Harry Potter and the Broken Geneva Conventions

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.)

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. 

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.

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.

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.

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. 

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.

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