Whittier-
31-07-2004, 06:20
Use of Nuclear Weapons:
In 1994, several NGOs opposed to the use of nuclear weapons convinced a majority of the United Nations General Assembly to ask the International Court of Justice at The Hague for an advisory opinion on the legality of nuclear weapons and their use. Under the UN Charter, the General Assembly is authorized to request such an opinion from the court on any legal question. (The United States opposed adoption of the resolution but was outvoted.) The court’s opinion, delivered on July 8, 1996, illustrates how deeply divided the international legal community is on this issue. The fourteen judges then sitting on the court split evenly on whether nuclear weapons could ever be lawfully used in accordance with the laws of war. In that situation, the president of the court is allowed to cast a second vote to break the tie. By this procedure, the court gave the General Assembly the following ambiguous advice:
“[T]he threat or use of nuclear weapons would generally be contrary
to the rules of international law applicable in armed conflict, and in
particular the principles and rules of humanitarian law;
“However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlaw- ful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”
Biological Weapons
The Biological Weapons Convention (BWC), which entered into force in 1975, bans the research, development, production, stockpiling, or acquisition of biological and toxic weapons. The convention similarly bans delivery systems specifically designed for such weapons. While the BWC deals only with possession of these weapons, first use in warfare was banned by the 1925 Geneva Protocol (which also dealt with the use of chemical weapons). This protocol was itself derived from an ancient customary law of war restricting the use of “poisonous” weapons or substances in armed conflict that had first been codified in the Hague Conventions of 1899 and 1907. To date 149 countries have joined the BWC.
The BWC contains no provision for monitoring, but there is a nonbinding “confidence-building” regime under which States may make declarations about their facilities that handle highly pathogenic organisms and give lists of publications which deal with them. Although a group of treaty members has begun drafting a legally binding protocol for verification, I and others with field experience believe that it is not possible to have a global measure that can work with any degree of confidence. It is more likely to give a sense of false security, which may be worse than the existing situation.
Acts of War:
The term act of aggression has to all intents and purposes subsumed the legal term act of war and made it irrelevant, although act of war is still used rhetorically by States that feel threatened. The People's Republic of China stated in 1997 that any attempt by the Republic of China (Taiwan) to declare independence would be regarded as an act of war; and in August 1998, the U.S. Secretary of State, Madeleine Albright, said Osama bin Laden, the reputed mastermind of truck-bomb attacks on two U.S. embassies in Africa, had "declared war on the United States and struck first." In the domestic law of many States, act of war is also used in some contexts, such as insurance and reparations claims, to refer to any use of force in any armed conflict.
An act of war in the traditional and historical sense was understood to mean any act by a State that would effectively terminate the normal international law of peacetime and activate the international law of war. The decision was invariably that of the target State and was generally preceded by a statement warning that certain acts would be considered acts of war and would trigger hostilities. Belligerent and neutral States also used the term. Belligerents would interpret as acts of war any action that seemed to assist the enemy; neutrals, any infringement of their neutrality.
Second, the definition offers an illustrative list of acts of aggression: invasion, attack, or occupation of whatever duration; bombardment; blockade; attack on another State's armed forces; unauthorized use of military forces stationed in a foreign State; allowing territory to be used for aggression; and sending armed bands or similar groups to carry out aggression or substantial involvement therein.
Acts of aggression such as these trigger the two key lawful uses of force mentioned in the charter: (a) individual or collective self-defense; and (b) force approved by the UN itself. Thus, the Iraqi invasion of Kuwait triggered the right of Kuwait and its allies to engage in self-defense, as well as the right of the UN to approve the use of force against Iraq under Chapter VII.
Naval Blockade of a nation:
Under the traditional concept of blockade, a belligerent was entitled to proclaim a blockade of all or part of the enemy’s coast and to use warships to enforce that blockade. There was no legal obligation to comply with a blockade, but any merchant ship, whether belligerent or neutral, that was intercepted by the blockading State while attempting to run the blockade was liable to capture. Following the decision of a prize court, ship and cargo became the property of the blockading power. The traditional concept of the blockade was confined, therefore, to the law of naval warfare. Blockade today is a technical legal term that most people, including lawyers, use without much precision to describe a variety of conduct beyond maritime operations.
In order to be lawful, a naval blockade had to be formally declared and had to be effective, that is to say it had to be properly enforced by warships of the blockading State. At one time this meant stationing warships just off the coast of the State that was subject to blockade, but by the time of the two World Wars, blockades were often administered from a long distance. An effective blockade allowed a belligerent to cut off all maritime commerce between its enemy and the rest of the world. The purpose was not only to prevent goods from reaching the enemy (to a large extent that could be done without a blockade in any event) but also to prevent the enemy from exporting to the outside world and thereby sustaining its war economy.
Carpet Bombing
An explicit ban on area bombardment was first codified in the 1977 Additional Protocol I, which applies to bombardments of cities, towns, villages, or other areas containing a concentration of civilians. An attack by bombardment by any methods or means that treats as a single military objective a number of clearly separated and distinct military objectives is considered to be an indiscriminate attack and is prohibited. Launching such an attack in the knowledge that it will cause excessive loss of life, injury to civilians, or damage to civilian objects is considered a grave breach. Bombarding areas containing solely military targets is permitted. Important powers such as the United States, which are not party to Protocol I, accept this principle as binding customary international law.
the Protocol’s wording makes it clear that attacks targeting cities as such are prohibited
Civilian Immunity
The civilian population enjoys immunity insofar as it shall "enjoy general protection against dangers arising from military operations" and "shall not be the object of attack." The Protocol prohibits actions whose primary purpose is to spread terror among the civilian population. It also prohibits so called indiscriminate attacks, thereby obliging each party to an armed conflict under all circumstances to distinguish at all times between the combatants and military objectives, and civilians or civilian objects.
Targeting of Civilians:
The direct targeting of civilians is a breach of the laws of armed conflict. “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited,” states Additional Protocol I of 1977. Israel has not ratified Protocol I, but this provision, prohibiting direct attacks on civilians, is generally recognized as customary law, universally applicable regardless of ratification.
Displacement of civilians is permitted under the laws of war if it is for their own protection or required for imperative military reasons.
They also prohibit: acts or threats of violence, the primary purpose of which is to spread terror among the civilian population; attacks which may be expected to cause incidental loss of civilian life, injury to civilians; damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated; and attacks by bombardment by any methods or means which treat as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or area containing a similar concentration of civilians or civilian objects.
Collataral Damage;
Collateral or incidental damage occurs when attacks targeted at military objectives cause civilian casualties and damage to civilian objects. It often occurs if military objectives such as military equipment or soldiers are situated in cities or villages or close to civilians. Attacks that are expected to cause collateral damage are not prohibited per se, but the laws of armed conflict restrict indiscriminate attacks.
in an international conflict, "constant care shall be taken to spare the civilian population, civilians, and civilian objects." In addition, under Article 51, carpet bombing is prohibited, as are attacks that employ methods and means of combat whose effects cannot be controlled. Finally, attacks are prohibited if the collateral damage expected from any attack is not proportional to the military advantage anticipated.
Command Responsibility:
a military commander is liable for crimes that he "knew or should have known" about under circumstances at the time, and only for those crimes committed by forces under his "effective command and control." He is liable if he "failed to take all necessary and reasonable measures" to prevent and repress such crimes that subordinates "were committing or about to commit" or for failing to report such crimes to proper authorities.
Crimes against humanity:
Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Evacuation of civilians from a combat zone:
The law actually places the burden of protecting civilians most heavily on the force that has some real control over the civilians. Thus, while an attacking force can not deliberately target civilians, neither can a defending force use civilians as some sort of a shield against legitimate attacks.
Hospitals:
Hospitals, of course, enjoy a special protected status under international humanitarian law. It is a war crime deliberately to attack a hospital or other medical unit, whether civilian or military. It is also unlawful to use a hospital in direct support of a military operation—to convert one wing of the hospital into an ammo dump, for example. (Indeed, hospitals that are misused in this manner lose their legal protection.) Medical personnel in general may not be attacked; but at the same time it is unlawful to use medical facilities, or related equipment such as ambulances, as camouflage or protection for military personnel, or as a shield for military forces.
Illegal Acts:
Illegal acts include: use of prohibited means and methods of warfare, including poison or other weapons calculated to cause unnecessary suffering; perfidious attacks not involving the abuse of protective emblems or emblems or uniforms of neutral countries; failure to wear a uniform to identify oneself as a legal combatant; pillage; terrorism; interference with humanitarian aid shipments; nonextensive, unjustified destruction of property; attack or bombardment of undefended towns, dwellings, or buildings; seizure of or willful damage done to certain cultural institutions, e.g., those dedicated to religion, education, charity, arts, sciences, or historic monuments and works of art; reprisals against protected persons or objects; and any breach of an armistice.
Immunity from attack:
The absolute rule is that civilians must not be directly targeted for military attack. Furthermore, some individuals considered especially vulnerable —children under fifteen, the elderly, pregnant women, and mothers of children under seven—are granted special protection and may, for example, be moved to safe zones exempt from attack by agreement of the warring parties. The wounded, sick, or shipwrecked, military personnel who are considered to be hors de combat, are protected, as are prisoners of war.
Indiscriminate attacks are illegal:
Types of Indiscriminate Attack
1. An attack that is not targeted at military objectives. (Damage to civilian property that is actually intended is known as wanton destruction, especially if it is wide-scale.)
2. Use of weapons that are not able to be properly targeted.
3. Use of weapons that have uncontrollable effects.
4. An attack that treats an area with similar concentrations of military and civilian objectives as a single military objective.
5. An attack that may be expected to cause harm to civilians or civilian objectives in excess of the concrete and direct military advantage anticipated.
Legitimate Targets:
Legitimate military targets include: armed forces and persons who take part in the fighting; positions or installations occupied by armed forces as well as objectives that are directly contested in battle; military installations such as barracks, war ministries, munitions or fuel dumps, storage yards for vehicles, airfields, rocket launch ramps, and naval bases.
Legitimate infrastructure targets include lines and means of communication, command, and control—railway lines, roads, bridges, tunnels, and canals—that are of fundamental military importance.
Legitimate communications targets include broadcasting and television stations, and telephone and telegraph exchanges of fundamental military importance.
Legitimate military-industrial targets include factories producing arms, transport, and communications equipment for the military; metallurgical, engineering, and chemicals industries whose nature or purpose is essentially military; and the storage and transport installations serving such industries.
Legitimate military research targets include experimental research centers for the development of weapons and war matériel.
Legitimate energy targets include installations providing energy mainly for national defense, such as coal and other fuels, and plants producing gas or electricity mainly for military consumption. Attacks on nuclear power stations and hydroelectric dams are generally, but not always, prohibited by the laws of war.
In 1994, several NGOs opposed to the use of nuclear weapons convinced a majority of the United Nations General Assembly to ask the International Court of Justice at The Hague for an advisory opinion on the legality of nuclear weapons and their use. Under the UN Charter, the General Assembly is authorized to request such an opinion from the court on any legal question. (The United States opposed adoption of the resolution but was outvoted.) The court’s opinion, delivered on July 8, 1996, illustrates how deeply divided the international legal community is on this issue. The fourteen judges then sitting on the court split evenly on whether nuclear weapons could ever be lawfully used in accordance with the laws of war. In that situation, the president of the court is allowed to cast a second vote to break the tie. By this procedure, the court gave the General Assembly the following ambiguous advice:
“[T]he threat or use of nuclear weapons would generally be contrary
to the rules of international law applicable in armed conflict, and in
particular the principles and rules of humanitarian law;
“However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlaw- ful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”
Biological Weapons
The Biological Weapons Convention (BWC), which entered into force in 1975, bans the research, development, production, stockpiling, or acquisition of biological and toxic weapons. The convention similarly bans delivery systems specifically designed for such weapons. While the BWC deals only with possession of these weapons, first use in warfare was banned by the 1925 Geneva Protocol (which also dealt with the use of chemical weapons). This protocol was itself derived from an ancient customary law of war restricting the use of “poisonous” weapons or substances in armed conflict that had first been codified in the Hague Conventions of 1899 and 1907. To date 149 countries have joined the BWC.
The BWC contains no provision for monitoring, but there is a nonbinding “confidence-building” regime under which States may make declarations about their facilities that handle highly pathogenic organisms and give lists of publications which deal with them. Although a group of treaty members has begun drafting a legally binding protocol for verification, I and others with field experience believe that it is not possible to have a global measure that can work with any degree of confidence. It is more likely to give a sense of false security, which may be worse than the existing situation.
Acts of War:
The term act of aggression has to all intents and purposes subsumed the legal term act of war and made it irrelevant, although act of war is still used rhetorically by States that feel threatened. The People's Republic of China stated in 1997 that any attempt by the Republic of China (Taiwan) to declare independence would be regarded as an act of war; and in August 1998, the U.S. Secretary of State, Madeleine Albright, said Osama bin Laden, the reputed mastermind of truck-bomb attacks on two U.S. embassies in Africa, had "declared war on the United States and struck first." In the domestic law of many States, act of war is also used in some contexts, such as insurance and reparations claims, to refer to any use of force in any armed conflict.
An act of war in the traditional and historical sense was understood to mean any act by a State that would effectively terminate the normal international law of peacetime and activate the international law of war. The decision was invariably that of the target State and was generally preceded by a statement warning that certain acts would be considered acts of war and would trigger hostilities. Belligerent and neutral States also used the term. Belligerents would interpret as acts of war any action that seemed to assist the enemy; neutrals, any infringement of their neutrality.
Second, the definition offers an illustrative list of acts of aggression: invasion, attack, or occupation of whatever duration; bombardment; blockade; attack on another State's armed forces; unauthorized use of military forces stationed in a foreign State; allowing territory to be used for aggression; and sending armed bands or similar groups to carry out aggression or substantial involvement therein.
Acts of aggression such as these trigger the two key lawful uses of force mentioned in the charter: (a) individual or collective self-defense; and (b) force approved by the UN itself. Thus, the Iraqi invasion of Kuwait triggered the right of Kuwait and its allies to engage in self-defense, as well as the right of the UN to approve the use of force against Iraq under Chapter VII.
Naval Blockade of a nation:
Under the traditional concept of blockade, a belligerent was entitled to proclaim a blockade of all or part of the enemy’s coast and to use warships to enforce that blockade. There was no legal obligation to comply with a blockade, but any merchant ship, whether belligerent or neutral, that was intercepted by the blockading State while attempting to run the blockade was liable to capture. Following the decision of a prize court, ship and cargo became the property of the blockading power. The traditional concept of the blockade was confined, therefore, to the law of naval warfare. Blockade today is a technical legal term that most people, including lawyers, use without much precision to describe a variety of conduct beyond maritime operations.
In order to be lawful, a naval blockade had to be formally declared and had to be effective, that is to say it had to be properly enforced by warships of the blockading State. At one time this meant stationing warships just off the coast of the State that was subject to blockade, but by the time of the two World Wars, blockades were often administered from a long distance. An effective blockade allowed a belligerent to cut off all maritime commerce between its enemy and the rest of the world. The purpose was not only to prevent goods from reaching the enemy (to a large extent that could be done without a blockade in any event) but also to prevent the enemy from exporting to the outside world and thereby sustaining its war economy.
Carpet Bombing
An explicit ban on area bombardment was first codified in the 1977 Additional Protocol I, which applies to bombardments of cities, towns, villages, or other areas containing a concentration of civilians. An attack by bombardment by any methods or means that treats as a single military objective a number of clearly separated and distinct military objectives is considered to be an indiscriminate attack and is prohibited. Launching such an attack in the knowledge that it will cause excessive loss of life, injury to civilians, or damage to civilian objects is considered a grave breach. Bombarding areas containing solely military targets is permitted. Important powers such as the United States, which are not party to Protocol I, accept this principle as binding customary international law.
the Protocol’s wording makes it clear that attacks targeting cities as such are prohibited
Civilian Immunity
The civilian population enjoys immunity insofar as it shall "enjoy general protection against dangers arising from military operations" and "shall not be the object of attack." The Protocol prohibits actions whose primary purpose is to spread terror among the civilian population. It also prohibits so called indiscriminate attacks, thereby obliging each party to an armed conflict under all circumstances to distinguish at all times between the combatants and military objectives, and civilians or civilian objects.
Targeting of Civilians:
The direct targeting of civilians is a breach of the laws of armed conflict. “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited,” states Additional Protocol I of 1977. Israel has not ratified Protocol I, but this provision, prohibiting direct attacks on civilians, is generally recognized as customary law, universally applicable regardless of ratification.
Displacement of civilians is permitted under the laws of war if it is for their own protection or required for imperative military reasons.
They also prohibit: acts or threats of violence, the primary purpose of which is to spread terror among the civilian population; attacks which may be expected to cause incidental loss of civilian life, injury to civilians; damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated; and attacks by bombardment by any methods or means which treat as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or area containing a similar concentration of civilians or civilian objects.
Collataral Damage;
Collateral or incidental damage occurs when attacks targeted at military objectives cause civilian casualties and damage to civilian objects. It often occurs if military objectives such as military equipment or soldiers are situated in cities or villages or close to civilians. Attacks that are expected to cause collateral damage are not prohibited per se, but the laws of armed conflict restrict indiscriminate attacks.
in an international conflict, "constant care shall be taken to spare the civilian population, civilians, and civilian objects." In addition, under Article 51, carpet bombing is prohibited, as are attacks that employ methods and means of combat whose effects cannot be controlled. Finally, attacks are prohibited if the collateral damage expected from any attack is not proportional to the military advantage anticipated.
Command Responsibility:
a military commander is liable for crimes that he "knew or should have known" about under circumstances at the time, and only for those crimes committed by forces under his "effective command and control." He is liable if he "failed to take all necessary and reasonable measures" to prevent and repress such crimes that subordinates "were committing or about to commit" or for failing to report such crimes to proper authorities.
Crimes against humanity:
Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Evacuation of civilians from a combat zone:
The law actually places the burden of protecting civilians most heavily on the force that has some real control over the civilians. Thus, while an attacking force can not deliberately target civilians, neither can a defending force use civilians as some sort of a shield against legitimate attacks.
Hospitals:
Hospitals, of course, enjoy a special protected status under international humanitarian law. It is a war crime deliberately to attack a hospital or other medical unit, whether civilian or military. It is also unlawful to use a hospital in direct support of a military operation—to convert one wing of the hospital into an ammo dump, for example. (Indeed, hospitals that are misused in this manner lose their legal protection.) Medical personnel in general may not be attacked; but at the same time it is unlawful to use medical facilities, or related equipment such as ambulances, as camouflage or protection for military personnel, or as a shield for military forces.
Illegal Acts:
Illegal acts include: use of prohibited means and methods of warfare, including poison or other weapons calculated to cause unnecessary suffering; perfidious attacks not involving the abuse of protective emblems or emblems or uniforms of neutral countries; failure to wear a uniform to identify oneself as a legal combatant; pillage; terrorism; interference with humanitarian aid shipments; nonextensive, unjustified destruction of property; attack or bombardment of undefended towns, dwellings, or buildings; seizure of or willful damage done to certain cultural institutions, e.g., those dedicated to religion, education, charity, arts, sciences, or historic monuments and works of art; reprisals against protected persons or objects; and any breach of an armistice.
Immunity from attack:
The absolute rule is that civilians must not be directly targeted for military attack. Furthermore, some individuals considered especially vulnerable —children under fifteen, the elderly, pregnant women, and mothers of children under seven—are granted special protection and may, for example, be moved to safe zones exempt from attack by agreement of the warring parties. The wounded, sick, or shipwrecked, military personnel who are considered to be hors de combat, are protected, as are prisoners of war.
Indiscriminate attacks are illegal:
Types of Indiscriminate Attack
1. An attack that is not targeted at military objectives. (Damage to civilian property that is actually intended is known as wanton destruction, especially if it is wide-scale.)
2. Use of weapons that are not able to be properly targeted.
3. Use of weapons that have uncontrollable effects.
4. An attack that treats an area with similar concentrations of military and civilian objectives as a single military objective.
5. An attack that may be expected to cause harm to civilians or civilian objectives in excess of the concrete and direct military advantage anticipated.
Legitimate Targets:
Legitimate military targets include: armed forces and persons who take part in the fighting; positions or installations occupied by armed forces as well as objectives that are directly contested in battle; military installations such as barracks, war ministries, munitions or fuel dumps, storage yards for vehicles, airfields, rocket launch ramps, and naval bases.
Legitimate infrastructure targets include lines and means of communication, command, and control—railway lines, roads, bridges, tunnels, and canals—that are of fundamental military importance.
Legitimate communications targets include broadcasting and television stations, and telephone and telegraph exchanges of fundamental military importance.
Legitimate military-industrial targets include factories producing arms, transport, and communications equipment for the military; metallurgical, engineering, and chemicals industries whose nature or purpose is essentially military; and the storage and transport installations serving such industries.
Legitimate military research targets include experimental research centers for the development of weapons and war matériel.
Legitimate energy targets include installations providing energy mainly for national defense, such as coal and other fuels, and plants producing gas or electricity mainly for military consumption. Attacks on nuclear power stations and hydroelectric dams are generally, but not always, prohibited by the laws of war.