By Marylin
Johnson Raisch*
Many questions have been raised about
process and procedure in international tribunals as well as in regional or
national courts dealing with difficult questions of international law. While
commercial law lends itself to open discussion of how parties may be able to
reach agreements about how their disputes may be resolved, where, as in the WTO
regime, there is an accepted path to enforceable dispute resolution, some areas
remain complex arenas of conceptual ambiguity. The law of war (known in much of
the literature as the Law of Armed Conflict, LOAC) in its situation alongside
International Humanitarian Law (IHL), constitutes one such lingering debate.
With continuing conflicts simmering and potentially destabilizing several parts
of the world, how are diverging perspectives to find a starting point?
In a brief but necessarily incomplete
review of a now vast array of literature on the Geneva Conventions and the role
of IHL as well as International Human Rights law (IHR), this post suggests that
convergence of different types of relevant information in one database, with
easy access to commentary and a kind of taxonomy of principles, may clarify the
questions to be answered even if not all the answers themselves.
Some questions that have arisen in the
English language literature since the 2003 Iraq war , and the questions raised
about detainee rights for those captured and held under United States authority
in the prison at Guantanamo include the following: is it true that LOAC and IHR
are or should remain separate regimes for soldiers and civilians, as one
reading of the classic
Pictet commentary suggests, with human rights fully available in times of
peace and LOAC/IHL qualifying those rights during wartime?[2]
Have IHR and IHL regimes merged, as the plights of victims, civilians, “freedom
fighters” become exposed both in civil wars and in international conflicts?[3]
Are principles of LOAC the rules evolved
from the ancient game of war, and is IHL an intruder in the game?[4]
What about non-state actors or armed groups and the LOAC rules?
The law of war is in fact now the law of
the battlefield, and has sources both in international treaties and customary
international law. The International Committee of the Red Cross (ICRC), in its historic role advocating
for the Geneva Conventions to protect victims of war of many types and as a
neutral international organization, has created a set of databases for the
exploration of the complex legal issues associated with war’s effects- on
wounded, prisoners of war, and civilians. Given the controversy surrounding the
very status of various combatants in the modern terrorist “wars” and networks
of guerilla cells, the ability to research the commentary of the ICRC itself,
and its most respected scholars, is essential.
Most of the issues in the evolving story
of LOAC and IHL-versus-IHR told through the many law review and treatise
commentators of recent years can be explored through the ICRC “War & Law”
portal, linked clearly from the landing page
of the ICRC . When the portal is open to show a view
of all the sub-portals, the topics are revealed that relate to the “legal basis
for our action” and consist of 1) conduct of hostilities (jus in bello);
2) domestic law and IHL, including a national implementation database by topic
and country; 3) how does law protect in war? (which actually addresses the IHL
and IHR intersections at the core of the debate on convergence of those
approaches described above); 4) treaties and customary law (introducing the primary source databases,
one on the treaties and states parties and the other the customary international
law by rules and by country; a clear statement is made of the last date of
updating the information. The sources are also listed and, where possible,
links to the treaties and historic instruments such as the Lieber Code of 1863,
the Hague Rules of Air Warfare of 1923 and on through the Nuremburg Principles
and up to the present collections of
agreements and principles of the UN, between various states, and
bilateral agreements as well); 5) IHL
and other legal regimes (providing distinctions between the jus in bello conduct of war rules as opposed to the reasons
for war, jus ad bellum); and eight other
sub-portals on weapons, policy, protected persons, and a link of their
influential journal, International Review of
the Red Cross. Most of the legal sections listed above preserve a
right-hand navigation into primary materials and the Jean Pictet commentary
text on the 1949 Geneva Conventions: I (wounded in the field), II (wounded and
shipwrecked at sea), III (prisoners of war) and IV (civilians). The 1977
Protocols, I, II and the 2005 Protocol III (merely adds another distinctive
emblem for humanitarian workers) are included along with later related
treaties.[5]
Integrating all sources and perspectives
of the ICRC is not to imply that commentators around the world are in agreement
with all its interpretations. One set of answers about detainees who may be
considered “unlawful” or “illegal” combatants and their status may be answered
with reference to jus cogens norms, and at least
one commentator believed this is an answer preferable to merging the different
spheres of IHR and IHL, recognizing that some human rights are suspended
through derogations to those treaties during wartime.[6]
The ICRC updates and recognizes emerging principles as part of the dialogue in
the commentary and sources, and these are categorized as distinct from the
primary materials; the research must be supplemented with sources outside the
ICRC.[7]
Integration of the sources and issues is
still recommended as the best starting place for the most informed approach to
a complex set of issues at the heart of why international law came to be: to
limit war.
*Associate Law Librarian for International & Foreign Law, Georgetown Law
Center. Email: mjr47@law.georgetown.edu
[2]See,
e.g., Robert J. Delahunty and John C. Yoo, What Is the Role of
International Human Rights Law in the War on Terror?, 59 DePaul
L. Rev.803, 812-818 (2009-2010) (quoting Pictet,
Humanitarian Law and Protection of War Victims 15 (1975)). While the
authors’ view represents perhaps one extreme of the perspectives on LOAC and
IHR, statements of evolving standards and merged principles now appear in
standard scholarly presentations of human rights and humanitarian law. See
Robert Kolb, Human Rights and Humanitarian Law in Max
Planck Encyclopedia of Public International Law (Rüdiger Wolfrum, ed., 2012)
(supporting progressive merger of IHR and IHL under various approaches).
[3]
Kolb, Id. at [page].[online para 22 ff]
[4]
Kyndra Rotunda, Applying Geneva Convention Principles to
Guantanamo Bay, 43 U. Rich. L.
Rev. 1067, 1069 (2008-2009) (asserting that laws of war before the late
eighteenth century did not exist with regard to standards of treatment for
prisoners of war).
[5]
Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114; 75 U.N.T.S. 31;
Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217; 75
U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, 6 U.S.T. 3316; 75 U.N.T.S. 135; Geneva Convention Relative to
the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T.
3516; 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3;Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125
U.N.T.S. 609; 26 I.L.M. 568 (1987); S.
Treaty Doc. No. 100-2 (1987); Protocol additional to the Geneva Conventions of
12 August 1949, and relating to the Adoption of an Additional Distinctive
Emblem (Protocol III), 8 December 2005, 45 I.L.M. 558.
[6]
Ingrid Detter, The Law of War and Illegal Combatants,
75 Geo. Wash. L. Rev.1049, 1085 (2006-2007).
[7]
See, e.g., ICRC, Interpretive Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law (May 2009) http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf
and ASIL Insight, Copenhagen Process Principles, http://www.asil.org/insights/volume/16/issue/39/copenhagen-process-principles-and-guidelines-handling-detainees
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