SE 507 IMPLICATIONS OF INTERNATIONAL LAW
The purpose of this lesson is to introduce you to the international legal structure--focusing on the law of war--and to then use that knowledge in analyzing the international strategic environment. In analyzing the strategic environment, its important to recognize the external and internal constraints that international law places upon states--especially in the conduct of armed operations--and how this affects the relationship between states and with the larger international community.
International law governs the conduct of, and relations between, states. Its effectiveness is largely dependent upon the willingness of states to be governed by its terms--as expressed through international laws, conventions, and customs.
Customary international law and treaty law establish the basis for the system of international law.
a. Reciprocity and predictability provide reasons for nations to comply with international law.
b. Practices of nations establish customary international law.
c. Nations enter into treaties (also known as conventional law) which either codify
customary international law or address areas not covered by customary international law.
International law treaties.
a. Hague law.
b. Geneva law.
International law provides a fundamental framework for the international strategic
environment. To understand and analyze this environment, one must recognize the external
and internal limits international law imposes on the relationships among states.
READINGS:
Powell, Colin, "Conduct of the Persian Gulf War -- Title IV Report to Congress," (submitted in accordance with Public 102-25, Section 501, April 16, 1991).
Hughes, Barry B. "Control of Anarchy"
LESSON OBJECTIVES:
507.1 Comprehend the law-based theory of international politics.
What is international law? Article 38 of the Statute of the International Court of Justice defines it as:
1. International conventions [treaties], whether general or particular, establishing rules expressly recognized by the contesting states;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.
This listing reflects a positivist view of international law, the largely
realist position that law is what states make it. An earlier, more idealistic tradition
called naturalist argued that divine law or human nature is the true source of
international law and the task of legal scholars is to discover those fundamental
principles. The naturalist view owes much to religious thought and the scholars of the
Middle Ages, such as St. Augustine. Grotius, the "father of modern international
law," built on this tradition but also began to modify it by documenting state
practice.
507.11 Identify the effects of international law on state actors.
International law represents an effort by states to control some of the anarchy in the
state system (it cannot eliminate the anarchy). Although globalists heavily emphasize the
development of international law, realists also recognize its importance: It is also worth
mentioning, in view of a widespread misconception in this respect, that during the four
hundred years of its existence international law has in most instances been scrupulously
observed. When one of its rules was violated, it was, however, not always enforced and,
when action to enforce it was actually taken, it was not always effective. Yet to deny
that international law exists at all as a system of binding legal rules flies in the face
of all the evidence.
507.12 Describe the relationship between international legal norms and self-interest of states.
Domestic legal systems typically incorporate three major elements: law making, law adjudication, and law enforcement. Although the strength of the international legal system falls short of domestic ones in all three areas, the greatest failing is in enforcement. International law is decentralized law, relying on the individual or group behavior of states for much of its creation and interpretations and essentially all of its enforcement. As a result, individual state interest influences strongly the character of international law. It is for this reason that our focus here is on international law as defined by state practice.
Most of international law, largely created by states and for states, spells our their rights and obligations. States' rights correspond in general to their attributes: sovereignty (recognition by other states), territory (with boundaries), government, and population. The Charter of the United Nations, part of international law, incorporates four elements concerning states, three that reinforce these attributes of statehood, and one that refers to states' obligations. In the words of one of its drafters:
…first, States are juridically equal; second,…each State enjoys the right
inherent in full sovereignty; and third,…the personality of the State is respected as
well as its territorial integrity and political independence… And the fourth element
[is] that the States should, under international order, comply faithfully with their
international duties and obligations.
Consider the parallels to a state-centric adaptation of the U.S. Declaration of Independence:
All states are created equal in sovereignty. They are endowed with certain inalienable
rights. Among these are territorial integrity, protection of their population, and the
pursuit of state interest. To secure these rights law is instituted among states, deriving
its obligations from the consent of the governed states.
507.2 Comprehend the tenets of customary international law and treaty law.
There are four sources of international law:
1. International conventions establishing rules expressly recognized by the contesting states (e.g., UN Charter, treaties, status of forces agreements);
2. International custom, as evidence of a general practice accepted as law (e.g., the Nuremberg trials of the major war criminals was grounded on customary, not treaty law);
3. The general principles of law recognized by civilized nations (e.g., military necessity, proportionality, humanity, and chivalry);
4. Judicial decisions (e.g., International Court of Justice) and scholarly writings of
the "most highly qualified publicists (e.g., Grotius and St. Augustine).
Important Note: Customary international law is binding upon all nations but treaty/convention law is binding upon only those states that have ratified the treaty (unless the provisions have since evolved into customary law).
- As customary international law, its obligations are binding upon all nations.
507.21 Explain the basic premises of the Hague and Geneva Conventions.
Hague Law
Resulted from conventions held in 1899 and 1907
Pertains to the method and means of warfare
Application of armed force
Use and legality of weapons
--of the original 15 conventions, only four have continued viability. (The remainder have either been rendered obsolete or been superseded by the Geneva Conventions of 1949.) Convention IV--" ...Respecting the Laws and Customs of War on Land"--is the most important and its provisions are binding on all states (customary law). Convention IV imposes restraints upon the conduct of armed operations--restraints which arose from a recognition of the most efficient and effective way to apply military force and ensure discipline.
- Hague Convention IV and its Annex Respecting the Laws and Customs of War on Land
- Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land
- Hague Convention IX Concerning Bombardment by Naval Forces in Time of War
- Hague Convention on the Prevention and Punishment of the Crime of Genocide
GENEVA LAW
Four separate treaties in 1949, with two later Protocols
Pertains to the victims of war and armed conflict
Protection of combatants and noncombatants
Minimization of unnecessary suffering
Promotion of respect for the individual
-Comprised of four separate treaties collectively referred to as the "Conventions Relative to the Protection of War Victims." The four treaties cover the following:
- The four Geneva Conventions for the Protection of War Victims
- Geneva Convention Relative to the Treatment of Prisoners of War (GPW).
- Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC).
507.22 Describe the relationship of the Conventions to the laws of war.
The law of war is "That part of international law that regulates the conduct of armed hostilities. It is often termed the law of armed conflict."
The Hughes reading talks about the definition of international law. He uses the concepts of conventions (treaties), customs, general principles and judicial precedence. If we treat the laws of war as a subset of international law, we then need to think about specific instances of above mentioned concepts. For example, the Geneva convention guides our notions of acceptable conduct during war. The Geneva convention is a subset of the laws of war. What if a UN commander issues a legal shoot to kill order to prevent civilians from looting and mayhem.
Would you shoot little Johnny stealing a loaf of bread? No, because the general
principle of humane conduct is a subset of the laws of war.
507.3 Comprehend the considerations of employing joint and multinational forces at the operational level of war.
507.31 Summarize the legal ramifications of rules of engagement.
The constraints that law imposes upon the freedom to take a desired military action, such constraints can be self-imposed if the planner is ignorant of the applicable law, and assumes wrongly as to the limits it imposes.
. In that regard, note that rules of engagement (a directive which delineates the circumstances and limitations under which US forces will initiate or continue combat engagements [Jt Pub 1-02]) are self-imposed and are based upon political and diplomatic--in addition to legal--considerations, and are thus often more restrictive than that required by law. The law of war makes good sense and, when applied correctly, will not hinder well-founded military operations.