General Sources of International Law

2. Describe and illustrate with real world examples the three general sources of international law listed in the syllabus (p.15.)

According to the syllabus (p. 15) the three sources of international law are treaties, customs, and views of learned jurists. Treaties are defined as international agreements entered into by two or more states. Some other terms used to describe international agreements include convention, agreement, pact, accord, protocol, final act, general act, and declaration. In the United States treaties are executive agreements made between the President and the executive of another country which do not require Senate approval. An advantage of treaties is that they codify, or write down the law. Treaties are binding agreements between nations that sign and ratify them. A real world example of a treaty is the Israel – Egypt Peace Treaty in which Israel and Egypt agreed to mutually recognize each other and Israel agrees to withdraw its troops from the Sinai Peninsula in return for Israeli ships to gain free passage through the Suez Canal.

The second source is customary international law which refers to the legal actions that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. These customs can also change based on the acceptance or rejection by states of particular acts. Some customary laws cannot be violated or altered except by another customary law of comparable strength. Customary international law can be distinguished from treaty law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary law. Some customary international law examples are genocide and slavery. A real world example of customary international law is the The Paquete Habana which was a case about the Rules of Engagement. Rules of engagement are before the military engages in an action, it is governed by standing instructions on what they can and cannot do. The Paquete Habana and the Lola were Cuban fishing boats that were seized by the U.S. during the Spanish-American War. The U.S. District Court said that the Navy had acted within its authority, under Federal statute. The Cubans argued that customary international law prohibited the United States from seizing the ships. The United States Supreme Court agreed, holding that “international law is part of our law.” This established rule of international law had existed to protect peaceful fishermen from wartime seizures. Coastal fishing vessels, their cargoes, and their crews, are exempt from capture as prizes of war. As a result, every United States Rules of Engagement since then has said to leave fishing boats alone if involved in the peaceful act of fishing, but not if using fish to camouflage war efforts.

The third source are views of learned jurists, that means previous judicial decisions of international and municipal courts and the publications of academics can be recognized and referred to when making a determination of rules of law. They include decisions on the International Court of Justice, decisions of other international tribunals such as the International Criminal Court, the Permanent Court of Arbitration and the International Tribunal for the Law of the Sea, as well as, decisions of national courts on questions of international laws. An example is the General Assembly of the United Nations request for an advisory opinion from the International Court of Justice on the unilateral declaration of independence of Kosovo.

3. Identify, give a brief purpose for, an illustrate with specific real world examples any six specific provisions of the law of war.

One specific provision of the law of war is military necessity. Military necessity requires combat forces to engage in only those acts which are necessary to accomplish a legitimate military objective. Military necessity in regard to targets, the general rule is that the United States Military may target those facilities, equipment, and forces which, if destroyed, would lead as quickly as possible to the enemy’s partial or complete submission.Q An example of the principle of military necessity was the targeting and destruction of Iraqi SCUD missile locations and Iraqi army and air forces during Operation Desert Storm. These actions quickly achieved air superiority and hastened the Iraqi military’s defeat.

A second provision of the law of war is proportionality. Proportionality prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective. Proportionality compares the military advantage gained to the harm inflicted while gaining this advantage. Proportionality requires a balancing test between the concrete and direct military advantage anticipated by attacking a legitimate military target and the expected incidental civilian injury or damage. Under this balancing test, excessive incidental losses are prohibited. Proportionality seeks to prevent an attack in situations where civilian casualties would clearly outweigh military gains. An example of proportionality being questioned was the invasion of Iraq in 2003, many complaints were sent to the International Criminal Court claiming allegations in respect to the targeting of civilians or clearly excessive attacks.

A third provision is prisoner of war. A prisoner of war is a combatant who is held in custody by an enemy during or immediately after an armed conflict. The prisoner of war laws protects captured military personnel and applies from the moment a prisoner is captured until he is released. One of the main provisions of the 1907 Hague Convention makes it illegal to torture prisoners and states that a prisoner can only be required to give their name, date of birth, rank and service number. Prisoners of war may not be punished for wrongs committed by the armed forces to which they belong. They must be provided food, clothing, housing, sanitation and hygiene to maintain good health. Prisoners of war are entitled to freedom of religion and discrimination.

Another provision of war that goes along with the prisoner of war provision is for a combatant to have a distinct uniform. The reason is to distinguish military personnel from civilians. If a soldier is in uniform and captured, he will be provided the benefits of being a POW. The civilian not wearing a uniform can be distinguished from military personnel and therefore he is protected from military pursuit. However, in today’s warfare, it is often hard to distinguish between true civilians and insurgents or guerrillas who live among the civilian population. A real life example of both of these provisions is the prisoners of war being held at Guantanamo Bay. Prisoners captured in Afghanistan were moved there beginning in early 2001, however, after the Bush administration asserted that detainees were not entitled to any of the protections of the Geneva Conventions, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld on June 29, 2006 that they were entitled to the minimal protections listed under Common Article 3 of the Geneva Conventions., but if the Afghans had uniforms there would not have been any regard but to treat them as POWs.

Another provision of laws of war is the prohibition of attacking doctors, ambulances and hospitals which display Red Cross, a Red Crescent or other emblem, related to the International Red cross and Red Crescent Movement. It also prohibits firing at a vehicle bearing a white flag, since that is an indicator of the intent to surrender or communicate. Persons protected by the Red Cross or white flag are expected to maintain neutrality and may not engage in warlike acts. A real life example is when Red Cross representatives visit POW camps to review the conditions and protection of war prisoners, such as Guantanomo Bay, protection of civilians or displaced by conflicts such as people fleeing across borders to neighboring countries.