Ozbrojený konflikt v proměnách věků: ‚zbraň‘ a jak ji můžeme používat? Ivana KUDLÁČKOVÁ Jakub HARAŠTA Institute of Law and Technology, Faculty of Law, Masaryk University About us Introduction • „Wars belong in the museum.“ (Heeresgeschichtliches Museum, Vienna) • Yet they are arguably part of human nature. • Let‘s go back… Third Punic War (149 – 146 BC) • The Punic city of Carthage in Africa X the Roman Republic • Complete destruction of the city of Carthage • Scope of means and methods of warfare AND their use were not limited at all • Inhabitants sold into slavery • Complete destruction of the city Legal Constraints on Weapons Over Centuries Ivana KUDLÁČKOVÁ Types of weapons • Weapons of mass destruction • chemical weapons, nuclear weapons, use of poison, bacteriological and biological weapons • Conventional weapons • They are NOT weapons of mass destruction • mines, incendiary weapons, non-detectable fragments, and cluster munitions WEAPON TREATY Explosive projectiles weighing less than 400 grams Declaration of Saint Petersburg (1868) Bullets that expand or flatten in the human body Hague Declaration (1899) Poison and poisoned weapons Hague Regulations (1907) Chemical weapons Geneva Protocol (1925) Convention on the prohibition of chemical weapons (1993) Biological weapons Geneva Protocol (1925) Convention on the prohibition of biological weapons (1972) Weapons that injure by fragments which, in the human body, escape detection by X-rays Protocol I (1980) to the Convention on Certain Conventional Weapons Incendiary weapons Protocol III (1980) to the Convention on Certain Conventional Weapons Blinding laser weapons Protocol IV (1995) to the Convention on Certain Conventional Weapons Mines, booby traps and "other devices" Protocol II, as amended (1996), to the Convention on Certain Conventional Weapons Anti-personnel mines Convention on the Prohibition of Anti-Personnel Mines (Ottawa Treaty) (1997) Explosive Remnants of War Protocol V (2003) to the Convention on Certain Conventional Weapons Cluster Munitions Convention on Cluster Munitions (2008) Nuclear weapons • NOT explicitly prohibited • "There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons." (unanimously) • "There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such." (11:3). WEAPON TREATY Explosive projectiles weighing less than 400 grams Declaration of Saint Petersburg (1868) Bullets that expand or flatten in the human body Hague Declaration (1899) Poison and poisoned weapons Hague Regulations (1907) Chemical weapons Geneva Protocol (1925) Convention on the prohibition of chemical weapons (1993) Biological weapons Geneva Protocol (1925) Convention on the prohibition of biological weapons (1972) Weapons that injure by fragments which, in the human body, escape detection by X-rays Protocol I (1980) to the Convention on Certain Conventional Weapons Incendiary weapons Protocol III (1980) to the Convention on Certain Conventional Weapons Blinding laser weapons Protocol IV (1995) to the Convention on Certain Conventional Weapons Mines, booby traps and "other devices" Protocol II, as amended (1996), to the Convention on Certain Conventional Weapons Anti-personnel mines Convention on the Prohibition of Anti-Personnel Mines (Ottawa Treaty) (1997) Explosive Remnants of War Protocol V (2003) to the Convention on Certain Conventional Weapons Cluster Munitions Convention on Cluster Munitions (2008) Lethal Autonomous Weapons Systems • https://www.youtube.com/watch?v=e_DsE9f5gyk Cyber Weapons • To get more inspiration: https://www.youtube.com/watch?v=iaajKzbSUOY https://www.youtube.com/watch?v=CS01Hmjv1pQ https://www.langner.com/stuxnet/ Use of weapons – combatants, civilians and others Jakub HARAŠTA Introduction • Weapons used and how to use them – increased humanisation • Third Punic War (slavery, utter destruction) • Every conflict as preemptive/preventive conflict (Ender‘s Game) • Eg. Debtors‘ prison • We cannot supress negative phenomena (warfare, debts), but we can humanise the response • Presence of civilians in the area of combat • Artillery, Strategic bombardment, Strategic missiles, ICBMs Not so fast! • Old Testament – Elisha prohibits the King to kill the captured • Ancient India – those who sleep, those who lost their coat of mail, those who are naked or disarmed or those who look without taking part • Islamic Law – women, children, monks, hermits, aged, blind and insane • Abu Bakr (573 to 634): fruit trees, heads of palm trees, livestock (only for food!) Lieber Code • 1863 • Union Army in the American Civil War • Requested: humane treatment of civilians, no execution of PoWs Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field • 1864 • After the Battle of Solferino • Founding of ICRC (1863) • Protection to: non-participants; hors de combat, impartial humanitarian organizations providing humanitarian assistance Hague Convention II • 1899 • PoWs and Civilians Hague Convention IV • 1907 • PoWs and Civilians Geneva Conventions • 1949 • WW2 experience (execution of PoWs, retaliation against civilian population) • Codification Basic principles of GCs • Distinction: • Civilian population and objects is to be protected • Belligerents have to distinguish between combatants/military objectives and civilian/civilian objects • Civilian looses protection if engaging in hostilities • (Customary) • Necessity and proportionality: • Attacks on military objects must not cause loss of civilian life excessive in relation to direct military advantage • Feasible precautionary measures must be taken by commanders • (Customary) Basic principles of GCs II • Humane treatment: • Civilians are to be treated humanely – no violence to life and person, no taking hostages, no humiliating treatment, no execution without regular trial against non-combatants/wounded/sick/shipwrecked • (Customary) • Non-discrimination: • When treating PoWs/civilians/wounded/sick/shipwrecked, no discrimination based on race, sex, mationality, religious belief, political opinion is permitted • (Customary) • Women/children: • Women must be protected from rape/indecent assault, children under the age of eighteen cannot také part in hostilities Law meets politics • Unlawful combatant, unprivileged combatant, illegal combatant, illegal enemy combatants (post-2001 term) • Term not defined in any international agreement • Political decision • Legal black holes (1942 Quirin Case, Guantanamo Bay) Law meets reality • Abovementioned principles stand in way of efficient military operations (undisputed fact) • Do we want that or no? • Lawfare Thank you for your attention! ivana.kudlackova@mail.muni.cz // jakub.harasta@law.muni.cz