Laws of War and International Law Course Notes

Review of Previous Class

  • Definition of War:

    • Organized political act by an authority causing 1,000+ deaths in 12 months with at least two actors.

    • Types of War:

    • Interstate: Between states

    • Intrastate: Within a state (civil wars)

    • Conventional: Regular forces in combat

    • Unconventional: Asymmetric wars (e.g. insurgents vs. state forces)

Key Questions to Consider

  • Is war ever legal or justifiable?

  • What differentiates jus ad bellum from jus in bello?

  • What are the sources of international law?

  • What is the Rome Statute?

Just War Theory

  • War may be justified under certain circumstances.

  • Origins:

    • Ancient Greece/Rome, early and medieval church teachings (Saint Augustine), Babylonian Empire, Chinese philosophy, Hindu tradition.

  • A tradition of military ethics to determine the morality of war through criteria sets.

Criteria Breakdown:

  • Jus ad bellum: Conditions for initiating war.

  • Jus in bello: Conduct during war; rules implemented to govern warfare.

Jus ad bellum (Right to Wage War)

  • Codified in international law per the UN Charter.

    • Under Article 2(4), war against a sovereign state is illegal.

  • Aggression: First military force use to advance a state’s desires (termed "crime of aggression")

  • Two exceptions under UN Charter for war legality:

    1. Self-Defense:

    • Article 51: Force can be used if an armed attack occurs.

    1. UN Security Council Authorization:

    • Article 42 allows for authorized military action to maintain international peace.

Controversial Grey Areas in Jus ad bellum

  • Preemptive Self-Defense: Is it valid?

  • Questions on State A's failure to control threats to justify warfare by State B?

  • Examples to discuss:

    • U.S. concerns regarding Iraq WMDs

    • Iraq's conflict with ISIS in Syria

Jus in bello (Conduct in War)

  • Regulates conduct for parties during conflict.

  • Aims to limit harm and support victims with three principled frameworks:

    1. Discrimination (Noncombatant Immunity):

      • Differentiation between civilians and combatants is crucial.

    2. Proportionality:

      • Harm must be proportionate to military objective.

    3. Necessity:

      • Avoid unnecessary suffering; least harmful means must be prioritized.

Detailed Principles of Jus in bello

  • 1) Discrimination:

    • Ensure civilian protection; no direct attacks on civilians; no indiscriminate attacks allowed.

  • 2) Proportionality:

    • Harm to noncombatants is acceptable only if proportional to military gain.

  • 3) Necessity:

    • Use minimum violence necessary to achieve war aims; certain weapons are banned due to this principle.

Forms of International Law

  • International Humanitarian Law (IHL): Rules governing conduct regardless of justifications - applies to both just and unjust wars.

  • Hague Conventions (1899 & 1907): Laws regarding methods and customs of warfare.

  • Geneva Conventions (1949): Focus on the humanitarian treatment of individuals during war, especially regarding noncombatants.

Sources of International Law

  • Customs: Established practices that evolve into laws, like navigation and diplomatic protections.

  • Treaties: Written agreements detailing state obligations; most dominant source today.

    • Examples include Geneva Conventions, Refugee Convention, and others.

Rome Statute of the ICC

  • Overview:

    • Established the International Criminal Court to prosecute severe crime types like genocide and war crimes.

  • Discussions of the Rome Statute began in 1989, culminating in treaty completion by 1998 with 125 ratifying states.

Treaty Development Process:

  1. Negotiation

  2. Adoption

  3. Signature

  4. Ratification

  5. Coming into Force: Requires a certain number of ratifications.

International Criminal Court (ICC)

  • Based in The Hague, Netherlands.

  • Not a UN body; acts as an independent institution.

  • Jurisdiction over genocide, crimes against humanity, and war crimes.

  • Prosecutes individuals when state justice systems fail.

Recent ICC Cases Examples

  • Philippines (Duterte)

  • Israel (Netanyahu)

  • Sudan (al-Bashir)

  • Mali (al-Mahdi)