Post No.: 0623
As a furry primer on international law before we continue on our exploration of International Humanitarian Law (IHL), which started in Post No.: 0612 – the two main sources of international law are treaties and customary law.
Treaties are agreements (or conventions, covenants, pacts, protocols, etc.) bound by law concluded between two or more subjects of international law (typically States/countries). It’s similar to agreeing to a contract in domestic law; although treaties are more analogous to legislation because they can also be used to create new legal rules in ways that contracts cannot. Signing a treaty means that a subject agrees to, in good faith, abide by the objects and purpose of it; whereas ratifying a treaty means that a subject commits to being bound by law to it. (It’s loosely like being engaged compared to being married to someone.) There exist States that perpetually remain merely signatories to treaties (most famously the USA, which hasn’t ratified several international human rights treaties, including those related to the disabled, children and women). Some treaties might also grant an ‘observer status’ to parties, whereby they can attend meetings but cannot vote or propose resolutions.
Sometimes, States may make reservations to certain provisions of treaties, which is like saying one is bound to a contract except for certain clauses in it. Of course, these reservations cannot defeat the main objects and purpose of the treaty in question, but do be aware that different member States of treaties might not have agreed to the exact same terms, or articles or rules, as each other.
The formation, effects, interpretation, modification, suspension and termination of treaties are regulated by the 1969 Vienna Convention on the Law of Treaties (a.k.a. the ‘treaty on treaties’) and 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.
The core IHL treaties are currently – the Hague Conventions (which are only applicable to international armed conflicts (IACs) and regulate many aspects of the conduct of hostilities, including the prohibition of certain weapons, and occupation), and the Geneva Conventions (which protect wounded and sick soldiers in armed forces in the field (GCI), protect wounded, sick and shipwrecked soldiers in armed forces at sea (GCII), protect prisoners of war (GCIII), and protect civilians in times of war (GCIV)). There are also Additional Protocol I (which further protects victims of IACs), and Additional Protocol II (which further protects victims of NIACs).
Other specific conventions have also been adopted to protect things like cultural objects, or to regulate weapons. There’s also Additional Protocol III (which just adds the Red Crystal to the Red Cross and Red Crescent on the list of emblems that medical and religious personnel can display during conflicts).
Historically, much of law was based on custom. Customary law still retains a vital, residual role despite law being largely drawn from codified/written sources nowadays. This is especially true in international law, where the negotiation of treaties can take decades and be slow to react to, perhaps, new types of war crimes in an ever-changing world. Courts/tribunals and the International Committee of the Red Cross (ICRC) can attempt to identity customary norms; as can, conceivably, national legislation, case law, military manuals, codes of conduct, and the debates and resolutions of other international organisations.
In order to conceptually demonstrate that a rule of customary international law exists, we must be able to show that it is generally (not necessarily unanimously) and consistently practised in specific situations amongst specifically affected States over a duration of time (an ‘objective’ element), and there’s a belief on the part of the States that the practice in question is required by law rather than just practised for moral, political or other reasons (a ‘subjective’ element). This collective international community ‘belief’ embodies the opinio juris of States. In IHL, customary law helps to hopefully fill in the gaps or loopholes in conventional law – especially with regards to regulating internal or non-international armed conflicts (NIACs) like civil wars. Human rights law also plays a significant role in regulating armed conflicts to give people a minimum guarantee of protection.
Unlike treaties, whereby States are only bound by the treaties they consent to – customary law binds all States, except States that are consistent objectors (although they can only do this during the development of a customary rule, not once the custom has been established). Some customary norms eventually end up becoming codified in treaties, and treaties that become so widely ratified and followed logically become customary as well.
But when States don’t do something – as in there’s a general omission, rather than commission, of action – does that omission constitute a customary rule? (As a fantastical example, if no one is time-travelling to the past to eliminate future resistance leaders right now, will this general omission constitute a customary rule?!) It’s more difficult to assess whether omissions are deliberate or due to a lack of opportunity to test the practice. Also, if soldiers behave in certain ways in practice, would this be because they’re following orders or because they’re in fact disobeying them?
Should the practices of non-state armed groups (which would include terrorist/freedom or rebel fighter groups) be counted towards influencing norms too? Would this grant them an international legal personality just like States? If so, they could be the object of international claims made against them, yet they’d also be able to bring about international claims against others.
Customary rules are important for binding entities that cannot ratify or be bound by treaties (e.g. UN peacekeeping and peacemaking forces). They can serve as the lowest common denominator. They can close the gap between IACs and NIACs – for which the latter faces far fewer articles or rules – although the gap isn’t completely closed. In IACs, combatants enjoy ‘combatant privileges’ that prevent them from being criminally prosecuted for taking part in hostilities and give them a protective status of ‘prisoner or war’ if captured. Meanwhile in NIACs, members of armed rebel groups can be prosecuted for having taken up arms and aren’t regarded as POWs if captured, even if they respect IHL. (Additional Protocol II recommends that States should grant members of armed groups with amnesties for their participation in hostilities though.) Also in contrast to in IACs, even if a non-state armed group occupies a significant part of the territory of a State for a long time, the law of belligerent occupation will not apply.
A form of asymmetric warfare will arise if, say, State armed forces follow IHL but terrorists don’t. But unlike other international norms, where reciprocity is permitted to protect the interests of States (e.g. in commercial treaties) – compliance with IHL is non-reciprocal i.e. just because another State or armed group may disregard IHL, it doesn’t mean one can therefore terminate one’s own obligations. This is because IHL isn’t primarily intended to protect the interests of States but to protect individuals as human beings. Also, unusually, any ambiguity in an article of a treaty shall be interpreted so that the highest degree of protection is afforded to individuals.
However, a State may carry out certain reprisals (the legal dimension) in limited circumstances – reprisals allow belligerents to violate IHL in order to sanction a prior violation committed by the enemy. This is based on ‘tit-for-tat’ logic. Some things are never permissible though (e.g. the killing of POWs). There’s also the reality of conflicts (the sociological dimension) – one of the fundamental reasons why States agree to regulate their conduct during armed conflicts is the expectation that the enemy will do the same, hence respect for IHL is mainly based on sociological reciprocity.
International organisations, like the UN, EU or NATO, are institutions constituted by States in order to perform a given function (e.g. the promotion of human rights, trade, peace and security), and can enjoy a legal personality and thus be subjects of international law in their own right. A small number of international organisations – generally those tasked with the promotion of peace and security – have the capacity to use armed force. But whether it is the international organisation, or its member States under the authorisation of that organisation, that intervenes in an armed conflict and thus is/are responsible if any IHL violations are committed, depends upon several factors on a case-by-case basis.
In brief, an international organisation may be considered as a party to an armed conflict when it exercises operational and strategic control over armed forces involved in the conflict. Taking the UN as an example – forces that can act in the name of the UN firstly include ‘national forces’ authorised by a binding UN Security Council resolution to perform a specific mandate (as e.g. happened in the Gulf War). These ‘national forces’ don’t need the consent of the State(s) where they’re deployed to engage in military operations there. Here, these forces remain under the operational and strategic control of their respective States. The second type of force is ‘peacekeeping forces’. These forces are under the operational and strategic control of the UN. They cannot be deployed without the consent of the host State(s). They’re there to prevent the outbreak of conflict or to supervise a peace agreement hence are nominally neutral and can only use force to defend themselves. Lastly there are ‘peacemaking forces’. These are also under the operational and strategic control of the UN. But these can be deployed without the consent of the host State(s). Their objective is to create the conditions for peace in conflict zones hence the use of coercive force is authorised.
However, it’s ultimately about examining the chain of command and ascertaining who has the final words on the conduct of those operations on the ground, because national authorities might employ vetoes or give specific instructions to their own contingents of troops. It’s also controversial exactly which IHL customary norms international organisations should be bound by when they do have ultimate command and control? And would their intervention in a NIAC make it an IAC?
Note that the term ‘armed group’ refers to the military wing of a non-state party (e.g. Daesh/ISIL), and ‘armed force’ refers to a State military (e.g. the British Armed Forces). What counts as an armed group for the purpose of IHL is whether a group has a minimum degree of organisation and is party to an armed conflict. There are huge variations between armed groups depending on factors like whether they hold territory (or aspire to), or operate across borders, for instance. It’s not controversial that all armed groups are bound by relevant IHL norms, but they cannot be parties to IHL treaties thus the legal basis for the rules governing them is disputed between scholars.
The most prominent view is that they are bound to the IHL rights and obligations of the State whose territory they’re operating on. However, international treaties are normally conducted between and bind States, not individuals – for the latter to enjoy rights from treaties, these rights must be domesticated i.e. written into national law; except when they’re considered ‘self-executing’ (e.g. human rights laws). Yet should rebel groups be bound to the treaties of a State that they’re precisely opposed to?! Should they even be bound to customary international law? And if so, to only norms that pertain to armed groups or to armed forces too?
Perhaps they will be if they explicitly consent or implicitly acquiesce to respect IHL. The benefit for them is this can garner them political respect. Of course, their enemy (usually the State if it’s a rebellion) wouldn’t want to give them an international legal personality or legitimacy. A particular status may be given to specific armed groups that represent a people who are fighting a war of liberation against colonial domination, alien occupation and/or racist regimes in the exercise of their right to self-determination though (these are always categorised as IACs).
Woof. We’ll continue to study the crucial differences between IACs and NIACs next time.