Change thread title?
Perhaps the editors should rename this thread? Might be easier for people to find later on who may not get the gist of its contents from the title. IMO a lot of what has been dicussed, though sometime over my miniscule head, is of great import.
p.s. Keep it coming, I suspect there is much of great value here that lawyers as well as laymen could learn. Cheers
Last edited by davidbfpo; 10-01-2010 at 08:54 PM. Reason: Thread title changed October 1st 2010 and note added in first post
Sorry,
I was wrong. The correct jurice prudence is from the following trials:
ICTY, The Prosecutor v. Dusko Tadic, Judgment, IT-94-1-T, 7 May 1997, para. 561-568;
ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 84.
ICTY, The Prosecutor v. Fatmir Limaj, Judgment, IT-03-66-T, 30 November 2005, para. 135-170.
Plus the definition from GC.
Just a quick one on this.Originally Posted by jmm99
Based on the one photo a newsman or prosecutor might be excused for thinking it was an execution. There the bodies are covered and lined up like we would do with our own dead and wounded if we had recovered them after a battle.
That said I would almost certainly have got that room fragged before entering (unless because of doorways, windows and/or holes in the walls the resulting shrapnel would have been a danger to own forces) and then followed it in (ever mindful of ricochets).
Also we worked in pairs. So in theory if the one guy thought or actually saw movement he would cover the person (as how he is standing in the photo) and call his buddy to check him out.
If there were no civilians around then I assume its a fairly routine house clearing exercise and it should be generally accepted that anyone hiding in a room will be dealt with in the process.
The problem often came when insurgents were either caught in a village or ran into a village. The clearing of such a village was fraught with danger especially when it was well know that under such circumstances they may well pull on a dress and try to pass as a woman and thereby escape.
The civilians (old men, women and children) would either sit in a group in an open area in plain sight or hide in a hut.
The hut clearing was very difficult because you did not know who was inside. One would call out for anyone inside to come out. There were times when they came out and times when they didn't either on there own accord or at the insistence of insurgents who were with them.
Then a burst was fired into the thatched roof (because the insurgents would hide in the roof area to either avoid being found or fire on someone entering the hut. (We called this the raining gook phenomenon after a corporal who had cleared some roofs reported "Hey Sir, its raining gooks down here".)
Th structure of the individual hut dictated that it might be dangerous to those outside to fragg the hut before entry then the idea was to use a machine gunner (FN MAG) to rip it through the door (firing the 7.62x51mm NATO round it was no problem). No problem that is unless there were civvies inside. There was no joy in killing civvies under such circumstances.
If contact had not been made yet hut searches were done by sticking your head in the door and going inside (remembering to look up). Heart stopping stuff.
Such is the nature of insurgencies where civvies are intermingled with insurgents. It is fraught with the potential to throw up a curved ball which some 18-9 year old must make a judgement call on in a split second.
I would say that (as as been raised by others already) the key is to differentiate between the time during which the actual battle is taking place and the post battle reorg/consolidation phase. I have some sympathy for a kid suddenly coming across a situation and making a split second possibly life saving decision as opposed to the predator who scours the post contact area in an attempt to find someone to help on his way. (if you see what I mean).
To illustrate this further (not to get into a war story but to set the scene) we were tasked to lift a "contact man" in a village over the border. My sergeant insisted that to physically subdue and truss up such a person was an NCO job so it was agreed that he, a corporal and a senior troopie with a torch would go inside to do the dirty stuff. Of course all hell broke loose and the contact man and his wife let out a series blood curdling screams while I heard my sergeant shout things like "shine the f***ing torch over here you c***" and "tie that arm" etc.
Of course the whole village woke up. Soon people were running all over the show. My "buddy" (an 18-9 year old) was standing near me with his back to a tree with his rifle butt/stock in the shoulder. As people emerged I saw he would raise his weapon and then lower it again as he identified it as a civvy. This happened a number of times and I thought nothing of it at the time. Neither did any of the other troops surrounding the village open fire.
Later I was to think how fortunate it was that the youngster with me nor any of the others had freaked out or made a bad judgement call. It could have turned into a blood bath. Its tough to demand 18-9 year olds make these decisions and get it right all of the time.
conflict vs engagement
MAL:
If you are looking for what defines the beginning and end of an armed conflict (the Yugoslav cases), you are on a wild goose chase so far as what defines the beginning and end of an engagement. An engagement (unless you have a one engagement armed conflict) is usually a very small part of an armed conflict.
Examples of engagements are assaults by a force on a fixed position held by a force, or ambushes by a force on a force. The limits (beginning, end and what stages between) of what constitutes an engagement are defined by the tactical doctrines of each combatant force and may differ. The basic stages that must be considered for inclusion within, or exclusion outside of, the limits of an engagement are: movement to contact, contact, breakoff of contact, withdrawal/exploitation.
CIHL Rule 109 is taken directly from AP II, Art. 8 (emphasis added):
Neither the rule, the article nor the commentary define "engagement".Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
Part III : Wounded, sick and shipwrecked
Article 8 -- Search
Whenever circumstances permit, and particularly after an engagement, all possible measure shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being despoiled, and decently dispose of them.
The commentary makes it clear that the rule does not reflect new law; and is not substantially different from the 1949 basic GCs or prior Geneva and Hague Conventions, except to emphasize that it will apply during an engagement "whenever circumstances permit".
The Commentary in large part (emphasis added):
Gray areas exist throughout (besides no definition of an "engagement"); e.g., evacuation must be done "whenever feasible" (4649) and "as quickly as possible" (4655) - which are two different standards to me - maybe not to others.General remarks
4648 Article 8 develops and reaffirms the obligation to collect for the wounded and sick, which is already contained in common Article 3, paragraph 1, sub-paragraph 2 , and which reads as follows: "The wounded and sick shall be collected and cared [p.1414] for". There is no corresponding provision in Protocol I, as this question is already dealt with by the Conventions (Article 15 , first Convention; Article 18 , Second Convention; Article 16 , fourth Convention). The text reflects Article 15 of the first Convention with slight differences in the wording and with the addition of the shipwrecked.
4649 Following the example of the Conventions, the ICRC draft (1) provided for the possibility of concluding local arrangements for the removal of the wounded and sick, elderly persons and children from the combat zone and from besieged or encircled areas. This provision, which was retained by Committee II, (2) was eliminated in the final version of the Protocol as some considered it to be rather unrealistic in the context of a non-international armed conflict. Nevertheless, this does not detract from the fact that evacuation measures should be encouraged whenever they are feasible.
4650 To search for and collect the wounded, sick and shipwrecked constitutes the implementation of the fundamental principle of protection and care set out in Article 7 ' (Protection and care). ' There is a duty to do so. All possible measures must be taken to fulfil this duty, "whenever circumstances permit, and particularly after an engagement". It is particularly after an engagement that it is necessary to search for victims, but the obligation goes further: it applies whenever circumstances permit. Article 15 of the first Convention provides that the Parties to the conflict must take all possible measures "at all times, and particularly after an engagement"; Article 18 of the Second Convention contains the same obligation, though it is limited by the words "after each engagement".
4651 These words were already contained in the corresponding provision of Hague Convention X of 1907 and in the Geneva Convention of 1906. The 1949 Conference substituted them in the first Convention by the words "at all times", but left the original expression in the Second Convention unchanged, in accordance with the views expressed by the experts in 1947. They considered that the expression "after each engagement" corresponded more closely to the specific conditions at sea. (3)
4652 Article 8 of the Protocol covers search for the wounded and sick, as well as the shipwrecked and the formula "whenever circumstances permit", which was adopted, takes into account the above-mentioned provisions of the first and Second Conventions; (4) it reflects the concrete possibilities of taking action.
4653 In 1949 the first Convention therefore extended the obligation in time, as the 1929 Convention, of which the formula was retained in the Second Convention, only laid down the duty to search for the wounded and sick "after each engagement", and only for those on the battlefield. In modern armed conflicts hostilities are more flaring up in varying degrees and moving from place to place; it would often be difficult to determine where exactly the battlefield is in place and in time. Therefore the obligation to respect the [p.1415] wounded and sick has a general scope. It applies to civilians, taking into account Article 18 ' (Relief societies and relief actions), ' paragraph 1, of the Protocol. (5) The obligation includes search operations as far as the authorities are concerned, also for medical and religious personnel and for armed units present in the area of military operations after an engagement.
4654 Victims must be protected against pillage and ill-treatment and they must receive adequate care. Such protection measures are particularly important during the period before the victims are able to be evacuated, when they are especially vulnerable. They reinforce the prohibition on pillage and violence to the life, health and physical or mental well-being which is already contained in Article 4 ' (Fundamental guarantees), ' paragraph 2(g) and (a), respectively. (6)
4655 "Adequate care" is first aid given on the spot, which may be of the utmost importance to avoid wounded, sick or shipwrecked succumbing during evacuation, which must take place as quickly as possible. Obviously such care includes ensuring the transport of the wounded to a place where they can be adequately cared for.
--------------------------------
What is this ! - you have to be rescued:
The local bad guys do not respect CIHL Rule 33:from MAL
That’s the job of the stupid relief workers; my job to put you in danger because I did exactly that and now I am in deep #### and need armed rescue.
I'm shocked - totally shocked.Personnel and Objects Involved in a Peacekeeping Mission
Rule 33. Directing an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law, is prohibited.
-------------------------
The rules may differ between any two countries (e.g., some have ratified various of the post-1949 Conventions; others have not). Interpretations of the rules will definitely vary; as will specific military doctrines.
Screening posters by 100 or + posts, and at least one post this year, yielded (as of yesterday) about 20% non-USAians. That is great; but all posters have to remember the diversity in doctrines and laws - no one's "holy rulebook" is the Bible or Satan's Workbook.
Regards
Mike
1949 GC Commentary
Rule 109 refers to AP II, Art. 8 and its commentary, which in turn refers to the 1949 GCs and their commentaries. Here, from the commentary to GC I, Art. 15 (the most relevant snip I could find) (emphasis added):
This commentary generally employs a standard of reasonableness and practicality - allowing judgment to be exercised by the millitary command ("... it is left to the military command to judge what is possible ..."); but then, at times, lays down standards that are not practical, if read literally (e.g., the bolded language in B. ' Search. ' above).Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Commentary
Chapter II : Wounded and sick
[p.150] ARTICLE 15 -- SEARCH FOR CASUALTIES. EVACUATION
With Article 15 the Convention quits the terrain of general principles, and enters the new domain of practical realization. Having proclaimed the inviolability of the wounded and sick, having defined who they are and given them a legal status, the Convention now proceeds to lay down the actual steps to be taken for their benefit from the moment they fall on the battlefield.
In this connection Articles 15, 16 and 17 may be said to form a single unit, covering as they do the search for casualties and for the dead, their removal, and the recording and forwarding of information about them. The 1929 Convention had already attempted, for the sake of clarity, to draw a distinction between these different stages by dealing first with the operations taking place at the front, and then with those in the rear where it is possible to have recourse to installations of a more permanent character. The 1949 Convention maintained this distinction, and at the same time dealt more fully with the whole subject, adding a considerable number of useful details.
Article 15 applies exclusively to operations which take place at the front -- namely, the search for the wounded and dead and arrangements for their protection and evacuation and the possible exchange of the wounded.
PARAGRAPH 1 -- SEARCH, PROTECTION AND FIRST AID
The wounded and dead lying out on a field of battle or between the [p.151] lines must all be searched for, collected and protected, and the wounded must receive attention. That is a bounden duty, which must be fulfilled as soon as circumstances permit.
A. ' Extent of the obligation. ' -- The 1929 Convention made the obligation applicable only "after each engagement", and imposed it only on "the occupant of the field of battle", whereas henceforward both belligerents are required to comply, or to attempt to comply, with it ' at all times. ' The paragraph actually begins with the words: "At all times, and particularly after an engagement...". This wording is adapted to the conditions of modern war, in which hostilities are more continuous in character than they were in the past. The effect is to increase the obligations of the belligerents in respect of the wounded. Indirectly the task of the medical personnel may be rendered more arduous, and also more dangerous.
But there are times when military operations will make the obligation to search for the fallen impracticable. There will be cases which exceed the limits of what the medical personnel can be expected to do, however great their courage and devotion. It was not possible, therefore, to make the obligation absolute. It was accordingly provided that "Parties to the conflict shall, without delay, take all possible measures..." The obligation to act without delay is strict; but the action to be taken is limited to what is possible, and it is left to the military command to judge what is possible, and to decide to what extent it can commit its medical personnel.
B. ' Search. ' -- The search for the fallen combatants and their collection may present different aspects according to circumstances. The commonest and the most important case will be that of enemy troops retiring in the face of an attack. The occupant of the battlefield must then, without delay, make a thorough search of the captured ground so as to pick up all the victims.
The dead must also be looked for and brought back behind the lines with as much care as the wounded. It is not always certain that death has taken place. It is, moreover, essential that the dead bodies should be identified and given a decent burial. When a man has been hit with such violence that there is nothing left of him but scattered remains, these must be carefully collected.
In all these different operations it is the undoubted duty of the combatants [p.152] themselves to give the medical personnel all possible assistance.
When picking up the wounded and dead, care should be taken to collect all their belongings (which may be scattered about); for such objects may inter alia be of assistance in establishing their identity (1).
C. ' Protection. ' -- It will not always be possible to evacuate the wounded at once, and it will be necessary to protect them in the meantime against pillage and ill-treatment, and also to prevent despoiling of the dead.
The purpose of this paragraph was not to assert the principle of the respect and protection of the wounded. That had already been done by Article 12 . But provision had to be made for the effective application of the principle. Pillage of the dead had also to be prohibited (2). In other words, the wounded and the dead must be guarded and, if necessary, defended against all parties, whether military or civilian, who may seek to lay hands on them. Combatants, like medical personnel, are called upon to prevent this, going, if necessary, to the length of using their arms for the purpose (3).
The presence of hordes of pillagers, who used to be called the "hyena of the battlefield" may not seem likely today; but the possessions of the wounded and dead are still liable to excite the greed of soldiers or unscrupulous civilians. Such hateful spoliation must be prevented.
D. ' First aid. ' -- The general obligation to care for the wounded irrespective of their nationality arises out of Article 12 of the Convention. The reason for repeating this idea in the present paragraph of the 1949 [p.153] Convention was to emphasize the necessity of immediately giving first aid to the wounded on the battlefield.
Recent developments of medical science have clearly shown that first aid, if given by qualified personnel and with the least possible delay, may exercise a preponderating influence on the cure of the patient. New techniques of a quick and simple character have been perfected, which not only induce a physical condition on the part of the wounded enabling them to support evacuation, but above all increase their chances of survival and even of complete recovery to an extent which even at the beginning of the Second World War would never have been thought possible (4). The work of medical personnel in and near the front line thus assumes added importance. It will no longer be merely a case of moving the wounded to the rear in the condition in which they are picked up. They will have first to receive medical attention -- blood transfusions, injections, etc. Medical Services will consequently have to give medical orderlies working in the front, who hitherto have often been no more than stretcher-bearers, a more advanced professional training of a semi-medical character.
The Canadian "rule book" may be based on that bolded language - any Canucks aboot ?
One must then ask whether these conventions look more at the short-term, first order effects, rather than considering longer-term, higher order effects.
E.g., I can save 5 wounded (no distinction as to "whose wounded") at the locus of contact; but, by doing so, give up the ability to pursue the enemy who then will go on to kill 100 civilians - and Lagrange's UN CMO team to boot.
If the GCs, APs and CIHL can only be interpreted to require that result, they are extremely bad law and even worse from a humanitarian standpoint.
Regards
Mike
Last edited by jmm99; 09-30-2010 at 08:50 PM.
Mike you beat me on that one.
I was going to come with Art15.
Anyways, I still post my comments:
On engagement definition... (un dahu as we say, we froggies)
Actually it's the ICRC and the TPI who are chasing a wild goose. It appears that the definition of conflict has a variable geometrical dimension. From what I understood from the jurisprudence issued by the TPIY, an armed conflict qualifies a situation in a localized geographical area as much as what is happening in a “country” or large geographical area. What makes a conflict is the intensity and the duration. The term of armed conflict is used to qualify the situation in various municipalities during the Yougoslavia war. And prosecute some of the war criminals based on the fact that the situation was an armed conflict and therefore the IHL did apply.
An engagement being one event during a conflict. Even an engagement, in an area qualified as a conflict can be qualified as a sub sub armed conflict taking place in a larger armed conflict. (But such definition is not easy the life of anyone)
An important remark is to be made also.
Previously, an attempt to use the term armed conflict was made to qualify a terrorist attack to the US embassy in Peru (If I do not mistake). The same arguments were brought to the table: use of military armament, intensity of the violence... But what was rejected to qualify the situation as an armed conflict was the notion of duration (4 hours of exchange of fire). So the qualification of armed conflict was rejected. But we do have here a definition by default for an engagement. According it is taking place during an situation qualified as armed conflict.
(I definitively have to find back that trial statement references)
I do believe that Yugoslav war jurisprudence have interest for Astan as the main defense line was that it was “police operations” and therefore IHL did not apply (As in the Peru case). And therefore even while using military assets, the GC did not apply but solely national criminal laws. Also the similar nature of the opponent, a non state actor against a state actor/force.
Also, I would use JMA testimony, despite it is “anecdotes” (in the literal sense of the word: a short story). It appears clearly in his post that engagements have a beginning and an end mainly defined by the use and cessation of use of force.
But in the end you are right in the fact that engagement is never clearly defined.
So I will use and abuse of the 1954 The Hague Convention on Cultural properties:
http://www.icrc.org/web/eng/siteeng0...9?opendocumenta) Military necessity in respect of cultural property under general protection
1. Measures undertaken by a military commander to obtain, as quickly as possible, the complete surrender of the enemy must be lawful and in conformity with the generally recognized principles of international humanitarian law, both of treaty and customary nature, such as the distinction between combatants and non-combatants, proportionality and the prohibition of reprisals against protected categories of persons and objects.
2. Those actions must be limited as to the time, purpose and object of military operations.
3. No other feasible alternative was available at the moment of the operation.
4. The assessment of the situation by a commander was made from all sources reasonably available to him/her at the moment of the operation.
5. Imperative military necessity may be established only by the officer commanding a force the equivalent to a battalion unless the circumstances of the military engagement do not allow this.
6. If possible, a warning shall be communicated to the opposing party a reasonable time in advance.
Paragraph 1 is the best and closest definition I have found yet of what can qualify an engagement: Measures undertaken by a military commander to obtain, as quickly as possible, the complete surrender of the enemy.
Point nb 5 is interesting cause it defines who can make the decision of an imperative military necessity.
I believe that in the field, it's not always easy to contact your battalion commander to know what to do. And he probably does not give a dam about the guy dying at your feet. But still, it is important to know that he is the one who has to make the decision in last resort. But there is always an officer in command of the operation. He is the one who has to make the last resort decision to evacuate wounded or to proceed with the operation.
Also, it is interesting that military necessity is clearly defined only when it comes to cultural assets and not human beings.
About the comments, and that's where we can find real gray areas:
The first convention is the one closest to the spirit: must take all possible measure at all time.4650Article 15 of the first Convention provides that the Parties to the conflict must take all possible measures "at all times, and particularly after an engagement"; Article 18 of the Second Convention contains the same obligation, though it is limited by the words "after each engagement".
Which differs from your “interpretation”. Obviously, the reduction to whenever it is feasible is also due to the need to have rules and laws which match with reality. But it is also driven by the concept of imperious military necessity. After all, we are talking about how to make war in the end.
And naturally, I will take the following comments to cover the gray areas:
I also chose to be nice, pink and cheesy and sacrifice my self as a martyr and have a almost dead opponent being rescued while I am under attack.4654 Victims must be protected against pillage and ill-treatment and they must receive adequate care. Such protection measures are particularly important during the period before the victims are able to be evacuated, when they are especially vulnerable.
Despite this being a patch and glue from various treaties, laws and customary laws, there is a wide understanding that basically as long as someone is not dead, you try to save him. And when he is dead you do respect him. The idea/concept is to place human being before military necessity. The bottom line question is much closer to who takes the decision that what decision to take.
And finally some links about children and child soldiers. (to link up with the initial subject of the threat)
1) Captured child soldiers#
http://www.icrc.org/web/eng/siteeng0...a?opendocument
2) Involvement of children in conflicts#:
http://www.icrc.org/web/eng/siteeng0...t?opendocument
Last edited by M-A Lagrange; 09-30-2010 at 09:46 PM.
Mike
Thanks for your all work laying out these sources. In terms of the contemporary environment, I think that this is a very important thread which certainly shows why we refer to it as the 'complex' environment.
When I was a young soldier in the early-mid 80s, some of our JNCOs and pretty much all of the SNCOs and WOs had Vietnam experience; and their JNCOs, SNCOs and WOs, had experience from Borneo, Malaya, Korea and WW2. we followed a fairly consistent Commonwealth doctrinal path in most matters. From memory it was mainly in the low-level TTPs for close country work in our part of SEA that we had specific national ways. Anyway, the teaching then followed that pragmatic 'when possible/feasible' path that 'the Geneva Convention kicks in on the re-org'. Everyone understand that was NOT a license to summarily deal with PW out of hand during the fight: it was the distilled experience of some 40+ years of combat from div to section level.
Cut forward 20-25 years, where even the mere mention of that teaching was enough to send legal staff officers into paroxysms of shock/horror. Somewhere along the way, we seem to have departed from a realistic sensible approach when we faced a relatively like adversary i.e. in WW2 the Cold War, the Falkland Islands War to a situation where our adversaries are far less 'like', do not follow the same 'understood' rules but where we expect our soldiers to be super-squeaky clean in all their conduct.
I'm wondering if the tipping point from pragmatism to the cloud-cuckoo-wunderland morass we have now was DESERT STORM where this myth of clean, precise surgical war that can have a 'G' rating for the News at 6 springs from. Throughout the 90s we tried to perpetuate this myth through Somalia, Bosnia and the rest of the screwed up Former Yugoslavia. When we, post-911, got back into brutal ground close combat again we found ourselves locked into a paradigm that we can't get out of - and the ones carrying the can for it are not the senior commanders but those young junior troops on the ground who have a split-second to make a decision that can screw up their lives forever.
All the contributions to this thread have really helped define the problem...my question, against the background of the current TRADOC Senior Leaders Conference which has as one of its theme the development of future soldiers, what can we, do we do about it?
While the US 3rd Infantry Division was wreaking havoc
on Kuwaiti Highway 80 from Kuwait City to Abdali and Basra shortly AFTER the end of Desert Storm, one of the better US Generals I knew said "Man we're in big trouble. We've just "won" (his 'quotes' gestures) a war in 100 hours with only 100 casualties and with 24 hour a day news coverage. That's an impossible standard, not once in a lifetime, once in an era. We are totally screwed..."
True dat.
Hey Marc,
I must yield to your individual spirit of martyrdom for another (greater love hath no man, etc. ...) - fully in the Jesuit spirit of New France (not BTW the TdM spirit of New France), as stated:
in response to my statement:from MAL
I also chose to be nice, pink and cheesy and sacrifice my self as a martyr and have a almost dead opponent being rescued while I am under attack.
Do you think that the 100 civilians who become dead because I elect to save an "almost dead opponent" would be equally as satisfied to be martyrs ?from JMM
E.g., I can save 5 wounded (no distinction as to "whose wounded") at the locus of contact; but, by doing so, give up the ability to pursue the enemy who then will go on to kill 100 civilians - and Lagrange's UN CMO team to boot.
---------------------------
I have to look more at the IHL re: "military necessity" (which is what my question is all about). Your link gives me a clue to the answer to the question by the NZ O'Neill (as opposed to the Aussie O'Neill - that darned Red Hand is everywhere):
which comes just before the actual Convention provisions in the 1954 Hague article you linked:I'm wondering if the tipping point from pragmatism to the cloud-cuckoo-wunderland morass we have now was DESERT STORM where this myth of clean, precise surgical war that can have a 'G' rating for the News at 6 springs from.
Too bad that wars are not fought completely within the confines of Ivory Towers - sorta akin to the idea to conscript all the experts.Let us conclude with the words of an acknowledged expert of the law of war: today, “military necessity is widely regarded as something that must be overcome or ignored if international humanitarian law is to develop, and its original role as a limit on military action has been forgotten. As a result, the principle has not been applied in new situations where it could serve as a significant legal restraint until more specific treaty rules or customs are established”. [22]
22. B. M. Carnahan, “Lincoln, Lieber and the laws of war : The origins and limits of the principle of military necessity”, American Journal of International Law, Vol. 92, No. 2, April 1998, p. 231.
Regards
Mike
Change the title to?
Any suggestions for the title welcome! Children in conflict: legal and other points?
davidbfpo
Specially Protected Persons in Combat Situations
Hi David,
My suggestion would be along the lines of "Specially Protected Persons in Combat Situations" (as titled above).
So far a number of those "special protectees" have been mentioned:
1. child soldiers
2. children in general
3. civilians in general
4. persons held under a belligerent's power (de hors rule #1)
5. persons wounded (de hors rule #2)
6. persons surrendering (de hors rule #3)
7. medical rescuers (military & civilian)
We might subtitle it:
"How honest, law-abiding regular forces are getting their arses shot off because a cloud-cuckoo-wunderland morass has been imposed on them to create criminal sanctions against dishonest, law-shirking regular and irregular forces who could care less because the Hague is too remote."
with credits to Tukhii and NZ O'Neill.
The subtitle is too long, but I'll pick up the theme in my next post.
Cheers
Mike
The loss of military necessity in the balance - part 1
The references cited below in this part are linked at ICRC, International Humanitarian Law - Treaties & Documents. The relevant documents re: Protection of Cultural Property are:
The Convention and Protocols are relevant to this thread only insofar as they represent a definite shift away from the doctrines surrounding military necessity between 1954 and 1999 (the Second Protocol, which became effective in 2004).Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. ... [State parties - 123][State signatories - 4]
Protocol for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. .... [State parties - 100][State signatories - 1]
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999 ... [State parties - 56][State signatories - 18]
Please note that 127 states were parties to the 1954 Convention; and that only 74 states are parties to the 1999 Second Protocol. That latter document has not been accepted by such states as: Russia, China, India, US, France, UK, NZ, Australia, Israel.
The purpose of the 1999 Second Protocol was a radical revision of the original 1954 Convention and First Protocol, as its Introduction makes clear:
Note in para #3 the emphasis on war crimes prosecutions as a major (primary ?) enforcement tool. I'll get back to that later.Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999
Introduction
State parties (56) / State signatories (18)
Forum of adoption - Diplomatic Conference on the Draft Second Protocol to the 1954 Hague Convention
In force - yes
Entry into force - 9.3.2004
1. Basic protection: The 1954 Convention was adopted well before the 1977 Protocols. It was drafted against the background of the Second World War at a time when it was still considered inevitable that entire cities would be attacked. In the midst of such a war, the 1954 Convention sought to protect valuable cultural property. It provides that cultural property can only be attacked in case of "imperative military necessity" without defining this exception. In 1977, Protocol I did away with this approach. Henceforth, only military objectives - more clearly defined and more carefully selected - should be made the object of attack. It appeared self-evident that any improvement of the 1954 Convention should reflect this modern approach: cultural property is civilian property and it should not be attacked unless when it becomes a military objective. In addition, cultural property can only be attacked when there is no other feasible alternative. The updating of the 1954 Convention in light of Protocol I also led to the inclusion of rules concerning precautions in attack that found in Protocol I.
2. Enhanced protection: Given that the 1954 system of cultural property under special protection never worked, the Second Procotol establishes a new system. Cultural property of the greatest importance for humanity can be placed under enhanced protection provided it is adequately protected by domestic law and not used for military purposes or to shield military sites. Enhanced protection is granted from the moment of entry in the List of Cultural Property Under Enhanced Protection. This decision is taken by the Committee for the Protection of Cultural Property in the Event of Armed Conflict, an intergovernmental committee established under the new Protocol.
3. Enforcement: Another development reflected in the new Protocol is the increased effort to fight impunity through effective criminal prosecution of war criminals. The Protocol specifically defines five serious violations for which it establishes individual criminal responsibility. States undertake to adopt appropriate legislation to make these violations criminal offences under domestic law, to provide appropriate penalties and to establish jurisdiction over these offences, including universal jurisdiction for three of the five serious violations. The list of serious violations goes well beyond existing law.
4. Scope of application: The Second Protocol applies equally to international and non-international armed conflicts. The extension of the application of the Second Protocol to non-international armed conflicts is essential.
Now, I think it fair to say that Russia, China, India, US, France, UK, NZ, Australia and Israel did not reject the Second Protocol so that they could run wild destroying cultural property.
The problem with the Second Protocol is that it goes far to remove military necessity as a standard; but, if military necessity falls by the wayside in this limited area (of cultural property), the same logic permits its demise in other more critical areas - i.e., those of specially protected persons. Thus, the relevance to this thread.
The ICRC article cited by MAL deals with military necessity as it is defined in the 1999 Second Protocol - and rejected by many nations. The process by which military necessity was limited is described in the ICRC article:
As noted, the radical definitional shift caused Russia, China, India, US, France, UK, NZ, Australia and Israel to reject the Second Protocol.In February 1994 a group of experts, invited in their personal capacities, put together the so-called Lauswolt document containing draft provisions aimed at improving the Convention. The Lauswolt document did not, however, deal with the problems raised by the notion of military necessity.
The second meeting of the High Contracting Parties to the 1954 Convention (Paris, 13 November 1995) invited all the States to submit to the Secretariat written comments on the substantive proposals for improving the Convention. Several replies commented on the military necessity issue. Some wished to remove completely the exception of military necessity (Croatia, the Czech Republic and Slovenia), others proposed modifications (Belgium, and an alternative proposal from the Czech Republic), still others suggested reconsidering the issue (Kuwait and Poland). [15]
The March 1997 meeting of governmental experts on the review of the Convention resulted in a redrafting of the Lauswolt document. The issue of military necessity was again barely mentioned in the revised text. It was, however, pointed out that “certain military legal advisers favoured including such a phrase in the new instrument because, according to their views, such a concept has been a part of international customary and treaty law of armed conflicts and the exclusion of this concept would not be accepted by their military. Those observers pointed out that there were close links between the ‘military necessity’ and the corresponding obligation not to use cultural property for military purposes” [16]. In particular, the Israeli observer suggested that the following provision be inserted in the new draft: “The provisions of this instrument shall not prejudice or derogate from accepted customary principles of the Laws of War, including, inter alia, the principles of proportionality, distinction and military necessity”. [17]
During the third meeting of the States party to the Convention (Paris, 13 November 1997), representatives of several countries (e.g. Argentina, Austria, France and Israel) defended the value of this notion, asserting that it expressed one of the basic rules of international humanitarian law. They agreed, however, to define it more precisely and narrowly.
Finally, during the May 1998 (Vienna) meeting of governmental experts on the revision of the Convention the majority of participants speaking on this point favoured retaining the notion in the proposed new instrument. However, in accordance with the views expressed, its definition should include elements which would indicate the circumstances in which this exception to the obligation to protect cultural property may be invoked.
.....
As during the 1954 Intergovernmental Conference, the notion of military necessity was one of the most hotly debated issues during the recent Diplomatic Conference which resulted in the adoption of the Second Protocol to the 1954 Convention (The Hague, 15-26 March 1999). Two opposing tendencies appeared, both during the plenary debates and in the working group on this matter: the attempt of military participants (both lawyers and operational staff) to broaden the scope of the definition of military necessity, and the attempt of cultural heritage protection experts to narrow the scope of this definition so as to limit potential abuses and loose interpretation.
....
Before concluding this note on the meaning of “military necessity” in the 1954 Convention, it should be recalled that the notion appears in a number of other treaties on different aspects of the law of armed conflicts, such as the four 1949 Geneva Conventions (e.g. Art. 8, 34 and 50 of the First Convention; Art.126 of the Third Geneva Convention; Art. 49, 55, 108 and 143 of the Fourth Convention) and Additional Protocol I of 1977 (Art.54, para 5, 62, 67 and 71).
(cont.)
The loss of military necessity in the balance - part 2
Canada accepted the 1999 Second Protocol with substantial reservations:
With so many reservations, perhaps it would have been better to simply reject the protocol.Canada
Ratification / Accession - 29.11.2005
Reservation / Declaration - 29.11.2005
Reservation / Declaration text
The statement of understanding reproduced below was annexed to the instrument of accession :
"STATEMENT OF UNDERSTANDING
1. It is the understanding of the Government of Canada that the definition of a military objective in Article 2(f) is to be interpreted the same way as Article 52(2) of Additional Protocol I to the Geneva Conventions of 1949.
2. It is the understanding of the Government of Canada that in relation to Article 6(a)(ii), 6(b), 7(a), 7(b), 8, 13(2)(a) and 13(2)(b) the word "feasible" means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.
3. It is the understanding of the Government of Canada that in relation to Article 6(a)(ii), 6(b), 7(c) and 7(d)(ii) that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.
4. It is the understanding of the Government of Canada that any cultural property that becomes a military objective may be attacked in accordance with a waiver of imperative military necessity pursuant 10 Article 4(2) of the Convention.
5. It is the understanding of the Government of Canada that a decision to invoke imperative military necessity pursuant to Article 6(c) of this Protocol may be taken by an officer commanding a force smaller than the equivalent of a battalion in size in circumstances where the cultural property becomes a military objective and the circumstances ruling at the time relating to force protection are such that it is not feasible to require the decision to be made by an officer commanding a force the equivalent of a battalion in size or larger.
6. It is the understanding of the Government of Canada that under Article 6(a)(i), cultural property can be made into a military objective because of its nature, location, purpose or use."
What is really going on here ?
To answer that question requires reference to some history. Fortunately, we have a very recent law review article that is on point, Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (VJIL, Vol. 50:4, 2010, p.795 et seq - 45 pages). The author's background is:
His BLUF (p. 796)Chair of Public International Law, Durham University, United Kingdom; General Editor, Yearbook of International Humanitarian Law. The author, a retired U.S. Air Force judge advocate, was previously Dean, Marshall Center for Security Studies, Germany; 2007-08 Charles Stockton Visiting Professor of International Law, U.S. Naval War College; and 2006 Sir Ninian Stephen Visiting Scholar at Melbourne University Law School.
I'd suggest this article as textbook #1", which gives a flavor of the international politics involved - and they are involved with a vengence. The second "textbook" is also recent and is a longer thesis on the 1977 APs. Rex A. Childers, THE RATIONALITY OF NONCONFORMITY: THE UNITED STATES DECISION TO REFUSE RATIFICATION OF PROTOCOL I ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949 (2008, 123 pages).INTRODUCTION
No principle is more central to international humanitarian law (IHL), nor more misunderstood, than that of military necessity. It has been proffered both to justify horrendous abuses during armed conflicts and to impose impractical and dangerous restrictions on those who fight. Contemporary conflicts, as well as ongoing efforts to clarify IHL’s application therein, have further muddied the waters.
This Essay examines the principle of military necessity and its current trajectory. In IHL, the principle appears in two guises: justification for normative deviation, and as an element of the lex scripta. The first notion will be quickly dispatched, for the law surrounding military necessity as a justification for violating IHL is well-settled. With regard to the latter, military necessity appears as both a specific element and a general foundational principle. Although the catalogue of direct references to military necessity in IHL is slim, the principle pervades the entire body of law by undergirding individual rules. In this central role, military necessity exists in equipoise with the principle of humanity, which seeks to limit the suffering and destruction incident to warfare. This symbiotic relationship determines in which direction, and at what speed, IHL evolves. It also determines the manner of its application on the battlefield.
The orderly development of treaty law by states over time allows for equilibrium in the legal system, since states must be responsive to both military and humanitarian interests. Yet, as this Essay will demonstrate, various external pressures have fueled a gradual shift in emphasis toward humanitarian considerations. Although the trend may represent one form of “progress,” it equally risks destabilizing the delicate balance that preserves the viability of IHL in a state-centric normative architecture.
(cont.)
The loss of military necessity in the balance - part 3
Here is my theory on how we got where we are - my BLUF with only brief explanations - it's tossed out for discussion.
1. Up until and through WWII, the Laws of War were determined nation vice nation (where armed forces vice armed forces had a very large say in what the rules were). A huge amount of reciprocity was built into the nation vs nation, regular force vs regular force equation. What was sauce for the goose was sauce for the gander. Irregular forces and civilians were problem areas, which was illuatrated by the Hostage Case (List), discussed by Schmitt (pp.2-4, footnotes omitted below) (emphasis added):
The US view was a minimal limitation on military necessity, as compared to what happened later.The premise that military necessity can justify departure from the strict rules of international law finds its roots in the German nineteenth century doctrine of Kriegsraison geht vor Kriegsmanier (necessity in war overrules the manner of warfare). Prior to World War I, various German writers argued that extreme necessity could deprive the laws of war of their binding force.1 Specifically, this elevation of necessity over legal norms was justified when the sole means of avoiding severe danger was to violate the law or when compliance with the law might jeopardize the conflict’s ultimate objectives.
The concept of Kriegsraison never gained traction, however — its risks to the legal order being self-evident. For instance, writing in 1908, Percy Bordwell noted that “given a liberal interpretation it would soon usurp the place of the laws of war altogether.”2 Elihu Root, then President of the American Society of International Law, similarly remarked at the organization’s 1921 meeting that “[e]ither the doctrine of kriegsraison must be abandoned definitely and finally, or there is an end of international law, and in its place will be left a world without law.”3
War crimes trials occurring in the aftermath of the Second World War definitively put the argument to rest. In The Hostage Case, German generals argued that military necessity justified actions such as reprisal killings of civilians during occupation.4 The American Military Tribunal rejected the argument, noting that
There is no basis whatsoever in contemporary international law or practice to suggest the contrary; Kriegsraison is plainly incompatible with the operation of IHL in the modern world.6 Nevertheless, the historical underpinnings of military necessity as a justification for divergence from the absolute protection of civilians and civilian objects during armed conflict are carried through and reflected in the entire body of IHL. Although carte blanche deviation from established legal norms based on military necessity is impermissible, the balancing of necessity and humanity pervades contemporary international law in both a general and a specific sense.[m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war . . . but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. . . . We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International law is prohibitive law.5
2. After WWII and into the 1970s, the 1949 GCs and the Hostage Case were the generally accepted norm.
3. With the adoption of the "anti-colonial", "freedom fighter" provisions of the 1977 APs, a new era dawned for those nations who accepted them. A new era also dawned for those nations who did not accept them, but who were bound by entangling alliances to those that did accept. Rex Childers lays out all of the competing considerations in his excellent thesis.
4. While the end of the colonial empires and the Cold War should have put paid to the controversy, it really only enhanced it. The political purpose of the APs was to place regular armies at a disadvantage vs irregular armies (IMO). The latter (ITO) would argue that it simply made a better balance.
5. When many of the irregulars took control of their nations (e.g., Mugabe), one would think that they would switch to the regular side and become anti-APs. However, the APs were still useful to them if confronted by regular forces from "neo-colonialist" nations; and, WRT their own dissidents, the rules could be ignored since the Hague is far away.
6. While the foregoing describes some of the reasons for the apparent desire to limit military necessity, it does not describe the motivations of the ICRC, many NGOs and many in the UN and regional organizations, especially those on the humanitarian side of the ledger. Those folks have no stake in the military, so they have a narrow focus on the "humanitarian" - "specially protected persons". They also see more "bad guy" armed forces (including the regular armed forces of some nations) than "good guy" armed forces (honest, law-abiding soldiers). That is a fact - like Barsoom.
7. So, they tighten up the rules to take away (as a desired end) all discretion from the military forces (the "bad guys" will abuse discretion); and impose a blackletter, legalistic construct. The violation of that "stricto sensus" construct is then punished by war crimes prosecutions in the ICC and in domestic courts.
8. Since the "bad guys" don't give a rip for legal rules (except when they are favorable to them), Plan # 7 is most likely a FAIL ab initio (in stricto sensus, of course
Rergards
Mike
The Avalon Project of the Yale Law school has a convenient online library of the Laws of War. It is available by clicking here.
Recent Changes to Geneva Convention
Some years back officers of the U.S. Army Judge-Advocate General Corps put themselves in a bad odor within DoD from having to serve as advisors within targetting cells on the legality of engaging certain targets. Wesley Clark complained that during the Kosovo affair JAG officers denied him the right to engage suspected sites of Serbian anti-aircraft artillery because the latest version of the Geneva Convention -- one the U.S. didn't ratify -- requires that ground reconnaissance be conducted to confirm the presence of the enemy before such fire missions are fired, contrary to U.S. Army artillery doctrine.
Yasser Arafat and the PLO made much hay about Irsael's use of "disproportionate force" during the Intifada, another change to the Geneva Convention that neither Israel nor the U.S. ratified. Donald Rumsfeld was also said to have gone ballistic when a JAG officer vetoed a strike against a target in Afghanistan in 2002 where Bin Laden supposedly was.
Some years back I read an article -- it may have been in Parameters, the War College publication -- that bemoaned the fact that DoD won't even send observers to these Geneva Convention conferences because it thinks they're frivilous, undertaken by European nations who think war is an artifact of the past.
The practice of having JAG officers give thumbs-up or thumbs-down on engaging targets may have lowered their credibility when they protested the new "enhanced interrogation" procedures after 9/11. Being the advisors on the legality of engaging targets may have given them the reputation within DoD circles of being nay-sayers who are squeamish old ladies.
Last edited by Pete; 10-02-2010 at 12:51 AM. Reason: Fix typo.
Barsoon folks VS military: a misplaced fight for misplaced reasons
Mike,6. While the foregoing describes some of the reasons for the apparent desire to limit military necessity, it does not describe the motivations of the ICRC, many NGOs and many in the UN and regional organizations, especially those on the humanitarian side of the ledger. Those folks have no stake in the military, so they have a narrow focus on the "humanitarian" - "specially protected persons". They also see more "bad guy" armed forces (including the regular armed forces of some nations) than "good guy" armed forces (honest, law-abiding soldiers). That is a fact - like Barsoom.
7. So, they tighten up the rules to take away (as a desired end) all discretion from the military forces (the "bad guys" will abuse discretion); and impose a blackletter, legalistic construct. The violation of that "stricto sensus" construct is then punished by war crimes prosecutions in the ICC and in domestic courts.
8. Since the "bad guys" don't give a rip for legal rules (except when they are favorable to them), Plan # 7 is most likely a FAIL ab initio (in stricto sensus, of course
I find you a little harsh with Barsoon and the UN/NGO boddies. I would not say that you are wrong cause I do think quite the same.
The main problem is not so much the "regular" armies from developed countries. At contrary, it's easier to deal with most of them. The problematic comes rather from the fact that the UN and NGO had to deal with dirty wars between 1980 and 2000. Also, the GWOT but that's another issue.
The specificity of the small wars environment UN and NGO did work in was mainly conducted by regular and irregular forces who did not follow any of the Laws of war and had absolutely no clue of the military necessity. As exemples I will take the Liberia, the DRC and the Rwanda conflicts. During those conflicts, the lust of killing did prevail.
As I said previously, for the purpose of the debat, I did wear the white humanitarian angel devil advocate suite. But that is not satisfying, even for me, cause I do make a distinction between military necessity and barbarism. The main idea of barsoon folks (let call them like this) is that war/military imperious necessity has to be justified and regulated and could not be use to abuse GC and other treaties. On the other hand, there is a strong feeling among the military community that IHL are made to limit them. As Pete just pointed in the precedent post:
Also, as you clearly shown, the point was to ban practices that were badly justified in the name of military imperious necessity as in the hostage case you developped.Some years back I read an article -- it may have been in Parameters, the War College publication -- that bemoaned the fact that DoD won't even send observers to these Geneva Convention conferences because it thinks they're frivilous, undertaken by European nations who think war is an artifact of the past.
The complexity of the biased perception of both sides about each others is based on those particular experiences.[m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war . . . but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. . . . We do not concur in the view that the rules of warfare are anything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules. International law is prohibitive law.
On one side you have barsoon folks, UN and NGO, who had to deal with crazy wars conducted in low developed countries and mainlythrough barbarian acts. (the LRA is a good example of what they had to deal with for a long time). Or by powers that were qualified as the "empire of evil" as USSR in Afghanistan. The fight was basically ideological and the liberation wars did prove that there was a need to strength the GC through ew protocols and regulations. French did use the same arguments of military necessity to use torture and conduct other exactions just like the Germans previously. (There is a debate on this and the WW2 roots of "modern warfar" or counter revolutionary warfare but this is another debate and mainly a franco french one.)
Ideologically, the NGO and humanitarian folks did take the side of freedom fighters, almost who ever they were, until they did turn as the lightning path or the LRA. And unfortunatelly, the previous US administration did re enforce the feeling that military folks did not integrate the GC and other treaties in their SOP. Falklands or Desert Storm did prove the contrary, especially Falkland which is considered as the cleanest war of the 20th century by scholars from barsoon.
Also, the fact that such wars were exceptions has been strength by their short time dimension as Ken pointed:
To resume, wars between regular armies are short, clean and exceptions. Irregular war are long, dirty, the new standart and everybody is ideologically guilty. (I will not even go to the pacifist path... Their stupidity upsets me).We've just "won" (his 'quotes' gestures) a war in 100 hours with only 100 casualties and with 24 hour a day news coverage. That's an impossible standard, not once in a lifetime, once in an era. We are totally screwed..."
Now, the 2 last main wars fought by regular armies from develop powers (Irak and Astan) have been mainly irregular. So logically they are long, dirty and everybody is guilty of war crime.
I disagree with that statement (that's a personnal opinion) but many barsoon folks disagree with my opinion. This not because of the conduct of war and the jus at bellun/jus in bello but for domestic political reasons.
So for good reasons on both sides there has been tremendous efforts to build a legal environment to regulate war and enforce it. There are disagreements in the process (like the ICC) but the intentions from both sides are/were the same.
Now, for reasons that have nothing to see with the conduct of war there is what I would call a misuse, you would rather qualify it as an abuse, of the legal tools developed to regulate the lawfull use of violence for domestic political reasons.
On the other side, the previous US administration did grave damages to the military among the barsoon folks through trying to impose back the "kriegraison".
And finally, I did not have time to respond before, about the following question:
No, this is not satisfying at all! My personnal opinion is let him die (may be with a shot of morphin to ease the end) and go on to rescue the civilians asap. Naturally. I am a practicle man and the weight of 1 almost dead opponent against 100 civilians is, at the best, neglictable. But I am no judge and what guys on the ground will face is not me but may be individuals who will take this as an opportunity to make a statement based on domestic political opinion and not an understanding of the war legal environment.Do you think that the 100 civilians who become dead because I elect to save an "almost dead opponent" would be equally as satisfied to be martyrs ?
And by the way, I am not ready to be a martyr neither.
And finally, Mike, thanks and felicitation to resume this debate in such a precise way. Had several course from IHL speciallist who could not even go to a scratch of what you brought.
Last edited by M-A Lagrange; 10-02-2010 at 08:48 AM.
Hey Marc,
Good to see that you are not totally pi$$ed at me. I'll get back to your post later today or tonite, but I have to go now to a funeral visitation for a 24 year old cousin.
If readers are not acquainted with Barsoom - Wiki, the Red Planet, Mars, the God of War, here is a snip:
While the novels are fiction, they are very relevant to the "small wars" of today. In those regions which are "Barsoomian", there are unfortunately more "bad guy" armed forces (including the regular armed forces of some nations) than "good guy" armed forces (honest, law-abiding soldiers). That is why I said that "Barsoom" is a fact.The world of Barsoom is a romantic vision of a dying Mars, based on now outdated scientific ideas made popular by Astronomer Percival Lowell in the early 20th century. While depicting many outlandish inventions, and advanced technology, it is a savage, 'frontier' world, of honor, noble sacrifice and constant struggle, where martial prowess is paramount, and where many races fight over dwindling resources. It is filled with lost cities, heroic adventures and undiscovered ancient secrets.
And, no, I am not equating the UN-NGO folks to Barsoomians (nor to John Carter, for that matter). Barsoom and Barsoomians are a savage place and savage tribes. UN-NGO folks mostly seek to lessen the savagery. I posit that is the reason why you are "In Barsoom, for a fact".
Regards
Mike
Ground recce before a fire mission? Little wonder the US did not ratify that version.
There is certainly a case building against JAG actions in Afghanistan where they were allegedly party to allowing certain top Taliban and/or Al Qaeda leaders to escape. I look forward to the day that the details of the courts marshal are released to learn the whole story.Yasser Arafat and the PLO made much hay about Irsael's use of "disproportionate force" during the Intifada, another change to the Geneva Convention that neither Israel nor the U.S. ratified. Donald Rumsfeld was also said to have gone ballistic when a JAG officer vetoed a strike against a target in Afghanistan in 2002 where Bin Laden supposedly was.
In the meantime one must just wonder for how long the US will tolerate this own goal. http://www.military.com/opinion/0,15202,87045,00.html
]Can't blame the US myself. The European countries have so little in terms of real problems they have lots of time to organise these ridiculous conferences to make them feel good. One hopes the economic crisis will lead them to trim this nonsense.Some years back I read an article -- it may have been in Parameters, the War College publication -- that bemoaned the fact that DoD won't even send observers to these Geneva Convention conferences because it thinks they're frivilous, undertaken by European nations who think war is an artifact of the past.
Well the law is the law. The problem is when some comparatively junior JAG types can run the show then it becomes quite ridiculous. Modern armies have a lot of time on their hands to school their soldiers in the laws of war to guide them. If you can't shake these JAG types off then at least insist that they experience some hot combat personally before they can start to dish out advice. No one make make these calls unless they have been there and done that.The practice of having JAG officers give thumbs-up or thumbs-down on engaging targets may have lowered their credibility when they protested the new "enhanced interrogation" procedures after 9/11. Being the advisors on the legality of engaging targets may have given them the reputation within DoD circles of being nay-sayers who are squeamish old ladies.
Excessive force
Responding to alleged War Crimes during 2003 invasion of Iraq Luis Moreno-Ocampo Chief Prosecutor at the International Criminal Court responded (in part) as follows:
Find this in his response from the International Criminal CourtUnder international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[1] even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).
In addition I found this piece to be of interest:
Sense and Nonsense about Disproportionate Force
The specific problem in Lebanon, particularly Israel’s bombing of southern Beirut, is deciding when the targets are protected civilians or part of a militant terrorist organization and thus subject to legitimate attack. We have too little information about many of these attacks to know one way or the other. This is an area where the concepts are clear but the facts remain murky. Journalists on the ground would do well to inquire about the relevant military objectives rather than pass judgment on the basis of the numbers of civilians killed, which may have minimal relevance to legal analysis.
Last edited by JMA; 10-02-2010 at 07:53 PM.
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