100, April 24, 1863) was the military law that governed the wartime conduct of the Union Army by defining and describing command responsibility for war crimes and crimes against humanity; and the military responsibilities of the Union soldier fighting the American Civil War (1861-1865) against the Confederate States of America. This way of thinking resulted in more humane treatment for those officially classified as prisoners of war. 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. Protocol I increased protections for civilians, military workers and journalists during international armed conflicts. The legal classification of an armed conflict as either an International or Non-International armed conflict still determines which laws of war apply in any given conflict today. [6], International armed conflict is thus defined in the 1949 Geneva Conventions as a conflict occurring between two or more States and to all cases in which partial or total occupation of a States sovereign territory occurs. This agreement extended the protections described in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships. 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. when the government is obliged to use military armed forces against dissident insurgents, instead of simply the police force; or (2) non-government dissident groups must possess organized armed forces sufficient to render them parties to the conflict, meaning that they are operating under some kind of command structure and have the capacity to sustain military operations within the State. While the 1949 Geneva Conventions have been universally ratified, the Additional Protocols have not. *For an excellent documentary discussing the CIAs use of enhanced interrogation techniques on captured terrorists detained at Guantanamo prison, and presenting both sides of the argument from the perspectives of 12 living ex-CIA Directors, see: Spymasters: CIA in the Crosshairs (Amazon link here: https://www.amazon.com/Spymasters-CIA-Crosshairs-Mandy-Patinkin/dp/B018T4TNHY). CIL is considered binding on all states, regardless of whether or not the practices have been enshrined in international treaties or, if the practice is already within international legislation, whether all or a majority of States, have signed on to them. 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. Common Article 3 the article common to all four of the Geneva Conventions of 1949 which alone treats Non-International armed conflict requires that, in addition to, In essence this means that, according to CIL, States acting as Detaining Powers must provide persons under their power with the most humane (human) treatment that each State is capable of providing, including adequate food and medical care, and that they should. Modern CIL goes further than this, however, and contends that it is illegal to torture any person for any purpose or in any circumstances, or to subject any person to cruel or inhumane treatment for any purpose or in any circumstances, during any armed conflict (see in particular the 1987 UN Convention against Torture and the 2002 Rome Statute of the International Criminal Court ratified by many, but not all, nations). terrorist attacks, do. Among those contingents theoretically permitted by their governments and Rules of Engagement (ROE) to actually conduct these riot control operations, moreover, a substantial number of these national contingents were ill-trained, ill-equipped and ill-prepared to actually conduct riot control in actuality. 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). 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.[37] As Pejic concludes: Every situation of organized armed violence arising from or in response to terrorism must be examined on a case-by-case basis. There were two that I felt went too far, even if they were legal. Afghanistan and Iraq: Two conflict theatres in the Global War on Terrorism (GWOT). The Law of War establishes: - Weegy Few practices and norms of CIL with regard to conflict and the conduct of war have not been codified into LOAC legislation. 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). Updated: August 21, 2018 | Original: November 17, 2017. However, while this is a clear and generally accepted definition of torture, there is still no agreed international agreement on what specific acts actually constitute this torture, and there is additionally no internationally accepted definition of humane vs inhumane treatment. 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. No one size fits all legal approach to terrorism, particularly as to the judicial nature of the situation and the classification of suspected terrorists, is, or has proved to be, feasible in practice., With regard to the highly controversial Iraq War, the U.S. Marine Corps former Deputy Commander of U.S. CENTCOM, Lieutenant General (LTGEN) Michael DeLong, stated in 2007 that: Although we wondered about the timing, we never wondered about the rightness of removing Saddam from power. 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. [20], The obligations contained in these treaties, outlined above, are so generally accepted and upheld, they are now regarded as legally binding on all States in the world including States that are not in fact ratifying Parties to the treaties themselves. Learn how your comment data is processed. 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). 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. [3] Modified images taken from Kosovo As it really is 1999-2003, Post-War Suffering Serbian Orthodox Diocese of Raska and Prizren, 2019, http://www.kosovo.net/report.html, (accessed 17 January 2019); March Pogrom Kosovo 17-19 March 2004, News from Kosovo Serbian Orthodox Diocese of Raska and Prizren, http://www.kosovo.net/news_pogrom.html, (17 January 2019); Rupert Colville, Kosovo minorities still need international protection, says UNHCR, UNHCR The UN Refugee Agency UK, 24 August 2004, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, (accessed 17 January 2019); and Burning of the Serbian village Svinjare, March 17, Kosovo.net, 2019, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, (accessed 17 January 2019). I knew that an interrogation program this sensitive and controversial would one day become public. [12] The Additional Protocols, dealing expressly with the two categories of International (Additional Protocol I) and Non-International (Additional Protocol II) armed conflict, were written in 1977 in order to reflect this reality, and to express international concern that the victims of Non-International armed conflict likewise be afforded basic protections under the LOAC, especially given the great danger posed by armed groups to the lives of ordinary civilians in these high-intensity and highly-violent internal conflicts. In addition, children should be well cared for and educated, and the following is prohibited: In 2005, a Protocol was created to recognize the symbol of the red crystalin addition to the red cross, the red crescent and the red shield of Davidas universal emblems of identification and protection in armed conflicts. For much of mankinds history, the ground rules of warfare were hit or miss, if they existed at all. But the choice between security and values was real. But he didnt just write about what hed observed, he also proposed a solution: All nations come together to create trained, volunteer relief groups to treat battlefield wounded and offer humanitarian assistance to those affected by war. Humane Treatment of Prisoners. 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. This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a. Indeed, the sanctity and power of the LOAC holds true universally and applies equally to all military service men and women operating in conflict theatres around the globe in multinational military operations past, present and future. To see a table listing the States that have ratified the four 1949 Geneva Conventions and its two 1977 Additional Protocols, click on the following link: Dr Regeena Kingsley PDF List of Ratifying States to Geneva Conventions & Additional Protocols (2019) v3 Compressed. In fact, it is the duty of any serviceman or servicewoman to disobey superior orders, if those orders are manifestly unlawful under LOAC (i.e. Al Qaeda terrorists (unlawful combatants under the LOAC) captured in Afghanistan.[34]. Indeed, some KFOR military contingents failed to take any action whatsoever during the security emergency among them two NATO Lead Nations, France and Italy, with significantly large KFOR national contingents in addition to lead command responsibilities over their respective KFOR sectors. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. 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. Added 10/28/2021 4:10:29 PM This answer has been confirmed as correct and helpful. They charged that Americans had committed unlawful torture. Our conclusion was that they wereGiven all of this information, and given that the CIA had made a judgement call based on this information, President Bush, in my opinion, would have been negligent not to act (DeLong, A General Speaks Out, ibid., pp.66, 69). However, CIL also asserts simultaneously that persons held in custody who are either unable or unlikely to take part in hostilities upon their release from custody by reason of illness, or gravely diminished mental or physical health should be released and directly repatriated as soon as possible (ICRC Customary IHL Rule 99, in NZDF LOAC Manual Chapter 15, ibid., pp. 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. International armed conflict is defined in Common Article 2 of the Geneva Conventions as: All cases of declared war, or of any other armed conflict, which may arise between two or more of the High Contracting Parties (States), even if the state of war is not recognised by one of them, All cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". One of the treaties created during the 1949 Convention, this defined "Prisoner of War,"and accorded such prisoners proper and humane treatment as specified by the first Convention. Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. British Red Cross.Treaties, States Parties, and Commentaries: Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. [28], 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 non-State and unlawful Enemy combatants of International armed conflicts between States under the LOAC (where unlawful Enemy combatant means persons not entitled to combatant immunity who have committed acts in violation of the laws and customs of war during an armed conflict).[29]. Torture has been defined in the Rome Statute as: The intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions (Article 7(2)(e) available to view here: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf). Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. [8], Internal security emergencies within a State, i.e. Namely: (1) The unimpeded killing of non-combatant civilians in all three international security operations; (2) The commission of genocide and crimes against humanity against thousands in Rwanda and Bosnia; and. futhermore, the animosities generated by terrorism make the postwar peace more difficult to preserve. [11] The Use of Force in International Law: Types of Armed Conflict, Open University [Great Britain], 2019, https://www.open.edu/openlearn/society-politics-law/the-use-force-international-law/content-section-2.1.3, (accessed 23 April 2019). The CIA interrogation program saved lives. The truth is that modern conflict has become so extremely complex, intractable and mixed in current times, displaying simultaneously features of both International and Non-International armed conflict especially in modern anti-terrorism campaigns waged against Islamist terrorist groups and terror-using insurgencies in the Middle East, Central Asia, Africa and Asia that it has created grey zones with regard to the appropriate LOAC that leave room for diverse legal interpretation between nations and new evolutions in customs of CIL. As the ultimate defenders of your State andits laws it is your DUTYto know the provisions of the law and to ensurethey are respected and obeyed. In particular, heated controversy surrounds knowledgeable terrorists or terror-using insurgents captured operating in warzones, who are by definition not only unlawful combatants under the laws of war but also war criminals guilty of committing indiscriminate acts of terror and mass-murder, and who possess extensive knowledge of terrorist members, organisation, and plots for future attacks that if obtained might save the lives of countless other human beings, including many innocent civilians. Articles with the HISTORY.com Editors byline have been written or edited by the HISTORY.com editors, including Amanda Onion, Missy Sullivan and Matt Mullen. Common Article 3 of the Geneva Conventions and U.S. Detainee Policy 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). 9-87, and Section Ten: Internees, Detainees and Torture, p. 5, 149.335 Law of Armed Conflict, op. The new techniques proved highly effective., Of the thousands of terrorists we captured in the years after 9/11, about a hundred were placed into the CIA program. LOAC continues to evolve as mankind struggles to advance the principles of humanity in warfare whilst maintaining the needs of international and national security.[25]. The principle of humane treatment in IHL requires that those who fall into the hands of the enemy be treated with respect for their dignity as human beings. However, CIL is founded on general, rather than unanimous, international recognition and agreement. 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, This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. Not surprisingly, the disconnect and outright contradiction between the KFOR mission mandate and its key security objectives on the one hand, and the restrictive ROE of contributed KFOR national contingents on the other, had direct and serious consequences during the Kosovo Riots of 2004. 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 generally showed a marked disdain, contempt and even hatred for the principles, protections and spirit of the laws of war. All service men and women on military operations worldwide have a personal duty and obligation to act lawfully by obeying the LOAC during their service in the military, no-matter the military situation in peace or in war, and no-matter the location of deployment at home or abroad. regular wars. 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. 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)). Humane treatment includes: (Military Persons Exempt From Attack, pg. pp. Still is to this day. (4) Civilian persons in time of war (Geneva Convention IV). Indeed, the international order continues to be founded on the 1648 Westphalian principles of State sovereignty, sovereign jurisdiction over territorial integrity and the principle of non-intervention, that has survived intact over many centuries despite many crises and upheavals to the system, not least WWI, WWII, the Cold War Superpower confrontation, and even the post-9/11 world. 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 . Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. Post was not sent - check your email addresses! Under this body of International Humanitarian Law for the conduct of war, known as the LOAC, all laws and conventions on armed conflict that have been ratified by a State are binding on that States armed forces and applies in all military situations, whether or not war has been formally declared or recognised.[13]. Twenty-six countries ratified the Conventions in the early 1990s, largely in the aftermath of the break-up of the Soviet Union, Czechoslovakia and the former Yugoslavia. [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. The ICRChas a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs. They charged that Americans had committed unlawful torture. In essence this means that, according to CIL, States acting as Detaining Powers must provide persons under their power with the most humane (human) treatment that each State is capable of providing, including adequate food and medical care, and that they should not submit those persons under their control to unnecessarily unpleasant treatment that States would not like their own military personnel or civilian citizens to undergo themselves if captured, interned or detained by another State or armed group. Further, additional regulations regarding the treatment of civilians were introduced. Despite being signatory to the Conventions, there are some notable and often-criticized U.S. cases involving conduct that would otherwise be prohibited by the Conventions, such as Hamdi v. Rumsfield(2004). [35] Modified images taken from the International Herald Tribune, www.iht.com, and ABC News, www.abc.news,(accessed 14 January 2011). Humane Treatment (GPW, Art. It also made the repatriation of captured belligerents a recommendation instead of mandatory. All cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. In the following blog, , 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. PDF '(3$570(17 2) '()(16( /$: 2) :$5 0$18$/ - U.S. Department of Defense