International Humanitarian Law
Issues of jus ad bellum issues related to cyber warfare (fith domain of war)
- what exactly amounts to "attacks", "acts of violence" - in cyberspace, and how the proportionality of "collateral damage" to civilian infrastructure should be assessed (since military and civilian computer networks are generally interconnected) - what precautions can and must be taken to avoid the risk of excessive incidental damage to civilian objects whose functioning depends on computer systems (hydro-electric and nuclear plants, hospitals, etc.)? - How can it be ensured that this damage does not ultimately cause erroneous or excessive harm to persons and objects protected against direct attack? - What does the duty of combatants to distinguish themselves from the civilian population mean in cyberspace
Which two types of conflict does IHL recognize?
1) International armed conflicts (IACs) which occur between two or more states 2) non-international armed conflicts, also known as NIACs or civil wars, which usually occur within a state
Four criteria for combatant status
1. commanded by a person responsible for his subordinates 2. fixed distinctive sign recognizable at a distance. 3. carry arms openly 4. conduct their operations in accordance with words of IHL
"High Contracting State" refers to...
A State party to e.g. Additional Protocol I (4)
Principle of distinction; which part of the Convention?
Additional Protocol 1; The principle is codified in Article 48, and Article 51, paragraph 2, as well as Article 52, paragraph 2 of API.
How are armed conflict characterized internationally? + example of formulation
Armed conflicts derive their international character from the fact that they occur between states. Common Article 2 of the Geneva Conventions provides that, "The present convention shall apply to all cases of declared war or of any other 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."
Interrelation
IHL and human rights law apply simultaneously to the same situation, their respective provisions do not contradict, rather they mutually reinforce each other.
1949 Geneva Conventions, Common Article 3 (Conflicts not of an international character) [text]
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions.
When does IHL apply
Only if an armed conflict exist. Either between states, between states and certain non-state actors, or even between non-state actors. Whether the use of force (jus ad bellum) is lawful in the first place is regulated by a different body of law
Equality of belligerents
State exercising its right to self-defence or rightfully trying to restore law and order within its territory must be as careful to comply with IHL as an aggressor State or a non-State armed group having resorted to force in violation of international or national law
Legal frameworks distinguished from IHL
UN Charter, the law of neutrality, human rights law, and international criminal law
animus belligerendi
belligerent intent
Lex specialis
law more specifically crafted to address the situation at hand (lex specialis) overrides a competing, more general law (lex generalis).
Non-reciprocity of humanitarian obligations
the belligerents must respect IHL even if it is violated by their adversary
IAC depends on two elements...
the legal status of the belligerent parties and the nature of the confrontation between them.
When do we speak of occupied territory?
"Effective control", i.e. by the occupying states over the territory in question, depending on the occupier's ability to ensure public security, law and order, and other de facto governmental functions (i.e. main functions of the original government). Article 42 of the Hague (+Pictet theory) Regulations states that a territory is considered occupied only to the extent effective control has actually been established and can be exercised -> full protection of the Fourth Geneva Convention immediately upon establishment of effective control (individual protection).
Legal text: 1949 Geneva Conventions, Common Article 2 (Application of the convention)
"In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other 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 with no armed resistance."
1995 Tadic Decision on Jurisdiction (ICTY), para. 70
"On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there."
GC IV, Art. 99
"[e]very place of internment shall be put under the authority of a responsible officer, chosen from the regular military forces or the regular civil administration of the Detaining Power"
GC III, Art. 39
"[e]very prisoner of war camp shall be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power"
General Principles of Law and ICJ ruling
"elementary considerations of humanity," which it held to be "even more exacting in peace than in war." Based on this principle, the ICJ has argued that the IHL obligation of States to give notice of maritime minefields in wartime applies in peacetime as well, and that the humanitarian principles expressed in common Article 3 are binding in any armed conflict, irrespective of its legal classification and of the treaty obligations of the parties to the conflict
"The Martens Clause" on cases not regulated by treaty law
"populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience." - First Hague Peace Conference of 1899
Hague Regulations concerning the Laws and Customs of War on Land
(1907) formulated the basic rules governing the entitlement to combatant privilege and prisoner-of-war status, the use of means and methods of warfare in the conduct of hostilities, and the protection of inhabitants of occupied territories from inhumane treatment
Montreux Document (2006)
(The Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict) 1) restates the obligations of States, private military and security companies and their personnel under existing international law, including both IHL and human rights law, with regard to the operations of such companies in situations of armed conflict. In addressing the obligations of States, the Montreux Document differentiates between States using the services of such companies (contracting States), States in whose territory the companies operate (territorial States) and States in whose territory they are headquartered or incorporated (home States). addresses the obligations of "all other States," the duties of private military andsecurity companies and their personnel, and questions of superior responsibility and of State responsibility for the companies' conduct. 2) provides a compilation of good practices designed to assist contracting, territorial and home States in complying with these legal obligations. The good practices are based largely on existing State practice in related areas and include measures such as introducing transparent licensing regimes, requiring adequate training and ensuring civil and criminal accountability.
Hours de combat
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Law of neutrality (jus in bello) description
- Rooted in customary law and codified in the Hague Conventions, Nos V and XIII, of 1907. - (a) to protect neutral States (i.e. all States that are not party to an international armed conflict) from belligerent action; (b) to ensure neutral States do not militarily support belligerent States; and (c) to maintain normal relations between neutral and belligerent States. Obliges neutral States to prevent their territory, including airspace and waters subject to their territorial sovereignty, from being used by belligerent States. - If combatants belonging to either party cross into neutral territory, they must be interned by the neutral State - Third Geneva Convention also requires that they be treated as prisoners of war
Customary law general sources
- State practice tends to be examined and customs identified by national and international courts and tribunals tasked with the interpretation and adjudication of international law. - The ICRC's extensive study on customary IHL is also a widely recognized source of reference in this respect
From NIAC -> IAC
- The International Court of Justice in its famous 1986 Nicaragua judgement - stated that for this to happen the third state needs to have effective control over the rebel group - third states must give clear instructions to the respective rebel group - 1999 Tadic appeals judgment lower threshold compared to Nicaragua! - Still, the overall control Standard seems to have been accepted in the meantime as the decisive criterion for the characterization of armed conflicts and has been repeatedly confirmed by other courts and tribunals (ICC Lubanga case)
Common Article 3 of Geneva Conventions applies to
- armed conflict not of an international character occurring on the territory of one of the high contracting parties - protracted armed violence between non-state actors
Advantage of customary law vs. Treaty law
- dynamic body of law constantly evolving in tandem with State practice and legal opinion. Adaptability > development of which requires international negotiations followed by the formal adoption and ratification of an agreed text. - binding on all parties to an armed conflict irrespective of their treaty obligations - particularly relevant in situations of non-international armed conflict, because these are regulated by far fewer treaty rules
two definitions of armed conflict
- international armed conflicts (IACs): whenever recourse is had to armed force or belligerent occupation (between two or more States) - non-international armed conflicts (NIACs) when protracted armed violence takes place between governmental authorities and organized armed groups or between such groups (between States and non-governmental armed groups, or between such groups only)
difference between jus ad bello and jus in bello
- jus ad bello: the law governing the use of inter-State force - jus in bello: law governing the conduct of international and non-international armed conflicts
Why maintain a strong divison between IACs and NIACs?
- jus ad bellum imposes a general prohibition on the use of force between States, any such use can be legitimately presumed to express belligerent intent and to create a situation of international armed conflict (governed by IHL) - States must be able to use force against groups or individuals for the purpose of law enforcement - equating the two types of armed conflict could be perceived as providing armed opposition groups with international status and might therefore undermine State sovereignty and encourage rebellion.
Significance of GC I-IV, common Art. 3.
- organized armed groups were considered "parties" to an armed conflict with their own obligations under international law, irrespective of any formal recognition of belligerency by the opposing State - also, neither that they are legitimate nor that they have full legal personality under international law
1977 Additional Protocol II
- protection of certain persons, including detainees, the wounded and sick, medical personnel and civilians - always requires government forces - the organized armed group must have control over territory - does not apply to civil wars, which are fought exclusively between rebel groups - encourages state signature by higher threshold of application
use of force by armed forces and law enforcement officials is governed by two different paradigms
- the conduct of hostilities paradigm, derived from IHL - the law enforcement paradigm, mainly derived from human rights law
Treaty Law applicable to international armed conflict
- the four 1949 Geneva Conventions, their Additional Protocol I, - weapons treaties, e.g. 1980 Convention on Certain Conventional Weapons or the 2008 Convention on Cluster Munitions.
Two criteria for the existence of a non-international armed conflict triggering the application of Common Article 3
- the non-state actors must have a minimum level of organization (organisation critera) - in a non-international armed conflict, violence must have a certain minimum level of intensity
2008 Haradinaj decision ICTY Trial Chamber
- the organization criterion (CA3): the existence of a command structure of disciplinary rules, headquarters for the group, and territorial control, as well as the ability to access weapons and other military equipment, the capacity to recruit new members, and the ability to provide training. - intensity of violence threshold: the number, duration, and intensity of individual confrontations, the type of weapons and other military equipment used, the number of persons partaking in the fighting, the number of casualties, and the extent of material destruction
Peacetime duties with respect to IHL, examples
- use, development, stockpiling, production and sale of certain weapons by States, subject to legal review - training and dissemination and in relation to the investigation and prosecution of serious violations of IHL, i.e. war crimes - persons deprived of their liberty for reasons related to an armed conflict remain protected by IHL until they have been released and repatriated or their status has otherwise been normalized, if necessary even years after the end of the conflict. - applicable in territories that remain occupied after the cessation of active hostilities until a political solution for their status has been found
Difference between IHL and HRL
-IHL generally does not provide persons with rights they could enforce through individual complaints procedures. -Human rights law focuses specifically on human beings, whereas IHL also directly protects, for example, livestock, civilian objects, cultural property, the environment and the political order of occupied territories. -HRL is binding only on States, whereas IHL is binding on all parties to an armed conflict, including non-State armed groups.
law governing the use of inter-State force jus ad bellum / jus contra bellum, not covered by IHL!
-UN Charter and corresponding customary law. Article 2(4) of the UN Charter provides that States "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." - Article 51 states that the prohibition does not impair a State's "inherent right of individual or collective self-defence if an armed attack occurs." In essence, this means that a State may lawfully resort to inter-State force in self-defence to the extent that this is necessary and proportionate to repel an armed attack. - Article 42 states that the Security Council may use, or authorize the use of, inter-State force "as may be necessary to maintain or restore international peace and security."
Tallinn Manual (2009) NATO
-restate and clarify international law as it applies to cyber-warfare. -however, not legally binding and does not necessarily represent the views of NATO or any other organization, or of any State
Defining combatants
... armed forces of a party to an international armed conflict with the exception of medical and religious personnel. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict, provided they fulfil certain criteria. Members of the regular armed forces who profess allegiance to a government or authority not recognized by the other Party to the conflict. Participants in a levée en masse, meaning inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading force without having formed regular armed units, provided they carry arms openly and respect the laws and customs of war. Combatants are required to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. A combatant who falls into the power of an adverse party to the conflict becomes a prisoner of war, in accordance with the Third Geneva Convention.
Three ways for a belligerent occupation come to an end
1) The occupying state withdraws or loses its effective control; 2) through political settlement between the two states; 3) or as a result of the occupied state's genuine consent to the military presence.
Four Geneva Conventions of 1949
1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 2) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 3) the Convention relative to the Treatment of Prisoners of War (Third Geneva Convention) 4) the Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention). The four Geneva Conventionsof 1949 are still in force today and, with 196 States Parties, have become the most widely ratified treaties.
1977 Additional Protocol II, Article 1 (Material field of application) [text]
1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take 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. 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.
Three legal consequences for combatants that result from their combatant status
1. combatants are legitimate objectives/targets. 2 enjoy combatant privilige, lawful means and methods of warfare. They can thus directly participate in hostilities without facing criminal prosecution. 3 combatants who fall into the hands of the enemy are entitled to Prisoner of War status
Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare
1925
Geneva Convention relative to the Treatment of Prisoners of War
1929
Additional Protocols of 1977 relating to the protection of victims of armed conflicts
1980 Convention on Certain Conventional Weapons and its five protocol
When was the Rome Statute established and why is it significant?
1998, International Criminal Court, introduced jurisdiction over international crimes committed by nationals, or on the territory, of a State party to the Statute, or referred to it by the UN Security Council. Statute currently ratified by 120 member states.
Double classification
A situation may be classified as more than one armed conflict. This happens for instance in certain cases of foreign intervention, or when a State is fighting against both an armed group and another State. In the situation of armed confrontations between the intervening State and the territorial State automatically triggers the applicability of IHL governing international armed conflicts. The confrontations between the territorial State and the insurgency, on the other hand, will retain their non-international character and continue to be governed by IHL applicable to non-international armed conflicts
Customary Law
Binds all states regardless of whether these states have rectified their respective treaties
Principle of Distinction
During a war a distinction must be made between distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. The only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy
Unclear interrelation
E.g. persons who do not, or no longer, directly participate in hostilities, IHL prohibits violence to life and person, in particular murder in all circumstances. Yet it does not provide such protection to combatants and civilians directly participating in hostilities. Universal HRL protects all persons against "arbitrary" deprivation of life, thus suggesting that the same standards apply to everyone, irrespective of their status under IHL (overcomed by the principle of lex specialis)
Two areas of IHL
Hague Law, Geneve Law
IHL position on non-intertional armed conflicts
ICRC has formally stated that Hague Convention No. V "can also be applied by analogy in situations of non-international conflict, in which fighters either from the government side or from armed opposition groups have fled into a neutral State."
Enforcement of IHL
IHL defines the duties of the belligerents, but creates the legal basis needed to prosecute individuals for serious violations of these duties. More so, enforcement at the level of the individual was largely ensured by the belligerent States themselves, through disciplinary sanctions and criminal prosecution under their national laws and regulations.
Customary Law; Usus
Important sources of rules and principles rooted in custom general State practice
Customary Law; Opinio juris
Important sources of rules and principles rooted in custom general State practice (usus) that is accepted as law. Such practice has consolidated into customary law, which exists alongside treaty law and independently of it.
Hague Law
Law governing conduct of hostilities, and restrict means and methods of warfare. Hague convention of 1899 / 1907
Geneva Law
Law governing protected persons. Protects persons in armed conflict. Four 1949 Geneva Conventions
How long can an occupying power maintain control over the occupied territory?
Military control over the occupied state is supposed to remain temporary
Does international conflict have to be declared?
No, international armed conflict is presumed to exist as soon as a state uses armed force against another state, regardless of the reasons for the confrontation, the intensity of the violence or the existence of a formal declaration of war
1995 Tadic Decision on Jurisdiction (ICTY), para. 70 [text]
On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. [...] Read more
What is belligerent occupation? And how does IHL apply in this scenario?
One state occupies another state normally using armed forces to achieve this result. - Common Article 2 Paragraph 2 of the Geneva Conventions explains that IHL applies to all cases of partial or total occupation of the territory of a high contracting party, even if the said occupation meets with no armed resistance. - Inhabitants of occupied territory are assumed to have fallen into the hands of the occupying power, protected by the 1907 Hague Regulations and the Fourth Geneva Convention of 1949. These roles are supplemented by certain provisions of the 1977 Additional Protocol I, as well as by customary international law.
Means of warfare
Refers to the weapons used in armed conflict. Any weapon can be used in an unlawful manner. Conversely, the use of weapons that have been prohibited because of their inherent characteristics is unlawful regardless of the manner in which they are employed.
Rules of limited warfare
Rejects total war: "the right of the Parties to the conflict to choose methods or means of warfare is not unlimited" (Article 35, paragraph 1 of the 1977 Additional Protocol I (API), originally qualified in Article 22 of the 1907 Hague regulations. Forms a past of customary law
Which rules and principles (3) reject total war?
Rules of limitied warfare, principles of distinction, proportionality, and precautions, and the prohibition of unnecessary suffering. Codified in Additional Protocol I, and to a lesser degree in Additional Protocol II.
Treaty Law applicable to international armed conflict
Significantly less developed, but: Article 3 and, in certain circumstances, Additional Protocol II of Geneve Convention
internationalized conflict
State, or coalition of States, intervening in a pre-existing non-international armed conflict, thereby becoming a (co-belligerent) party to that conflict
1995 Tadic decision (Yugoslavia)
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia specifies that an international armed conflicts exists whenever there is resort to armed force between states.
The principle of humanity
The principle of humanity forbids the infliction of suffering, injury or destruction which would be unnecessary to win the war.
The principle of military necessity
The principle of military necessity permits the use of force that is necessary to achieve the aim of a conflict, but with limits to the expenditure of life and resources.
Derogability
The rules and principles of IHL cannot be derogated from, e.g. to disregard the prohibition on attacks against the civilian population based on arguments such as military necessity, self-defence or distress. HRL applies irrespective of whether there is an armed conflict. BUT In times of public emergency, HRL allows for derogations from protected rights to the extent actually required by the exigencies of the situation, e.g. during an armed conflic, natural disaster, a government may lawfully restrict freedom of movement in order to protect the population in the affected areas
General criteria for determining the end of armed conflict?
When military operations cease, indicated traditionally by lasting/durable ceasefires, terminate in a slow and progressive decrease in intensity, unstable cease-fires and/or the intervention of peacekeepers
principle of proportionality
Where the infliction of incidental harm on civilians or civilian objects cannot be avoided... those who plan or decide on an attack must refrain from launching, or must suspend, "any attack which may be expected 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 anticipate -"concrete and direct"; military advantage is to be understood as not hypothetical, not speculative or of indirect nature. In that sense, the advantage should be substantial and relatively close - excluding political, economic and other non-military advantages. An advantage that wouldn't be immediately obvious or would only manifest itself in the long term, would not be sufficient. The anticipated military advantage must be expected to result from the attack and not from the entire military campaign. -"excessive" attack cannot be understood by reference to a simple numerical threshold (e.g. number of civilian casualties or damaged civilian objects). In principle, one would have to take into account the military value of a target and weigh it against the expected incidental harm. -" The military advantage gained from an attack should be the one anticipated at the time of the attack. In other words, military commanders can only be required to base their assessment on the facts they had before launching an attack.
Example of IHL applicability beyond armed violence
combatants deprived of their liberty for reasons related to an armed conflict (prisoners of war) remain protected by IHL until repatriated
Scope of application
existence of a nexus with an armed conflict, the applicability of human rights protections depends on whether the individual concerned is within the "jurisdiction" of the State involved. - human rights law applies only where individuals find themselves within territory controlled by a State, including occupied territories (territorial jurisdiction), or where a State exercises effective control, most commonly physical custody, over individuals outside its territorial jurisdiction (personal jurisdiction)
ICTY ruling and IHL
has based many of its judgments on rules and principles of IHL not spelled out in the treaty law applicable to the case at hand but considered to be binding as a matter of customary law
Implications of International Military Tribunal at Nuremberg post WWII for customary law
held not only that the 1907 Hague Regulations themselves had attained customary nature and were binding on all States irrespective of ratification and reciprocity, but also that individuals could be held criminally responsible and punished for violating their provisions as a matter of customary international law
When was the ICTY and the ICTR established?
in 1993 and 1994
General Principles of Law
legal principles that are recognized in all developed national legal systems, such as the duty to act in good faith, the right of self-preservation and the non-retroactivity of criminal law
Article 4A, paragraph 1 of the third Geneva Convention defining of prisoners of war
members of the armed forces of a party to the conflict as well as members of militias and volunteer corps forming part of such armed forces who have fallen into the hands of the enemy.
Principle of caution
minimize the infliction of incidental death, injury and destruction on persons and objects protected against direct attack
disadvantage of customary law vs. treaty law
not based on a written agreement and, consequently, that it is not easy to determine to what extent a particular rule has attained customary status
Principle of caution A: precautions in attack
precaution to the attacking party, which must do everything feasible to avoid inflicting incidental harm as a result of its operations. Precautions in attack and against the effects of attack (see A and B cards).
Principle of caution B: precautions against the effects of attack
precaution to the party being attacked, which, to the maximum extent feasible, must take all necessary measures to protect the civilian population under its control from the effects of attacks carried out by the enemy
Which rules IHL applies to the governing situations of international armed conflicts?
primarily in the 1907 Hague Regulations, the four 1949 Geneva Conventions, and the 1977 Additional Protocol I supplemented by Customary International Law
Difference between Additional Protocol II vs III
provides an objective threshold of factual criteria at which the existence of a non-international armed conflict can no longer be denied and, second, that it stipulates that situations of "internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature," do not constitute armed conflicts
National liberation movements derived from Additional Protocol I
recognized as "parties" to an international armed conflict although they do not, at the time, qualify as sovereign States under international law
Methods of Warfare
specific ways in which such weapons are used or in which hostilities can be conducted. Tactics and strategies used in conducting military operations to weaken or defeat an enemy.
Examples of "soft law" instruments
the United Nations Guiding Principles on Internal Displacement (1998) and the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005)
The role of "soft law," case-law and doctrine
the rules and principles derived from these sources often require more detailed interpretation before they can be applied in practice. E.g. defining the legality of "armed conflict" and "direct participation in hostilities".
Nexus to the armed conflict
the rules can extend to acts beyond actual combat, if an nexus is apparent
Purpose of IHL is...
to protect the victims of armed conflicts and regulate hostilities based on a balance between military necessity and humanity
Territorial scope of application
to which areas on land and at sea do the laws of war apply? IHL usually applies to those areas where actual combat takes place.
Three distinct Sources of IHL
treaties, custom, and the general principles of law. Also, case-law, doctrine and, in practice, "soft law" play an increasingly important role in the interpretation of individual rules of IHL.
from NIAC to IAC
where an intervening State not only supports, but actually directs and controls the insurgent party to such an extent that its operations would have to be regarded as those of the intervening State itself, the pre-existing non-international armed conflict between the territorial State and an insurgency will be transformed into an international armed conflict between the territorial and the intervening States
