In human history, there is only one common word repeating itself "war". Mankind has been waging wars form the begging of its creation for, many reasons which could be economical, politically or even an ideological. Wars have shaped mankind's past and will shape its future. Wars built and dissolved empires and established what is called in the present day a national state. In a lecture titled" Humane: The Politics of Endless Wars", Dr. Samuel Moyn mentioned that during the 19th - century that there were three options about what to do with war One of them is humanized where the laws of war were codified.
The Second is pacifist where believer of peace wanted to abolishing wars and resolving disputes via peaceful negotiations.
The third option was one of intensification where they believe in intensifying the war to end all wars[1]. Furthermore, Moyn point out to what Leo Tolstoy's thinks that humanizing wars is only a way to make war look less cruel and more acceptable where he believed in abolishing war[2].
However, humanizing war was not a 19th -century idea, almost 2000 years ago the famous Chinese philosopher and military strategist Sun Tzu believed that a great general is one who can subdue his enemy without a fight[3], it was one of the first steps to acknowledge the importance of humanizing war and minimizing loses in life and in properties because Sun Tzu knew that war is counterproductive. Moyn argued that mankind used the path of intensification before codifying the law of war and it only led to more wars.
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However, Moyn believes that in the present time humanizing wars led to proxy wars and drone attacks. The question for him then is why not be pacifist and abolishes war since much of international disputes are resolved by negotiations. To counter Moyn's argument is that war is acknowledged as right for a nation in self-defense if there is a threat of aggression, and it is codified in Article 51 in the UN Charter[4].
Furthermore, international conventions and treaties give nations the right to waging war, for example in Article 22 of the Hague treaty stated "injuring the enemy is unlimited"[5]. The right has been codified in most constitutions and national laws, for example, in the Saudi Basic Law of Governance, (which is the Saudi constitution), which states in Article 62 in order to cease aggression toward the safety of the people and state of the Kingdom of Saudi Arabia, the King has the right to mobilize the army to protect the country from a foreign aggression[6].
This essay will examine arguments that war can be humane where it can minimize the casualties and the destruction of public and privet properties by applying the conventions and protocols that codified the humanitarian law that it protects the civilians and combatants alike in time of war.7
This essay will revolve around two major subtopics first it will focus on the states of the combatants and the prisoners of war in the Geneva Convention Related to the Treatment of Prisoners of War III and other related treaties. The second, subtopic will be about the protection of civilians in times of armed conflict in the Geneva Convention Related to the Protection of Civilian Persons in Time of War IV and other treaties related.
It is very important to realize that the primary aim of the international humanitarian law, is to protect the civilians, and the combatants who are incapable of acting in any military activity[7]. However, it is a process of codification of the conduct of hostilities in war (jus in bello) where it was named the law of wars and the laws of armed conflict and, finally it is named international humanitarian law[8].
First: combatants and prisoners of war
In his lecture, Moyn mentions the famous novel -War and Peace- by Leo Tolstoy as an example when Prince Andrei, character in the novel, revealed as an intensifier character, he posits that if he does have power he would not take any prisoners because he believed that laws of war and the humanizing war is "rubbish" and it will led to a understanding that war will not be taking seriously [9], Moyn interpreted that if the war is less human it will end all war and it is debatable because unhuman wars had been fought in the past[10]. However, international humanitarian law and statues give the combatants rights if captured or wounded. There are two types of combatants: lawful and unlawful. The lawful combatants "refer to those who have a legal right to take part in hostilities, and accompanying a privilege, they will be entitled prisoners of wars"[11]. Furthermore, the lawful combatants are mentioned in Article 4 of the Geneva Convention III are the member of the militaries arm forces and the militias who are organized and under a responsible leadership which is appointed by a government. Moreover, the civilians who originally do not fall under the category in the Geneva Convention III fall under it if they pick the arms to counter the invaders as they will be considered to be combatants, with the exceptions to medical and religious personnel, who are considered to be non-combatant[12].
In 1977 the Additional Protocol of the Geneva Convention (Protocol I) sets new rules regarding the combatants where Article 45 stated if a person is involved in hostilities and become a prisoner by the enemy will enjoy the protection of the Geneva Convention III, but what is interested is that the Protocol stated that a mercenary will not enjoy the protection of the Geneva Convention III according to Article47 which sets the condition of a mercenary[13].
The unlawful combatant is, in short, is a person who will not enjoy the protection of the Geneva Convention III, and he will not be treated as a prisoner of war. However, the unlawful combatant expression is not a legal concept because it is not mentioned in the Geneva Conventions due to the difficulties to divide between the civilians and combatants[14]. The term "unlawful combatant" first came out in the US Supreme Court in 1942 in the case EX Parte Quirin. The case concerned a group of German saboteurs disguised in civilians' outfits who were arrested. The part of the decisions stated:
The law of war draws a distinction between the armed forces and the peaceful population of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition, they are subject to trial and punishment by a military tribunal for acts which render their belligerency unlawful [15].
The US declared war on terror after the event of 9/11, and used the concept unlawful combatant labiel the Taliban and Al Qaida to deprive them of the protection of Geneva Convention III and allow for their prosecution under US laws. Moreover, it was a move to justify an endless war as Moyn mention in his lecture. According to Moyn, one of the causes to justify the war is a presence of an endless threat so that the war on terror will last for a very long time.
The US government argued that the Taliban and Al Qaida prisoners in the Afghan war are considered to be unlawful combatants and therefore they failed to meet the conditions of Article 4 (a) (3) of the Geneva Convention III[16], and the US interpretation that the Taliban must meet the four requirements of Article 4 (a) (2), which is about the militias, so they can enjoy the protection of the Geneva Convention III[17]. The argument was stated in the memorandum issued by the Bush administration in 2002[18].
In the case of Hamdi v Rumsfeld the court dismissed the argument of the Bush administration and stated that the states of the combatant should be determined by the court case by case for every individual combatant according to Article 5of the Geneva Convention III[19], which states that the person is to enjoy the protection of the convention until the tribunal determined the states of the combatant[20], if the tribunal ruled against the combatant and labeled him as unlawful combatant he will not enjoy the protection Geneva Convention III , but he will enjoy the protection of the Article 3 Geneva Convention IV[21]. Moreover, if combatant does not enjoy the protection of Geneva Convention IV he will enjoy minimum protection by Article 75 of (Protocol 1), but he could be prosecuted if the combatant committed crimes against humanity.
Second: the protection of civilians in times of arm conflict
The protection of the civilians is considered a cornerstone of international humanitarian law where the Geneva Convention IV is drafted for the protection of the civilians this subtopic will discuss the protection of civilians under occupation and protection of the civilians in urban areas.
1: The Protection of Civilians under Occupation
The main aim of the Geneva Convention IV and (Protocol I) of 1977 is the protection of the civilians in time of war. Under occupation, the parties who are engaged in combat operations are obliged to comply with the Conventions and customary law. In the Hague Regulations, the concept of occupation is set in Article 42 stated that any territory is under a hostile force who established a direct authority over the territory23, in other words, the occupation authorities inherited the burden of preserving law and order and protecting the civilian's dignity by applying the national laws of the country of origin and not the laws of the occupation's authorities24. Therefore, there are three elements that must be present in order to establish an occupation authority first, an occupation authority is considered only a temporary authority and is not granted a sovereignty over territory, second, the occupation authority must establish an effective authority, and third, occupier must preserve security and stability in the occupied territory[22].
Now that the concept of occupation is identified, it is very important to state the civilian's rights and protection as upon the occupation authorities must comply to section III of the Geneva Convention IV where it detailed the civilian's for example ,Article 47 stated the person is protected under this convention and should not be deprived of any benefits [23]. Moreover, the occupying authority does not have the right to deport the civilians from their homes, except in the case of an evacuation to protect them from hostilities that could erupt in the occupied territory[24]. Furthermore, it is upon the occupation's authority to supply the civilians with food, clean water and medical supplies and essentials [25]. In the example of Democratic Republic of Congo v Uganda, the ICJ found Uganda responsible for failing to meet the obligations toward the civilians in the Lturi region where massacring and torture of civilians were conducted by the Ugandan militias which violated the conventions of the international humanitarian laws and failed to meet its obligations as occupying authority[26].
2: the protection of civilians in urban areas
In the past wars were fought in open battlefields similar to fields of the first world war where the combatants are identified by their military uniforms. However, in the present time war is taking place in urban areas where it is considered to be "new war" taking place in the context of state failure where the government crumbles and losses control over the army and become badly organized which will be very difficult to distinguish with non- state actors [27]. For example, the war in Syria which started as a civil demonstration has evolved into a civil war and later an international war. In a situation like Syria, the army is not depending on the tax income from the government but on looting from the civilians and drug and arms sales[28].
In his lecture Moyn mention that the war of terror become more a light footprint use of force by using drone attacks, for example the US has been using drones against what is supposed to be terrorist targets in the tribal areas between Pakistan and Afghanistan. This was done following consent to operate in their soil where it is very difficult to distinguish the combatants from the civilians in urban areas, the responsibilities then fall upon the states involved if there are civilians' casualties[29].
However, in Article 52 (2) of (Protocol I) states that attacks should be limited to military objectives only[30]. However, urban areas, civilian' objects like school buildings or communication centers could be converted into military facilities where it is very difficult to distinguish or can be used for both natures. It is upon the military before attacking to calculate if the civilian losses overweighs the military application it is considered a violation of Article 52 (2) of the (Protocol I) [31]. In other words that civilian buildings and facilities must not be labeled as a military target and it is the responsibilities of military force who occupied those buildings to evacuate them and handover it to the civilian authorities. Article 54 of (Protocol I) focused on the survival of the civilian's population by not use starvation as a weapon by attacking livestock, crops and pure water facilities[32]. However, using starvation as a weapon is considered to be a crime and is a violation of Article 54 of (Protocol I) since starvation is not understood as only about deprivation of food and clean water supplies but it also includes malnutrition, sickness and disease based upon food and water shortage[33]. It is a fact that the aim of International humanitarian law is to protect the civilians and military personnel who are not capable of performing any military activities, Article 57(2) (c) of the (Protocol I) state that it is upon the military to warn the civilians that a military operation will take place and, to give the civil authorities and the Red Cross or Red Crescent enough time to evacuate the civilians [34] .
Additionally, it is upon the military to call off an attack if the objective is protected, or will cause high casualties among the civilians or will destroy any establishment that civilians could benefit from [35], such as, hospitals or food storages. However, "collateral damage is not prohibited by IHL"[36]and, casualties may fall in due to unexpected reasons to harm can be caused by human mistakes, technical failures or mis leading intelligence. Therefore, the main aim of the international humanitarian law is not to repeat the massacres of Rwanda and the Balkans war at the closing decade of the 20th century would not happen again. However, the general opinion that the failure of international humanitarian law is not due to it inadequacy of its laws, but it is due to the insufficient enforcement that led to the unwillingness to oblige to the law [37].
Conclusion
Samuel Moyn argued in his lecture "Humane: The Politics and Poetics of Endless War" that we have tried, as a human race, to intensify war so we can end all wars but it led to more war like what happened after WW1where it was named the war to end all wars it led to civil wars like Russia and an international wars like the Grecco-Turkish war to finally the WW2. On the other hand, the humanizing war, which codifies the Laws of Wars, to make it more humane and acceptable, but it led, for example, to the Rwanda or the massacres. He believed that like Leo Tolstoy to abolish wars. However, mankind since the beginning of time resorted to war to settle their arguments although mankind evolves to settle their arguments via negotiations, war is still considered a political tool whereas mention in the introduction that was codified in national laws and international treaties and conventions. The International Humanitarian Law structured around protecting who is not taking part in hostile acts and civili establishment. War will continue, but if the International Humanitarian Law is respected the losses may be less catastrophic.
Bibliography
First: Primary Sources
Cases
- Democratic Republic of Congo v Uganda, ICJ Report, 2005, PP 168, 231and 242 ff Hamdi v Rumsfeld, 542 U.S. 507 (2004) US Supreme Court, EX Parte Quirin, 317 US 1(1942), pp.30-1.
International Conventions
- Charter of the United Nations, 1UNTS, 24 October 1945
- Laws and Customs of War on Land (Hague, IV) ,18 October, 1907
- The Geneva Convention of 12 August 1949, Relative to the Protection of Civilian Persons in Time of War
- The Geneva Convention of 12 August 1949, Relating to the Treatment of Prisoners of War
- Protocol Additional to the Geneva Convention of 12 August 1949 and Relating to the protection of Victims of International Armed Conflicts (Protocol I) Adopted on 8th June 1977
National Constitution
- Basic Law of Governance (Royal Order No A/90) 1st of March 1992
Second: Secondary Sources
Journal Article
- Mao X, "Are Unlawful Combatants Protected Under International Humanitarian Law" [2018] Amsterdam L.F. 62 ,63
- Cronin B, "Reckless endangerment warfare: Civilian casualties and the collateral damage expectation in international humanitarian law" [2013] Department of Political Science, City College of New York PL 175
- Philip K, Ebitari O, Allison J, "International Humanitarian Law: The States of Unlawful
Combatants" [2017] 8 Nnamdi Azikiwe U.J. Int'l L & Juries. 38
- Lamp N, "Conceptions of War and Paradigms of Compliance: The New War Challenge to
Interna onal Humanitarian Law" [2011] 16 J. Conflict & Sec. L. 225
- Breau S, Aronsson M, "Drone Attacks, International Law, and Recording of Civilians Casualties of Armed Conflict" [2012] 35 Suffolk Transnat'l Rev 255
- Durhin N," Protecting Civilians in Urban Areas: A Military Perspective on the applications of Interna onal Humanitarian Law" [2016] 98 int'l Rev Red Cross 177
- Henckaert J," Study on Customary International Humanitarian Law: A Counternutation to the Understanding and Respect for the Rules of Law In Armed Conflict" [2006] 82 Int'l L Stud.Ser.US Naval War Col, 37
Books
- Shaw M, International Law (8th edn Cambridge University Press 2017) Tzu S, Butler-Bowdon T (intro), 'The Art of war' (Capstone Publishing2010)
Lecture
- Moyn S, 'Humane: The Politics of endless wars'(Duke University School of Law, 7 September 2018,< : h ps://www.youtube.com/watch?v=BB428A0a6gE > accessed 27th December 2018
[1] Samuel Moyn, 'Humane: The Politics of endless wars' (Duke University School of Law, 7 September 2018, <https://www.youtube.com/watch?v=BB428A0a6gE > accessed 27th December 2018.
[2] Ibid
[3] Sun Tzu, Tom Butler-Bowdon (intro), 'The Art of war' (Capstone Publishing2010)
[4] Charter of the United Na ons, 1UNTS, 24 October 1945, Ar cle 51
[5] Laws and Customs of War on Land (Hague, IV) October 18, 1907, Ar cle 22
[6] Basic Law of Governance (Royal Order No A/90) 1st of March 1992, Article 62 Saudi Arabia
[7] Bruce Cronin, "Reckless endangerment warfare: Civilian casualties and the collateral damage expectation in international humanitarian law" [2013] Department of Political Science, City College of New York PL 175
[8] Malcolm Shaw, International Law (8th edn Cambridge University Press 2017)
[9] Samuel Moyn, 'Humane: The Politics of endless wars'(Duke University School of Law, 7 September 2018,<https://www.youtube.com/watch?v=BB428A0a6gE > accessed 27th December 2018
[10] Ibid
[11] Xiao Mao, "Are Unlawful Combatants Protected Under International Humanitarian Law" [2018] Amsterdam L.F. 62 (63)
[12] The Geneva Convention of 12 August 1949, Relating to the Treatment of Prisoners of War. Article 4
[13] Protocol Additional to the Geneva Convention of 12 August 1949 and Relating to the protection of Victims of International Armed Conflicts (Protocol I) Adopted on 8th June 1977
[14] Keseme Philip Odudo, Ebitari Joshua Allison, "International Humanitarian Law: The States of Unlawful Combatants" [2017] 8 Nnamdi Azikiwe U.J. Int'l L & Juries. 38
[15] US Supreme Court, EX Parte Quirin, 317 US 1(1942), pp.30-1.
[16] Ar cle 4 (A)(3) of the Geneva Convention III specify: Members of regular forces who profess allegiance to a government or an authority not recognized by the detaining power.
[17] Article 4 (A) (3) of the Geneva Convention III.
[18] 'White House Facts Sheet on Statues of Detainees at Guantanamo" ( 7th of February 2002), cited in S.D
Murphy ,"Decision not to regard Persons Detained in Afghanistan as POWs ", American Journal of International Law 2002-96,p478. Cited in Xiao Mao, "Are Unlawful Combatants Protected Under International Humanitarian Law" [2018] Amsterdam L.F. 62
[19] Ar cle 5 of the Geneva Convention III specify: such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
[20] Hamdi v Rumsfeld, 542 U.S. 507 (2004)
[21] The Geneva Convention of 12 August 1949, Rela ve to the Protec on of Civilian Persons in Time of War 23 Laws and Customs of War on Land (Hague, IV) October 18, 1907, Ar cle 42 24 Ibid Ar cle 43
[22] Malcolm Shaw, International Law (8th edn Cambridge University Press 2017)
[23] The Geneva Convention of 12 August 1949, Rela ve to the Protec on of Civilian Persons in Time of War Ar cle 47
[24] Ibid Ar cle 49
[25] Ibid Ar cle 55
[26] Democratic Republic of Congo v Uganda, ICJ Report, 2005, PP 168, 231and 242 ff
[27] Nicolas Lamp, "Conceptions of War and Paradigms of Compliance: The New War Challenge to International Humanitarian Law" [2011] 16 J. Conflict & Sec. L. 225
[28] Ibid p[223]
[29] Susan Breau, Marie Aronsson, "Drone Attacks, International Law, and Recording of Civilians Casualties of Armed Conflict" [2012] 35 Suffolk Transnat'l Rev 255
[30] Protocol Additional to the Geneva Convention of 12 August 1949 and Rela ng to the protec on of Vic ms of Interna onal Armed Conflicts (Protocol I) Ar cle 52(2)
[31] Natalie Durhin," Protecting Civilians in Urban Areas: A Military Perspective on the applications of Interna onal Humanitarian Law" [2016] 98 int'l Rev Red Cross 177
[32] Protocol Additional to the Geneva Convention of 12 August 1949 and Rela ng to the protec on of Vic ms of International Armed Conflicts (Protocol I) Ar cle54
[33] Natalie Durhin," Protecting Civilians in Urban Areas: A Military Perspective on the applications of Interna onal Humanitarian Law" [2016] 98 int'l Rev Red Cross 177
[34] Protocol Additional to the Geneva Convention of 12 August 1949 and Rela ng to the protec on of Vic ms of Interna onal Armed Conflicts (Protocol I) Ar cle57(2)(c)
[35] Ibid Ar cle57(2)(B)
[36] Natalie Durhin," Protecting Civilians in Urban Areas: A Military Perspective on the applications of Interna onal Humanitarian Law" [2016] 98 int'l Rev Red Cross 177 [185]
[37] Jean-Marie Henckaert," Study on Customary International Humanitarian Law: A Counternutation to the Understanding and Respect for the Rules of Law In Armed Conflict" [2006] 82 Int'l L Stud.Ser.US Naval War Col, 37
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