24 Oct Wizards, Wands, and Wars: Applying General Principles of IHL to the Wizarding Wars of Harry Potter
[Sarah Zarmsky is the Deputy Managing Editor at Opinio Juris. She is also a PhD Candidate and Assistant Lecturer at the University of Essex Human Rights Centre.]
[Author’s note: This piece focuses on the application of IHL in the Wizarding World of Harry Potter. For myself and many others of my generation, the Harry Potter franchise was an escape from the struggles of the real world and taught valuable lessons of acceptance, friendship, and standing up for what is right. However, as has come to light in recent years, the views of its creator do not align with these values or my own. Before or after reading this piece, I encourage you to read about and donate to one of the organisations doing amazing work for the trans community in the UK, Gendered Intelligence (https://genderedintelligence.co.uk/). I also would like to thank Judy Mionki, Lucas Roorda, and Jillian Rafferty for having some (very nerdy) conversations with me to help formulate my thoughts for this piece.]
In the Harry Potter universe, there have been multiple instances of armed conflict, including the Global Wizarding War (1920-1945), the First Wizarding War (1970-1981), and the Second Wizarding War, otherwise known as the Battle of Hogwarts (1995-1998). These wars extended beyond just the wizarding world and into the world of humans, or ‘muggles’, as well. This piece will discuss some key issues that arise when international humanitarian law (IHL) is applied to the conflicts in Harry Potter–including the role of the wizard-equivalent to the United Nations, whether the conflicts could be classified as international or non-international armed conflicts, and how the principles of necessity, proportionality and distinction may be applied in cases of wizard-on-wizard versus wizard-on-muggle conflicts. Though the piece focuses mainly on general principles of IHL, following this discussion, it will propose some questions relating to more specific IHL topics for future consideration.
Magical Law, The Ministry of Magic, & The International Confederation of Wizards (ICW)
Before assessing how IHL in the real world could be applied to the Harry Potter universe, it is first useful to examine the law of the wizarding world, or ‘magical law’. First, each state has its own Ministry of Magic (its government), led by its own Minister for Magic (essentially wizard heads of states). The Ministry of Magic is distinct from the muggle government, and as occurred in Harry Potter and The Half Blood Prince, the Minister for Magic may interact with the Prime Minister of the non-magical world through a wizard’s portrait (a talking painting) or visit via the Floo Network (transport using fireplaces) to alert them to matters that may affect muggle safety. As depicted in Harry Potter and the Order of the Phoenix when Harry is put on trial for using magic in the presence of a muggle, the wizard high court of law is called the Wizengamot and is headed by the Minister for Magic. The Ministry of Magic also has a Department of Magical Law Enforcement, which includes an Auror Office, composed of those who pursue and apprehend dark wizards (akin to the muggle police and military units).
Specifically in terms of international magical law, there are parallels which can be drawn to real international law. For example, the wizarding world equivalent to the United Nations is the International Confederation of Wizards (ICW), which created the International Statute of Wizarding Secrecy to hide the wizarding world from muggles. The ICW is headed by the Supreme Mugwump, who is elected by the Wizards’ Assembly (its legislative body). It has many roles ranging from managing international magical games and sports, overseeing the wizarding schools, and promoting peace, security, and cooperation throughout the wizarding world. Regarding its peace and security functions, the ICW can create international task forces, as was done in Tibet to monitor the numerous sightings of Yetis by muggles. The ICW may also censure governments, including heads of states, for failing to conceal magical incidents from the non-magical community.
The following sections will now discuss the application of IHL to the three major wizarding wars. The sections will focus on general principles of IHL, including the classification of the conflict and the principles of distinction, military necessity, and proportionality.
Classifying the Conflict: IAC vs. NIAC
One of the key distinctions within IHL is whether an armed conflict is international (IAC) or non-international (NIAC) in nature. IACs occur between two or more states, while NIACs occur between states and non-governmental armed groups, or only between armed groups. As is provided under customary IHL and the Geneva Conventions (GCs), there are differences in the law which may be applicable to IACs versus NIACs. For example, whether a conflict is international or not has implications for how civilians and combatants may be distinguished, and for the applicable protections in detention.
Of the three major wizarding wars, all of them could potentially constitute NIACs, though there would be more compelling cases for this classification for some over others. To begin, the Global Wizarding War (GWW) took place mainly in continental Europe, though it also encompassed some events in the United States. It coincided with World War II in the non-magical world, and the situation is partially analogous to the rise of Adolf Hitler. The GWW was initiated by the dark wizard Gellert Grindelwald, who believed wizards to be superior to muggles and therefore that they should have the right to rule the muggle world. He called for the abolition of the International Statute of Wizarding Secrecy, and he gained a following called The Alliance. However, unlike some other muggle dictators at the time, Grindelwald did not ever gain control over a state. The GWW therefore cannot be classified as an IAC because there was no conflict between states.
The GWW could potentially be classified as a NIAC involving both states and non-state armed groups. Attacks were carried out by The Alliance against different states, including at the British and French Ministries of Magic. Wizards serving for states across Europe and the United States, along with those from the ICW itself, fought against Grindelwald and his followers, teaming up against the group. In this conflict, the two non-state armed groups were the magical-supremacists (The Alliance) and Dumbledore’s Army, a group of wizards led by Albus Dumbledore with a mission to stop Grindelwald. Both of these groups meet the requirements for a non-state party to a NIAC under Common Article III of the Geneva Conventions—they possessed organised command structures and had the capacity to sustain military operations. Further, it can also be argued that the GWW met the ‘minimum level of intensity’ threshold for a NIAC—there were many casualties, including multiple powerful wizards, aurors, and muggles.
However, as provided by Additional Protocol II (AP II), which applies in instances of state involvement in a NIAC, there is a requirement that non-state groups possess territorial control. This requirement is an issue in all three of the wizarding wars, which involved state participation. During the GWW (and in the First and Second Wizarding Wars, as will be discussed next), it is difficult to argue that the non-state groups had control over any of the involved states’ territories in the traditional sense. This is because wizarding conflicts are, in nature, different from muggle wars in terms of time and space—combatants can time travel and teleport. It could therefore be argued that the muggle-world requirement of territorial control under AP II should not apply in the wizarding world, given that it would be virtually impossible to ever have real control over a physical territory if individuals can travel throughout time or to teleport instantly to any place. If this requirement is then removed, there is a much stronger case for each wizarding war to be classified as a NIAC, since the other criteria of organised non-state groups and intensity are more easily met.
Moving on to the First and Second Wizarding Wars, the situations were similar: both involved states and Dumbledore’s Army (sometimes called The Order of the Phoenix) against Lord Voldemort and his army, the Death Eaters. Voldemort, previously known as Tom Riddle, was a dark wizard who also had magical supremacist views, though what drove him was his desire for power and an obsession with immortality. The First Wizarding War (FWW) marked the original rise of Voldemort, starting about a decade prior to and ending around the birth of Harry Potter, in which his killing spell on Harry rebounded, leaving Harry with his iconic scar and Voldemort in a very weakened state. During the FWW, Voldemort grew his army of Death Eaters and began trying to take over the wizarding world by launching an assault on the British Ministry of Magic, killing anyone who got in their way. The FWW and SWW were thus largely restricted to British territory, though, as explained previously, it would be difficult to argue that the Death Eaters possessed control of a specific part of that territory. The Death Eaters also could constitute a non-state armed group, given their organised command structure and capacity to carry out attacks; they were led by Lord Voldemort, with other dark wizards such as Lucius Malfoy and Bellatrix Lestrange acting in lesser-command type roles, and other death eaters and dementors following their instructions.
The Second Wizarding War (SWW), otherwise known as the Battle of Hogwarts, took place once Harry was a young adult and Voldemort had grown back his power to even greater levels than it had been at the height of the FWW. Though both conflicts resulted in numerous muggle and wizard casualties, the SWW was arguably more damaging, resulting in the fall of the Ministry of Magic to the control of Death Eaters, the death of Albus Dumbledore, and the killings of many other leaders of the wizarding world during the final battle at Hogwarts. The intensity requirement can therefore be argued to have been met for all the wars.
Distinction, Military Necessity, & Proportionality
This section will discuss the principles of distinction, military necessity, and proportionality as applicable to wizarding wars. In short, distinction refers to distinguishing between civilians and combatants and between civilian objects and military objectives. Military necessity and proportionality are closely related; necessity requires that acts are necessary to accomplish a legitimate military purpose, and these acts must be proportionate to the military advantage sought, limiting collateral damage.
In the context of wizarding wars, there are two types of civilians: wizards and muggles. For wizard-on-wizard combat, normal rules of IHL should apply—those actively engaged in combat should distinguish between those not actively participating in the hostilities. In cases where a wizard may fight a muggle, the power dynamic is much different, and arguably special protections should apply. For instance, Article 77 of Additional Protocol I (AP I) provides special protection to children in armed conflict (those under fifteen), even for those taking part in hostilities (though, notably AP I only applies to IACs, but most rules have been extended to NIACs under customary IHL). This rule was presumably created out of respect for human decency, given that children cannot consent in the same way as adults and may not be as strong. If this logic is applied in the wizarding wars, it could be said that muggles should be afforded special protection during conflicts similar to those outlined in AP I, even on the rare occurrence that they participate, because they would not have the same understanding of the magical world to consent to combat and would be at an inherent physical disadvantage.
Another consideration for distinction would be whether a combatant is acting under the control of an imperius curse, a spell which allows a wizard to completely control the body of another. The individual affected by the imperius curse would still be a combatant if forced to take part in the hostilities, as opposed to a civilian, but they could be afforded protections under IHL. For instance, it may be possible to classify someone under an imperius curse as wounded, for which they would be granted protection under Geneva Conventions I and II. Those under the imperius curse could also be considered prisoners of war who are entitled to protection under Geneva Convention III.
The subject of the imperius curse, which is one of the ‘unforgivable curses’ and expressly prohibited under magical law, also relates to the principles of humanity, military necessity and proportionality. It could be argued that the unforgivable curses—consisting of the imperius curse, the cruciatus curse, and the killing curse—are simply too cruel to ever be considered a means to a legitimate military purpose and could never be proportionate to the sought advantage. The unforgivable curses could be analogized to prohibited methods and means of warfare under IHL, including those which ‘cause superfluous injury or unnecessary suffering’ as provided under Art 35 of AP I. In addition, the curses could be deemed similar to the weapons prohibited by various IHL treaties, including biological or chemical weapons.
Finally, regarding military necessity and proportionality, and also considering the distinction between civilian and military objects, it is difficult to foresee a war between wizards which takes place on muggle territory as ever complying with these principles. Throughout the franchise, there have been multiple instances where battles between wizards (or other magical beings) have destroyed muggle cities and likely killed many muggles—for example, during the GWW (and seen in Fantastic Beasts and Where to Find Them), an obscurus manipulated by Grindelwald blows up multiple buildings in New York City occupied by muggles. Another example is in Harry Potter and the Half Blood Prince, in which Death Eaters attack and destroy the Millennium Bridge in London. In these cases, civilian objects with no connection to the conflict are destroyed, along with those occupying them. The military advantage of destroying muggle objects and cities therefore does not seem to be proportionate to the loss of life and property, and there does not seem to be any legitimate military purpose that could be achieved by doing so. These instances are arguably more comparable to acts of terrorism, as Grindelwald and Voldemort both intended to spread fear amongst the muggle and wizard populations, and terrorism is expressly prohibited under Geneva Convention IV (Art 33) and AP II (Art 4).
This piece aimed to provide some general considerations when applying IHL to the Wizarding Wars of Harry Potter, including the classification of the conflict, along with the principles of distinction, military necessity, and proportionality. However, there is so much more that could be explored in greater detail, and some questions which could not be answered within the limits of this blog post. Some ideas for further consideration could include an analysis of the various war crimes committed during the wizarding wars (including torture and ill-treatment of prisoners at Azkaban), the protection of magical animals and the environment during conflict, and how the principle of distinction and accountability for war crimes might apply to animagi (wizards who can turn into animals).