*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). Humane Treatment (GPW, Art. Subsequently a preventative pre-emptive war took place in Iraq against Saddam Husseins dictatorship during 2003, which: firstly, had been meeting with senior Al Qaeda leaders; secondly, was cooperating with and housing Al Qaeda members at a chemical and biological weapons-testing laboratory situated at an Iraqi base near the Iranian border (including the notorious Al Qaeda attack-planner, Abu Musab al-Zarqawi); and thirdly, was strongly suspected internationally of having stockpiles of illegal biological and chemical Weapons of Mass destruction (WMD),in addition to nuclear material from its nuclear development programme, that, given the regimes long and proven record of support for terrorism, it was feared Saddam might easily give or sell to Al Qaeda terrorists to enhance and further their attacks in America and around the world (see endnote). The Protocol stated all people not taking up arms be treated humanely and there should never be an order by anyone in command for no survivors.. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. That was not true. 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. pp. (2) The laws of war do not apply; the US military has a free hand. It specifically prohibits murder, mutilation. The CIA interrogation program saved lives. 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. 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]. Article 3 of the Geneva Conventions covered, for the first time, situations of non-international armed conflicts. Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. This means that in rare instances where a State has historically consistently objected to a particular practice or custom of conflict, the principle of customary law forbidding that practice is not considered legally binding for that particular State with regard to that specific practice.[17]. Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. To summarize, the law of armed conflict: is a branch of international law; 9-87, and Section Ten: Internees, Detainees and Torture, p. 5, 149.335 Law of Armed Conflict, op. My most solemn responsibility as president was to protect the country. [31] Paradoxically, the court also ruled simultaneously that these captured terrorists and terror-using insurgents be givena right normally given to civilians taking a direct part in hostilities during International armed conflict in Article 75 of Geneva Convention IV namely the right to challenge death sentences (a ruling later expanded to include the right to challenge basic detention in the Boumediene v. Bush case in 2008).[32]. 13, 20, 27; FM 27-10, para. The horrific suffering Dunant saw impacted him so greatly he wrote a first-hand account in 1862 called A Memory of Solferino. There were two that I felt went too far, even if they were legal. military commissions are suspended pending the government's appeal in Hamdan v. disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature, e.g. General (GEN) Tommy Franks, the U.S. Army former Commander of CENTCOM, has also defended Americas decision to go to war against the Saddam dictatorship in Iraq, stating that: The intelligence, while not precise, was overwhelming. Additional Protocol I to the Geneva Conventions of 1977 adds further to this understanding, outlining further in Article 1(4) that self-determination movements of a native population against another States colonial domination, alien occupation or racist regime (discriminating against and/or persecuting one or more ethnic races within the State) may also be considered an International armed conflict under International Law, in accordance with the principles enshrined in the UN Charter.[7]. In sum, International armed conflict (IAC) may be regarded as largely. Israel/Palestine, Operation Protective Edge (Gaza, 13 June - 26 August 2014), Libya, Report of the Office of the UN High Commissioner for Human Rights (2014/15). Further, additional regulations regarding the treatment of civilians were introduced. But years later, once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. 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). http://mro.massey.ac.nz/xmlui/handle/10179/6984, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, https://casebook.icrc.org/glossary/non-international-armed-conflict, https://www.open.edu/openlearn/society-politics-law/the-use-force-international-law/content-section-2.1.3, http://www.redcross.int/EN/mag/magazine2005_2/24-25.htm, https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf, https://www.soc.mil/ARSOF_History/articles/v12n2_cjsotf_page_1.html, https://digitalample.com/the-clearest-9-11-world-trade-center-footage-on-the-internet/, https://www.wired.com/2012/01/afghan-air-war/, https://www.nato.int/cps/en/natohq/topics_52060.htm, https://www.pbs.org/newshour/world/saddam-statue, https://hiregi.com/2018/07/14/how-many-operation-iraqi-freedom-oif-campaigns-were-there/, http://www.defenselink.mil/home/features/Detainee_Affairs/, https://www.amazon.com/Spymasters-CIA-Crosshairs-Mandy-Patinkin/dp/B018T4TNHY, https://www.nytimes.com/2006/06/29/washington/29cnd-scotus.html, https://www.npr.org/templates/story/story.php?storyId=91425261, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, https://www.businessinsider.com/global-terrorist-attacks-past-20-years-in-maps-2017-5?r=US&IR=T, #23 Caveat Chaos in Kosovo: Divided Allies & Fettered Forces in NATOs KFOR Operation during the 2004 Kosovo Riots, #25 Laws of War Brief (Part 2): The Protections, Rights & Obligations of Civilian Non-Combatants & Military Combatants under the LOAC, NATO APPENDIX 1: The Ukraine NATO Membership & Nuclear Missile Crisis (Part 1), WAR ON TERROR: ISAF APPENDIX 10(b) List of National Caveats Imposed on Armed Forces by the 8 NATO Lead Nations of ISAF Regional Commandsin Afghanistan, 2002-2012, WAR ON TERROR: OEF APPENDIX List of Known National Caveats Imposed by OEF TCNs on National Armed Forces Deployed to Afghanistan, 2001-2012, WAR ON TERROR: Triumphs after Trials Progress Report, 2001-2021, WAR ON TERROR: ISAF APPENDIX 10(a) Table Displaying Caveat-Free or Caveat-Fettered Forces of the 8 NATO/ISAF Lead Nations during 6 Crucial COIN Years, 2007-2012, #40 In Videos: An International, Multilateral, Political & Strategic Failure The Fall of Kabul & the Lamentable Loss of the Anti-Terror & Democratic Republic of Afghanistan, 2001-2021, WAR ON TERROR: ISAF APPENDIX 9 Table Displaying Caveats Imposed by ISAF TCNs on Major and Minor Combat Manoeuvre Units (CMUs), 2006-2012, #36 The Art of Government: Military Servants, Political Masters, The People & the Purpose of the Military, WAR ON TERROR: ISAF APPENDIX 8(b) List of Known National Caveats Imposed on ISAF Major Force Units by TCNs in Afghanistan, 2001-2012, WAR ON TERROR: ISAF APPENDIX 8(a) Table Displaying Known ISAF Major Force Units Constrained by TCNs with National Caveats, 2001-2012, #39 Farewell Fallen Friend: Democratic Afghan Republic, 2001-2021, WAR ON TERROR: ISAF APPENDIX 7(b) List of Known National Caveats by Category Imposed by ISAF TCNs on National Forces, December 2001- December 2012, NATO OAP Caveats in Gulf of Aden (Somalia), Theory: Counter-Insurgency (COIN) Warfare, Theory: Mission Command (Delegation & Trust), UN MINUSCA Caveats in the Central African Republic. (The Principles of the Law of War, pg. Al Qaeda terrorists (unlawful combatants under the LOAC) captured in Afghanistan.[34]. 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. The doctrine of universal jurisdiction is based on the notion that some crimes, such as genocide, crimes against humanity,torture, and war crimes, areso exceptionally gravethat they affect the fundamental interests of the international community as a whole. In addition to nationally ratified laws of war (e.g. In previous blogs I have presented case-studies of Multinational Operations (MNOs) in Rwanda, Bosnia and Kosovo, in which participating national forces bound by government-imposed national caveat constraints failed to use lethal force at the critical and necessary moments in order to fully uphold or pursue the primary security objectives of their security mission mandates. 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]. international treaties, conventions, pacts, agreements and protocols), according to the LOAC, (2) Whether or not a State or individuals are. Cornell Law School Legal Information Institute. Three were water-boarded. Under this Convention, civilians are afforded the same protections from inhumane treatment and attack affordedto sick and wounded soldiers in the first Convention. Reuters. The Law of War requires humane treatment for military personnel who are out of combat (hors de combat) due to capture by enemy forces. Since there was no set treaty or law specifically outlining the obligations due to such detainees under the Geneva Conventions when captured by an opposing force, it appeared the problems arising from this new conflict exigency would be best guided by the customs of modern CIL notably, humane treatment consistent with the Geneva Conventions, but subject to military necessity, that of preventing additional, unlawful terrorist attacks against American citizens or those of its allies. In the wake of 9/11, that was a risk I was unwilling to take. The 1991 gulf war was the first international conflict that Human Rights Watch examined for violations of the law of war and the first in which military lawyers helped pick targets. 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. 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. 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. Experts in the intelligence community told me that without the CIA program, there would have been another attack on the United States.. PBS.org.Summary of the Geneva Conventions of 1949 and Their Additional Protocols. Geneva Convention relative to the Treatment of Prisoners of War ADOPTED 12 August 1949 BY the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August 1949 Share View ratification status by country Table of Contents Part I [32] Derbyshire, Section Ten: Internees, Detainees and Torture, 149.335 Law of Armed Conflict, op. 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. [15] Derbyshire, Section Four: When and to Whom Does LOAC Apply, p. 2, Section One: Introduction to LOAC and Historical Development, p. 3, and 149.335 Introduction to LOAC in Section One: Introduction to LOAC and Historical Development, p. 7, 149.335 Law of Armed Conflict, ibid. 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. The principle of humane treatment requires that the wounded and sick, prisoners of war, civilians and other persons protected by IHL are treated humanely at all times. Al Qaeda terrorists attack the United States of America: On 11 September 2001 four passenger commercial aircraft were hijacked by Al Qaeda terrorists, in a plot designed and enacted by the central Al Qaeda cell led by Osama bin Laden in Taliban-ruled Afghanistan. cit. 4 of 8) It does not justify prohibited actions (correct) It justifies the use of overwhelming force, but not wanton destruction (correct) Humanity is a principle of the Law of War that addresses the immunity of peaceful populations and civilian objects from attack. 80-81). [8], Internal security emergencies within a State, i.e. In the following blog, #25 Laws of War Brief (Part 2): The Protections, Rights & Obligations of Civilian Non-Combatants & Military Combatants under the LOAC , I will continue this analysis by presenting what is, to the best of my understanding, the most important, mandatory and need-to-know obligations of the LOAC and CIL on all individual military personnel of national armed forces of all ranks, all Services, and all nations around the world. In NIACs, the requirement of humane treatment for civilians and persons hors de combat is set out in common Article 3, which prohibits violence to life and person (including cruel treatment and torture), the taking of hostages, humiliating and degrading treatment, and execution without regular trial. During this sudden uprising, violence was unleashed by angry Albanian mobs against the minority Serb population throughout Kosovo Province. I knew that an interrogation program this sensitive and controversial would one day become public. Intelligence information is much more often imprecise than it is precise[Included in our intelligence analysis was] WMD from the last Gulf War, the [testimony of Saddams defecting] son-in-law who gave information, [and the] monumental reams of intercepted information (cited in DeLong. In order to be a Non-International armed conflict, either: (1) a minimum level of intensity in the hostilities must be reached, e.g. [36] Pejic, Unlawful/Enemy Combatants: Interpretations and consequences, op. 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). 151-152 in Geneva Convention IV, in the following PDF of the Geneva Conventions provided by the International Committee of the Red Cross, accessible here: https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf). 81-82 in Geneva Convention III, and pp. reaffirming this belief, the 1949 geneva conventions specifically prohibited terrorism and required humane treatment of civilians. The LOAC also permits the handcuffing or physical restraining of persons for the purpose of interrogating them, as well as isolation methods, so long as these are temporary measures used only when strictly necessary militarily (Ibid., p. 35). 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. 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. (3) The laws of war apply but in modified form.' . 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. 3 of 8) All of the above (correct) But years later, once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. The CIA interrogation program saved lives. So I supported Bush 43s decision to invade and bring Saddam down. 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. 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.[38], Two slides taken from the Google TimeLapse terrorism project, which has tracked and displayed terrorist attacks that occur worldwide each year over a twenty-year period from 1997-2017.[39]. All civilians should receive adequate medical care and be allowed to go about their daily lives as much as possible. In sum, Non-International armed conflict (NIAC) largely concerns intra-State conflict that is, armed conflict that occurs within the territory of a State. [7] Additional Protocol I (API) Article 1(4). 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 . 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). the Global War on Terrorism involving inter-State warfare in addition to intra-State insurgencies, and the wars that have taken place in both Georgia and Syria), with guidance often having to be provided on a case-by-case basis by the evolving consensus of world opinion on the conflict. . States comply with the practice out of a sense of legal obligation to an international norm or custom, rather than solely due to their own legal LOAC obligations or national interests.[16]. 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. In sum, nearly 3,000 people mostly unarmed civilians living and working in a country at peace were killed on this terrible day in human history, and a further 6,000 injured as a result of these terrorist attacks on 9/11.[26]. 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. 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. In response, two Protocols Additional to the four 1949 Geneva Conventions were adopted in 1977. 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. In IACs, the principle gives rise to a number of explicit rules, such as those prohibiting torture, rape and sexual violence and exposure of prisoners of war to public curiosity. [20] Derbyshire, NZDF LOAC Manual Chapter 15: Prisoners of War and other persons deprived of their liberty in the course of armed conflict in Section Nine: Prisoners of War and Other Persons Deprived of Their Liberty, pp. [19] To give humane treatment is to act with consideration, respect and mercy for the basic welfare of other human beings under your power in any given situation. [6] Common Article 2 to the Geneva Conventions 1949. It ensureshumane treatment without discriminationfounded on race, color, sex, religion or faith, birth or wealth, etc. This blog is a brief overview of the LOAC, Customary International Law, and the challenges posed to both by modern armed conflict today. 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. 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. It grants the ICRC the right to offer its services to the parties to the conflict. On the other hand, however, one of the most significant new developments in the GWOT namely, the international military campaign against ISIS in Iraq and Syria of recent years was clearly more of a Non-International armed conflict in nature, involving as it did a non-State terrorist entity (affiliated with the non-State, terrorist network Al Qaeda) which the States of Iraq and Syria both fought to eliminate from their territory from 2014 onwards with assistance from many other State allies from around the globe, a goal finally achieved successfully in 2017 and early 2019 respectively. It requires humane treatment for all persons in enemy hands, without discrimination. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a . Adopted in 2005 to add another emblem, the "red crystal," to the list of emblems used to identify neutral humanitarian aide workers. 13,; GPW, Art. 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. Trailer #12: SEAL Team Low-Impact (High-Risk) (2022, Series 6, Episode 1) [American SOF Forces, Burkina Faso/Mali]. 3 of 8) Protection against threats or acts of violence Protection against public curiosity Few practices and norms of CIL with regard to conflict and the conduct of war have not been codified into LOAC legislation. 37,770,554 questions answered * weegy Taliban militants or jihadist foreign fighters), that were captured by the United States or its allies during the wars associated with the broader Global War on Terrorism. About a third of those were questioned using enhanced techniques. The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war. A committee was formedwhich included Dunant and an early iteration of the Red Crossin Geneva to explore ways to implement Dunants ideas. 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. Ratification grew steadily through the decades: 74 States ratified the Conventions during the 1950s, 48 States did so during the 1960s, 20 States signed on during the 1970s, and another 20 States did so during the 1980s. The worldwide campaign against Al Qaeda and other global terrorist networks along with their State sponsors or protectors, which began in 2001 following the 9/11 terrorist attacks, and continues in various forms against diverse Islamist terrorist entities (including ISIS) and in multiple conflict theatres around the globe to the present day, was termed the Global War on Terrorism (GWOT). 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). In Kosovo, despite the express aim of the security mission being to establish and maintain a secure environment in Kosovo including public safety and order, two-thirds of the NATO KFOR force was comprised of national contingents restrained by national caveat bans that prohibited them from any participation or engagement whatsoever in direct combat-related functions. Furthermore, the majority of KFOR national contingents were also prohibited by their governments from engaging in low-level riot control operations.
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