Harry Potter and the Broken Geneva Conventions

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Harry Potter and the Broken Geneva Conventions

• Hearsay The Legal Podcast

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• While the new Fantastic Beasts movies may be a
  (cough) fantastic addition to the Harry Potter
  universe for keen Potterheads, its depiction of
  the brutal Wizarding World Wars (WWWs) may be
  unsettling and not so magical for the rest of us.
• This raises a humanitarian and legal question
  would the WWWs be covered by international
  humanitarian law (IHL)?
• Legislation, but magical
• If youre not too keen on keeping up with a seven
  part series of an aesthetically challenged
  supervillains unhealthy obsession with a teenage
  boy, its best we first acquaint you with the
  bureaucratic and political parallels between the
  contemporary international community and the
  fictional wizarding world
• Witches and wizards are governed by an
  International Statute of Wizarding Secrecy, which
  acts as a statutory bulwark for wizards to
  maintain secrecy of the wizarding world. This
  statute was created by the International
  Confederation of Wizards so like the United
  Nations but, you know, the sorcerous version-
  headed by the Supreme Mugwump (Yes. Its a thing
  roll with it.)

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IHL and witches and wizards

• IHL is a body of law which sets out what is and
  is not permissible during armed conflict.
• IHL regulates both international armed conflict
  (IAC) and non-international armed conflict
  (NIAC). While an IAC must occur between two or
  more states, a NIAC is defined as an armed
  conflict between government forces and
  non-government groups or between two
  non-government groups.
• Throughout the history of Rowlings magical
  universe, there were three great Wizarding World
  Wars the Global Wizarding War, the First
  Wizarding War, and the Second Wizarding War, also
  known as the Battle of Hogwarts. Each war was a
  conflict involving Ministries of Magic (i.e. a
  government) and non-government armed groups. As
  there were no conflicts between states, these are
  all prima facie NIACs to which IHL might apply.

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WWWs and NIACs

• However, a NIAC is not confined to its definition
  of a conflict between governmental and armed,
  non-governmental forces. There are two legal
  authorities that define what makes a NIAC under
  IHL Common Article 3 of the Geneva Convention
  1949 and Article 1 of Additional Protocol II.
• To constitute a NIAC in the meaning of Common
  Article 3
• The armed groups must show a minimum degree of
  organisation
• Armed confrontations must reach a minimum level
  of intensity.
• To constitute a NIAC in the meaning of Article 1,
  the armed conflict must take place on a High
  Contracting Partys territory, with the armed
  group controlling a part of the territory.
  However, the frequent use of a portable
  teleportation device known as a portkey during
  the WWWs likely renders the primary territory
  point somewhat moot. As such, we will only be
  looking at the definition of NIACs under Common
  Article 3.

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The Global Wizarding War (1920-1945)

• This conflict arose between the Wizarding Worlds
  Aurors (aka the world police), who were backed by
  Dumbledores first army, and Grindelwalds
  acolytes who operated as The Alliance.
• For The Alliance, they followed Grindys commands
  to execute a unified military strategy under
  their political vision control over the muggles.
  This involved the slaughtering of many Aurors,
  magic users and muggles, which likely satisfies
  the minimum level of intensity expected of a
  NIAC.
• The Global Wizarding War would likely be
  considered a NIAC to which IHL applies.

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The First Wizarding War (1970-1981)

• Backed by his army of Death Eaters, pureblood
  supremacist Lord Voldemort began his demarche
  with a coup against the British Ministry of Magic
  and a wave of terrorism against muggles, which
  incited the First Wizarding War. They were
  resisted by The Order of Phoenix and the Ministry
  of Magic.
• While some Death Eaters cast curses to control,
  torture or kill without specific orders from Lord
  Voldemort, they did so in aid of his political
  vision. This evinces the existence of a command
  structure and the ability to execute military
  operations.
• Moreover, the high intensity of the armed
  confrontations is evidenced through the deaths of
  over one hundred magic users during the war, not
  accounting for civilians and the muggles killed
  for sport and for the purposes of creating
  disarray and fear.
• Like the Global Wizarding War, the intense armed
  confrontations from the involved armed groups
  likely means that the conflict is an NIAC to
  which IHL could apply.

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The Second Wizarding War (1995-1998)

• The gradual infiltration of Voldemorts Death
  Eaters into wizarding society, coupled with the
  assassination of the British Minister for Magic
  marked the megalomaniacs second rise to power
  and the start of the Second Wizarding War. He was
  opposed by Dumbledores Army, the Order of
  Phoenix, the British Ministry of Magic and other
  allies.
• Not unlike the previous WWWs, the Second
  Wizarding War involved the Death Eaters
  senseless killing of witches and wizards opposing
  their political aims. However, the gravity of the
  circumstances meant that Dumbledores Army and
  the Order were also forced to kill to protect,
  thereby establishing the minimum intensity of
  armed violence characteristic of an organized
  armed group involved in the NIAC.
• As the Second Wizarding War comprised armed
  groups and governmental forces who were involved
  in protracted violence, it is therefore likely a
  NIAC to which IHL applies.

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• By Hearsay The Legal Podcast with research by
  Sophie Yeh.