Lecture 8: 11/03/10
Laws of War – Just War Doctrine
a) Jus ad bellum (when)
b) Jus in bello (how)
HOW: how may force be used/by what means?
- Moral discourse (ethics) informs the legal discourse (law)
The principles of Jus in Bello are:
a) Contra crusade tradition, HOW matters
b) Non-combatant immunity
c) Proportionality (the proportional use of force)
Nuclear weapons: An attack cannot be launched on a military objective in the
knowledge that the incidental civilian injuries would be clearly excessive in relation to
the anticipated military advantage [non-combatant immunity]
Targeting Civilians:
- Attacks must be limited to combatants and military targets
- Civilian objects (houses, hospitals, schools, places of worship, cultural or
historic monuments, etc.) must not be attacked
- Starvation of civilians as a method of combat is prohibited
- Vulnerable groups, such as pregnant women, and nursing mothers,
unaccompanied children, the elderly, etc., must be given special protection
MONSTER SOURCES:
a) Geneva Convention on…
Civilian Shields:
- Using civilians to shield military targets is prohibited
- It is prohibited for combatants to pose as civilians
- Children under 15 may not be recruited or used as combatants
Proportionality:
- It is prohibited to attack objects that are indispensable to the survival of the
civilian population (foodstuffs, farming areas, drinking water instillations, etc.).
- It is prohibited to attack dams, dykes or nuclear power plants if such an attack
may cause severe losses among the civilian population
POW Protection:
- People in the hands of the enemy have the right to exchange news with their
families and to receive humanitarian assistance (food, medical care,
psychological support, etc.)
- Parties to the conflict must search for and care for the enemy, the wounded
and the sick who are in their power [the moment they surrender they are non-
combatants]
- It is prohibited to kill or wound an enemy who is surrendering or who is hors de
combat
- Prisoners are entitled to respect and must be treated humanely [because
prisoners are non-combatants]
**All of these limitations can be traced back to the moral discourse - Military and civilian medical personnel and facilities (hospitals, clinics,
ambulances, etc.) must be respected and protected and must be granted all
available help for the performance of their duties
- The Red Cross and Red Crescent emblem symbolize the protection of medical
personnel and facilities. Attacks on persons or objects wearing the emblem are
prohibited.
- Medical units and transports shall not be used to commit acts of harmful to the
enemy.
- In the treatment of the wounded and sick, no priority should be given except
on medical grounds
Proportionality:
- Specific weapons are prohibited – chemical or biological weapons, blinding
laser weapons, weapons that injure the body of fragments that escape
detection by x-rays, poison, anti-personnel land mines, etc.
Proportionality:
- No one shall be subjected to physical or mental torture, corporal punishment or
cruel or degrading treatment [corporal punishment: punishment without due
process - torture]
- Sexual violence is prohibited
- Everyone is entitled to a fair trial. Collective punishment is prohibited.
[principles of natural justice – due process includes the right to a fair trial in
front of a fair jury, the right to face your accuser, etc. “you’re all Americans
and thus you’re all guilty” = collective punishment]
Collateral Damage & Proportionality:
- Attacks or weapons which indiscriminately strike civilians and military objects
and persons, and which cause excessive injury or suffering, are prohibited
SOURCES
GENEVA CONVENTIONS (1949) – on the protection of non-combatants
- Non-combatant immunity
- Persons not directly taking part in hostiliti
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