Between 2001-2006, Al Qaeda terrorists and local/foreign extremist insurgents captured in the territories of Afghanistan or Iraq committing acts of terror or violence against either Allied coalition forces or the new national governments, their forces, or their civilian population, were classed by the United States (U.S.) as, Under this classification of the LOAC, Taliban and Al Qaeda militants were, This absence of legal entitlement to the LOAC protections afforded to lawful armed combatants was strengthened further by the fact that these Islamist terrorists and insurgents conducted their operations out of uniform, failed to distinguish themselves from the civilian population thereby exposing innocents to harm, deliberately targeted innocent civilians themselves in terrorist attacks, forcibly used civilians as human shields to protect themselves from legitimate military responses provoked by their attacks, and, In short, as terrorists or terror-using insurgents in conflict theatres i.e. 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. At present, 168 States are party to Additional Protocol I and 164 States to Additional Protocol II,this still places the 1977 Additional Protocols among the most widely accepted legal instruments in the world. Young, How May Operation Iraqi Freedom [OIF] Campaigns Were There?, HIRE G.I., 14 July 2018, https://hiregi.com/2018/07/14/how-many-operation-iraqi-freedom-oif-campaigns-were-there/, (accessed 1 May 2019). I directed the CIA not to use them. By 2003, most governments and intelligence services had concluded that Saddam had been successful in resuming his weapons programs. The [New Zealand Defence Force] Manual of Military Law 1929 includes in its section on the Laws of War observations to the effect that there can, in the nature of things, be no finality regarding the law and usages of war. Non-International armed conflict, by contrast, is the classification given to all forms of armed conflict that do not conform to, and are hence not covered by, the definition of International armed conflict provided above. 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. Nevertheless, the complexity of modern war has not signalled an end to the IAC and NIAC LOAC categorisation of armed conflicts. Alluded to briefly in Common Article 3 of the 1949 Geneva Conventions, and then much more fully in Additional Protocol II of 1977, Non-International armed conflict refers to all armed conflict that takes place: In the territory of a High Contracting Party [State] between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. To give humane treatment is to give due mercy and regard to the welfare of fellow human beings under your power in any given situation.[22]. America Is Giving the World a Disturbing New Kind of War - New York Times Protocol II was the first-ever international treaty devoted exclusively to . I took a look at the list of techniques. [15], CIL refers to practices in warfare that are so consistently upheld and adhered to by a majority of States on the world stage that they have become generally regarded as law. [21] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, ibid., p. 14. In a clinical sense, any armed conflict that does not conform to the IAC definition provided in Common Article 2 of the Geneva Conventions or Article 1 of Additional Protocol I must ipso facto be regarded and treated as a NIAC armed conflict. Note: This article addresses the international humanitarian law, or law of war. Indeed, from that moment onwards, waterboarding and many other of the more aggressive enhanced interrogation techniques were no longer sanctioned or used by the CIA program on detainees at Guantanamo. The amendments extended protections for those wounded or captured in battle as well as volunteer agencies and medical personnel tasked with treating, transporting and removing the wounded and killed. This ruling meant that whereas formerly all captured terrorists and extremist insurgent detainees of the GWOT held by the U.S. had no legal rights and protections under the IAC Geneva Conventions, they were from that moment on guaranteed fundamentally humane treatment under the clear NIAC law of Common Article 3 in the 1949 Geneva Conventions (ratified by the U.S. whereas the Additional Protocols are not), which is also CIL. Russia-Ukraine War Russia's Top Diplomat Hints at a Prisoner Swap for It ensureshumane treatment without discriminationfounded on race, color, sex, religion or faith, birth or wealth, etc. 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. Every Statebound by the treaties is under the legal obligation to search for and prosecute those in its territory suspected of committing such crimes, regardless of the nationality of the suspect or victim, or of the place where the act was allegedly committed. Under this Convention, civilians are afforded the same protections from inhumane treatment and attack affordedto sick and wounded soldiers in the first Convention. PDF '(3$570(17 2) '()(16( /$: 2) :$5 0$18$/ - U.S. Department of Defense 88 - 96, 266) Everyone is Entitled No Degrading or Humiliating Treatment Protected From Violence & Intimidation Shielded From Insults & Public Curiosity Given Respect for Their Persons & Honors No Reprisals Allowed Torture and Coercion (GPS, Art. All persons subject to this issuance will comply with the law of war with respect to the treatment of all detainees. No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm. Still is to this day. Common Article 3 functions like a mini-Convention within the larger GenevaConvention itself, and establishes fundamental rules from which no derogation is permitted, containing the essential rules of the Geneva Convention in a condensed format, and making them applicable to non-international conflicts. Specifically, it required POWs to give only their names, ranks,and serial numbers to their captors. In Rwanda in 1994 and Bosnia in 1995, UNAMIR and UNPROFOR national contingent forces failed in their preeminent mandated duty to act in a robust military fashion to protect the lives of thousands of non-combatant civilians, sheltering in UN safe areas under their command, from the hostile intent and hostile lethal force actions of Enemy forces towards the local civilian population. It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". The Geneva Conventions and their Additional Protocols is a body of Public International Law, also known as the Humanitarian Law of Armed Conflicts, whose purpose is to provide minimum protections, standards of humane treatment, and fundamental guarantees of respect to individuals who become victims of armed conflicts. The Geneva Conventions of 1949 also laid out rules for protecting wounded, sick or shipwrecked armed forces at sea or on hospital ships as well as medical workers and civilians accompanying or treating military personnel. Had we captured more al Qaeda operatives with significant intelligence value, I would have used the program for them as well (Bush, Decision Points, ibid., pp. 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. Learn how your comment data is processed. It also laid out rules for the daily lives of prisoners and established the International Red Cross as the main neutral organization responsible for collecting and transmitting data about prisoners of war and the wounded or killed. Afghanistan and Iraq: Two conflict theatres in the Global War on Terrorism (GWOT). Today evolutions in CIL are taking place in the field of restrictions and limitations imposed on weaponry, in the use of lethal force, and in the field of international criminal law as it relates to Islamist terrorists and jihadist insurgents in the global struggle to combat extremist, Islamo-fascist regional insurgencies and terrorist attacks around the globe. Under this classification of the LOAC, Taliban and Al Qaeda militants were not entitled to the Prisoner of War (PW) protections given to lawful combatants under Geneva Convention III, nor entitled to any protections from any of the other three Geneva Conventions (regarding lawful combatants that are hors de combat on land or at sea, and protections given to civilians), that together govern International Armed Conflict. At the time, some were concerned we werent pushing hard enough. Two of the hijacked planes were each deliberately flown into the tall Twin Towers buildings of the World Trade Center business complex located in New York city, the third plane into the U.S. Department of Defense Pentagon building in Washington D.C., and the fourth plane targeting either the Presidential White House or the parliamentary Capitol building also in Washington D.C. crashed in a field in Pennsylvania after an uprising of its passengers against the Islamist terrorist hijackers. Humane treatment includes: be treated with respect for their dignity as human beings. 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). The rules help draw a lineas much as is possible within the context of wars and armed conflictsbetween the humane treatment of armed forces, medical staff and civilians and unrestrained brutality against them. While it is true that the criminal behaviour of terrorist unlawful combatants, The two articles do notprovide any guidance on many substantive and procedural legal issues, nor on how to resolve practical questions, that arise in relation to captured unlawful combatants., Indeed, Pejic asserts that the GWOT is neither IAC nor NIAC in nature, arguing that it may in some situations be an international armed conflict, in other instances a non-international armed conflict, and in still other cases not an armed conflict in the legal sense at all., Every situation of organized armed violence arising from or in response to terrorism must be examined on a case-by-case basis. But the choice between security and values was real. [13] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, op. FM 27-10 Chptr 3 Prisoners of War - GlobalSecurity.org According to Pejic, despite the U.S. Supreme Courts ruling of applying Common Article 3 (NIAC law) and Article 75 (IAC law) to detainees of the GWOT (both articles being fundamental principles of CIL), the reality is that: The two articles do notprovide any guidance on many substantive and procedural legal issues, nor on how to resolve practical questions, that arise in relation to captured unlawful combatants.[36]. The Geneva Conventions of 1949 and their Additional Protocols 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). [18] Derbyshire, Section Four: When and to Whom Does LOAC Apply, p. 6, and 149.335 Introduction to LOAC in Section One: Introduction to LOAC and Historical Development, p. 16., 149.335 Law of Armed Conflict, ibid. 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. (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, Experts in the intelligence community told me that without the CIA program, there would have been another attack on the United States.. 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]. The Law of War requires humane treatment for military personnel who are out of combat (hors de combat) due to capture by enemy forces. In 1977, Protocols I and II were added to the Conventions of 1949. Internal security emergencies within a State, i.e. In Rwanda in 1994 and Bosnia in 1995, UNAMIR and UNPROFOR national contingent forces failed in their preeminent mandated duty to act in a robust military fashion to protect the lives of thousands of non-combatant civilians, sheltering in UN safe areas under their command, from the hostile intent and hostile lethal force actions of Enemy forces towards the local civilian population. receive humane treatment, to have contact with humanitarian organizations, and . This variation in interpretation is especially apparent with respect to, or in contrast to, practices of lawful interrogation in response to national security threats or during national security emergencies where the State is seeking to fulfil its primary responsibility and duty to protect the lives of its citizens. Law of War - Army Education Benefits Blog 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. To better illustrate this point, the following comprises a list of the known various terrorist plots and attacks that were prevented or stopped by the U.S. as a result of the CIAs enhanced interrogation programme during the early 2000s (among many other terrorist plots that remain classified and are therefore unknown to the general public): (1) the 2002 U.S. West Coast Airliner Plot; (6) the 2004 United Kingdom (UK) Urban Targets Plot; Furthermore, according to the U.S. Department of Defense, as a direct result of the enhanced interrogation program the CIA was also able to successfully: (Bush, Decision Points, ibid., p. 171; United States Department of Defense (U.S. DoD), Summary of the High Value Terrorist Detainee Program, Office of the Director of National Intelligence, Washington DC 20511, Military Commission Proceedings at Guantanamo Bay, 2008, http://www.defenselink.mil/home/features/Detainee_Affairs/, (accessed 12 September 2008); U.S. DoD, JTF-GTMO Information on Detainees, Military Commission Proceedings at Guantanamo Bay, 4 March 2005, http://www.defenselink.mil/home/features/Detainee_Affairs/, (accessed 12 September 2008)). After all, the State government regimes in Afghanistan and Iraq were indeed both clearly and successfully removed through warfare by a coalition of other States, and while the conflict evolved over time in both theatres to include multiple, non-State, regional insurgencies of extremist fighters waging war against both allied coalition forces and the new government apparatus of these States, the original coalition of States remained heavily involved in the prosecution of these wars towards the original goals of eliminating hostile Al Qaeda and other terrorist networks in these States and preventing any reestablishment of the terrorist networks in these States that would again present a direct threat to America and other freedom-loving, democratic nations around the world. Krivdo, CJSOTF-A Combined Joint Special Operations Task Force-Afghanistan A Short History 2002-2014, Office of the Command Historian, 2016, https://www.soc.mil/ARSOF_History/articles/v12n2_cjsotf_page_1.html, (accessed 1 May 2019) and J. Satya, The Clearest 9/11 World Trade Center Footage on the Internet, DigitalAmple.com, 5 August 2018, https://digitalample.com/the-clearest-9-11-world-trade-center-footage-on-the-internet/, (accessed 1 May 2019). PDF Updated January 13, 2005 - Federation of American Scientists To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. [7] Additional Protocol I (API) Article 1(4). Out of 194 nations in the world today, 190 are states parties to those 1949 Geneva Conventions. Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. Robert Gates, the U.S. Secretary of Defense under both the Bush and Obama Administrations from 2006-2011, likewise supported the U.S.-led coalitions war to remove Saddam Husseins regime. Perhaps the most important and pressing evolution of CIL in recent decades concerns the treatment of captured Al Qaeda/Islamist terrorists, and terror-using insurgents (e.g. Within the vast body of International Humanitarian Law (IHL) that exists today, LOAC is the field of law that governs all international relations concerned with armed conflict, and is comprised of all international law relating to the existence and conduct of all armed conflict and military occupation. For information on immigration and links to the 1951 Conventionand 1967 Protocol Relating to the Status of Refugees, see the article aboutImmigration. [24] As Derbyshire states: The [New Zealand Defence Force] Manual of Military Law 1929 includes in its section on the Laws of War observations to the effect that there can, in the nature of things, be no finality regarding the law and usages of war. Counter to expectation, it has in fact been Non-International, rather than International, armed conflict that has predominated in theatres of conflict around the world since the end of WWII, and which still continues to represent the majority of armed conflicts today. 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. cit. History and Legal Status of Prisoners of War - National Park Service 3 of 8) All of the above (correct) 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). disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature, e.g. 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 . 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. CIL refers to practices in warfare that are so consistently upheld and adhered to by a majority of States on the world stage that they have become generally regarded as law. futhermore, the animosities generated by terrorism make the postwar peace more difficult to preserve. The four conventions, as most recently revised and expanded in 1949, comprise a system of safeguards that attempt to regulate the ways wars are fought and to provide protections for individuals. Some highlights of these rules are: Male and female prisoners of war received expanded protections in the Convention of 1949 such as: Articles were also put in place to protect wounded, sick and pregnant civilians as well as mothers and children. cit., p. 4-5). Indeed, according to the Administration, even the enhanced interrogation techniques including waterboarding were lawful under both the Constitution and U.S. law, did not constitute torture, and were not in themselves inhumane. Prior to 2006, the full list of some 17 enhanced interrogation techniques (lawful sanctions) to be used on the terrorist detainees at Guantanamo only in situations of military necessity had been studied under the light of the U.S. Constitution and American LOAC obligations, and then approved and legally authorized by the U.S. Congress, meaning that the interrogation procedures were in fact being used lawfully by interrogators at Guantanamo. [36] Pejic, Unlawful/Enemy Combatants: Interpretations and consequences, op. [23] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, op. 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. 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. The Court rejected this argument andheld that consent exised since September 11, 2001, through an Authorization for Use of Military Forces (AUMF), a Congressional resolution which empowered the President to use all necessary and appropriate forces against any nations, organizations, or personsthat he determinedto have planned, authorized,committed, or aided in the September 11, 2001attacks. Indeed, it seemed to the U.S. government that they were in unchartered LOAC territory faced with a new class of non-State, unlawful combatant, in a new kind of international war against non-State terrorist militants and their State supporters/protectors, that was neither foreseen nor governed by the laws of war contained in the 1949 Geneva Conventions. disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature, e.g. None of us doubted in the early 1990s that, just as soon as he could, Saddam would resume the programs he had under way before the [Gulf] war to develop biological, chemical, and nuclear weapons. Types vary greatly andinclude traditional civil wars or internal armed conflicts that spill over into other States, as well as internal conflicts in which third-party States or multinational forces intervene alongside the government. International armed conflicts are governed by all four Geneva Conventions in addition to Additional Protocol I, while Non-International conflict is governed by Common Article 3 in the four Geneva conventions in addition to Additional Protocol II, but also leans heavily on internationally-accepted customs or norms with regard to basic human conduct, protections and rights in warfare known as Customary International Law. Few practices and norms of CIL with regard to conflict and the conduct of war have not been codified into LOAC legislation. The controversy especially concerned Americas use of CIA/Department of Justice government-approved enhanced interrogation techniques to extract information from approximately 33 uncooperative detainees on plans for future terrorist attacks and the members and organisational structure of the Al Qaeda terrorist network. After World War I, it was clear the 1906 Convention and The Hague Convention of 1907 didnt go far enough. Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. PBS.org.Summary of the Geneva Conventions of 1949 and Their Additional Protocols. In 1859, Genevan businessman Henry Dunant traveled to Emperor Napoleon IIIs headquarters in northern Italy to seek land rights for a business venture. Law Of War Flashcards | Quizlet Humane treatment | How does law protect in war? - Online casebook reaffirming this belief, the 1949 geneva conventions specifically prohibited terrorism and required humane treatment of civilians. [8], Internal security emergencies within a State, i.e. In order to be a Non-International armed conflict, either: (1) a minimum level of intensity in the hostilities must be reached, e.g.
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