Harry Potter and the Broken Geneva Conventions

1. HARRY POTTER AND THE
BROKEN GENEVA
CONVENTIONS
Hearsay The Legal Podcast

2. 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 you’re not too keen on keeping up with a seven part series of an
aesthetically challenged supervillain’s unhealthy obsession with a
teenage boy, it’s 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. It’s a thing; roll with it.)

3. 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 Rowling’s 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.

4. 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 Party’s 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.

5. THE GLOBAL WIZARDING WAR (1920-1945)
This conflict arose between the Wizarding World’s Aurors (aka the
world police), who were backed by Dumbledore’s first army, and
Grindelwald’s acolytes – who operated as The Alliance.
For The Alliance, they followed Grindy’s 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.

6. 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.

7. THE SECOND WIZARDING WAR (1995-1998)
The gradual infiltration of Voldemort’s Death Eaters into wizarding
society, coupled with the assassination of the British Minister for Magic
marked the megalomaniac’s second rise to power and the start of the
Second Wizarding War. He was opposed by Dumbledore’s 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 Eater’s senseless killing of witches and wizards opposing their
political aims. However, the gravity of the circumstances meant that
Dumbledore’s 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.

8. For more engaging content on the latest and greatest in weird and
wonderful legal news, check out the Hearsay: Sidebar! And, as
always – we do actually make CPD for Australian lawyers. Make
sure you visit the episodes page to keep up to date.
By: Hearsay The Legal Podcast with research by Sophie Yeh.