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Dr. Paul Kellogg Governance 540 Theory Paper 2 John A. Sutherland 2980775 PROTECTING THE LIVES OF CIVILIANS FROM NAPALM BOMBS

Napalm bombs are included within that group of military weapons known as incendiaries. They are dropped by low level flying planes on supposed military targets. But because of the nature of these weapon their lethal impact on any living thing within a large area far exceeds their professed use as a military necessity or justification under the doctrine of proportionality. Like most bombs they affect both combatants and civilian non combatants indiscriminately. When they explode their fire causes severe burns and asphyxiation in people who are within a mile radius of the detonation point. Their explosion causes winds that can reach seventy miles per hour and carry the fire over great distances. The napalm currently available to military forces worldwide is comprised of plastic polystyrene and hydrocarbon benzene (Baglole) which combine to form jellied gasoline which is extremely flammable and burns at an extremely hot temperature when ignited. It burns twenty times longer than the napalm used by American forces in Vietnam and consequently can cover a wider area and inflict more damage on people and property. One discharge of Napalm can destroy an area of two thousand five hundred square yards. Napalm bombs are especially destructive to people as their jellied gasoline content sticks to the skin and is hard to remove even when burning. Most people burned by

napalm die because of the severity of the burns (Chong, 1999). The particularly hideous nature of this type of bomb was described in court documents filed by the Vietnam Association of Victims of Agent Orange in an action against chemical companies responsible for making these bomb ingredients (Vietnam Association for Victims of Agent Orange/Dioxin v. Dow Chemical Co., 2008). In todays world, use of napalm bombs by any military force in wars between states or across national boundaries raises the issue of what law should be applied to afford protection to civilians subjected to the horrendous effects of these weapons. The choice is between the application of International Humanitarian Law on one hand and human rights law on the other. Whether and to what extent should states be bound by human rights obligations with respect to the conduct of their armed forces when they cross national boundaries (Cerone, 2006)? Increasingly the decisions of courts and tribunals dealing with this issue on a global stage have sided with the application of human rights law. This is due in large part to the ineffectiveness of international humanitarian law because of its development as an offshoot to the laws of war and the reluctance by nations to limit their war efforts to protect civilians during military action (Normand, 1994). Despite continuing objections on the part of a handful of states, a consensus is evolving in favour of the view that human rights law applies in full alongside humanitarian law during times of armed conflict and occupation (Cerone, 2006). Generally ,the international legal community recognizes the Hague Conventions of 1899 and 1907 as restatements of international humanitarian law applicable to all countries. Respected scholars believe that in the Universal Declaration of Human Rights, in conjunction with the two International covenants on Human Rights, constitutes an authoritative interpretation of the human rights obligations of all United Nations members and may contain provisions that qualify

as customary international law (Weissbrodt, p. 333). Some principles of international humanitarian law are more specific or more exacting than the provisions of international human rights law . Humanitarian law applies specifically to emergency situations; international human rights law permits significant derogations during these same periods. Human rights law and humanitarian law (i.e. the law of armed conflict) are separate bodies of international law with distinct modes of application. While human rights law is primarily concerned with the way a state treats those within its domain, humanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities (Cerone, p. 1453). International humanitarian law emerged from conferences of nations that were primarily concerned with the development of the laws of war (Tomuschat, 2010) and wanted to make war more humane. Their object was not to put an end to war or to limit the use of new and evolving weapons. Actions were taken by the international community as early as 1899 to prohibit the use of asphyxiating gases (Higgins, 1909, p. 493) because their use was considered barbarous. But this principle and others were always read as being subject to being disregarded if found to be an obstacle to the military necessity of warfare. In fact many countries refused to sign treaties which set out these principles. Similarly laws and customs of War on Land such as Article 22 while stating that the right of belligerents to adopt means of injuring the enemy is not unlimited (Higgins, 1909, p. 233) never defined the actual limits. While it was forbidden to employ arms, projectiles, or material of a nature to cause superfluous injury (Higgins, 1909, p. 235) no one chose to define that term to limit their military actions. Even though it was widely accepted that to protect civilian lives the attack or bombardment of towns, villages, habitations or buildings which are not defended , is forbidden (Higgins, 1909, p. 237) military forces generally were able to ignore or rationalize these attacks. Later when the

1925 Geneva Protocol provided that the use in war of asphyxiating, poisonous or other gases and of all analogous liquids, materials or devices has been justly condemned by the general opinion of the civilized world and shall be universally accepted as part of International Law, binding alike the conscience and the practice of nations (2008, p. 24)few belligerents respected this. While Article 50 of the Fourth Geneva Convention listed as a grave breach of the laws of war the act of wilfully causing great suffering or serious injury to body or health (2008, p. 26) nations acted without regard to limiting their weapons. Nations have continually justified their military actions as legitimate by quoting these principles of war as either supporting them or not applying to them because of their vagueness. Little use was made of the principles to make war more humane especially to protect the rights of civilian non-combatants. While non governmental agencies such as the International Red Cross and Red Crescent tries to ameliorate conditions for prisoners of war warring nations did little to protect civilian populations. It was not until the end of the Second World War that human rights law developed as a result of the 1945 Nuremberg Charter and the 1951 Nuremberg Principles. Initially these were enunciated by the allied powers to set standards for judging the actions of Axis leaders during world War II and to prohibit future war crimes namely violations of the laws and customs of war and wanton destruction not justified by military necessity (2008, p. 26). Initially there was a general consensus that human rights law should provide protection against state interference with the lives of civilians. There were four core international crimes-war crimes, crimes against humanity, genocide and wars of aggression. The Geneva Conventions expands and restricts international crimes as defined at Nuremberg. First, through their detailed listing of rights, they expand the list of war crimes by better defining the general categories of international crimes previously identified. Second, theses conventions expand war crimes law by applying in hostile

situations where there is no declared or recognized war. Article 147 of convention IV dealing with the protection of civilians , defines grave breaches as acts involving civilians which incorporate wilful killing or inhumane treatment and wilfully causing of great suffering or serious injury to body or health. Human rights law (Smith, 2005), embedded in the inter-state structure of the international legal system, generally binds states and states alone (Cerone, p. 1448). This has gradually been broadened to impose on states many commitments to provide protection as well against interference by private persons and to ensure their effective (positive rights) (Tomuschat, p. 16). The paramount human right of course is the right to life but there was no consensus as to whether human rights law would operate to protect civilians during times of armed conflict. Many believed and still believe that there is a law of war and a law of peace and that human rights law only operates during a time of peace. In fact reports prepared by non government agencies regularly refer to humanitarian law , unlike human rights law , as binding both governmental and nongovernmental parties to armed conflicts, thereby providing a legal framework for assessing abuses by al parties: and second human rights law is designed to operate in times of peace while humanitarian law governs the conduct of military operations (Weissbrodt, 1988, p. 320). International humanitarian law still continues to function as a means to salvage what human rights could be protected notwithstanding a clash of arms. A United Nations expert report (Nations, 1972) indicated that incendiary weapons such as napalm were being used more and more in modern warfare with increasingly cruel and destructive effects. In fact the General Assembly has cited the Geneva Conventions and Additional Protocols in resolutions relating to a number of armed conflicts since 1977 (Weissbrodt, p. 331). The 1980 Protocol III on

Prohibitions on the Use of Incendiary Weapons prohibited in all circumstances the making of the civilian population as such the object of attack by incendiary weapons and restricts their use against military objectives. The last few years have witnessed a growing number of instances in which weapons prohibited by the Convention have been used against civilians as weapons of terror in various conflicts, especially internal conflicts (Nations, U.N.Disarmament Year Book Vol 18, 1993, p. 202). There have been calls for investigation of these allegations (Nations, The Fires of War :Napalm and Other Incendiary Weapons , 1973, p. 48). Despite these reports and votes within the General Assembly of the United Nations to condemn these types of weapons it is clear that another approach must be taken to protect civilians from napalm as international humanitarian law does not adequately protect. For much of the twentieth century , it remained unclear whether human rights law would apply to a states conduct during armed conflict or occupation, with some states having taken the position that these situations were governed by the lex specialis of humanitarian law, to the exclusion of humanitarian law. Others took the position that human rights law applied in full alongside humanitarian law. In support of their position they noted that the International Covenant on civil and Political Rights (ICCPR)and regional human rights treaties contain provisions permitting derogation from certain obligations in times of public emergency which threatens the life of the nation, (Cerone, p. 1453) the inclusion of which implicitly recognizes that human rights law applies to all situations, subject to possible derogation with respect to certain obligations. The fact that the General Assembly has cited the Geneva Conventions and Additional Protocols with increasing frequency in recent years may represent a trend in which the United Nations will use these as a tool to raise a combatants respect for human rights of people directly or indirectly at risk in armed conflict. International human rights organizations

and the General Assembly ordinarily refer in their actions, reports, and resolutions to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the Convention and Protocol Relating to the Status for Refugees. Pronouncements and judgments by the International Court of Justice show a trend in the direction of applying human rights law where humanitarian law is not enforced. In delivering an advisory opinion in 1996 the court stated that the protection of the ICCPR rights do not cease in times of war (Tomuschat, p. 17). Later in 2004 (Tomuschat, p. 18) the court stated that as regards the relationship between international humanitarian law and human rights law, there are thus three possible situations; some rights may be exclusively matters of international humanitarian law: others may be exclusively matters of human rights law; yet others may be matters of both of these branches of international law (Tomuschat, p. 18). Even regional human rights courts such as the European Court of Human Rights in Strasbourg have dealt with human rights during armed conflict. It agreed despite a review of the strategy which Russian forces should have adopted in Chechnya that the right to life of the victims had been violated (Tomuschat, p. 20). When the United Nations and nongovernmental organizations confront human rights violations in the context of armed conflicts, international humanitarian law often provides an additional legal foundation fo their concerns. In some case, international humanitarian law may even offer a stronger basis for human rights work than the Universal Declaration of HUMAN Rights or the ICCPR (Weissbrodt, p. 332). All people have a right to a secure existence and all states have an obligation to protect those rights. The world through the United Nations needs to translate these concepts of security

into principles that can be embedded in international agreements. Then international community has an obligation to take action in situations where the security of people is imperilled. Humanitarian action must to address the security of people and protection of their human rights must be taken not only at the level of the Security Council but at the level of other UN bodies and specialized agencies as well as numerous organizations of global civil society (Governance, 1995). The humanitarian law (laws of war) should address our humanitarian aspirations and impose some form of restraint on the forms that war may legitimately take (Normand, 1994). Further there is no justification for withdrawing attacks against the civilian population from the ambit of human rights by blurring the borderline between that population and those involved in armed activities.

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