the law of war requires humane treatment for military

Updated: August 21, 2018 | Original: November 17, 2017. I would have preferred that we get the information another way. The truth is that modern conflict has become so extremely complex, intractable and mixed in current times, displaying simultaneously features of both International and Non-International armed conflict especially in modern anti-terrorism campaigns waged against Islamist terrorist groups and terror-using insurgencies in the Middle East, Central Asia, Africa and Asia that it has created grey zones with regard to the appropriate LOAC that leave room for diverse legal interpretation between nations and new evolutions in customs of CIL. (4) Civilian persons in time of war (Geneva Convention IV). [34] Modified image taken from M. Petrou, The decline of al-Qaeda, Macleans, 9 September 2011, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, (accessed 1 May 2019). During the early 2000s the Bush Administration sincerely believed and asserted,with full support and confirmation from the Pentagon, the Department of Justice and the CIA, that the U.S. government was in fact giving fundamentally humane treatment to the terrorist detainees at Guantanamo prison according to the laws of war, by making no adverse distinction based on race, colour, religion, gender, birth, wealth or other criteria, and by providing for all the detainees physical, spiritual and medical needs (food, water, shelter, clothing, freedom of worship, and medical treatment). All articles are regularly reviewed and updated by the HISTORY.com team. This paper also sets out international law requirements governing prisoners of war and so-called "unlawful combatants," including humane treatment, interrogation and prosecution. The first Convention was initiated by what is now theInternational Committee for the Red Cross and Red Crescent(ICRC). Humane Treatment of Prisoners. (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, Twenty-six countries ratified the Conventions in the early 1990s, largely in the aftermath of the break-up of the Soviet Union, Czechoslovakia and the former Yugoslavia. [28] Modified images taken from: N. Shachtman, Afghan Air War Hits 3-Year Low, WIRED, 16 January 2012, https://www.wired.com/2012/01/afghan-air-war/, (accessed 1 May 2019); Operations and missions: past and present, North Atlantic Treaty Organization (NATO),25 April 2019, https://www.nato.int/cps/en/natohq/topics_52060.htm, (accessed 1 May 2019); L. Eptako, Then and Now: What Replaced the Toppled Saddam Statue?, PBS Newshour, 26 August 2010, https://www.pbs.org/newshour/world/saddam-statue, (accessed 1 May 2019); and B. A committee was formedwhich included Dunant and an early iteration of the Red Crossin Geneva to explore ways to implement Dunants ideas. cit., p. 4-5). The intensive inspections program instituted after the [Gulf] war uncovered evidence that the Iraqis had, in fact, been considerably further along in developing nuclear weapons than U.S. intelligence had estimated before the warAs long as the inspections effort continued and the sanctions were strictly enforced, his opportunities to resume the programs for weapons of mass destruction would be very limited. Sorry, your blog cannot share posts by email. [8], Internal security emergencies within a State, i.e. In sum, Non-International armed conflict (NIAC) largely concerns intra-State conflict that is, armed conflict that occurs within the territory of a State. But years later, once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. As the ultimate defenders of your State andits laws it is your DUTYto know the provisions of the law and to ensurethey are respected and obeyed. Regarding the Humane Treatment of al Qaeda and Taliban Detainees (February 7, 2002), . To that end, the Convention prohibits torture, assaults upon personal dignity, and execution without judgment(Article 3). Al Qaeda terrorists (unlawful combatants under the LOAC) captured in Afghanistan.[34]. [9], In order to be a Non-International armed conflict, either: (1) a minimum level of intensity in the hostilities must be reached, e.g. 3 of 8) Protection against threats or acts of violence Protection against public curiosity 9-87, and Section Ten: Internees, Detainees and Torture, p. 5, 149.335 Law of Armed Conflict, op. That view was reinforced by his boasting and his behavior, intended to persuade his own people and his neighbors of that success. In addition, these same national forces also failed to prevent, halt, suppress and punish combatants who committed genocide and crimes against humanity against these non-combatant civilians (see blogs #18 Caveats Endanger & Caveats Kill: National Caveats in UN Operations in Angola, Rwanda & Bosnia-Herzegovina, #20 Betrayal & Barbarism in Bosnia: The UNPROFOR Operation, National Caveats & Genocide in the Srebrenica UN Protected Area, #21 Srebrenica Aftermath: Serb Guilt & Dutch Liability for the Genocide in the UNPROFOR Safe Area in Bosnia,and#22 Recommended Viewing: The UN, National Caveats & Human Carnage in Rwanda). That was not true. However, while this is a clear and generally accepted definition of torture, there is still no agreed international agreement on what specific acts actually constitute this torture, and there is additionally no internationally accepted definition of humane vs inhumane treatment. the Global War on Terrorism involving inter-State warfare in addition to intra-State insurgencies, and the wars that have taken place in both Georgia and Syria), with guidance often having to be provided on a case-by-case basis by the evolving consensus of world opinion on the conflict. (The Principles of the Law of War, pg. futhermore, the animosities generated by terrorism make the postwar peace more difficult to preserve. Afghanistan and Iraq: Two conflict theatres in the Global War on Terrorism (GWOT). The principle of humane treatment in IHL requires that those who fall into the hands of the enemy be treated with respect for their dignity as human beings. International Committee of the Red Cross. The signing Nations agreed to further restrictions on the treatment of "protected persons" according to the original Conventions, and clarification of the terms used in the Conventions was introduced. The lack of global consensus on these important definitions has meant that, while on the one hand most nations on the world stage absolutely oppose and condemn torture and inhumane treatment of any persons involved in an armed conflict, on the other hand, these nations hold diverse interpretations, understandings and positions on these terms and what they mean in reality and in practice during armed conflict. Under this body of International Humanitarian Law for the conduct of war, known as the LOAC, This means that ratified laws of the LOAC must be applied and adhered to by the nations armed forces, The duty to obey the LOAC is so forceful that it demands obedience even to the extent of disobeying national superior orders that are perceived to be. He got much more than he bargained for, however, when he found himself a witness to the aftermath of the Battle of Solferino, a gory battle in the Second War of Italian Independence. Trailer #12: SEAL Team Low-Impact (High-Risk) (2022, Series 6, Episode 1) [American SOF Forces, Burkina Faso/Mali]. Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. At the time, some were concerned we werent pushing hard enough. 31, 32; The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions. Required fields are marked *, You may use these HTML tags and attributes:

. Some of these LOAC obligations have been so universally ratified and accepted as customary norms worldwide over the last century, that they have become extremely powerful and are now internationally regarded as binding on, This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. Some of these LOAC obligations have been so universally ratified and accepted as customary norms worldwide over the last century, that they have become extremely powerful and are now internationally regarded as binding on all military and non-military combatant forces, in all places, and at all times, during all the stages of conflict that exist on the scale between peace and war. As a result of this ambiguity under the LOAC surrounding lawful interrogation techniques versus true, unlawful torture, intense and controversial debate about these matters raged between 2006-2008, and continue to the present day. My most solemn responsibility as president was to protect the country. http://mro.massey.ac.nz/xmlui/handle/10179/6984, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, https://casebook.icrc.org/glossary/non-international-armed-conflict, https://www.open.edu/openlearn/society-politics-law/the-use-force-international-law/content-section-2.1.3, http://www.redcross.int/EN/mag/magazine2005_2/24-25.htm, https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf, https://www.soc.mil/ARSOF_History/articles/v12n2_cjsotf_page_1.html, https://digitalample.com/the-clearest-9-11-world-trade-center-footage-on-the-internet/, https://www.wired.com/2012/01/afghan-air-war/, https://www.nato.int/cps/en/natohq/topics_52060.htm, https://www.pbs.org/newshour/world/saddam-statue, https://hiregi.com/2018/07/14/how-many-operation-iraqi-freedom-oif-campaigns-were-there/, http://www.defenselink.mil/home/features/Detainee_Affairs/, https://www.amazon.com/Spymasters-CIA-Crosshairs-Mandy-Patinkin/dp/B018T4TNHY, https://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html, https://www.npr.org/templates/story/story.php?storyId=91425261, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, https://www.businessinsider.com/global-terrorist-attacks-past-20-years-in-maps-2017-5?r=US&IR=T, #23 Caveat Chaos in Kosovo: Divided Allies & Fettered Forces in NATOs KFOR Operation during the 2004 Kosovo Riots, #25 Laws of War Brief (Part 2): The Protections, Rights & Obligations of Civilian Non-Combatants & Military Combatants under the LOAC, NATO APPENDIX 1: The Ukraine NATO Membership & Nuclear Missile Crisis (Part 1), WAR ON TERROR: ISAF APPENDIX 10(b) List of National Caveats Imposed on Armed Forces by the 8 NATO Lead Nations of ISAF Regional Commandsin Afghanistan, 2002-2012, WAR ON TERROR: OEF APPENDIX List of Known National Caveats Imposed by OEF TCNs on National Armed Forces Deployed to Afghanistan, 2001-2012, WAR ON TERROR: Triumphs after Trials Progress Report, 2001-2021, WAR ON TERROR: ISAF APPENDIX 10(a) Table Displaying Caveat-Free or Caveat-Fettered Forces of the 8 NATO/ISAF Lead Nations during 6 Crucial COIN Years, 2007-2012, #40 In Videos: An International, Multilateral, Political & Strategic Failure The Fall of Kabul & the Lamentable Loss of the Anti-Terror & Democratic Republic of Afghanistan, 2001-2021, WAR ON TERROR: ISAF APPENDIX 9 Table Displaying Caveats Imposed by ISAF TCNs on Major and Minor Combat Manoeuvre Units (CMUs), 2006-2012, #36 The Art of Government: Military Servants, Political Masters, The People & the Purpose of the Military, WAR ON TERROR: ISAF APPENDIX 8(b) List of Known National Caveats Imposed on ISAF Major Force Units by TCNs in Afghanistan, 2001-2012, WAR ON TERROR: ISAF APPENDIX 8(a) Table Displaying Known ISAF Major Force Units Constrained by TCNs with National Caveats, 2001-2012, #39 Farewell Fallen Friend: Democratic Afghan Republic, 2001-2021, WAR ON TERROR: ISAF APPENDIX 7(b) List of Known National Caveats by Category Imposed by ISAF TCNs on National Forces, December 2001- December 2012, NATO OAP Caveats in Gulf of Aden (Somalia), Theory: Counter-Insurgency (COIN) Warfare, Theory: Mission Command (Delegation & Trust), UN MINUSCA Caveats in the Central African Republic. Despite the U.S. Supreme Courts rulings in 2006 and 2008, however, strong arguments can and have still been made that the former inter-State, International armed conflict classification was, and is, the correct and rightful classification for these extremist and indiscriminately violent detainees captured during the GWOT. CIL is considered binding on all states, regardless of whether or not the practices have been enshrined in international treaties or, if the practice is already within international legislation, whether all or a majority of States, have signed on to them. [19] Common Article 3 to the Geneva Conventions 1949 (see pp. It also identified new protections and rights of civilian populations. . All civilians should receive adequate medical care and be allowed to go about their daily lives as much as possible. [10], Non-International armed conflicts typically involve civil wars in which: (a) the government of a State is using its regular armed forces to fight against one or more identifiable, dissident armed groups operating within the territory of the State; or (b) armed and hostile fighting is taking place between dissident, rival armed groups within a State, that does not involve the government, but nevertheless requires the government to act to restore security and stability to the State.[11]. It also grantsthe right to proper medical treatment and care. Humane treatment includes: (Military Persons Exempt From Attack, pg. Articles with the HISTORY.com Editors byline have been written or edited by the HISTORY.com editors, including Amanda Onion, Missy Sullivan and Matt Mullen. There were two that I felt went too far, even if they were legal. [4], (1) To ensure minimum protections are given to the victims of war during armed conflict; and. In NIACs, the requirement of humane treatment for civilians and persons hors de combat is set out in common Article 3, which prohibits violence to life and person (including cruel treatment and torture), the taking of hostages, humiliating and degrading treatment, and execution without regular trial. The intensive inspections program instituted after the [Gulf] war uncovered evidence that the Iraqis had, in fact, been considerably further along in developing nuclear weapons than U.S. intelligence had estimated before the warAs long as the inspections effort continued and the sanctions were strictly enforced, his opportunities to resume the programs for weapons of mass destruction would be very limited. Had we captured more al Qaeda operatives with significant intelligence value, I would have used the program for them as well (Bush. It was considered that this LOAC classification change would not only give more formal legal protection to the captured terrorists and extremist insurgents, but also automatically rule out any further use of enhanced interrogation techniques to extract actionable intelligence from the detainees no matter how effective or successful they were which advocates of the classification change deemed inhumane and a form of torture illegal under CIL (see endnote for a discussion on torture, and refer to American President George W. Bushs argument provided in endnote #30 above).[33]. But as the years went by, Saddam became much more aggressive in limiting the reach of the inspectors, and the inspections for all practical purposes ended in 1998. [16] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, ibid., p. 13. Internal security emergencies within a State, i.e. However, CIL is founded on general, rather than unanimous, international recognition and agreement. [22] Common Article 3 to the Geneva Conventions 1949. The severest of these interrogation tactics was supervised waterboarding a technique used on 3 of the highest ranking, most knowledgeable and most obstinate Al Qaeda terrorists in American custody (see endnote). international treaties, conventions, pacts, agreements and protocols), according to the LOAC, certain obligations and rights apply universally, to all States, and all individuals, at all times due to the binding obligations that exist under Customary International Law (CIL). However, CIL also asserts simultaneously that persons held in custody who are either unable or unlikely to take part in hostilities upon their release from custody by reason of illness, or gravely diminished mental or physical health should be released and directly repatriated as soon as possible (ICRC Customary IHL Rule 99, in NZDF LOAC Manual Chapter 15, ibid., pp. Save my name, email, and website in this browser for the next time I comment. unlawful. Still is to this day. [25] Derbyshire, History of LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, ibid., p. 35. Its full respect is required. international treaties, conventions, pacts, agreements and protocols), according to the LOAC, (2) Whether or not a State or individuals are. USA, Al-Shimari v. CACI Premier Technology, Inc. Central African Republic, Report of the UN Independent Expert, July 2016, Iraq: Situation of Internally Displaced Persons, Syria, Report by UN Commission of Inquiry (March 2017), Israel/Palestine, Accountability for the Use of Lethal Force, UN/Colombia, Human Rights Committee Clarifications and Concluding Observations (2016), International Criminal Court, Trial Judgment in the Case of the Prosecutor V. Jean-Pierre Bemba Gombo, Eastern Ukraine, OHCHR Report on the Situation: November 2016 - February 2017, South Sudan, AU Commission of Inquiry on South Sudan, Treaties, States Parties and Commentaries, Medical personnel, facilities and transports, General Statements on International Humanitarian Law, Chronology of Cases and Documents Relating to Past and Contemporary Conflicts. This means that in rare instances where a State has historically consistently objected to a particular practice or custom of conflict, the principle of customary law forbidding that practice is not considered legally binding for that particular State with regard to that specific practice.[17]. This report provides an overview of the law of war and the historical treatment of wartime detainees, in particular the United States' practice for determining their . (3) The laws of war apply but in modified form.' . cit., p. 13. Indeed, the sanctity and power of the LOAC holds true universally and applies equally to all military service men and women operating in conflict theatres around the globe in multinational military operations past, present and future. [21], Common Article 3: The article common to all four of the Geneva Conventions of 1949, which is also an accepted and established customary norm of CIL, requiring that all persons that are not taking an active part in hostilities within a Non-International intra-State armed conflict be treated humanely in all circumstances, regardless of race, colour, religion, sex, birth, wealth or any other similar criteria. Nevertheless, the complexity of modern war has not signalled an end to the IAC and NIAC LOAC categorisation of armed conflicts. In previous blogs I have presented case-studies of Multinational Operations (MNOs) in Rwanda, Bosnia and Kosovo, in which participating national forces bound by government-imposed national caveat constraints failed to use lethal force at the critical and necessary moments in order to fully uphold or pursue the primary security objectives of their security mission mandates. The CIA interrogation program saved lives. Learn how your comment data is processed. I directed the CIA not to use them. 13,; GPW, Art. Ukraine Diary: Spring flowers bloom in Kyiv's streets, a sign of life returning to the city. The duty to obey the LOAC is so forceful that it demands obedience even to the extent of disobeying national superior orders that are perceived to be manifestly unlawful under the LOAC. Specifically, it required POWs to give only their names, ranks,and serial numbers to their captors. This means that ratified laws of the LOAC must be applied and adhered to by the nations armed forces at all times during peacetime, during war, and during all the various stages of the war spectrum in-between these conflict poles, ranging from non-kinetic and non-traditional peacekeeping operations, at one end of the spectrum, to overtly kinetic, offensive warfare operations, on the other. [2] Modified image taken from P. Gourevitch, After the Genocide, The New Yorker [Magazine], 18 December 1995, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, (accessed 14 September 2017). Subsequently a preventative pre-emptive war took place in Iraq against Saddam Husseins dictatorship during 2003, which: firstly, had been meeting with senior Al Qaeda leaders; secondly, was cooperating with and housing Al Qaeda members at a chemical and biological weapons-testing laboratory situated at an Iraqi base near the Iranian border (including the notorious Al Qaeda attack-planner, Abu Musab al-Zarqawi); and thirdly, was strongly suspected internationally of having stockpiles of illegal biological and chemical Weapons of Mass destruction (WMD),in addition to nuclear material from its nuclear development programme, that, given the regimes long and proven record of support for terrorism, it was feared Saddam might easily give or sell to Al Qaeda terrorists to enhance and further their attacks in America and around the world (see endnote).[27]. The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war. A punitive war took place firstly in Afghanistan in 2001 against the Taliban regime hosting and shielding Osama Bin Laden, the leader of the Al Qaeda terrorist network. This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. [3] Modified images taken from Kosovo As it really is 1999-2003, Post-War Suffering Serbian Orthodox Diocese of Raska and Prizren, 2019, http://www.kosovo.net/report.html, (accessed 17 January 2019); March Pogrom Kosovo 17-19 March 2004, News from Kosovo Serbian Orthodox Diocese of Raska and Prizren, http://www.kosovo.net/news_pogrom.html, (17 January 2019); Rupert Colville, Kosovo minorities still need international protection, says UNHCR, UNHCR The UN Refugee Agency UK, 24 August 2004, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, (accessed 17 January 2019); and Burning of the Serbian village Svinjare, March 17, Kosovo.net, 2019, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, (accessed 17 January 2019). Writings of highly-qualified legal experts. During this sudden uprising, violence was unleashed by angry Albanian mobs against the minority Serb population throughout Kosovo Province. HISTORY.com works with a wide range of writers and editors to create accurate and informative content. [20], The obligations contained in these treaties, outlined above, are so generally accepted and upheld, they are now regarded as legally binding on all States in the world including States that are not in fact ratifying Parties to the treaties themselves. Assess the progress that the U.S. and its allies were making against the Al Qaeda terrorist network, and other terrorist groups, by means of the Global War on Terrorism (GWOT). condition requires that each belligerent have the ability to retaliate when the other belligerent violates the laws of war. terrorist attacks, do. Adding to these legal rights, Article 75(3) of API states, moreover, that Detaining Powers are obligated to release detainees only when the circumstances justifying the arrest, detention or internment have ceased. This is a principle supported by CIL which also allows that detainees may be held in detention against their will if there is a good reason to do so, and as long as reason requires (API Art 75(3) and ICRC Customary IHL Rule 99, in NZDF LOAC Manual, ibid., pp. Figure 12.5 Anti-Government Enemy Insurgents: Photos of Taliban & Neo-Taliban insurgents operating in Afghanistan between 2010-2014.[35]. Yet as even a cursory examination of the history of the nation's laws of war shows, presidents from Washington to Reagan and beyond have long championed the idea of humane treatment of prisoners . Your email address will not be published. In sum, International armed conflict (IAC) may be regarded as largely. Nearly all of the major principles of LOAC as well as associated treaty law are now considered CIL, most notably the following treaties: (a) The 1907 Hague Conventions IV (along with its annex of Hague Regulations), VII and IX relating to the Laws and Customs of War on Land; (c) The four 1949 Geneva Conventions relating to International inter-State conflict (but also including Common Article 3 relating to Non-International intra-State conflict in all four conventions), which provide protections to . [30] For more information on the CIAs waterboarding program, the three senior Al Qaeda members that were waterboarded, the actionable intelligence revealed by them, and a few of the terrorist plots stopped worldwide as a result of the enhanced interrogation techniques, see George W. Bush, Decision Points, New York, Crown Publishers, 2010, pp. c. In accordance with DoDD 2311.01, all persons subject to this issuance will report It also made the repatriation of captured belligerents a recommendation instead of mandatory. [27] M. De Long (Lt. Gen.) & N. Lukeman, A General Speaks Out [originally published as Inside CentCom: the unvarnished truth about the wars in Afghanistan and Iraq], Zenith Press, St. Paul (MN), 2007, p. 68. regular wars. 100, April 24, 1863) was the military law that governed the wartime conduct of the Union Army by defining and describing command responsibility for war crimes and crimes against humanity; and the military responsibilities of the Union soldier fighting the American Civil War (1861-1865) against the Confederate States of America. In 1906, the Swiss government arranged a conference of 35 states to review and update improvements to the First Geneva Convention. The agreements originated in 1864 and were significantly updated in 1949 after World War II. https://www.history.com/topics/world-war-ii/geneva-convention, medical personnel, facilities and equipment, wounded and sick civilians accompanying military forces, civilians who take up arms to fight invading forces, hospital ships cannot be used for any military purpose nor captured or attacked, captured religious leaders must be returned immediately, all sides must attempt to rescue any shipwrecked personnel, even those from another side of the conflict, theyre only required to give their name, rank, birth date and serial number when captured, they must receive suitable housing and adequate amounts of food, they must not be discriminated against for any reason, they have the right to correspond with family and receive care packages, the Red Cross has the right to visit them and examine their living conditions.
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