when a state exercises self-defense, must notify UNSC
Self-defense (traditional criteria justifying self-defense)
(preceding UN attack) -An armed attack -Necessity, lack of alternatives -Proportionality of means/outcome, cant overextend oneself
Geneva Conventions (specific protections)
-All treaties signed by all states (global support) -Largely Customary Law -Unified, coherent IHL Framework GC I → Treatment of sick and wounded -Soldiers (wounded and removed from battle), medics, & civilians -Must remain unbiased and help all (medics, regardless of your allegiance) -Applies to medics/civilians helping the sick and wounded -Medics must wear red cross GC II → Treatment of Sick and Wounded at Sea -Takes all the above and extends them to naval warfare (applies in maritime situations) GC III → Treatment of Prisoners of War -Protected categories: armed forces, militias, some civilians -Presumption of POW status: those captured/surrendered are POW's -Presumption of humane treatment *GC III protections for combatants as POW ~Must provide quarters, food, clothing ~Must provide compensation for labor, cannot be treated as slave labor ~Communication and post - must be allowed to communicate w/ home country (w/ limitations) ~Termination of captivity when war ends GC IV → Protection of Civilians -"Protected persons" are whole population of belligerent countries (that dont already fall under other classes protected by Geneva Conventions) *GC IV Protections ~Corporal punishments, physically harmful punishments ~Collective punishments, punishing entire group for actions of sole individual ~Reprisal, cant retaliate against civilians for the actions of that countries military ~Deportation ~Public health, must provide civilians access to basic resources
Convention on Certain Conventional Weapons (CCW)
-Attempts to regulate wide variety of conventional weapons (focus on the USE of weapons, not the sale/production/transfer) -EIF'd 1980 -5 Protocols -Basic Principles 1. No unlimited right to any weapon 2. Discriminate between civilians and combatants 3. No unnecessary suffering on combatants
Biological Weapons Convention (BWC) of 1971 (types banned, exceptions, enforcement)
-Ban on all biological weapons *Full disarmament within 9 months -An easy weapon to give up, high chance you will get it while trying to spread it → Ex: Anthrax Types of Biological Weapons specifically banned -Viruses and bacteria, anything that can multiply, spread, and destroy populations Exceptions, Loopholes -For research purposes: may keep a little of biological weapons in safe protected setting so govt can figure out how to respond to an attack Verification and Enforcement -No established verification or enforcement
Weapons banned under CWC (CWC Customary Law)
-Blood agents -Nerve agents -Asphyxiating agents -Blistering agents *Anything that has toxic effect on biological organisms Customary Law? Major themes of the treaty are customary law, restrictions on production and use
Chemical Weapons Convention (CWC)
-Broad definition of chemical weapon, anything w/ toxic affect on biological organisms Disarmament Program → Full disarmament (very ambitious) 1. No use, production, acquisition, stockpiling, or transfer of chemcial weapons 2. Dont encourage or induce other states 3. Destroy all chemical weapons in possession (w/in time frame) 4. Dismantle existing facilities -Basically eliminate country's ability to use, make, or posess chemical weapons
Grave Breaches
-Closed category: willful killing, torture, inhumane treatment, willful suffering -Additional grave breaches for each convention -Problematic b/c they are a closed category (limitation)
Geneva Protocol (1925) Weapons Ban
-Has achieved Customary Law -Ban on the first use of a chemical / biological weapon (illegal for the country that starts it, country attacked may legally retaliate) -Applies to interstate and domestic conflict -Still remains in force despite violations [gas attacks in Iraq]
Historical Origins & decline of Just War Theory
-Initiation/conduct of war requires religious/philosophical principles -Romans/Christians/Catholics ~St. Augustine (acceptable justifications in Christianity for war) ~Thomas Aquinas (addressed specific justifications that are still used today -Deterioration through the middle ages - manipulation of war theories to justify war -19th century emphasis on positive law - how can we empirically verify laws of war? No proof V -Just war theory disappears "gunfighter era" ensues b/c no empirical evidence of laws of war → war is outside legal realm -(It is not positive International Law b/c it is not clearly written, no legal status. Just a body of principles) -Regardless of this, it is still a constant influence on laws of war
Organization for the Prohibition of Chemical Weapons
-Intergovernmental organization created to delegate authority -Conduct on-site inspections and monitoring -States may trigger a "challenge inspection" in another state -Corporate secrets and confidentiality, businesses dont want OPCW to share their secrets, OCQ allows exceptions to encourage participation, which creates a loophole
Strategic logic of terrorist attacks
-Maximize probability of achieving goals, think terrorism will be most effective -Motivated by asymmetries, terrorist groups typically dont have good military resources, financial, economic resources and legitimacy -Historical success rate, successful about half of the time, high probability of achieving goals -Mult. audiences, particular tactics tailored to different audiences -Attrition → willing to target over time continually and wear them down -Intimidation → intimidate a domestic audience into supporting the terrorist group -Provocation → provoke indiscriminate retaliation, innocent people target too to help their cause -Spoiling → extremist groups target govt to spoil agreement w/ moderate groups -Outbidding → terrorist groups competing w/ one another
Unlawful Combatance
-New term, old concept (Under Bush Administration) -Combatants who arent following the rules of war -in armed conflict -have no lawful entitlement to fight Ex: civilians, irregular militias, volunteers, insurgents, rebels, any individual outside of GC III article 4 criteria -if you are not a legal combatant you dont get GC III protections (cant get POW status)
Legality of Cluster Bombs (CBU's) (under CCW)
-Not specifically addressed by CCW -Known as a permissible conventional weapon -Still commonly used (in Israel, Afghanistan) -High "dud rate" causes civilian effects (bombs that dont go off may detonate later and harm civilians) -May be loaded w/ anything, legal and illegal substances -Effect a wide area, non-discriminating between civilians and combatants -Convention on cluster munitions (2008) signed by over 100 countries
Terrorism (defining characteristics)
-Premeditated, politically motivated violence perpetrated against non-combatants by sub-national groups or clandestine agents, usually intended to influence an audience -No universal definition, extremely politicized Defining Characteristics 1. Strategy w/ political goals 2. Deliberate, planned campaigns 3. Targeting of civilians/govts 4. Fear, psychology as a weapon 5. Rejection of political dialogue, least consistently applied → Ex: negotiating w/ terrorists is an exception
Terrorisms status as a war crime
-Rome Statute / ICC does not explicitly state terrorism as a war crime ~General vs. narrow view General view ~Article 33 of GC IV - where civilians are targets, terrorism is prohibited and is a war crime Narrow view ~Articel 51 (2) API - only particular forms of violence are unlawful, "acts or threats of violence the primary purpose of which is spread terror among the civilian population are prohibited" -Definitional discord, no universal definition -Specific acts of terrorism are almost always unlawful
Additional Protocols (I, II, III)
-Started in 1970s, not as much widespread acceptance as 4 conventions -Debatable if customary law b/c some large nations haven't signed them (US) -AP I → discrimination and proportionality, rules regulating discrimination between combatants and civilians (tactics that can be used on the battlefield) -AP II → expands to cover civil wars (non-international wars) -AP III → new form of insignia for medical personal other than the red cross -Enforcement through passage of domestic legislation
Lieber Code (1863)
-Starting point for modern laws on war and regulations of combatants and civilians (modern humanitarian law) -Root of modern law of armed conflict -Written summary of customary laws of war (not a formal source, but a material one) -Long term influence in the US and elsewhere -Notable conflicts in IHL [Lieber allows not to give quarter, but just kill]
Necessity of implementing legislation to GC's
-States must implement domestic legislation that binds them to Geneva Convention obligations w/in 2 year period -May prosecute "grave breaches" -Right to search out and try grave breaches -Especially bound to ensure that your military personnel are put on trial for if they are apprehended doing such an act -Requires not only prosecution, but that you find them and conduct investigations
Targeting terrorists in counter-terrorism operations
-Terrorism is unequivocally unlawful -In bello targeting is more complicated ~Arrest vs. Killing -Terrorists may be lawfully targeted on the battlefield, but must be engaged in fighting and actively involved in warfare -If they aren't actively involved in warfare, assume they are civilians -Terrorists still have human rights protections
GC Common articles (their purpose w/in the conventions and the protections they provide)
-They emphasize fundamentally important principles -Common articles I, II, & III are first articles in all 4 conventions -Arguable success rate Common Article II (Geneva Conventions apply in these situations) -Declared war -Undeclared war [engage w/ those that did sign] -Occupation -Non parties must comply anyways Common Article III (internal conflicts ["non-international wars"]) → Baseline protections -Internal conflicts -Non active in hostilities -Violence, murder, mutilation, torture -Hostage taking -Humiliation -Must have trial by court (applies to civilians, POW's, anyone not actively involved in conflict)
Blair Doctrine (underneath HI)
-When HI is legitimate (similar to just war theory) 1. Just cause and right intention 2. Last resort 3. Sensible and prudent military operations 4. Long-term consequences 5. National interest at stake -Conspicuous absence of competent authority (no legitimate authority to conduct/declare war - UNSC palys this role) *Security council approval is not mentioned in Blair Doctrine
Materials and equipment (under NP)
-finished weapons and delivery vehicles (more commonly) -ex: russia and china exporting delivery vehicles to many countries -missile technology control regime (MTCR) voluntary agreement to not export missiles -NPT does not address delivery vehicles -enriched uranium and weapons grade plutonium, acceptable to have up to 20% enriched uranium -centrifuges, components, control systems -some are specific for enriching uranium, only few countries have them -some of these technologies are required for civilian reactors, may have them but have to report
nonmembers to NPT
-israel, pakistan, north korea, india (all have nuclear weapons) but cant join NWS because acquired after 1967 -if they were to join NWS then it would incentivize other states to make nuclear weapons and then join NWS, and we cant have this
Detained unlawful combatnats
-no GC III or IV protections (skeptical view) -but covered under GC IV (An individual "hand of a party" that is not their own, is granted protections: humane treatment, medical, food, clothing, trial w/ legal defense *unlawful participation, no explicit exception made for unlawful participation in a conflict, does not say that are excluded so assume they are protected AP I article 45 (3) -any person who has taken a part of hostilities, but does not get POW status → unlawful combatant but still entitled to protections of GC IV and if not, entitled to protections of article 75 → filling the gaps so everyone is protected
problems of verification and enforcement in npt
-verification of compliance (IAEA) -each state makes safe gaurd agreements w/ IAEA -on fissile material equipment materials facilities, specifics of civilian nuclear production -footaraggers - signed NPT but not safeguard agreemetns (North Korea) -1997 additional protocol - strengthen role of IAEA esport controls monitering, phsyical protections, acces to imp. infor and locations -nonmmener nnws states, iaea has no jurisdiction over their activities -enforcemet (IAEA & UNSC) -virtually no direct impact of IAEA needs UNSC approval (all P5 members)
Hague Conventions/Hague Law
1899 Conference -Permanent dispute arbitration body - alternative method for states to settle disputes, makes results binding -Disarmament arms control (asphyxiating/poisonous gases, expanding bullets [st. Petersburg], balloon launched projectiles) -Laws and customs of war on land (1899 Hague II) 1907 Conference [more expansive] -Combatants privilege, spies, prisoner of war status, merchant ships, mines Hague IV (1907) on laws/customs of war on land -Combatants wear fixed emblems, evidence that you are a combatant and for which side you are fighting (allegiance) -Carry arms openly -POW protections (can't exploit them for labor, etc.) -No poisoned weapons (poison tipped bullets/arrows) -Must always give quarters (HAVE to let them surrender) -No false surrender (and consequential surprise attacks) -Can't target undefended towns Current legal status? CUSTOMARY LAW (normative status) -Have to comply even if you haven't signed it
customary law and protections of unlawful combatants
AP I Article 45 (3) provides bare minimum protections "fundamental guarantees" -against murder, torture, corporal punishment, humiliations, forced prostitution, hostage taking, collective punishments, trials by impartial and regularly constituted court
Temporal Dimensions of Self-Defense
Armed attack -Has occurred (has been an attack) -Legal to claim self-defense Interception -Longer timeline (attack is on its way; intercept before it reaches you -Legal to claim self-defense Anticipation -Not an attack, it's in progress (but know that an attack is imminent -Legal to claim self-defense Preemption -Attack that is likely to occur in short term (less than a month) -Legal to claim self-defense Prevention -Most extreme, acting on a threat that is likely to materialize (no legal justification b/c of ambiguity) -Unlawful
Iraq War [lawfulness]
Background -Gulf war of 1990 (Resolution 687 "all necessary means" - member states may use force against Saddam Hussein) -Jan. 2002 - "Axis of Evil" - Iraq (Bush's Speech) -Sept. 2002 - National Security Strategy - use of preemptive measures -Nov. 2002 - UNSC Res. 1441 - gives Hussein last chance to comply w/ chemical weapons programs -March 2003 - War begins, Saddam captured in December, fighting continues through 2008 Three casus belli -Weapons of Mass Destruction (Saddam attempting to acquire them) -Ties to terrorism (Al Qaeda tied to Saddam) -Human rights violation (Saddam's regime violated human rights of various ethnic groups in Iraq
Lieber's Legacy (Key principles)
Combatant's privilege -Once you enter battlefield/wear a uniform, you are a legal target -You now have the privilege to kill and people captured must be treated humanely Military Necessity -Means of warfare should be consistent with military necessity -Don't deliberately target the wounded, etc. -Can't starve the enemy troops/prisoners War Crimes -Murder of POW's, targeting wounded prisoners, etc. Universal Jurisdiction -Someone committing war crimes may be tried and punished regardless of where they are from -Dont have to be a national of the state trying them Civilian Property -Warfare does not give permission to seize civilian property Unlawful combatants -Irregular combatants may be killed on the spot -Irregular fighters are not wearing official uniforms and are not carrying weapons openly
Use of Force (definition & characteristics of ban under UN Charter)
Definition - hostile actions, usually military in nature, against the govt., territory, or property of sovereign state Characteristics of the ban on use of force under UN Charter: -ARTICLE 2 (most important) voluntary obligation by all countries -Use of force is unlawful (ban on the use of force, settle disputes peacefully) -Unclear on non-military uses of force -Role of territorial integrity (can't violate a states sovereign integrity) -No opportunity or exceptions for Humanitarian Law -Viewed as customary law → jus cogens (can't violate this norm)
Combatants
GC III article 4 -armed forces -militias, volunteer corps, resistance groups -command (hierarchy); wear insignias, have arms, follow laws of war GC III protections -humane treatment -captivity issues -repatriation -Combatants have combatants privilege (can be targeted and may target) -combatants constitute lawful military targets -prisoner of war status
Hague Law vs. Geneva Law - Key differences
Hague Law is motivated more by strategic motivations, while Geneva law is more motivated by humanitarian principles -Hague law applies to combatants only (their actions and the kind of weapons they comply) -Geneva law applies to civilians, prisoners of war, anyone who is not actively fighting or involved in war
Geneva Conventions
Historical background -1864 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (eventually becoming GC I) -First large scale multilateral effort to regulate affairs of combatants in war
Iraq War (lawful or unlawful? -- Taft/Buchwald vs. Sapiro)
Iraq as LAWFUL →Taft & Buchwald Resolutions 678 & 687 -678 → "all necessary means" states may use force against Saddam -687 →Saddam's obligations about not behaving - failure to w/draw from Kuwait & respect boundary (led to res. 687) *Lawful b/c UNSC was acting preemptively to prevent new threats Iraq as UNLAWFUL → Sapiro -Main argument → states should be allowed to unilaterally decide what is a lawful or justified use of force -The world collectively must decide the laws on what is considered self-defense -Prevention of generalized threats -Caroline criteria violated -Chapter VII and role of UNSC
Jus in bello vs. Jus ad bellum
Jus in bello - "justice in war" -Constraints on actions of belligerents in warfare • What you can and cant do in the contexts of war Jus ad bellum - "justice on(of) war" -Criteria used for determining whether the use of force is just
The Grand Bargain
NNWS commit not to nuclearize (to benefit of NWS) and NWS commit to share technology and disarm (to benefit NNWS)
The three pillars (second pillar)
Pillar 2 → disarmament -articel vi → cease arms race, pursue disarmament -scholars argue if this article is talking aobut full disarmament? -nnws and schoalrs argue it is for full disarmament -nws disagrees, says that they need to agree in a treaty reuqiring full disarmament, maintain their right to possess nuclear weapons -enformcement problem, who is going to get nws to disarm if there is a disagreement -IAEA must enforce through unsc which contains p5 states who are all unlikely to be enforced -nuclear arms reductions have occured largely bilaterally not through the NPT → a failure? EX: russia and us arms agreement
Specific weapons bans covered by Protocols II and III of CCW
Protocol II → Mines and Booby traps -Antipersonnel mines, IED's (if someone steps on it, it explodes), banned b/c they absorb battlefield resources, cause unnecessary suffering, and b/c mines linger after warfare → danger to civilians -Ban on particular uses, not full disarmament → arms control on certain types of mines -Bans detector contact, must be detectable, can't target or hurt civilians (cant be placed in highly populated civilian areas) -Booby trap concealment → cant be set on corpses, on medical equipment, toys, religious equipment, etc. -Amended Protocol II (1906) → applies to civil wars too, implementing legislation must pass -1997 Ottowa convention → antipersonnel conventions are unlawful (US refused to sign) Protocol III → incendiary weapons -Weapons primarily designed to set fire to objects -Influenced by WWII, fire bombing of Tokyo (extremely destructive -Bans against use on civilians, in civilian areas, and combatants, may only target equipment, infrastructure, vehicles [physical, non-human objects may be targeted] -Does not ban incendiary weapons, but limits their use -Possibly redundant, creates protections that already exist, you already cant target civilians and cant inflict unnecessary harm on combatants EX: Falluja conflict and the use of white phosphorus
International Humanitarian Law (IHL)
Regulate conduct of warfare •What CAN and CAN'T be done in the context of warfare •What can you and cant you do in war •Who can you target and who cant you •What kind of weapons can you use and not use
Classes/ Schedules of Chemicals
Schedule 3 weapons -Can make up to a certain threshold before reporting to OPCW (organization for the prohibition of chemical weapons) -Chemicals w/ widespread industrial use Schedule 2 weapons -Any production must be reported to OPCW -Potentially weaponizable w/ narrow industrial use, may be replaced w/ less dangerous chemicals Schedule 1 weapons -No justification for any industrial production -Chemicals w/ no other purpose than to kill
How the definition of "aggression" matters to use of force
What's the difference between aggression and use of force? -Emphasis on preventing acts of aggression (it's worse than the use of force) -Aggression acts as a trigger exception on ban of use of force b/c a state may respond to a belligerent act of aggression (w/ malicious intent) w/ the use of force -Things can be a use of force but not an act of aggression, acts of aggression allow for a state to respond with force Empirics of aggression -Temporal dimension (who started it?) -Substantive dimension (severity, magnitude, level of hostility. Is use of force serious enough to constitute an act of aggression?)
Nuclear proliferation
knowledge and information -weapons designs (warheads, delivery vehicles...) -equipment designs - equip needed to produce materials needed to make and power nuclear weapons -training, "tacit knowledge", need hands on training in order to make designs turn into functional weapons, how to actually build weapons is hard to proliferate
The three pillars (first pillar)
pillar 1 → non proliferation -article 1 → NWS - no assistance, encouragement, inducements, or transfer of physical devices to any one (not even other NWS) -article 2 → NNWS, acceptance no assistance or transfers and refuse indegenous development, emphasis on weapon capacity ~enrichment separatoin, etc may occur for civilian purposes ~"full fuel cycle" and proliferatoin nsks - may possess full cycle (all aspects of nuclear prdocution) but at risk of intervention fo rattempts to proliferate -potential loophools: assistance from NNWS members to non-members Ex: Canada (NNWS) assisting india (NNWS nonmenber) this type of relationship is not addressed in NPT wartime exceptions, us declarations that npt doesnt apply in wartime may share info w/ allies
The three pillars (third pillar)
pillar 3 → right to peaceful nuclear energy -sovereignty → inalienable right to research, prodcue, necealr energy for civilian peaceful use natural right to use natural resources -permitted exchange of equipment materials and scientific and technical info, for civilian purposes -nws have an obligatoin to cooperate w/ nnws to develop peaceful nuclear techn (assitance) -focus on nnws and devleoping world, especially developing countries -vague on specific forms of assisatnce -how timely how extensive, vague -led to bilateral nuclear assistance treaties, lay out specific guidelines of assistance ex: uk and us w/ various states -nnws abicate any rights to nuclear weapons
Humanitarian Intervention (Definition, legal status, & relations to UN Charter)
~Definition - Use of force against a sovereign state w/out its consent, in order to relieve human suffering ~Legal status -No mention in UN Charter -Motivated by moral and ethical concerns (what's right and wrong) (i.e. just war theory) -According to positive IL, HI is unlawful (b/c it is not explicitly stated as legal)