International Humanitarian Law
Protection for two groups of protected civilians
1. Measures to protect civilians during the conduct of hostilities, 2. Measures to ensure the protection of civilians in the power of the enemy forces, 1. civilians who find themselves in the power of the enemy or on the enemy's territory, 2. civilians whose territory is occupied by the enemy (more detailed and protective rules applying)
What is a NIAC?
Art. 3 Common - In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.
International crimes
Art. 5 of the Rome Statute • The crime of genocide; • Crimes against humanity; • War crimes; • The crime of aggression.
When does IHL apply?
IHL applies in situations of armed conflict- whether international or non-international and occupation- partial or total, with or without resistance. IHl does not apply in situations of peace or in situations of internal disturbances and tensions.
When do the additional protocols apply? Ap 1
This protocol, which supplements the Geneva Conventions for the protection of war victims, shall apply in the situations referred to in the Article 2 common to those conventions. AP I applies in situations of IAC. Art. 1 p 4, Art 96 p. 3)
Direct Participation in hostilities
Three conditions which must be met cumulatively for conduct to be considered direct participation in hostilities: 1) the harm caused by an action must meet a certain threshold (threshold of harm); 2) the act must directly cause harm to the enemy forces (direct causation); and 3) the action must have been done with the intent to harm the enemy (belligerent nexus).
• What are the different justice mechanisms that are available for the fight against impunity?
• National mechanisms ▫ Criminal proceedings in national courts • International mechanisms ▫ International courts ▫ Hybrid (mixed) mechanisms • Universal jurisdiction ▫ Prosecution in domestic courts of another state • Traditional justice mechanisms ▫ Gacaca Courts - Gacaca = "justice on the grass"
Battlefield status in NIAC
- Important to make distinction between NIAC fighters or civilians DPHing. If civilian then immune from attack except when DPH. If members of an organized armed force then targetable at all time regardless of engaging or not. • No status as combatant. • No POW status upon capture. • But: distinction between civilians and those who participate in fighting. • Individuals directly engaging in hostilities are "fighters" or "members of the armed groups" (to avoid "combatant")
Assessment of a military object
- Law requires reasonable belief [...] an object shall not be attacked when it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the object is being used to make an effective contribution to military action.
Humanity, Unnecessary suffering
- The principle of humanity prohibits inflicting unnecessary suffering injury and destruction. SOURCES: • 1868 St. Petersburg Declaration against Explosive Bullets (first formal agreement prohibiting the use of certain weapons in war) • The Martens Clause (1899) • and its modern formulation in API Art. 1(2) • API Art. 35(2)
Rules of targeting and types of weapons allowed
- the right of the parties to choose means and methods of warfare is not unlimited. - IHL prohibits or restricts certain weapons, or certain uses of weapons. => The question of the lawfulness of a particular weapon or its use will be: 1. Is it banned or regulated by a treaty? 2. Is it banned or regulated by general principles of IHL? The basic rule: AP I, Art. 35 (CIHL Rule 70) 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. [...]
What are the four core principles of IHL?
1. Distinction / Discrimination 2. Military Necessity 3. Humanity / Unnecessary Suffering 4. Proportionality
Crime of Aggression : SEE ART. 8
1. For the purpose of this Statute, "crime of aggression" means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
Main Goals of IHL
1. Protection of civilians 2. Minimize unnecessary suffering
Indiscriminate attacks
1. Such an attack is considered to be per se incompatible with the principles of distinction and proportionality. 2. What makes an attack indiscriminate is not the resulting number of casualties but the "state of mind" of the attacking Party.
Measures to be taken during war
1. The obligation to respect and ensure respect (CG I/IV, Art. 1, CIHL, Rule 139) 2. Supervision of their agents (CIHL, Rule 139) 3. Protecting Power system (GC I-IV, Arts. 8/8/8/9; P I, Art. 5). 4. Enquiry procedure for alleged violations (GC I-IV, Arts. 52/53/132/149). 5. Grave Breaches system GC I-IV, Art. 50; 51; 130; and 147
Measures to be taken in peacetime
1.Dissemination [GC I-IV, Arts 47/48/127/144; AP I, Arts 83, 87(2) and 89; AP II, Art. 19] 1. Instruction to the armed forces [CIHL, Rule 142] 1. military manuals 2. integration into rules of engagement 3. practice-oriented instruction: integration of IHL into manoeuvres 4. integration into regular training, by the military hierarchy 5. integration of IHRL into training of police forces 2. university teaching 3. dissemination in civil society
Definition of Occupation
1907 Hague Convention, Art. 42 1. Territory is considered occupied when it is actually placed under the authority of the hostile army. 2. The occupation extends only to the territory where such authority has been established and can be exercised. Two criteria: • "placed under the authority" and "authority has been established" (as a matter of fact), and • "can be exercised" (ability of the occupier to exercise this authority). => Concept of "effective control" No applicability in NIAC • The essence of occupation is that it is exercised over foreign enemy territory. • Territory controlled by insurgents does not fit this idea
General Prohibition of force
1945 UN charter - Art. 2(4) - " all members shall refrain in their IL relations from threat or use of force" Exceptions: 1. Consent of the affected state - use of force in the territory of a state w/ the consent of that state 2. Legitimate individual or collective self defense (art 51 UN) "inherent right of self defense if armed attack occurs. Look at factors such as; Immediacy, Necessity, and Proportionality. 3. UN collective security system against threats to international peace and security (art 42. UN charter). Assists state w/ peaceful settlement and establishes and suppress the peace keeping forces of the UN. 4. Responsibility to Protect- humanitarian intervention to protect population of a foreign state against own government. State has primary responsibility and then International Community has a secondary responsibility. Factors to look at ; Seriousness of threat, measure of last resort, proportionality of response.
Internationalization of a NIAC
An non-international armed conflict may also become international if... 1. another State intervenes in that conflict through its troops (direct intervention), 2. another State intervenes in that conflict through indirect support of one of the participants in the internal armed conflict (indirect intervention). If direct military action is carried out at the request of the host government of the State to support it against one or more non-State armed groups, the conflict is qualified as... ▫ non international. ▫ If direct military action is carried out supporting the insurgent group / non-State armed groups fighting against the state, the conflict is qualified as... ▫ international.
Obligations of the occupying power
Article 43 of the 1907 Hague Regulations - "restore, and ensure, as far as possible, public order and safety, while respecting unless absolutely prevented, the laws in force of the country. Two fundamental obligations: ▫ to restore and ensure public order and safety, ▫ to respect the laws in force (maintenance of the status quo).
Why does status matter?
Before dealing with status, we must classify the conflict - why? Certain protections (namely GC III) only apply in IACs. In NIACs, only the protections of Common Article 3, AP II, and customary IHL apply. Þ why is this so important? ...
• What are the advantages and disadvantages?
Domestic: • Advantages? ▫ Enables justice? ▫ Encourages reconciliation and healing of the society where it happened • Criticism? ▫ Revenge? Winner's justice? ▫ Who judges over who's crimes? ▫ Failed state? ▫ High costs for post conflict society? ▫ Justice system? Judicial reform needed? International: • Advantages? ▫ Enables justice where state institutions are unable or unwilling ▫ Neutrality? Independence? etc. ▫ Same justice for all? • Criticism: ▫ Long proceedings / very expensive ▫ residual issues after closing ▫ too abstract for the common people ▫ legacy: what is left after the Tribunal closes ▫ Reconciliation? Conflict sensitivity?
Crimes against humanity - Art. 7
For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: SEE ART. 7 • Committed systematically, in accordance with an agreed plan, by a State or an organized group. • Perpetrators of crimes against humanity are aware that the acts they are committing are part of a general policy of attacking a civilian population. • Can be committed in time of peace, as well as during an armed conflict.
Genocide - Art. 6
For the purpose of this Statute, 'genocide' means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. Killing members of the group; b. Causing serious bodily or mental harm to members of the group; c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures intended to prevent births within the group; e. Forcibly transferring children of the group to another group. • The specific character of genocide does not lie in the nature of the act itself but in the thinking (mens rea). • That is the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". Doesn't include political, economic or other groups of people b/c "unstable" & "fluctuating"
What is IHL and how does it apply?
IHL or the laws of armed conflict is a branch of international law that: 1. seeks to limit the effects of armed conflict by protecting persons who are not or are no longer participating in hostilities. 2. by restricting means and methods of warfare available to combatants.
Determination of status and "Article 5 tribunals"
In case of doubt captives are to be treated as POWs until a competent tribunal can determine otherwise. • These so-called "Article 5 Tribunals" are rather administrative bodies than criminal courts. ▫ very fact-specific analysis ▫ burden for what is a "qualified" competent tribunal is rather low.
Gaza Strip
Israel continues to control Gaza through: • Substantial control of Gaza's land crossings; • Control on the ground through incursions and sporadic ground troop presence (''no-go zone''); • Complete control of Gaza's airspace; • Complete control of Gaza's territorial waters; • Control of the Palestinian population registry (including who is a ''resident'' of Gaza); • Control of tax policy [...]
ius ad bellum
Latin for the laws / conditions under which it is legitimate to go to war. Must be rules and regulations in war. Right to war associated with a just cause. Conditions in which states may resort to war.
Protection of religious and cultural property
Legal sources: • 1899 Hague Convention • 1907 Hague Regulations (Art. 27, 56) • The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14 1954 • AP I, Arts 53 and 85(4); • AP II, Art. 16; • Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, March 26, 1999 • CIHL, Rules 38-40
Protection of the natural environment
Legal sources: • UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques (ENMOD Convention) (1976) • AP I, Arts 35(3) and 55 • CIHL, Rules 44 and 45 • The rules of IHL treaty law that indirectly protect the environment during armed conflict can be clustered into the five following categories: ▫ rules limiting or prohibiting certain weapons and methods of warfare; ▫ clauses protecting civilian objects and property; ▫ clauses protecting cultural heritage sites; ▫ rules concerning installations containing dangerous forces; and ▫ limitations on certain specifically defined areas.
Main Sources of International humanitarian law
Main sources of IHL are international treaties and customary law. Treaties: Formally concluded and ratified agreement between countries creates legal obligations. ---> Signature - no legal obligation ---> Ratification - legal obligation ---> Reservation- unilateral statements purporting to exclude or to modify the legal obligation & its effects on the reserving state. ---> obligations - normally bilateral - Geneva Conventions are considered customary law in their totality ( universal ratification) - Icrc 2005 study on customary IHL- 161 "rules" of customary international law - The principles and fundamental rules of IHL are considered just cogens (ICJ nuclear weapons)
Command Responsibility - AP I Art. 86
Military commanders and civilian leaders may be convicted for crimes committed by their subordinates if: 1. the commander or leader ordered or knowingly permitted the crime; or the commander knew or should have known of the crime, 2. and the commander or leader had the capability to prevent the crime, but failed to do so, or failed to repress it afterwards. • Often there is no direct evidence of involvement by the commander. • Then circumstantial evidence must be used to establish actual or constructive knowledge of subordinates' acts: ▫ regularity and accuracy of the reports, ▫ the proximity of the headquarters to the action, ▫ the level of control the commander exerts over his troops. ICTY, Strugar (para. 358) The following three elements need to be satisfied in order to invoke individual criminal responsibility: (i) the existence of a superior-subordinate relationship; (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
Dual- Use targets
Objects that serve both civilian and military purposes (essential civilian infrastructure such as electricity-generating installations and oil-refining facilities, which produce energy that is used by civilians and combatants alike). - law does not recognize anything that is not a military object is a civilian object and cannot be attacked - the commander is required to consider the effect of the attack on civilians in the vicinity (see proportionality).
Identifying targets: the difference between military objectives and protected objects
Principle of distinction - Art 1. 48. - General protection for civilian objects • IHL generally protects certain objects from attack. • It generally prohibits attacks against civilian objects, which are all objects not defined as military objectives. • AP I, Arts 48, 52, and 85(3)
Additional Protocols II
Situations of NIAC. See Art 1 P1 for definition. Different than Common Art. 3 in two respects: 1. territorial control by organized non state groups. 2. Expressly applies to only to armed conflicts between state armed forces and dissident armed forces or other organized armed groups. Unlike common art 3. AP II does not apply to armed conflicts between organized non-state armed groups.
When does the Geneva Convention apply?
Situations of international Armed Conflicts. "Between cases of declared war or of any armed conflict which may arise between two or more of the high contracting parties, even if the state of war is not recognized by one of them. The convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party, even if the said occupation meets w/ no armed resistance.
Protected objects
Some objects have special protection under IHL ▫ hospitals, medical units, medical transport etc. ▫ religious property, ▫ cultural property, ▫ the environment. • They may only be attacked under restricted circumstances (imperative military necessity) and following additional precautionary measures. Legal sources: • 1899 Hague Convention • 1907 Hague Regulations • GC IV, Art. 18 • API,Arts12ff.,and21ff. • AP II, Art. 11 • CIHL, Rule 147
• What is transitional justice?
TJ is the after affects of dealing with a country post war- and how the country and society should deal with the atrocities, what mechanisms they have, what the needs are of the country, what rights to do the victims have. Helping stabilize political balance. HOLISTIC APPROACH. - recoinilation of war torn society -prevention of impunity - non-recurrence of past violations
Internationalization
The International Tribunal for the Former Yugoslavia (ICTY), the court found that if that foreign state has "overall control" over the armed group, it qualifies as an international armed conflict. [ICTY, Prosecutor v. Tadic, Judgment, 15 July 1999, para. 120] Direct support of govt --> NIAC Direct support non state actors --> IAC- or dual conflict Indirect support --> depends on level of support Notion of "de facto organ" (Tadic) --> overall control - must compromise more than the mere provision of financial assistance or military equipment or training.
DPH- Threshold of harm
The act must be likely • to adversely affect the military operations or military capacity of a party to an armed conflict, or, alternatively, • to inflict death, injury, or destruction on persons or objects protected against direct attack, such as civilians, medical personnel, or hospitals.
Elements that define AP II NIAC
The armed conflict takes place in the territory of a High Contracting Party, between its armed forces and dissident armed forces or other organized armed groups, • which, under responsible command, • exercise such control over a part of its territory, • as to enable them to carry out sustained and concerted military operations, • and to implement this Protocol.
Tadic Level of Intensity - NIAC
The level of intensity: • the duration and gravity of the armed clashes, • the type of government forces involved, • the number of fighters and troops involved, • the types of weapons used, • the number of casualties and the extent of the damage caused by the fighting.
Tadic Level of Organization - NIAC
The level of organization of the armed group: • the existence of a chain of command, • the capacity to transmit and enforce orders, • the ability to plan and launch coordinated military operations, and • the capacity to recruit, train and equip new fighters (motivation of an armed group is not considered a relevant factor).
Common Article 1 - Obligation to ensure respect
The obligation to ensure respect (common article 1) => Not only is the State directly affected by a violation concerned by and entitled to take measures to stop it, all other States not only may, but must take measures. (ICJ Israel/Wall Opinion) => Obligations under IHL are obligations erga omnes. • A State can take all measures to ensure respect afforded under general international law ▫ compatible with general international law (which excludes the use of force), ▫ not excluded by IHL itself (such as reprisals against protected persons). • A State can - and therefore must - react to all breaches of IHL by retaliatory measures that do not violate its international obligations.
ICC preliminary examinations
The preliminary examination of a situation by the Office may be initiated on the basis of: a) informationsentbyindividualsorgroups, States, intergovernmental or non- governmental organisations; b) a referral from a State Party or the United Nations Security Council; or c) a declaration lodged by a State accepting the exercise of jurisdiction by the Court pursuant to article 12(3) of the Statute • The Office of the Prosecutor ("Office" or "OTP") is responsible for determining whether a situation meets the legal criteria established by the Rome Statute to warrant investigation by the Office. • For this purpose, the OTP conducts a preliminary examination of all communications and situations that come to its attention based on the statutory criteria and the information available.
• What are its four elements and some of the mechanisms we can use to achieve them? What does it mean when we say it has to be holistic?
Truth - truth commissions, documentations, archives, books, missing persons Justice - civil lawsuits, IL tribunals, domestic courts, witness protection Reperations - rehabilitation, compensation, restitution, memorials, commemorations, educational material Instiutional Reforms - demobilization, reintegration of former combatants, democratic control, vetting
• What are truth commissions, what are their similarities and differences?
Truth Commissions are being set up to • discover, clarify and formally establish the facts and context of serious human rights violations in a country's past, • formally acknowledge past abuses and seek recognition for victims, • recommend institutional reforms, sometimes also to prepare the way for prosecutions, • pave the path to peace, reconciliation and democracy.
Universal Jurisdiction
Universal jurisdiction establishes that certain crimes are so harmful to international interests that states are entitled—and even obliged—to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or the victim.
Customary International Humanitarian Law
Unwritten rules which derive from "general practice accepted as law" - Elements for formation: 1. State practice ( what does the state do) 2. Opinio Juris (out of a sense of legal obligation) - Who forms custom in IHL? mostly from states in armed conflicts except AP was made b/c of the effects of the WWII Treaties that are important: - Geneva Convention - AP I & II - Hague conventions - other relevant conventions
Tadic NIAC
Whether a conflict is an "armed conflict" under common Article 3 depends on two criteria; • the armed confrontations must reach a minimum level of intensity, and • the armed groups involved must show a minimum degree of organization. The fulfilment of these two criteria, intensity and organization, is determined on a case-by-case basis, by weighing up a number of factual indicators.
What is an International armed conflict?
considered "cases of declared war or of any armed conflict which may arise between two or more of the high contracting parties, even if the state of war is not recognized by one of them". Tadic Para. 70- an armed conflict exists whenever there is [...] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. ---> Intensity of the conflict and the organization IAC: as defined in Art. 2 common and AP I, Art. 1.3
ius in bello
the conduct of war-during war. There is a sense that there are limits imposed by international law imposed on states with regard to the conduct of war. "Justice in War" i.e. proportionality, no targeting of civilians, etc. ---> in both treaty and customary international law sources, it defines rules which protect victims or war ( often referred to the law of Geneva) as well as those provisions which direct the conduct of hospitalities (the law of The Hague)
Grey areas of battlefield status:
• "Revolving door" problem • Human shields (involuntary / voluntary) • Private military and security companies (PMSC) • Mercenaries and Spies
"Revolving Door" Problem
• A "revolving door" fighter is a civilian who repeatedly or regularly participates in hostilities but qualifies for civilian treatment in between each engagement. • The DPH study qualifies these individuals as civilians. • Certain conduct / role in an organization shifts a person's periodic DPH towards a continuous combat function.
Definition "Combatant" AP I
• AP I, Art. 43 expands the combatant definition to include all resistance movements fighting on behalf of a party to the conflict. • AP I, Art. 44.3 revises the distinction required of a combatant - there is no obligation to wear a fixed distinctive sign as long as individuals carry their arms openly when visible to the enemy and preparing to launch an attack. Sources: • 1907 Hague Convention, Art. 1 • GC III, Art. 4 • API,Art.43&44
Grave Breaches regime Ap I
• AP I, Art. 85(2) adds the following new categories of persons or objects protected under the Protocol: ▫ persons who have taken part in hostilities and have fallen into the power of an adverse party under Art. 44; ▫ persons who have taken part in hostilities under Art.45; ▫ refugees and stateless persons under Art.73; ▫ wounded,sick and shipwrecked as expanded underArt.8; ▫ medical and religious personnel,medical unitsand transports as categorized in Article 8.12
Special protection for certain objects
• Additionally, certain objects have a special protection ▫ These objects may not be used for military purposes by those who control them and should therefore never become military objectives. ▫ Even if they are effectively used for military purposes, specially protected objects may only be attacked under restricted circumstances and following additional precautionary measures. - Civilian objects shall not be the object of attack - only military objectives ex; by nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction offers a definite military advantage. Concrete not hypothetical. - In case of doubt dont use - assessed "as a whole" and "in light of the circumstances governing at the time" AP I, Art 52.2
Direct Participation in Hostilities
• Both in international and non-international armed conflicts, civilians lose their protection against attacks if and for such time as they participate directly in hostilities. • AP I, Art. 51(3); acts of war which by their nature or purpose are likely to cause actual harm • AP II, Art. 13(3); • CIHL, Rule 6
Battlefield status in IAC
• Distinction: combatants v. civilians • Combatants: ▫ lawful target always, ▫ POW status upon capture, ▫ combatant privilege • Civilians: ▫ No lawful target (unless DPHing) ▫ GC IV protection upon capture, ▫ no POW status, ▫ no combatant privilege = can be tried for DPHing
Human Sheilds
• IHL also prohibits abuse of this prohibition: civilians, the civilian population and certain specially protected objects may not be used to shield a military objective from attack
Minimum feasible damage
• If a commander has a choice of means or methods that will yield the same military advantage and if all available options are expected to respect the proportionality rule, the principle of minimum feasible damage dictates that the means or methods chosen must be those that cause the least collateral damage. • "...take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life..." • Ask whether alternatives exist that would minimize or altogether avoid casualties.
Treatment and protection of POW
• In general POWs cannot be mistreated or punished for the fact of belonging to the opposing party. They must be held separately from civilian captives, and must be repatriated at the end of hostilities. Their property can be taken but only for safekeeping, to be returned at the end of hostilities. POWs can be made to perform labor in limited circumstances. • GC III also gives the ICRC visitation rights to ensure that prisoners are adequately treated. Rules on treatment during internment ▫ GC III, Arts 12-81 ▫ CIHL, Rules 118-123 and 127 • Rules on penal and disciplinary proceedings ▫ GC III, Art. 82-108 ▫ CIHL, Rules 100-102 • Punishment for acts committed prior to capture ▫ GC III, Art. 85
Modern interpretations of the def. of civilians
• In the hands of a state... "not necessarily in a physical sense, but in the territory" is enough. (ICTY, Rajic) • ...of which they are not nationals... "in modern conflicts... ethnicity rather than nationality as grounds for allegiance"... (ICTY, Tadic).
Limiting collateral damage
• Indiscriminate attacks - AP I, Art. 51(5) • Precautionary measures - AP I, Art. 57 • Minimum feasible damage • Proportionality
Involuntary human shields
• It is generally agreed that involuntary human shields nevertheless remain civilians. Care must therefore be taken to spare them when attacking a legitimate objective. • Precautions in attack AP I, Arts 51(8) and 57 • In an extreme case, if the anticipated incidental loss of life or injury among involuntary human shields is excessive in relation to the concrete and direct military advantage expected, an attack directed against the latter may become unlawful.
Combatants v. Civilians Sources
• No internal disturbances • IAC: Art. 2 common AP I, Art. 1.3 AP I, Art. 1.4 • NIAC: Art. 3 common • NIAC: AP II, Art.1 • Occupation: Art. 2 common
General principles that prohibit or limit certain weapons
• Principle prohibiting means and methods of warfare causing indiscriminate effects [AP I, Art. 51(4)]. • Principle prohibiting the means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering [AP I, Art. 35(2)]. • API further prohibits means or methods of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.[AP I, Arts 35(3) and 55(1)]. • Rule 70. The use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited. [IAC/NIAC] • Rule 71. The use of weapons which are by nature indiscriminate is prohibited. [IAC/NIAC]
Proportionality
• Prohibition to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Grave breaches regime
• Some obligations under IHL are so fundamental (such as the prohibition on deliberate or indiscriminate attacks, and the prohibition against torture) that the GC have established individual accountability for those crimes. • GC I-IV, Art. 50; 51; 130; and 147 • For the violation of those (very fundamental) obligations the Geneva Conventions created the category of grave breaches. • The GC establish a comprehensive system of prevention, investigation and enforcement (three-part obligation) for states. ---> The three central obligations of the grave breaches regime are: 1. suppression, 2. search for, and 3. prosecute or extradite. The grave breaches regime is based on the principle of aut dedere aut judicare (extradite or punish).
Private Military and Security Contractors (PMSC)
• Status definition on a case-by-case basis, depending of the functions they have. • If (accompanying) armed forces => POW • If civilians => only targetable if DPHing • If civilians => status after capture? • Montreux Document (2008) tries to define legal obligations and protections. - defined in AP I, Art 47. Mercenaries. 1. A mercenary shall not have the right to be a combatant or a prisoner of war. - spies - AP 1 art. 46
Status Based Targeting v. Conduct Based Targeting
• Status-based targeting: use of force allowed based on status of target (sleeping soldier) Vs. • Conduct-based targeting: use of force only allowed because of conduct of the target (civilians normally immune unless they take part in hostilities)
Rome statute system
• The Assembly of States Parties • Four organs of the ICC ▫ Presidency ▫ Judicial Divisions ▫ OTP ▫ Registry • Trust Fund for Victims
Voluntary human shields
• The DPH study treats these individuals as civilians not participating in hostilities.
Continuous Combat Function
• The decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities ("continuous combat function").
Determination of occupation
• The existence of a state of occupation is a question of facts: the facts on the ground determine the existence of a belligerent occupation, not a declaration of occupation or, alternatively, a denial of occupation. • Irrelevant whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an 'invasion,' 'liberation,' 'administration' or 'occupation. Separation between ius ad bellum and the law of belligerent occupation! • The legality of the use of force has no bearing on the existence or non-existence of an occupation and the obligations of the occupier regarding the treatment of the civilian population.
Proportionality
• The parties have to refrain from attacks in which the expected civilian casualties will be excessive in relation to the anticipated military advantage gained. What is a "proportional attack?" • no mathematical guideline or ratio. • guideline forcing commanders to weigh the expected consequences of an attack against the concrete military advantage anticipated. • Prospective analysis of "expected results" SOURCES: • AP I, Art. 51(5)(b) • AP I, Art. 57(2)(b)
Distinction / Discrimination
• The parties to the conflict must at all times distinguish between civilians and combatants. • The parties to the conflict must also distinguish between military objectives and civilian objects. • Attacks may only be directed against combatants/military objectives; attacks may not be directed against civilians/civilian objects. SOURCES: • Lieber Code, Art. 22 • AP I, Art. 48 • AP I, Art. 51 • AP I, Art. 52 (2) • ICRC Customary Study RULE 1
DPH- Belligerent nexus
• The underlying act must be connected to the conflict. • The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.
Military Necessity
• The use of military force is only justified to the extent that it is necessary to achieve a defined military objective. • Military actions that do not serve any evident military purpose are prohibited. • This principle attempts to maximize military advantage while minimizing human suffering and physical destruction. Covers only: - measures that are lawful in accordance w IHL - doesn't mean "whatever it takes to win" - compromise between humanity and military necessity - never a justification for a war crime/ or grave breach SOURCES: • Inherent in many IHL provisions • Lieber Code, Art. 14 • 1907 Hague Regulation IV, Art. 23(g) • Rome Statute, Art. 8(2)(b)(xiii) • Army Field Manuals
Prohibited or restricted use of weapons
• Theprincipleof"superfluousinjuryor unnecessary suffering" has been interpreted as referring to harm that would not be justified by military utility ▫ because of the lack of even the slightest utility ▫ because utility is considerably outweighed by the suffering caused. • This standard may seem too vague to be effective, but it has led to efforts to prohibit and restrict certain conventional weapons [e.g., dum-dum bullets, mines, incendiary weapons, non-detectable fragments, and cluster munitions] and weapons of mass destruction [e.g. chemical weapons, use of poison, bacteriological and biological weapons, and - so far without success - nuclear weapons].
DPH- Direct Causation
• There must be a direct causal link between the act and the harm likely to result from either the act, or from a coordinated military operation of which that act constitutes an integral part. • The harm must be brought about in ONE causal step. Cannot rely on an unbroken causal chain of events. Difference between • civilians taking a direct part in hostilities lose the protection from attack Vs. • civilians taking an indirect part in hostilities (war-sustaining activities) continue to enjoy protection from attack • Acts that are indispensable to the causation of harm, but not directly causal to the harm (e.g. supplying and feeding troops) are NOT direct participation. • Acts that are NOT indispensable but directly causal to the harm (e.g. serving as a lookout during an ambush) ARE direct participation.
torture
• Torture is generally considered to be an aggravated form of inhuman treatment. • Torture is prohibited as a war crime, when it is part of a widespread or systematic practice amounting to a crime against humanity, as well as as a single act. • Torture is a crime under customary law (and ius cogens).
Precautionary measures
• Underlying each precautionary measures is the joint precept of having to take constant care to spare the civilian population, civilians and civilian objects, and having to take all feasible precautions to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects => DUE diligence Precautionary measures, AP I, Art. 57 • But also recognition of the fact that the measures can only be assessed in light of the circumstances ruling at the time. • The obligation to take feasible precautions is generally understood as being limited to "those precautions that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations".
The applicability of the rules of IHL concerning occupied territories
• in the case of armed conflict - GC IV, Art. 2(1) • in the case of belligerent occupation (encountering no resistance) - GC IV, Art. 2(2) • "essential distinction between the determination of a state of occupation and that of the existence of an international armed conflict"
Main protection that comes with the classification as a civilian is...
• that civilians cannot be targeted. • Except unless and for such time they directly participate in hostilities. • The incidental death of civilians is still allowed, if proportionality is satisfied. • The tradeoff is that civilians can be prosecuted for participating in hostilities.
Main privilege that comes with the classification as a combatant is...
• the "combat immunity" or the "combatant's privilege": • Combatants are legally allowed to kill and perform other lawful wartime actions and cannot be prosecuted for them. • The tradeoff of combatant's privilege is that he also is a continuing lawful target and may be attacked at any time (unless wounded or captured).
