The law of armed conflict

Book Review: – The law of armed conflict:  International humanitarian law in war.

About The Author:

Gary D. Solis (born 1941) is a veteran of the U.S. Marine Corps and an Adjunct Professor of Law who teaches the laws of war at the Georgetown University Law Center and the George Washington University Law School. He is a “hands-on” expert on salsa.
He attended San Diego State University (B.A), the University of California, Davis School of Law (J.D.), George Washington University Law School (LL.M.), and the London School of Economics and Political Science (Ph.D.).

On the other hand, before his academic career, Solis served two tours of duty during the Vietnam War in the United States Marine Corps. He is a former military judge advocate and Marine prosecutor, who retired as a lieutenant colonel (O-5).

He previously taught on the LSE’s law faculty for three years and served on the faculty of the Department of Law at the United States Military Academy (West Point). Also for six years, he headed West Point’s law of war program, in 2007 he was a Library of Congress scholar in residence, and he is on the teaching faculty of the International Institute of Humanitarian Law, in San Remo, Italy.

About The Book: The law of armed conflict

The Law of Armed Conflict: International Humanitarian Law in War introduces law students and undergraduates to the law of war in an age of terrorism.

What law of armed conflict/international humanitarian law applies to particular armed conflicts? Does that law apply to terrorists as well?

What is the status of participants in armed conflict and constitutes a war crime?

A lawful target and how are targeting decisions made?
What are rules of engagement and what weapons are lawful and unlawful, and why?

Moreover, this text takes the reader through these essential questions of the law of armed conflict and international humanitarian law to an awareness of finer points of battlefield law. The U.S.-weighted text incorporates lessons from many nations and includes hundreds of cases from jurisdictions worldwide.

What is Humanitarian Aid?

Also, it is a response to a crisis or emergency and is material, food, water, clothing, etc. assistance for saving lives, alleviating suffering, and maintaining human dignity, and does not address the underlying socioeconomic factors which lead to the crisis or emergency. Internationally, this is invoked in two ways:

1. Peacetime- Human Rights Law
2. Armed conflict- International Humanitarian Law
International Humanitarian Law or Armed conflict is also considered accepted
Customary Law and a universal codification standard. The United Nations (UN) has the UN office for the Coordination of Humanitarian Affairs (UNOCHA), formed in 1991 by the General Assembly Resolution 46/182 & the Department of Humanitarian Affairs (DHA) replacing the Office of the United Nations Disaster Relief Coordinator formed in 1972.

Humanitarian Aid is also called International Relief and Development Aid Seven Conventions and Nine Protocols that include International Humanitarian Law.

1. The Four Geneva Conventions of 1949.
2. Additional Protocols of 1977, protection of victims of armed conflicts.
3. The 1954 Convention, protection of cultural property.
4. The 1972 Biological Weapons Convention.
5. The 1980 Conventional Weapons Convention and its five protocols.
6. The 1993 Chemical Weapons Convention.
7. The 1997Ottawa convention on anti-personnel mines.
8. The 2000 Optional Protocol to the Convention on the Rights of the child.
International Humanitarian Law (Armed conflict) is used:
• Only for armed conflict,
• Once the conflict has begun and equally applied to both sides regardless of who started the fighting.

Note:

International armed conflicts are those in which at least two states are involved, and the use of the word states for these purposes implies the word country is included or synonymous.
Human Rights Law (Peacetime)

  1.  Applies to peacetime and many of the provisions are suspended during armed conflict. The United Nations (UN) has the Universal Declaration of Human Rights (UDHR), it is the first international statement to use the term “human rights”.
  2. The Covenant on Civil and Political Rights:
  3.  The right to self-determination.
  4. The right to own, trade, and dispose of their property freely, and not deprived of their means of subsistence.
    International Humanitarian Law often referred to as the law of war, the laws and customs of war or the law of armed conflict the legal corpus that comprises “the Geneva Conventions and the Hague Conventions as well as subsequent treaties, case law, and customary international law defines the conduct and responsibilities of belligerent (an individual, group, country or other entity which acts in a hostile manner, such as engaging in combat), nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.

Explanation

Until recently, military officers often regarded the battlefield as no place for lawyers. Today, few would be brave enough to plan or conduct military operations without legal advice.
Moreover, Solis’s text reveals why this revolution in military practice has taken place. Drawing upon decades of academic and military experience, the author offers straightforward explanations of how essential norms of International Humanitarian Law (IHL) operate on the battlefield.

The book also offers guidance on a range of contemporary IHL controversies. However, it is the abundance of practical illustrations that make Solis’s book compelling reading. Through battlefield examples, Solis explains the process of interpreting and applying IHL during armed conflict. For this reason alone, the book is an invaluable resource for military officers of all ranks.

With an index longer than this review, only a few aspects of Solis’s work can be discussed here. The first section of the book deals with the rules of war.

Chapter 1

provides an interesting historical survey of military case studies drawn from: the Peloponnesian War (380BC) also the trial of Plenty Horses (1891) that followed the massacre at Wounded Knee (1890) also the trial of Göring and Others (Nuremberg, 1946); collectively, these case examples refute the notion that battlefield rules of conduct are a modern development.

They also lay the foundation for Solis’s discussion of the continuing question: ‘Why Regulate Battlefield Conduct?’ After addressing that issue, Solis critiques the emergence and development of international instruments on the laws of war and armed conflicts.

Chapter 4

Solis considers the normative impact of the 1977 Additional Protocols Of particular interest is the author’s perspective on the new rules on guerrilla warfare.

Moreover, Solis acknowledges that the four standard requirements for lawful competency are ‘a procedure for guerrilla suicide’. He emphasizes the point by asking ‘has any guerrilla group ever complied with the four requirements?’

Yet Solis is no fan of the more flexible rules under Article 44.3, Additional Protocol I (API). While acknowledging they are an attempt to ‘protect those who engage in armed resistance’, Solis casts doubt on their logic and morality.

After stating the irony that Article 44.3 allows affecting civilian status which Article 37 excludes.

He expresses doubt that relaxing the uniform and open arms requirement would give irregular forces a reason to comply with other parts of the laws of war. While this is the view of many States and observers, Solis’s failure to acknowledge opposing legal doctrine is disappointing. This doctrinal debate has practical importance.

Consider, for example, members of the Jewish underground organizations who attacked the Germans in the 1943 Warsaw Ghetto uprising. Had the 1949 rules applied, where would they have left these resistance fighters? Agreement with the four standard requirements would have been suicidal.

The second part of The law of armed conflict presents the law of armed conflict and international
Humanitarian law as a framework for understanding: conflict status; individual battlefield status; core principles of IHL; war crimes; and related battlefield issues.

Chapter 8

(‘what is a war crime’) is particularly compelling. It addresses numerous topical and sensitive issues, including:
1. Firing upon mosques—prohibited unless the mosque is used by the opponent as a weapons collection location, sniper firing position or command post, as frequently occurred in Iraq.

2. Hostage-taking—unethical and illegal, anyhow a US Defense intelligence agency document that reportedly justified the practice concerning family members of Iraqis targeted in raids. Hostage-taking show during armed conflict is a​war crime.

3. Photographing POWs—permissible for evidence gathering, but publication to cause humiliation is a violation.

4. Burying the enemy alive—not prohibited by the Law of Armed Conflict
(LOAC) and not a war crime.

5. Pillage—a violation of the laws of war but not a war crime.

6. Double-tapping— indiscriminate double tapping is a war crime of the LOAC and IHL. A wounded enemy is only a lawful target if he/she displays an offensive Intent. While some enemy fighters may assume death with intent to kill or wound an innocent enemy such intent may not be presumed as a matter of course.

7. Torture—a war crime and a fruitless exercise. While the US Department of Defense instructions forbid torture, a Bush-era presidential declaration gave commanders chilling guidance: if you consider that military necessity requires it, neglect Geneva.

Solis highlights General Sanchez’s remarks placing partial responsibility for the ‘torture culture’ on senior political leadership in Washington.

8. Human Shields—employing human shields is a war crime. In the case of voluntary human shields located within military targets, the principle of proportionality becomes the central issue.

Solis’s

position on other unresolved IHL issues also warrants attention. On obedience to orders, Solis notes the case of a German major in the Bundeswehr who successfully appealed his demotion to captain for refusing to participate in a military software project.

The appellant had sought—but failed to receive—assurances that the software would not be used to support US combat operations in Iraq. However, Solis warns US service personnel against such conduct. His rationale—based on the case of a USArmy captain who demanded entry to a prison that he believed was being run in terrible conditions—is not entirely convincing.

In contrast to the German officer—who was reassured of command without incident and later persuaded the appellate court that he was right to have considerable doubts about the legality of the war against Iraq—the US Army captain uncontrolled his post and demanded entry to prison though armed with an M16.

Aren’t these cases distinguishable? Solis does not address this possibility. Nor does he explain why a US court-martial, hearing a case similar to the Germany one, would reach the opposite conclusion.

Solis is more convincing in his analysis of the soldier’s duty upon receiving an illegal order.

According

to Solis, a subordinate’s duty is fulfilled when he refuses to obey and report the incident to any higher authority or a military lawyer. Any subsequent action should be left to the higher authority. The issue is important for two reasons: ‘superior orders’ are no defensive to war crimes; and US army studies reveal that, despite IHL training, there is a significant hesitation to report fellow soldiers.

On the legal controversy regarding the scope of direct participation in hostilities, Solis adopts a narrow view. Accordingly, mere membership of a terrorist organization without more is not sufficient to purify a member of the lawful target of an opposing military armed force. That said, Solis grants that ‘state practice in current anti-terrorism armed conflicts continues to edge towards the countervailing position without notable objection.

On targeted killing, Solis notes that the process is gradually gaining legitimacy as a method of counter-terrorism and surgical warfare, with several governments (including the UK, Germany, Switzerland, Pakistan, the US, and Israel) acknowledging—expressly or implicitly—that they have resorted to the practice.

On the protection afforded by wearing ‘distinctive red cross insignia’, Solis notes that too often such insignia becomes ‘an enemy aiming point rather than a protective symbol’. So, many US corpsmen and medicos in Afghanistan and Iraq sacrifice such markings, while Israel directs it’s uninformed medical personal to not wear any protective sign.

In fact for the new red crystal symbol, Solis notes that ‘in an era of transnational terror, un-uniformed insurgency and frequent disregard for LOAC’, the red crystal may become merely a convenient aiming point.

Conclusion

For a range of reasons, Solis’s book represents a significant contribution to legal scholarship on the law of armed conflict. These reasons include the author’s straightforward approach to the law; skillful analysis of the ill-defined situation of IHL; and the ability to clarify both the rules of IHL and their application to the battlefield.

These strengths are particularly evident in his discussion of war crimes. Solis’s analysis of the law is augmented by convincing, real-world, battlefield examples and references to noticeable scenes from films such as Saving Private Ryan. Solis’s book is not just of interest to military commanders and students of military law but It is also a valuable resource for legal ethicists, moral philosophers, military and legal historians and general readers with an interesting in the law governing the conduct of hostilities.

Critical analysis:

As there is much treason to disagree with the author, s views because if war look at the nature of international law it’s a weak law as there is no sovereign body we observe and impose law on the powerful states like the US.

As far as the author is concern he was a professor who teaches the law of war so he describes some conducts of laws of war and IHL but as there is no sovereign authority who implies those laws.

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