Introduction to Human Rights | Lesson 25: “Armed Conflicts II”

This is the second class about armed conflicts
and human rights. In the previous class, we saw the laws of armed conflicts, known as
international humanitarian law; the notion of war; the regulation of war; and the concept
and the principles of international humanitarian law. As explained in that class, there are
three main principles in international humanitarian law: (i) Military necessity; (ii) Proportionality or Humanitarian principle; and (iii) the Distinction principle The principle of military necessity dictates that all those actions reasonably leading
to obtaining a military advantage cannot be prohibited. The principle of proportionality
or humanity, on the other hand, means that all those actions which, on the contrary,
do not have a military necessity rationale, are forbidden. The principle of distinction
dictates that military necessity and proportionality must be wisely distinguished from each other. Now, from the three main principles just mentioned stem five normative criteria. From them, in
turn, thousands of specific rules are derived. (i) The first criterion that stems from the
three main principles is the concept of “legitimate actors” in an armed conflict. They are known
as “combatants”. Combatants are those who have the right to participate directly
in the hostilities, abiding by the rules of war. If captured, they have the privileged
status of prisoner of war, which means they cannot be tried for having taken arms alone. On the other hand, civilians and non-combatants can never be targeted. Yet, they cannot take
up arms without losing their quality as non-combatants. Members of the armed forces not taking part
in the hostilities, such as religious and medical personnel, are also non-combatants. (ii) A second normative criterion is the category of “legitimate target”. In addition to
the enemy combatants they are the objects, places and assets that can be targeted due to their military value and their lack of direct impact on civilians. (iii) The third criterion refers to the means and methods of combat. “Means” are weapons,
ammunitions and military materiel in general. “Methods” are combat strategies or tactics,
that is, the mode of use or deployment of military materiel. The basic rule is that
means and methods that erase the distinction between combatants and non-combatants are
prohibited. They include indiscriminate and perfidious means and methods of warfare. A weapon is indiscriminate per se if it cannot be directed at a military objective or if
its effects cannot be limited to such objective. The use of a per se indiscriminate weapon
is prohibited. The fabrication and stockpiling of some weapons, such as cluster bombs, are
also prohibited. Concerning methods of warfare, they are indiscriminate
if they cannot be directed to military objectives or cannot be limited to them. They are also
indiscriminate if the collateral damage that may be anticipated is excessive in relation
to the military advantage expected. Contemporary technological developments have led to what is termed “precision warfare”. While apparently providing means to avoid indiscriminate attacks,
“precision warfare” presents a host of novel legal and moral dilemmas. “Perfidy” is a technical term in humanitarian law. It means that a party to a conflict deliberately
betrays the trust or good faith of the other party, by making it believe that it is entitled
to protection, and then harming that deceived party. Typical examples of perfidy are the
misuse of the white flag and of the Red Cross emblems. Camouflages, stratagems or ruses
of war are not prohibited. (iv) The fourth normative criterion has to
do with breaches of international humanitarian law. This body of law prescribes which breaches
are considered to be “grave”. They amount to “war crimes”. For instance, premeditated
murder and torture of protected persons are war crimes. (v) A final criterion regards to the type of armed conflict regulated by humanitarian
law, whether international or non-international. Rules are far more abundant and detailed for
international than for non-international armed conflicts. although the bulk of armed conflicts
today is of a non-international nature. Until the Second World War, humanitarian law
regulated the following types of armed conflict: (i) Conventional international war; (ii) Conventional
civil war; (iii) “Levée en masse” or spontaneous uprising of the population against
the invasion of enemy forces; and (iv) Armed conflicts which fall short of an all-out war. After World War II, new kinds of warfare emerged, including: (i) Massive air bombings; (ii)
The possibility of nuclear warfare; (iii) New types or insurgency and counter-insurgency;
and (iv) Modern terrorism. The response of humanitarian law to the challenges presented
by these new types of warfare has been insufficient and slow to come. Since the terrorist attacks against the United States on September 11, 2001, it is said that
a new kind of conflict emerged: A novel form of international terrorism and its response,
the so called “war on terror”. This issue will be dealt with in a future lesson dedicated
to the topic of terrorism. As said before, jus ad bellum is the theory
about the moral and legal reasons to justify the recourse to armed force, if any. Due to
the traumas of World War I and World War II, the United Nations Charter established a strictly
limited scope for the legal application of force internationally. This tendency is known
as “jus contra bellum”. It only approves the use of force in self-defense and when
authorized by the United Nations Security Council, in order to secure or restore peace. However, after the Cold War, that is, in the last 25 years or so, there has been a growing
debate about “humanitarian interventions”, in the face of humanitarian crises, such as
those occurred in Rwanda and Kosovo, despite the lack of ostensible legal foundations for
it. Some say there may be a moral basis for humanitarian
interventions, that is, the use of force internationally for humanitarian reasons. They put forward
the following criteria for it to be justified: just cause, legitimate authority, right intent,
last resort and proportionality. On this basis, humanitarian intervention was debated in several
cases during the 1990s. In subsequent years a kind of “humanitarian intervention 2.0”
developed. It is known as the “responsibility to protect”. It may be said that the notion
of a responsibility to protect is a nascent customary rule of international law. This
responsibility to protect would befall on the whole international community. Since 2005,
the notion of a responsibility to protect has gained international recognition at the
United Nations General Assembly and through the United Nations Security Council resolutions,
such as that authorizing the use of force against Libya, in 2011. There are ethical and legal dilemmas regarding the use of remote-controlled means of war
with precise fire power, also known as “drones”. From a humanitarian law perspective, and regardless
of their precision, these means of combat can violate the principle of distinction between
civilians and combatants, due to failures in their precision instruments. It may also
amount to a violation of humanitarian law if the damage of the attack is excessive compared
to the military advantage gained. But there is also an ethical dilemma in the
notion of a “robotic” kind of warfare. This begs the question of whether it is right
to decide on the life and death of other human beings from a remote location and without
endangering ourselves, like gods. If war is a human activity, then the inclusion of non-human devices to do the fighting may change it altogether. Please visit our website
and we kindly invite you to watch the next class of this course.

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