We strive for accuracy and fairness. In particular, heated controversy surrounds knowledgeable terrorists or terror-using insurgents captured operating in warzones, who are by definition not only unlawful combatants under the laws of war but also war criminals guilty of committing indiscriminate acts of terror and mass-murder, and who possess extensive knowledge of terrorist members, organisation, and plots for future attacks that if obtained might save the lives of countless other human beings, including many innocent civilians. Additionally, the rights of interned persons were specifically enumerated, providing protections for those charged with crimes during wartime. I directed the CIA not to use them. In response, two Protocols Additional to the four 1949 Geneva Conventions were adopted in 1977. On February 7, 2002 -- ten years ago to the day, tomorrow -- President George W. Bush signed a brief memorandum titled "Humane Treatment of Taliban and al Qaeda Detainees." The caption . 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. regular wars. About a third of those were questioned using enhanced techniques. Intelligence information is much more often imprecise than it is precise[Included in our intelligence analysis was] WMD from the last Gulf War, the [testimony of Saddams defecting] son-in-law who gave information, [and the] monumental reams of intercepted information (cited in DeLong, ibid., p. 69). International treaties, agreements, pacts, conventions and protocols (including the 1949 Geneva Conventions and their 1977 Additional Protocols); International customs or practices that are so consistently repeated in modern warfare that they are accepted by States as binding law, also known as Customary International Law; Common principles of law generally recognised by civilised nations; Judicial decisions of international courts; and the. Prisoners of war must at all times be humanely treated. American Red Cross.The Battle of Solferino. 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. condition requires that each belligerent have the ability to retaliate when the other belligerent violates the laws of war. This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a. Between 2001-2006, Al Qaeda terrorists and local/foreign extremist insurgents captured in the territories of Afghanistan or Iraq committing acts of terror or violence against either Allied coalition forces or the new national governments, their forces, or their civilian population, were classed by the United States (U.S.) as, Under this classification of the LOAC, Taliban and Al Qaeda militants were, 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, In short, as terrorists or terror-using insurgents in conflict theatres i.e. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. In sum, International armed conflict (IAC) may be regarded as largely inter-State conflict, that is, conflict that takes place between States, which following World War II (WWII) in 1949 was considered the prevailing form of conflict in a State-centered international system. 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. Out of 194 nations in the world today, 190 are states parties to those 1949 Geneva Conventions. unlawful perpetrators of war crimes and excessive human suffering rather than victims these captured unlawful combatants had few rights or protections under the LOAC. The complexity of modern conflict today however with wars increasingly involving features of, In a clinical sense, any armed conflict that does not conform to the IAC definition provided in Common Article 2 of the Geneva Conventions or Article 1 of Additional Protocol I must. Indeed, according to the Administration, even the enhanced interrogation techniques including waterboarding were lawful under both the Constitution and U.S. law, did not constitute torture, and were not in themselves inhumane. Prior to 2006, the full list of some 17 enhanced interrogation techniques (lawful sanctions) to be used on the terrorist detainees at Guantanamo only in situations of military necessity had been studied under the light of the U.S. Constitution and American LOAC obligations, and then approved and legally authorized by the U.S. Congress, meaning that the interrogation procedures were in fact being used lawfully by interrogators at Guantanamo. 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 an excellent documentary discussing the CIAs use of enhanced interrogation techniques on captured terrorists detained at Guantanamo prison, and presenting, However, while this is a clear and generally accepted definition of torture, there is still. Despite being signatory to the Conventions, there are some notable and often-criticized U.S. cases involving conduct that would otherwise be prohibited by the Conventions, such as Hamdi v. Rumsfield(2004). 169-171). Ratification grew steadily through the decades: 74 States ratified the Conventions during the 1950s, 48 States did so during the 1960s, 20 States signed on during the 1970s, and another 20 States did so during the 1980s. . [13] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, op. 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). 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. This question remains an extremely serious and crucial conundrum in the modern era of warfare and terrorism today. 61-62 in Geneva Convention II, pp. The Lieber Code (General Orders No. After we implemented the CIA program, we briefed a small number of lawmakers from both parties on its existence. Not surprisingly, the disconnect and outright contradiction between the KFOR mission mandate and its key security objectives on the one hand, and the restrictive ROE of contributed KFOR national contingents on the other, had direct and serious consequences during the Kosovo Riots of 2004. (2) To reduce human suffering during conflict by safeguarding the fundamental principles of humanity in times of war. The doctrine of universal jurisdiction is based on the notion that some crimes, such as genocide, crimes against humanity,torture, and war crimes, areso exceptionally gravethat they affect the fundamental interests of the international community as a whole. the Global War on Terrorism involving inter-State warfare in addition to intra-State insurgencies, and the wars that have taken place in both Georgia and Syria), with guidance often having to be provided on a case-by-case basis by the evolving consensus of world opinion on the conflict. Humane treatment includes: (Military Persons Exempt From Attack, pg. He got much more than he bargained for, however, when he found himself a witness to the aftermath of the Battle of Solferino, a gory battle in the Second War of Italian Independence. 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.. 2023, A&E Television Networks, LLC. Indeed, some KFOR military contingents failed to take any action whatsoever during the security emergency among them two NATO Lead Nations, France and Italy, with significantly large KFOR national contingents in addition to lead command responsibilities over their respective KFOR sectors. One of the Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts, which were prepared by the International Committee of the Red Cross in 1978, requires parties to a conflict to distinguish at all times "between the civilian population and combatants in order to spare civilian population and property. Added 10/28/2021 4:10:29 PM This answer has been confirmed as correct and helpful. [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. https://www.history.com/topics/world-war-ii/geneva-convention, medical personnel, facilities and equipment, wounded and sick civilians accompanying military forces, civilians who take up arms to fight invading forces, hospital ships cannot be used for any military purpose nor captured or attacked, captured religious leaders must be returned immediately, all sides must attempt to rescue any shipwrecked personnel, even those from another side of the conflict, theyre only required to give their name, rank, birth date and serial number when captured, they must receive suitable housing and adequate amounts of food, they must not be discriminated against for any reason, they have the right to correspond with family and receive care packages, the Red Cross has the right to visit them and examine their living conditions. [2] Modified image taken from P. Gourevitch, After the Genocide, The New Yorker [Magazine], 18 December 1995, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, (accessed 14 September 2017). The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. 13, 20, 27; FM 27-10, para. 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). (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, 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. According to Pejic, despite the U.S. Supreme Courts ruling of applying Common Article 3 (NIAC law) and Article 75 (IAC law) to detainees of the GWOT (both articles being fundamental principles of CIL), the reality is that: The two articles do notprovide any guidance on many substantive and procedural legal issues, nor on how to resolve practical questions, that arise in relation to captured unlawful combatants.[36]. For information on immigration and links to the 1951 Conventionand 1967 Protocol Relating to the Status of Refugees, see the article aboutImmigration. Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a . That view was reinforced by his boasting and his behavior, intended to persuade his own people and his neighbors of that success. 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). Common Article 3 functions like a mini-Convention within the larger GenevaConvention itself, and establishes fundamental rules from which no derogation is permitted, containing the essential rules of the Geneva Convention in a condensed format, and making them applicable to non-international conflicts. All service men and women on military operations worldwide have a personal duty and obligation to act lawfully by obeying the LOAC during their service in the military, no-matter the military situation in peace or in war, and no-matter the location of deployment at home or abroad. Nearly all of the major principles of LOAC as well as associated treaty law are now considered CIL, most notably the following treaties: (a) The 1907 Hague Conventions IV (along with its annex of Hague Regulations), VII and IX relating to the Laws and Customs of War on Land; (c) The four 1949 Geneva Conventions relating to International inter-State conflict (but also including Common Article 3 relating to Non-International intra-State conflict in all four conventions), which provide protections to . [31] Paradoxically, the court also ruled simultaneously that these captured terrorists and terror-using insurgents be givena right normally given to civilians taking a direct part in hostilities during International armed conflict in Article 75 of Geneva Convention IV namely the right to challenge death sentences (a ruling later expanded to include the right to challenge basic detention in the Boumediene v. Bush case in 2008).[32]. 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. This means that ratified laws of the LOAC must be applied and adhered to by the nations armed forces at all times during peacetime, during war, and during all the various stages of the war spectrum in-between these conflict poles, ranging from non-kinetic and non-traditional peacekeeping operations, at one end of the spectrum, to overtly kinetic, offensive warfare operations, on the other. This ruling meant that whereas formerly all captured terrorists and extremist insurgent detainees of the GWOT held by the U.S. had no legal rights and protections under the IAC Geneva Conventions, they were from that moment on guaranteed fundamentally humane treatment under the clear NIAC law of Common Article 3 in the 1949 Geneva Conventions (ratified by the U.S. whereas the Additional Protocols are not), which is also CIL. [6] Common Article 2 to the Geneva Conventions 1949. To summarize, the law of armed conflict: is a branch of international law; The fact also remains that terrorists operating within conflict zones are, by intent and design, mass-murdering criminals, who conduct illegal activities using prohibited means and methods, and who, by their very nature and purpose, do not themselves respect or adhere to the rules prescribed in Common Article 3, and give no fundamentally humane treatment to either military or civilian combatants or non-combatants, either in the course of their fighting or upon capture when held in their power. [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. Cornell Law School Legal Information Institute. That view was reinforced by his boasting and his behavior, intended to persuade his own people and his neighbors of that success. But the choice between security and values was real. Over 190 states follow the Geneva Conventions because of the belief that some battlefield behaviors are so heinous and damaging, they harm the entire international community. [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. [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). [14] Derbyshire, 149.335 Prevention and Punishment of Breaches of LOAC, in Section Twelve: International Criminal Court and Enforcement, 149.335 Law of Armed Conflict, ibid., p. 10. Serious consequences were threatened for noncompliance. [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. [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. United States, Jurisprudence Related to the Bombing of the U.S.S Cole. 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. Indeed, the sanctity and power of the LOAC holds true universally and applies equally to all military service men and women operating in conflict theatres around the globe in multinational military operations past, present and future. 3 of 8) All of the above (correct) 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. In sum, Non-International armed conflict (NIAC) largely concerns intra-State conflict that is, armed conflict that occurs within the territory of a State. [30] For more information on the CIAs waterboarding program, the three senior Al Qaeda members that were waterboarded, the actionable intelligence revealed by them, and a few of the terrorist plots stopped worldwide as a result of the enhanced interrogation techniques, see George W. Bush, Decision Points, New York, Crown Publishers, 2010, pp. It also identified new protections and rights of civilian populations. 4 of 8) It does not justify prohibited actions (correct) It justifies the use of overwhelming force, but not wanton destruction (correct) Humanity is a principle of the Law of War that addresses the immunity of peaceful populations and civilian objects from attack. [19] Common Article 3 to the Geneva Conventions 1949 (see pp. [34] Modified image taken from M. Petrou, The decline of al-Qaeda, Macleans, 9 September 2011, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, (accessed 1 May 2019). Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. 83 and 128). Humane treatment includes: be treated with respect for their dignity as human beings. The riots were essentially a deliberate attempt to conduct reverse ethnic cleansing against the Kosovar Serb population, in direct if belated retaliation for the Serb ethnic cleansing that had been carried out against pro-independence minorities during the previous decade from 1991-1995 in Bosnia and Croatia (see blog #23 Caveat Chaos in Kosovo: Divided Allies & Fettered Forces in NATOs KFOR Operation during the 2004 Kosovo Riots). Robert Gates, the U.S. Secretary of Defense under both the Bush and Obama Administrations from 2006-2011, likewise supported the U.S.-led coalitions war to remove Saddam Husseins regime. Its full respect is required. cit. However, while this is a clear and generally accepted definition of torture, there is still no agreed international agreement on what specific acts actually constitute this torture, and there is additionally no internationally accepted definition of humane vs inhumane treatment. [9], In order to be a Non-International armed conflict, either: (1) a minimum level of intensity in the hostilities must be reached, e.g. The agreements originated in 1864 and were significantly updated in 1949 after World War II. (2) Wounded, sick and shipwrecked military personnel at sea (Geneva Convention II), (3) Military personnel who have become Prisoners of War (Geneva Convention III), and, (4) Civilian persons in time of war (Geneva Convention IV).[18]. [36] Pejic, Unlawful/Enemy Combatants: Interpretations and consequences, op. While it is true that the criminal behaviour of terrorist unlawful combatants never negates the obligations and duties of lawful combatant military personnel to act in an upright manner in their own decisions and actions (the law of Tu Quoque/You also being no defence for crimes committed against the LOAC), by respecting, adhering to, and upholding the LOAC themselves in their comportment at all times within an armed conflict, the basic lack of reciprocity in the ongoing criminal nature, behaviour and deliberate intent of terrorist and terror-using combatants does continue to challenge and frustrate contemporary thinking on the matter. [23] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, op. LOAC continues to evolve as mankind struggles to advance the principles of humanity in warfare whilst maintaining the needs of international and national security.. 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. 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. But. 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. In the following blog, , 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. Modern CIL goes further than this, however, and contends that it is illegal to torture any person for any purpose or in any circumstances, or to subject any person to cruel or inhumane treatment for any purpose or in any circumstances, during any armed conflict (see in particular the 1987 UN Convention against Torture and the 2002 Rome Statute of the International Criminal Court ratified by many, but not all, nations). This convention produced a treaty designed to protect wounded and sick soldiers during wartime. (3) The laws of war apply but in modified form.' . 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. At present, 168 States are party to Additional Protocol I and 164 States to Additional Protocol II,this still places the 1977 Additional Protocols among the most widely accepted legal instruments in the world. All persons subject to this issuance will comply with the law of war with respect to the treatment of all detainees. 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. At the time, some were concerned we werent pushing hard enough. 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. 3 of 8) Protection against threats or acts of violence Protection against public curiosity The Conventions apply to all cases ofdeclared warbetween signatory nations. All articles are regularly reviewed and updated by the HISTORY.com team. I approved the use of the interrogation techniques. This. 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).

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