Human Rights & Humanitarian Law in Military Operations
HUMAN RIGHTS & HUMANITARIAN LAW IN MILITARY OPERATIONS
I.
OVERVIEW
A.
Military operations today can involve a wide range of missions. They may extend
from providing humanitarian assistance to civilians in need of food, shelter and
medical care, to violent conventional hostilities against the armed forces of another
nation.
B.
Since the painful experiences of the Vietnam War, the U.S. military has increasingly
placed emphasis on the importance of compliance with relevant international human
rights law and humanitarian law.
C.
Humanitarian law applies to situations involving either internal or international
armed conflict. Human rights law applies in peacetime and during internal armed
conflict except when humanitarian law provides special rules. Humanitarian law is
therefore a specialized law (lex specialis) which prevails over human rights law in
those situations in which both provide rules.
D.
E.
1.
Particularly during international armed conflict, humanitarian law provides
extensive and specific protections for noncombatants as well as for those
combatants who are no longer able or willing to fight.
2.
Human rights law provides minimum and often more general standards for
the treatment and protection of all persons by states.
Nonetheless, there are 7 fundamental human rights under customary international
law, which prohibit a nation (and its military) from practicing, encouraging, or
condoning any of the following either inside or outside its territory:
a.
genocide;
b.
slavery or slave trade;
c.
murder or causing the disappearance of individuals;
d.
torture or other cruel, inhuman, or degrading treatment or punishment;
e.
prolonged arbitrary detention;
f.
systematic racial discrimination; or
g.
a consistent pattern of gross violations of internationally recognized human
rights.
Most nations have found it in their self-interest to comply with international law
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(both international agreements to which they have consented to be bound, as well as
customary international law).
F.
II.
But in addition, the consistent experience of the U.S. military has been that such
compliance also enhances the effectiveness of all military operations and speeds
mission accomplishment.
REASONS FOR COMPLIANCE
A.
B.
Consistent With the Principles of War.
1.
The principle of "the objective" emphasizes focusing all effort on the
destruction of the capabilities of enemy's armed forces and its will to fight.
2.
The principle of "mass" involves concentrating combat power at the place
and time needed to achieve decisive results.
3.
The principle of "economy of force" involves insuring that only minimum
essential combat power is allocated to secondary efforts.
Consistent with the Principles of Military Operations Other Than War.
1.
The principle of "restraint" recognizes that in military operations other than
war, a single act can cause significant military and political consequences.
Excessive force antagonizes the parties involved.
2.
The principle of "legitimacy" reflects that perceptions of the legality and
morality of such operations will have an important, and often decisive,
impact on their success. If an operation is perceived as legitimate, then the
military's own civilian population, the population in the nation where the
operation is conducted, and other nations will likely support it.
C.
Speed War Termination & Improve Post-Hostilities Relations. Deliberate attacks on
the enemy’s civilians, abuse of civilians in occupied territory, and mistreatment of
prisoners of war and other detainees only enrages the enemy leadership and
population, making it more difficult to negotiate an end to the conflict. It also
complicates post-hostilities relations with the former enemy government and people.
D.
Reciprocity. Enemy military personnel and their leaders are less likely to engage in
violations of relevant human rights and humanitarian law if they are not treated in
accordance with that law.
E.
Special Importance in Internal Armed Conflict.
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Human Rights & Humanitarian Law in Military Operations
F.
III.
1.
Critical to the success of counter-insurgency operations is the gaining of
support among the effected civilian population. Human rights and
humanitarian law violations by government forces tends to drive the
population into the arms of the insurgents, while respect for the law offers
the people a better alternative than support for rebels who often target
civilians and civilian objects.
2.
At the operational and tactical level, humane treatment of civilians as well as
captured insurgents in accordance with human rights and humanitarian law
standards will result in obtaining more intelligence on insurgent operations
as well as an increase in surrendering insurgents.
Training on and applying the applicable law of human rights and humanitarian
law avoids lawlessness among service members, which leads to a general
breakdown of discipline and a disregard for authority.
CAUSES OF HUMAN RIGHTS & HUMANITARIAN LAW VIOLATIONS
A.
Poor Leadership. Units that do not have strong leadership from officers and
noncommissioned officers are much more likely to violate human rights and
humanitarian law. Providing a positive role model, compassion, and firm
discipline are all important in preventing misconduct stress behavior.
B.
Poor Training. Troops will do in combat exactly what they do in training.
Training prepares soldiers for the challenges they will face, and teaches them
tactics, techniques and procedures to fight effectively and within the rule of law.
C.
Unclear Mission Statement or Orders. When a military unit is sent on a mission
without a clear statement of what it is supposed to accomplish, misunderstandings
and even frustration can lead to excessive use of force. Vague or overly broad
orders which can be interpreted as authorizing the targeting of all persons
encountered will likely lead to violations of humanitarian law, which authorizes
only the targeting of combatants and civilians taking a direct part in hostilities.
D.
Dehumanizing the Enemy. While it is natural in combat to think of enemy
personnel as "targets" you are shooting at rather than people you trying to kill,
there is a danger in developing a blind hatred of the enemy to the point that you
justify not treating them as human. In counter-insurgency operations, there is also
a danger of treating all civilians as if they were insurgents.
E.
Lack of Sleep. Ethical and moral judgments are performed by the brain's frontal
lobes, where the emotions are centered. An adequate amount of sleep is critical to
the proper functioning of that portion of the brain.
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IV.
F.
High Frustration Level. When the enemy blend into the population, set mines and
booby-traps, conduct sudden attacks wearing civilian clothes, and otherwise
cannot be brought to a set battle, soldiers are likely to become highly frustrated.
This can lead to soldiers treating all persons they encounter as the enemy, with the
result that noncombatants are abused or even targeted.
G.
High Casualties. When a unit sustains high casualties, particularly when they are
caused by an unseen enemy, soldiers are more likely to attack civilians in the area
of operations.
H.
Alcohol and Drug Abuse. Soldiers who turn to alcohol or illegal drugs in a
misguided attempt to relieve combat stress, depression, or frustrations of extended
military operations have impaired judgment and reduced inhibitions. This
increases the likelihood of committing abuses against innocent civilians and
detainees.
I.
Experts in psychology, ethics and combat leadership say that human rights
violations and war crimes are not inevitable. Realistic training that simulates
contact with civilians and enemy combatants can prepare soldiers to know how to
comply with the rules when faced with difficult and often chaotic situations.
Strong leadership is another key factor, to insist on compliance with the rules, and
to intervene early when the underlying causes of violations are detected.
PURPOSES SERVED BY HUMAN RIGHTS & HUMANITARIAN LAW
A.
B.
Human rights law provides a minimum set of protections for persons within the
jurisdiction of a state. It includes a set of specific prohibitions on government
actions toward people within its borders as well as obligates a government to ensure
that such actions are not committed by others. Most states have also committed
themselves to provide certain human rights with regard to arrest, detention and trial
of criminal suspects.
Humanitarian law ensures that the force of combat is directed toward the enemy's
forces and not toward unarmed civilians, prisoners, or others not involved in
combat. The principle purposes of humanitarian law are to:
a.
protect both combatants and noncombatants from unnecessary
suffering;
b.
provide minimum protections for persons who fall into the hands of
the enemy;
c.
require respect for civilian property;
d.
prohibit the intentional targeting of civilians and civilian objects.
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Human Rights & Humanitarian Law in Military Operations
C.
V.
VI.
Rules of Engagement and Rules for the Use of Force
1.
The use of Rules of Engagement and Rules for the Use of Force is an
important tool in ensuring human rights and humanitarian protections are
respected during military operations. They are a command and control tool
which limit the force used by military personnel.
2.
Rules of Engagement are orders issued by competent military authority that
define the extent to which military personnel may use force in self-defense
or to accomplish their mission.
3.
Rules for the Use of Force are orders issued by competent military authority
that define the extent to which military personnel may use force in law
enforcement and in providing security at military installations and in
protecting military personnel.
U.S. POLICY ON THE APPLICATION OF HUMANITARIAN LAW
A.
The Secretary of Defense has directed the armed forces to comply with the relevant
portions of humanitarian law during all armed conflicts and in all other military
operations. DoD contractors are also required to comply.
B.
The Secretary of Defense has directed that the armed forces have an effective
program to prevent violations of humanitarian law through appropriate training
programs.
C.
The Secretary has also directed armed forces commanders to report all alleged
violations of humanitarian law, direct the conduct of investigations into the
allegations, and if appropriate, ensure the prosecution of persons believed to be
responsible.
CONCLUSION
Respect for human rights and humanitarian law in all military operations is reflected in a
disciplined and professional force. Such respect not only ensures support for the military
from the citizens and government they represent, but enhances the accomplishment of
military missions and increases the likelihood that other states will assist in those operations.
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