War and Neutrality | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

WAR AND NEUTRALITY UNDER PUBLIC INTERNATIONAL LAW

1. Definition of War in International Law War, in the context of international law, is a state of armed conflict between sovereign states or between organized groups within a state (in the case of civil wars), where the legal relations between the belligerents are governed by specific rules. War has traditionally been regarded as a legitimate means of resolving international disputes before the advent of the modern United Nations (UN) system, which prohibits the use of force except in cases of self-defense or when authorized by the UN Security Council.

• Article 2(4) of the UN Charter prohibits member states from using or threatening force against the territorial integrity or political independence of any state. The main objective of this prohibition is to maintain international peace and security.

2. The Jus ad Bellum and Jus in Bello Dichotomy The legal framework governing war is traditionally divided into two primary branches:

• Jus ad Bellum (Right to War): Refers to the legality of resorting to war or the use of force by a state. Key principles include:
  • The prohibition of force under Article 2(4) of the UN Charter.
  • Self-defense under Article 51 of the UN Charter, which allows states to defend themselves if an armed attack occurs.
  • Security Council authorization under Chapter VII of the UN Charter, where the UN Security Council can approve the use of force in response to threats to international peace and security.
• Jus in Bello (Law in War): Once a conflict begins, this body of law regulates the conduct of hostilities. It is also known as International Humanitarian Law (IHL) and includes:
  • The Geneva Conventions and their Additional Protocols, which regulate the treatment of non-combatants, prisoners of war, and the wounded.
  • The Hague Conventions that set out the means and methods of warfare.

3. Neutrality in International Law

Neutrality is the legal status of a state that chooses not to participate in an armed conflict between other states. Neutrality is based on international customary law and codified by various international treaties, most notably the Hague Conventions of 1907.

• Types of Neutrality:

  • Permanent Neutrality: A state that has declared itself permanently neutral, such as Switzerland, agrees not to participate in any future wars or alliances.
  • Temporary Neutrality: A state that adopts neutrality for the duration of a specific conflict without making a permanent declaration.

• Rights and Duties of Neutral States:

  • Right to Territorial Integrity: Belligerents must respect the territory of neutral states. This includes not engaging in hostilities, transporting troops, or utilizing the neutral state’s resources for warfare purposes.
  • Non-Interference: Neutral states must refrain from assisting belligerents in a conflict, directly or indirectly. This includes supplying arms, military assistance, or allowing their territory to be used for military purposes.
  • Impartiality: Neutral states must treat all belligerents equally. Favoring one side over the other can lead to a breach of neutrality and may result in the neutral state being considered a co-belligerent.

• Legal Framework for Neutrality:

  • The Hague Conventions (1907) set out the basic rules governing neutrality in war, such as the prohibition of the passage of troops through neutral territories and the seizure of neutral property.
  • The Geneva Conventions also recognize the status of neutrality in the context of humanitarian aid, particularly in allowing neutral actors to assist victims of armed conflicts without being considered as parties to the conflict.

4. Rights of Belligerents vis-à-vis Neutral States Despite the principles of neutrality, there are certain rights and privileges granted to belligerents with respect to neutral states:

• Search and seizure on the high seas: Belligerent states have the right to stop and search neutral ships to ensure they are not transporting contraband or assisting the enemy.
• Blockades: A belligerent may establish a blockade of enemy ports or coasts, but such blockades must be declared, notified, and applied impartially. Neutral vessels attempting to breach a blockade may be seized.

However, the rights of belligerents over neutral states have been greatly limited in modern times, particularly with the advent of the UN Charter and the principle of sovereign equality and non-intervention.

5. Violations of Neutrality When a neutral state breaches its duties, it may be considered to have violated neutrality and, as a consequence, can be treated as a co-belligerent by other states involved in the conflict. Violations can include:

• Allowing its territory to be used as a base of operations by one of the belligerent parties.
• Supplying military aid or permitting the passage of military personnel through its territory.
• Failing to enforce restrictions on its nationals, such as those who may seek to provide direct military assistance to a belligerent.

6. The Role of International Organizations in the Maintenance of Neutrality

• United Nations: The UN plays a critical role in maintaining peace and security, and its mechanisms may influence the obligations and status of neutrality. For instance, neutrality becomes complicated in situations where the UN Security Council authorizes collective measures, as neutral states may be pressured to contribute to international efforts.
• International Court of Justice (ICJ): The ICJ has jurisdiction over disputes involving neutrality, war, and the use of force. States may bring cases regarding the violation of neutrality, as well as other violations of international law in armed conflicts.

7. Sanctions for Breach of Neutrality and War Conduct

• A neutral state that breaches neutrality may lose its neutral status and be subjected to hostile actions from the aggrieved belligerent state.
• Belligerent states that violate the rules of war, including those related to neutral states, may be subject to international sanctions, criminal prosecution under international criminal law, and individual liability under frameworks such as the International Criminal Court (ICC) for war crimes or aggression.

8. Modern Developments and Challenges

• Cyberwarfare: The rise of cyber-attacks introduces new challenges to traditional concepts of war and neutrality. Neutral states may face difficulty in preventing their territories (such as cyber infrastructure) from being used in cyber conflicts, and there is an ongoing debate about how existing rules of neutrality apply in this domain.
• Terrorism and Non-State Actors: The participation of non-state actors in armed conflicts, such as terrorist groups, complicates the application of neutrality. International law generally holds that neutrality applies between states, but conflicts involving non-state actors (e.g., ISIS, Al-Qaeda) have led to debates about the obligations of states vis-à-vis such groups.

Conclusion The principles of war and neutrality in international law have evolved from traditional state-based conflicts to address modern challenges. The legal framework, grounded in treaties like the UN Charter, the Geneva Conventions, and the Hague Conventions, continues to guide the conduct of states in times of war and peace, while also being tested by contemporary issues like cyberwarfare and non-state actors. Neutrality remains a vital concept in safeguarding the rights of states that wish to remain outside of conflicts, though it faces growing complexities in today’s interconnected global landscape.

Treatment of Civilians | War and Neutrality | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

Treatment of Civilians in the Context of War and Neutrality: A Public International Law Analysis

1. Introduction

In the context of war and neutrality, the treatment of civilians has become a cornerstone of modern international law, especially within the frameworks of International Humanitarian Law (IHL) and Customary International Law. The key objective is to protect civilians from the dangers of armed conflict and ensure their humane treatment. These protections are enshrined in various international conventions, customary principles, and jurisprudence from judicial and arbitral settlements.

2. Legal Framework Governing the Treatment of Civilians

The primary legal instruments governing the treatment of civilians during armed conflicts are:

• Geneva Conventions of 1949 (particularly the Fourth Geneva Convention).
• Additional Protocols to the Geneva Conventions of 1977 (especially Additional Protocol I).
• Customary International Humanitarian Law as codified by the International Committee of the Red Cross (ICRC).
• Hague Regulations of 1907.
• International Criminal Court (ICC) Statute under the Rome Statute of 1998.
• UN Security Council Resolutions (binding, under Chapter VII of the UN Charter).
• Jurisprudence from International Courts and Arbitral Tribunals (ICJ, ICTY, ICTR, etc.).

The legal obligations concerning civilians apply during international armed conflicts (IAC) and, in some cases, during non-international armed conflicts (NIAC), although the specifics may vary.

3. Core Principles Protecting Civilians

a. Distinction

One of the most important principles in IHL is the rule of distinction — the obligation of parties to an armed conflict to distinguish at all times between civilians and combatants, and between civilian objects and military objectives (Article 48, Additional Protocol I). Civilians should not be the object of direct attack.

b. Prohibition of Attacks on Civilians

Under customary international law and treaty law, deliberate attacks on civilians are strictly prohibited (Geneva Conventions, Article 51 of Additional Protocol I). Civilians are defined as individuals who do not take a direct part in hostilities. Targeting civilians constitutes a grave breach and a war crime under the Rome Statute of the ICC.

c. Proportionality

The principle of proportionality prohibits attacks where the incidental loss of civilian life or injury to civilians, or damage to civilian objects, would be excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b), Additional Protocol I). Violations of this principle may also lead to individual criminal liability.

d. Precautionary Measures

Before launching an attack, parties must take all feasible precautions to avoid, or at least minimize, civilian harm (Article 57, Additional Protocol I). This includes:

• Verifying that the target is a lawful military objective.
• Providing effective advance warning of attacks likely to affect the civilian population unless circumstances do not permit.
• Avoiding attacks if the expected harm to civilians is disproportionate to the anticipated military advantage.

e. Prohibition of Indiscriminate Attacks

Indiscriminate attacks are those that strike military targets and civilians without distinction, or are not directed at a specific military objective. Indiscriminate use of weapons or methods of warfare is prohibited under Articles 51 and 52 of Additional Protocol I.

4. Special Protections for Vulnerable Civilian Groups

a. Women and Children

Women and children enjoy special protections under both the Geneva Conventions and customary international law. Article 76 of Additional Protocol I provides that women must be the object of special respect and protection, particularly against any form of indecent assault. Children are entitled to care and aid, and the recruitment of children under 15 into armed forces is prohibited under the Additional Protocols and the Rome Statute.

b. Medical Personnel and Humanitarian Workers

Medical personnel, humanitarian workers, and other civilians engaged in relief operations enjoy protection under the Geneva Conventions and Additional Protocol I. Deliberate attacks on such persons constitute war crimes.

c. Prisoners of War (POWs) and Civilians under Occupation

The Fourth Geneva Convention also protects civilians under occupation and civilians in the hands of an adversary (non-nationals of the detaining power). Such civilians are entitled to humane treatment, and the detaining power must respect their rights to family life, religious practices, and personal dignity.

5. Prohibitions Related to Civilians under Occupation

The Fourth Geneva Convention sets detailed rules regarding the treatment of civilians in occupied territories. It prohibits:

• Deportation of civilians to another territory (Article 49).
• Collective punishment (Article 33).
• Taking of hostages (Article 34).
• Pillaging (Article 33).
• Reprisals against protected persons and their property (Article 53).

The Occupying Power has duties to ensure the basic needs of the civilian population, including food, medical supplies, and public health. Arbitrary displacement and transfer of civilians within or outside the occupied territory is also prohibited.

6. War Crimes Related to the Treatment of Civilians

Under the Rome Statute of the ICC, specific war crimes relating to civilians include:

• Direct attacks on civilians (Article 8(2)(b)(i)).
• Killing or causing serious injury to civilians (Article 8(2)(a)(i)–(ii)).
• Torture, inhumane treatment, and outrages upon personal dignity (Article 8(2)(a)(ii)).
• Use of starvation as a method of warfare (Article 8(2)(b)(xxv)).
• Forcible transfer of populations (Article 8(2)(a)(vii)).
• Rape and sexual violence against civilians (Article 8(2)(b)(xxii)).

7. Judicial and Arbitral Settlements on Civilian Treatment

International courts and tribunals have developed substantial jurisprudence related to the protection of civilians. These include:

• International Court of Justice (ICJ) rulings on the legality of the use of force and obligations under IHL (e.g., the Nicaragua v. United States case).
• International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) have prosecuted individuals for war crimes involving attacks on civilians, sexual violence, and displacement.
• International Criminal Court (ICC) rulings on cases such as the Lubanga and Katanga cases, which have set important precedents on the recruitment of child soldiers and attacks on civilian populations.

8. Treatment of Civilians in Non-International Armed Conflicts

While much of IHL is developed around international conflicts, civilians are also protected during non-international armed conflicts (NIACs). The primary sources of law for NIACs are:

• Common Article 3 of the Geneva Conventions.
• Additional Protocol II (applicable in non-international conflicts).
• Customary International Law.

In NIACs, civilians are similarly protected from direct attacks, indiscriminate violence, and other abuses. However, the legal regime is less detailed compared to IACs, though still robust under customary law.

9. Role of Neutral States

Under the law of neutrality, states not involved in a conflict have obligations to ensure their territory is not used to support belligerent operations. They are also required to offer asylum or refuge to civilians fleeing the conflict. Neutral states have humanitarian obligations, but they must refrain from actions that would jeopardize their neutral status.

10. Conclusion

The treatment of civilians during armed conflict is a critical aspect of both public international law and international humanitarian law. Through treaties, customary norms, and jurisprudence, the international community has established stringent protections for civilians to mitigate the horrors of war. Violations of these protections not only undermine the human rights of civilians but also constitute serious international crimes, which are subject to prosecution under international criminal law.

Prisoners of War | War and Neutrality | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

PRISONERS OF WAR UNDER PUBLIC INTERNATIONAL LAW

Prisoners of War (POWs) occupy a significant place in the body of public international law, particularly under the law of armed conflict and international humanitarian law. The legal framework governing the treatment of POWs is primarily derived from customary international law and various treaties, especially the Geneva Conventions of 1949, specifically the Third Geneva Convention, which extensively outlines the rights and protections afforded to POWs.

1. Definition of Prisoners of War

Under Article 4 of the Third Geneva Convention, the term “Prisoners of War” includes, but is not limited to:

• Members of the armed forces of a party to the conflict.
• Militias or volunteer corps forming part of such armed forces.
• Members of other militias and members of other volunteer corps, including organized resistance movements, provided they:
  • Are commanded by a person responsible for their subordinates.
  • Have a fixed distinctive sign recognizable at a distance.
  • Carry arms openly.
  • Conduct operations in accordance with the laws and customs of war.
• Civilians accompanying the armed forces, such as war correspondents, supply contractors, and members of labor units, provided they have received authorization from the armed forces they accompany.

The status of POWs is automatically granted upon capture, irrespective of whether a formal determination has been made.

2. Fundamental Rights of Prisoners of War

The Third Geneva Convention outlines several fundamental rights for POWs, which are supplemented by customary international law. Key protections include:

• Humane Treatment: POWs must be treated humanely at all times (Article 13). This includes protection from violence, intimidation, insults, and public curiosity.
• Prohibition Against Torture and Inhumane Treatment: Torture, mutilation, and cruel, degrading, or inhumane treatment of POWs are strictly prohibited. This aligns with the broader prohibition under customary international humanitarian law and human rights law, including the Convention Against Torture.
• Non-Discrimination: POWs must be treated without any adverse distinction based on race, nationality, religion, political opinions, or other similar criteria (Article 16).
• Medical Care: POWs must receive adequate medical care, including necessary treatment for wounds and diseases. They should also be housed in conditions that safeguard their health.

3. Captivity and Detention of POWs

• Conditions of Detention: POWs must be held in a camp separate from the local civilian population and treated in accordance with their status as combatants. The detaining power is responsible for the provision of food, clothing, and quarters that are equivalent to those provided to its own armed forces.
• Work and Labor: POWs may be required to work, but the work must not be excessive, dangerous, or humiliating. Article 50 of the Third Geneva Convention specifies that POWs can only be assigned to work tasks related to camp maintenance, agriculture, public works, or industries that are not directly connected with the war effort. Working conditions should be reasonable, and POWs should be compensated.
• Correspondence and Communication: POWs have the right to send and receive letters and cards to maintain contact with their families (Article 71). The detaining power must facilitate this communication, including by using the International Committee of the Red Cross (ICRC) as an intermediary when necessary.
• Religious Freedoms: POWs must be allowed to practice their religion, including access to chaplains or religious services where possible (Article 34).

4. Judicial Guarantees for POWs

• Fair Trial Guarantees: If a POW is charged with a criminal offense, they are entitled to the same judicial guarantees that apply to members of the detaining power’s armed forces. This includes the right to a fair trial, representation, and the ability to present a defense (Article 84).
• Penal and Disciplinary Measures: POWs are subject to the laws of the detaining state and may be disciplined for offenses. However, disciplinary measures must be proportionate, and capital punishment is only allowed in very extreme cases, such as grave breaches of law, and only after following the due process of law.
• Repatriation and Release: Article 118 provides that POWs must be released and repatriated without delay after the cessation of active hostilities unless they are subject to legitimate criminal proceedings or sentences. A prisoner may not be repatriated against their will.

5. Role of the Protecting Power and the ICRC

• Protecting Power: Under the Geneva Conventions, a neutral country or the ICRC typically serves as the “Protecting Power.” Their role is to monitor the treatment of POWs, including visiting detention facilities to ensure compliance with international humanitarian law.
• International Committee of the Red Cross (ICRC): The ICRC plays a critical role in ensuring the well-being of POWs by facilitating communication with families, delivering humanitarian aid, and investigating allegations of mistreatment.

6. Protections Afforded During Armed Conflicts of Non-International Character

While the Geneva Conventions primarily apply to international armed conflicts, Common Article 3 provides minimum protections for persons who do not take part in hostilities in non-international armed conflicts, including captured fighters. It prohibits violence, torture, and extrajudicial executions. Though these persons may not qualify as POWs under the Third Geneva Convention, they still benefit from a base level of humanitarian protection.

7. Customary International Law on POWs

Customary international law complements the Geneva Conventions and applies to both international and non-international armed conflicts. This body of law includes several key principles related to the treatment of POWs, such as the prohibition of torture and the requirement to treat all captives humanely, irrespective of their legal classification.

8. Accountability and Remedies for Violations

Violations of the rights of POWs may constitute war crimes under the Rome Statute of the International Criminal Court (ICC), and individuals responsible can be prosecuted. War crimes include willful killing, torture, inhuman treatment, and unlawful deportation of POWs. States are obligated to investigate and prosecute such violations through national or international tribunals.

9. Neutral States and POWs

Neutral states also have obligations under international law regarding POWs. If POWs enter neutral territory, they are to be interned by the neutral state until the end of hostilities, as outlined in Articles 11 and 12 of the Hague Convention V (1907).

Conclusion

The legal framework governing POWs is robust, combining treaty obligations (particularly the Third Geneva Convention) with customary international law. States are obligated to ensure humane treatment, adequate living conditions, and judicial guarantees for POWs. The mechanisms for protection and accountability ensure that the mistreatment of POWs can lead to state and individual responsibility under international law. The ICRC and Protecting Powers play an essential role in overseeing compliance, reinforcing the international community's commitment to upholding the dignity and rights of POWs.