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Historical Journey IHL

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Luigi Daniele

on 2 November 2016

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Transcript of Historical Journey IHL

0
1900
2000
1000
The Historical Journey of IHL
Ancestors of the Laws of War
1st c. B.C.
Birthplace of IHL
24 June 1859; Solferino, Italy
Early modernity
Hague Law
Hague Convention (I) For the Pacific Settlement of International Disputes, 1899
Hague Convention (II) on the Laws and Customs of War on Land
, 1899
Hague Declaration (IV,1) concerning Projectiles and Explosives from Balloons, 1899
Hague Declaration (IV,2) concerning Asphyxiating Gases, 1899
Hague Declaration (IV,3) concerning Expanding Bullets, 1899
Hague Convention on Hospital Ships, 1904
Hague Convention (III) on the Opening of Hostilites
, 1907
Hague Convention (IV) on War on Land and its Annexed Regulations, 1907
Hague Convention (V) on Neutral Powers in case of War on Land, 1907
Hague Convention (VI) on Enemy Merchant Ships, 1907
Hague Convention (VII) on Conversion of Merchant Ships, 1907
Hague Convention (VIII) on Submarine Mines, 1907
Hague Convention (IX) on Bombardment by Naval Forces, 1907
Hague Convention (XI) on Restrictions of the Right of Capture, 1907
Hague Convention (XIII) on Neutral Powers in Naval War, 1907
Hague Declaration (XIV) on Explosives from Balloons, 1907
Geneva Law
Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 1864

Geneva Convention (I) Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field
, 1949
Geneva Convention (II) Amelioration of the Condition of Wounded, Sick and Shipwrecked of Armed Forces at Sea
, 1949
Geneva Convention (III) Treatment of Prisoners of War
, 1949
Geneva Convention (IV) Protection of Civilian Persons in Time of War
, 1949
Ancestors of the Laws of War
405 B.C., Sparta: Special Tribunal for captured Athenian sailors accused of committing atrocities against Spartan prisoners
415 B.C.,
Peloponnesian War :
Melians: "[Y]our military preparations are too far advanced to agree with what you say, as we see you are come to be judges in your own cause, and that all we can reasonably expect from this negotiation is war, if we prove to have right on our side and refuse to submit, and in the contrary case, slavery".
[...]
Athenians: "For ourselves, we shall not trouble you with specious pretences [...] of
how we [...] are now attacking you because of wrong that you have done us – and make a long speech which would not be believed [...] since
you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must
.”

Tucydides,
History of the Peloponnesian War
The weak and the powerful before the law

Formal equality vs. substantial inequality

Power relations and selective enforcement of the Law
Permament focus
Ex Ruffo Leges Militari
:
- proscription and penalties:
e.g."a soldier who takes a girl by force and rapes her shall have his nose cut off, and the girl shall be given a third part of his properties"
52 B.C.
Oratio pro Milone :
"
Silent enim leges inter arma
"
(Laws are silent in times of arms)
Milo kills Clodius during a brawl on the Via Appia
(Curiosity about Cicero speech)
Historical context:
Optimates
vs.
Plebs
!
by Marcus Tullius Cicero
A.D.
B.C.
- The last battle in military history under direct command of the Monarchs: Napoleon III, Victor Emmanuel II VS. Franz Joseph I
- 300.000 men fought for sixteen hours
- 4783 deaths, 23.300 wounded
The Swiss businessman
Jean-Henry Dunant
is travelling to Solferino to confer with Napoleon III. He witnesses the aftermath of the Battle, describing the atrocities and the intolerable suffering on the battlefied. Shocked by the scenes, personally organizes, funds and leads the first aid ("tutti fratelli (all brothers)". Book: "
A MEMORY OF SOLFERINO"
1863, the book inspires the Creation of ICRC !
with the help of Swiss jurist GUSTAVE MOYNIER
Paris Declaration ,1856 - Declaration Respecting Maritime Law
Lieber Code
(
Instructions for the Government of Armies of the United States in the Field
, prepared by Francis Lieber, LL.D., Originally Issued as
General Orders No. 100
, Adjutant General's Office, April 1863 )
<< Lieber, who had consistently decried the “namby-pamby” views of warfare he ascribed to many Enlightenment jurists, embraced (as did Lincoln) what John Witt has characterized as “
tough humanitarianism
.” The basic foundation of his code, Witt contends, was that “virtually any use of force was permissible if required by military necessity,” which produced “both a broad limit on war’s violence and a robust license to destroy.” The best wars lasted the shortest amount of time. “The more vigorously wars are pursued,” wrote Lieber in the code, “the better it is for humanity. Sharp wars are brief">> (Rick Beard);

The code’s
157 articles
, broken into
10 sections
, addressed a staggering array of topics: from martial law to the protection of persons, religion and the arts and sciences; from the treatment of deserters, women, prisoners of war, partisans, scouts, spies and captured messengers to prisoner exchanges and flags of truce; from battlefield booty to the parole, armistice and assassinations.
Scope of Application
- Art. 1
- Art. 4
- Art. 6

Military Necessity
- Art. 14,
- Art. 15
- Art. 16
Art. 40:
there exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land
Hostilities
- Art. 17 (!)
- Art. 21 (!)
- Arts. 22 and 23
- Art. 44
- Art.68
POW and Hostages:
- Art. 49
- Art. 52
- Art. 75
Hors de combat:
- Art. 71
a. for what circumstances was the Code intended to apply? To what circumstances does it not
apply? Why?

b. which actor (or actors) are anticipated by the Code, i.e. to whom was the Code addressed to?

c. which provisions give you the confidence to describe the Code as ‘humanitarian’—and which do
not?
Oxford Manual: Laws of War on Land, 1880
Institute of International Law. Drafter: Gustave Moynier
War holds a great place in history, and it is not to be supposed that men will soon give it up -- in spite of the protests which it arouses and the horror which it inspires -- because it appears to be the only possible issue of disputes which threaten the existence of States, their liberty, their vital interests. But the gradual improvement in customs should be reflected in the method of conducting war. It is worthy of civilized nations to seek [...] "to
restrain the destructive force of war, while recognizing its inexorable necessities
".
The Institute [...] does not propose an international treaty, which might perhaps be premature or at least very difficult to obtain; but, being bound by its by-laws to work, among other things, for the observation of the laws of war, it believes it is fulfilling a duty in offering to the governments
a ' Manual ' suitable as the basis for national legislation
in each State.
By so doing, it believes it is rendering
a service to military men themselves
. In fact so long as the demands of opinion remain indeterminate, belligerents are exposed to painful uncertainty and to endless accusations. A positive set of rules, on the contrary, if they are judicious, serves the interests of belligerents .
Scope of Application:
- Art. 1
- Art. 6
- Art. 41
Compare with Lieber
Code
Hostilities:
- Art. 7
- Art. 8
- Art. 9
-
Art. 32
-
Art. 33
- Art. 34
Hors de combat
- Art. 10
- Art. 13

POW/Spies
- Art. 21
- Art. 22
- Art. 25
- Art. 62
Criminal repression:
Art. 84. Offenders against the laws of war are liable to the punishments specified in the penal law.

PUNISHMENT vs. REPRISAL
body of rules which protect victims of war
body of rules which affect the conduct of hostilities
Hague Law
+
Geneva Law
Hague Law
+
Geneva Law
1977 AP I: IHL Fundamental Principles
Distinction :
Proportionality :
"The parties to the conflict shall at all times distinguish between civilians and combatants and between civilian objects and military objectives and accordingly shall direct heir operations only against military objectives" (
AP I, art. 48
)
"those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects [...] ;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack 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;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military [...] or that the attack 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"; (
API art.57
)
Precaution :
" Launching an attack 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, is prohibited". (
AP. art.51
)
Are these principles respected in war?
Historical
trend
Gaza 2014
* 86% Palestinian victims = civilians / unknown
Modern
asymmetrical conflicts:
1914 - 1970
Lieber Code, 1863
Resolutions of the Geneva Conference, 1863 - International Relief Committee for Injured Combatants becomes ICRC and adopts Dunant's principles
Geneva Convention, 1864 - Amelioration of the Condition of the Wounded in Armies in the Field: "
relief to the wounded without any distinction as to nationality
; neutrality (inviolability) of medical personnel and medical establishments and units; the distinctive sign of the red cross on a white ground".
St Petersburg Declaration relating to Explosive Projectiles, 1868 - "Contracting Parties engage mutually to renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances".
' The only legitimate end that States may have in war being to weaken the military strength of the enemy '
Brussels Declaration, 1874 - Project of an International Declaration concerning the Laws and Customs of War
Oxford Manual, 1880
Additional Protocol (I)
to the Geneva Conventions, relating the
Protection of Victims of International Armed Conflicts
, 1977

Additional Protocol (II)
to the Geneva Conventions, relating to the
Protection of Victims of Non-International Armed Conflicts,
1977

Additional Protocol (III) to the Geneva Conventions, relating to the Adoption of an Additional Distinctive Emblem, 2005
Additional Protocols
[Lugi Daniele,
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