The Law of Armed Conflicts - Copenhagen University - Fall 2008

8/14/2019 The Law of Armed Conflicts - Copenhagen University - Fall 2008

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The Law of Armed Conflict

I. The Legal Regulation of the Use of Force in InternationalRelations.........................................................................6

The Ban on the Use of Force.......................................................6The Ban on Intervention.............................................................7Collective Use of Force...............................................................7

Examples......................................................................................................7The Right to Self-Defence...........................................................8

Anticipatory Self-Defence.............................................................................8Who are protected?......................................................................................9

Humanitarian Intervention.........................................................9Reprisals...................................................................................9

II. Basic Principles of Laws of War...................................10Historical Overview..................................................................10Sources of International Law....................................................11

Treaties / Conventions / Agreements bwn states..............................................11Customary Law.................................................................................................11

Judgments, Case Law.......................................................................................11Writings of Learned Scholars............................................................................11

Basic Principles........................................................................12Military Necessity.......................................................................................12Humanity...................................................................................................13Discrimination / Distinction........................................................................13

Proportionality............................................................................................13Proportionality in Ius ad Bellum........................................................................14Proportionality in Self-Defence.........................................................................14Proportionality in Reprisals...............................................................................14Proportionality in Ius in Bello............................................................................14

III. The Application of the Law of Armed Conflicts............15 Armed Conflict ....................................................................15 International Armed Conflict ...............................................15Occupation..............................................................................15Human Intervention.................................................................15Peace Support Operations........................................................15

Equality of Parties to the Conflict as to the Application of the Law of International Armed Conflict.............................................................................16Non-International Armed Conflict.....................................................................16Applicable Law in Non-International Armed Conflicts.......................................16

Case Study: Afghanistan......................................................................................16Internal Disturbances.......................................................................................17

IV. The Law of Belligerents..............................................18Categorization of people in armed conflict................................18Principle of Distinction.............................................................18

Civilians............................................................................................................18

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Combatants......................................................................................................18 Everything in between................................................................................18

Combatants.............................................................................18Criteria for Combatant Status.............................................................................19

Combatant Review Tribunals......................................................................19Hors de Combat.........................................................................................20

Spies and Mercenaries.............................................................20V. Prisoners of War.........................................................21

Historical Overview....................................................................................21Pow Status: a Temporal perspective...........................................................21

Responsibility for POWs...........................................................21Requirements at the Outbreak of Hostilities..............................................21

The Right to POW Status............................................................................22Determination of Status...................................................................................22

POW Protection .......................................................................22General Protection.....................................................................................22Prohibited Acts or Omissions......................................................................23Personal Belongings...................................................................................23Specific Provisions on the Internment of POWs..........................................23

VI. Wounded, Sick and Dead and the Medical Services.....25Wounded and Sick....................................................................25

Definition....................................................................................................25Protection...................................................................................................25

The Missing and the Dead........................................................25Medical Services......................................................................25

Medical Personnel......................................................................................25Military Non-Combattants.................................................................................25Protection............................................................................................................25

Permanent Medical Personnel...........................................................................26 Temporary Medical Personnel...........................................................................26

Medical Units and their Protection.............................................................26 The Protective Emblem/Distinctive Sign....................................................26Rights and Obligations of the Medical Units...............................................26Perfidy and Misuse.....................................................................................26

Perfidy..............................................................................................................27

VII. The Conduct of Hostilities.........................................28The Law of Targeting................................................................28

The Principle of Discrimination...................................................................28Definition of civilians..................................................................................28Military Objectives......................................................................................28

Nature..............................................................................................................28Use...................................................................................................................28Effective Contribution.......................................................................................28Definite military advantage..............................................................................28Hard cases?.................................................................................... ..................28

Duties of the Attacking Party.....................................................................29Duties of the Defending Party....................................................................29 The Principle of Proportionality..................................................................29

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Practical Targeting Process.........................................................................29Special Protection....................................................................30

Civilian Property.........................................................................................30Medical Installations and Materiel..............................................................30

Medical Aircraft.................................................................................................30Civil Defence..............................................................................................30

Cultural Property........................................................................................301954 Hague Cultural Property Convention.......................................................30 General Protection .........................................................................................30 Special Protection .........................................................................................30

Art. 53 of Additional Protocol 1.........................................................................311999 Second Protocol to the Hague Cultural Property Convention ..................31

Scorched Earth Policy.................................................................................31 The Natural Environment...........................................................................31Dangerous Forces.......................................................................................31Specially Protected Zones..........................................................................31

Illegal Methods of Combat........................................................32

Perfidy........................................................................................................32Misuse of Enemy/Neutral Symbols.............................................................32Protection of Certain personnel..................................................................32Hostage Taking and Human Shields .....................................................32Prohibition on Certain Reprisals.................................................................32

VIII. Weapons (Means of Combat)....................................33Historical Precedents...............................................................33Two Different Approaches........................................................33

Application of the Principle of Humanity....................................................33Specific Prohibitions...................................................................................33

Small Calibre Munitions....................................................................................33Chemical and Biological Weapons....................................................................34Non-Lethal Chemical Weapons.........................................................................34Other Non-Lethal Weapons...............................................................................34Nuclear Weapons?............................................................................................341980 UN Convention on Certain Conventional Weapons (CCW).......................34Landmines........................................................................................................34Incendiary Weapons (UN CCW Protocol III 1980)..............................................35Cluster Bombs, etc...........................................................................................35

IX. Protection of Civilians in the Hands of a Party to the

Conflict..........................................................................36Personnel in Armed Conflict.....................................................36Definitions...............................................................................36General Protections.................................................................36

Under AP 1................................................................................................36General Protection under GC.IV Part 2.....................................................37

Protected Persons under GV.IV Part 3.....................................37Who are protected persons under GC.IV?..................................................37

The status and treatment of protected persons GC IV (Part. 3.1)..............38GC. IV (Part 3, Section 2) Aliens in the Territory of a Party to the Conflict..38

Zones of Protection..................................................................38Art. 14: Unilateral, Hospitals and Safety Zones to Protect;......................38

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Art. 15: Neutralized Zones bi-lateral........................................................39AP.I, art. 59: Non-defended localities, Open cities ................................39AP1, art. 60: Demilitarized Zones..............................................................39

AP. 1 Art. 75 Minimum Protection..............................................39

X. Occupied Territory......................................................40

Nature of Belligerent Occupation..............................................40Beginning and End ..................................................................40Belligerency Before, During and After Occupation.....................40Duties of the Occupying Power.................................................41

Administration............................................................................................41Civilian Population......................................................................................41Other Duties...............................................................................................41

Prohibited Acts........................................................................41

XI. Non-international Armed Conflict...............................43

Definition.................................................................................43Applicable Law.........................................................................43Applicable Law of Armed Conflicts.............................................................43

Geneva Convention Common Art. 3 (1949)......................................................43Additional Protocol II.........................................................................................43

Operational Regulation in APII.............................................................................43Specific Rules in Other Conventions.................................................................44Customary Law.................................................................................................44

International Human Rights Instruments...................................................44Focus Areas......................................................................................................45

National Legislation....................................................................................45

XII. Enforcement of the Laws of Armed Conflict...............46Prevention...............................................................................46Alternatives.............................................................................46

Belligerent Reprisals..................................................................................46Definition..........................................................................................................46Reprisal Bans....................................................................................................46

Prosecution.............................................................................46Development..............................................................................................46Command Responsibility............................................................................47Superior Orders.........................................................................................47Universal Jurisdiction..................................................................................47Recent Developments................................................................................47

The ICC and On-going Investigations................................................................48War Crimes.................................................................................................48

Groups of War Crimes.......................................................................................48Crimes Against Humanity...........................................................................49Genocide....................................................................................................49

XIII. Maritime Warfare....................................................50Historical Overview..................................................................50

Key Definitions........................................................................50Areas of Naval Warfare.............................................................51

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Neutral Waters.........................................................................51Basic Rules..............................................................................51

Vessels Hors de Combat .......................................................................51Enemy Vessels Exempt from Attack...........................................................51Loss of Exemption......................................................................................52Merchant Vessels.......................................................................................52

Enemy Merchant Vessels..................................................................................52Neutral Merchant Vessels.................................................................................52Methods and Means of Warfare at Sea......................................53

Means.........................................................................................................53Methods.....................................................................................................53

Blockades................................................................................... ......................53Zones...............................................................................................................53Deception, Ruses of War and Perfidy................................................................53

Measures Short of Attack.........................................................54Hospital Ships..........................................................................54

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I. T HE LEGAL R EGULATION OF THE U SE OF F ORCE IN INTERNATIONAL R ELATIONS

The law when a conflict is not actually declared. Not matter for soldiers politicaldecisions. Whether or not to wage war / legality of conflict. Points of view: Evil war vs.

Just war.

The Ban on the Use of ForceState Practice: In real life: Great statesman / becoming great statesman by wagingwar on neighbours (Napoleon, etc...). The point of departure is a liberal approach tothe use of force in international relations.

The Versailles Peace Treaty of 1920 : WW1 main event: German attack onBelgium, August 1914. Agreements with other states to protect Belgium if it wasunder attack. In Treaty, want to bring Wilhelm II for war crimes. Trial never reallybecame war crime trial though.

Briand-Kellog Pact of 1928 : Initiative taken to renounciation of recourse to warin certain situations (somewhat a ban on aggressive wars). Nuremberg Judgment 1946: Upheld. Principal findings of Nuremberg Judgment ( The Nuremberg Principles ),

declared customary international law. In 1946, there thus existed a ban on aggressive war.

UN Charter of 1945, Article 2(4) :

All members shall refrain in their international relations from the threat or use of forceagainst the territorial integrity or political independence of any state, or in any other mannerinconsistent with the Purposes of the United Nations

Ban against war reaffirmed. See also: Definition of Agression (1976), p. 33, 1967: Defines what

constitutes an agression under international law. There is no exhaustive list.It seems to be limited to agressions between states. It is precised that anyform of agression whatsoever is a crime under international law

Crafts a forum that could impose its will on other states that do not acceptban against aggressive war.

Risks of interpretation resulting from wording of 2(4) threat or use of force against the territorial or political independence of any state in any other manner inconsistant with the Purposes of the United Nations

Case Concerning the Military and Paramilitary Activities In and Against Nicaragua - 1986 (Nicaragua v. USA) , p. 48

US violated intl law by supporting insurrection movement in another country? Use of force by paying, educating, supporting an irregular movement in another

country? The ICJ says it does.

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Para 228: Force also corvers the laying of mines in another nation's territorial waters aswell as organising or encouraging the organisation of irregular forces or armed bands ... forincursion into the territory of another State .

Customary International Law ? Even since Un Charter adopted, no year without an armed conflict. Few armed

conflicts can be explained by the exceptions found in UN Charter (namely, Self-Defence).

How shall we interpret the fact that states unilaterally uses force against otherstates, also when such use of force cannot be explained as self-defence, butthat such use of force is in.. (SLIDE).

The Ban on Intervention International law also traditionally bans the intervention into the internal

affairs of other states (customary international law).

Intervention is less than force: Must not interfere in sovereign rights of otherstates . Not banned by UN Charter Art 2(4) = Use of force and threat of use of force.

It is however customary law that there is such ban.

Collective Use of Force

Exception: Collective use of force. UN organisation and members of Security Council can decide that a situation

requires use of force (chapter 7 of UN Charter). UN Security Council autorisation of the use of force against a (member) state in

accordance with Chapter VII or the UN Charter. Finding a threath against peace in accordance with Art. 39. (precondition for

further decisions) Can authorise measures not involving the use of force (Art. 41) or such

action by air, sea, or land forces as may be necessary (Art. 42). Can also authorize Peace-keeping missions (in accordance with Chapter VI),

provided that involved (host) countires consent to the deployment.

Ch. 6: possibility of mediation without Use of force (used traditionally during theCold war). Used as pretext to send lightly armed troops in country tomediate/assist/help parties get to an understanding: role of UN troops is tomonitor, observe and report.

Examples

Example: Gulf War 1991 Clear mandate for collective use of force against Iraq with the purpose to

liberate Kuwait, specifically Security Council resolution 678 (1990), A&M,para. 678.

But the US, amongts other states, claimed the continued existence of theright of self-defence beside the mandate to collective use of force.

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Example: Bosnia-Herzegovina 1992-1995 A number of Security Council resolutions i.a.w. Chap. VI and VII Charter

authorised UN Peace-keeping missions (e.g. Delivery of relief to refugees,protection of safe areas etc.).

Example: Kosovo 1999 No clear UN Security Council mandate authorizing the use of force

against Serbia. Military intervention carried out by NATO by claiming a right to

humanitarian intervention. But : Note that the UN security council afterwards approved the faits

accomplis by formally authorising a UN/NATO Peace-keeping force, KFOR(UNSC Res. 1244 (1999)).

Hard to explain legally, but very easy to explain morally.

Example: Iraq War 2003 The coalition claimed the right to use force with the purpose of upholding

the UN Security Council Resolutions dating from the end of the Gulf War1991, in particular Res. 686 and 687 (1991), based on an interpretation of these resolutions.

The Right to Self-Defence

The UN Charter, art. 51.Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Securitycouncil has taken measures necessary to maintain international peace and security ...

Subject to interpretation: Armed attack ?? Self-Defence must be proportionate enough to stop the threath against the

attacking party, but not more.

Nicaragua v. The USA, ICJ, 1986, para. 195 Armed attack also includes the sending by a State of armed bands to the territory of another state (unless a mere frontier incident ).

Anticipatory Self-Defence

Corfu Channel Case , p. 37, 1949 British ships struck mines in Corfu Strait (Albania), caused serious damages and

loss of lives. Question: responsability of Albania? Duty to Compensate? Did UK violate intl by

undertaking sweep of Strait? Re: UK violation: no violation of such sort on the day of the accident, but did

violate sovereignty of Albania in November. Albania Responsibility: No collusion has been proved by UK Govt. No proven

participation in laying of mines.

Exclusive control of state over territory: makes it hard to prove a fact for otherstate more liberal recourses to inferences possible:

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Attitude of A's govt: Shows that they likely knew about presence of mines. +Possibility of observin mine laying

Conslusion: knowledge of Albania re: mines. Lack of prevention + omissions = international responsibility

Duty to Compensate? Yes, according to fixed limits.

UK violation? Oct. Passage was innocent. Clearing of mines of Nov not innocent. No consent of mine clearance

organization. Notion of self-help rejected. Actions constituted violation of Albanian

sovereignty .

The Caroline Case , p. 41 Exchange of Diplomatic Notes bwn USA and Great-Britain in 1842, concerning a

border crossing episode in 1837 (TM #6). Canadian terrorists . UK took over ship, killed shipmates. Apparently, it went

over the Niagara falls. Americans outraged, said it was use of force . UK: argued it was self-defence. Code Words: ... necessity of self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberations .

Who are protected? Attacks against whom and against what?

The territory of the State? The Head of the State? Military and Naval Units? Other representatives of the State? Ordinary citizens?

There is a demand to proportionality. Self-Defence needs to be proportional. Must usedegree necessary to repel the attack.

Example: Afghanistan 2001 Traditionally, the attack must come from another State, but international law

is developping towards a positions where such self-defence is also allowedtowards organised, non-state actors.

Security Council Resolution 1368 and 1378 (both 2001) are interpreted asexpressing support for the existence of the right to self-defence againstterrorist attacks, at lease on the scale of 9/11.

Humanitarian Intervention Use of military force on foreign territory to save the intervening country's own

nationals from grave danger. Example: The Israeli military action in Entebbe, Uganga, 1976. Normally not considered self-defence, however, also normally considered non-

controversial. Use of military force on foreign territory in order to save the targeted country's

own nationals from grave violations of international human rights law, inparticual genocide, against crimes against humanity, etc.

Example: Kosovo 1999.

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Reprisals Definition: countermeasure taken by a state that has been subjected to a

violation of international law, against the state having perpetrated the violation,with the specific purpose of forcing the said state to stop violating internationallaw or to make reparations.

Since 1945, considered outlawed by the UN Charter.

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II. B ASIC P RINCIPLES OF LAWS OF W AR

IHL, Law of Armed Conflict, they all mean the same. The law that applies during armedconflict of any nature. Laws of War encompass all conventions that applies during anarmed conflict, including rules of neutrality, use of weapons + any other rulesapplicable to armed conflict.

Historical Overview

Ancient Times

Historically, traces of some ethical code between warriors fighting in battlefield (India,for example). The reason for warrior codes was justified by chevalry . Also: strategicconsiderations, mercantile considerations (prisoners of war were needed for exhange,ransom, etc.).

1625: Hugo Grotius: De jura belli ac pacis the law in peace and the law in war. Triesto sum up state practice and explain how states among themselves have to fight war.

Contemporary Context

International Humanitarian Law as a means to alleviate suffering amognst combatantsand to secure a minimum of rights for persons who do not or no longer take active partin hostilities.

The Vattle of Solferino, on 24 June 1859, 6000 killed and 30000 wounded. Henri Dunant. realises there is a need for service for wounded. He did twothings:

- Cofounded Commitee for Red Cross- Started up a process that would bind states to establish a medical servicewithin their service and that they had international protection.

Florence Nightinghale and the experience of the Crimean War 1854-56. Francis Lieber, LL.d, and General Order No. 100 (Instructions for the

Government of Armies of the USA in the Field ) The so called Lieber Code,1863. Specific regulations re: treatment of detainees, means of methods of warfare, etc. The Lieber Code is viewed as first manual on internationalhumanitarian law.

1864 : First Geneva Convention.

1899 + 1907 : Hague Peace Conferences : areas regulated with balance of humanity / military necessity. Called for by

Russian tsar Nikolas II. Their purpose was to regulate state resort to waragainst each other + regulation of warfare. Led to number of declarations.Some of these rules still have relevance for modern warfare. M

Most important: annexed to 4 th Hague Convention: Regulations on HagueWarfare , governs questions such as combattant status, prisoner of warstatut, means and methods of warfare.

Doctrine of military necessity was taking form.

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Art. 22: Note that use of means of warfare is not unlimited. That is the firsttime their is a limitation in the ways to wage war. Dum Dum Convention :banned any bullet that would explode in the human body.

Art. 23: Ban on some weapons Person out of combat. Use of the White flag: surrender. Originally, in laws of war, not symbol of

surrender it was the symbol of the parliementary negociator in a conflict.

Rules of occupation also included. - Duties of Neutral countries : no use of territory for military operations.Principle of Equality...

Convention on Maritime Mine Laying : Rules that limits states to the extentthat it is not fixed to the sead bed. Non-anchord contact mines have to self-neutralize after one hour.

Notes: Geneva Law : Any IHL governing treatment of persons no longer taking part in

combat. Hague Law : means aand methods of warfare.

1949: After big conflicts, will among states to regulate war even more. First Geneva Convention dealing with sicked wounded. Second: same + shipwrecked. Third: Prisoners of wars. Fourth: civilians (not all). Universal application. Ratified by virtually all states.

Has very close to universal acceptance. Considered customary international lawas well as treaty law. Important 3: governs internal armed conflict (the Mini Convention ).

Post 1949: Three aditionnal protocols: (1) Expands use of rules govning armed conflicts to

some internal conflicts (occupation); (2) Description of military targets, etc. 1st additonal protocol: very important. 2nd additional protocol: internal armed conflict. 3rd protocol: came into force 2006: use of Red Crystal as a new symbol for

protected status.

In the 70's, UN initiated work on limitation on use of certain weapons. In 1980,convention banning use of weapons which could infllict unnecessary suffering orsuperflous injury. What this is remains to be analyzed. The Weapons Convention had 4protocols: banned specific types of weapons:

Non detectable fragments. Laser weapons. Flamable/incendiary weapons were limited. Not to be used if there is risks of collateral damages. Limitations on use of mines, booby-traps, etc.

Sources of International Law Same sources as usual international law (see 38 ICJ 1946).

Treaties / Conventions / Agreements bwn states

Many reservations, declarations by states in Laws of War. Reservations is stronger state not feeling bound by a specific rule. There are limitations to the extent of theselimitations.

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US today remains one of only state that has not ratified the first additional protocol.

Customary Law

Practices by the States carried out during certain period of time + done so becausethey felt legally bound to do so. Very important in IHL because internal armed conflictsremains to be regulated to the extend we really need (90% of conflicts today are

internal).Judgments, Case Law

It is quite extensive in IHL. There are decisions, advisory opinions on many subjects (ieNuclear Weapons, Israelo-Palestinian wall).

Writings of Learned Scholars

In many fields, no other sources. In IHL, scholars play specific roles re: MaritimeWarfare (San Remo Manual 1994, compiled by a number of professors). Other area: AirWarfare.

1st additional protocol: 85-86 Describes responsibility for breach if IHL. Binding if States implemented the

conventions in their law.

Basic PrinciplesFour very important principles. Basis for any rules in IHL.

Military Necessity St. Petersburg Declaration . Use of military force not otherwise prohibitied,

required to achieve complete or partial submission at the most minimalexpenses is allowed. Very political variable soldier not really bound by this. Itis meant to govern strategic plans.

Arguments from commanders: There might be a prohibition, but it is reallynecessary . Art 23E of Hague Declaration: allowed to destroy, seize ennemyproperty, unless not necessary . Hague Cultural Property: general protection,but exception of imperative requirement / military necessity .

Definition : The use of military force, not otherwise prohibited by the LOAC,

which is required to achieve the complete or partial submission of the enemy atthe earliest possible moment and with the minimum expenditure of ressources. Specific consequences:

Strateguc principle applicable to states: force must be controlled (Thehostages case)

The argument of Military Necessity can leas to derogation from IHL, the lawitself exhaustively takes military necessity into consideration: HLW, art. 23.e: ... to destroy seize the enemy's property unless such

destruction or seizure be imperatively demanded by the necessities of war...

Hague Cultural Property Convention 1954: Art. 1.2: ... the obligations

mentioned in paragraph 1 of the present article may be waived only incases where military necessity imperatively requires such a waiver .

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Ex: Scorched Earth Policy, Ap. 1, Art. 54, para. 5: ... where required byimperative military necessity .

Ex: Without mentioning military necessity: AP1, Art. 52.2: definition of objectives: ... offering a definite military advantage .

In Blaskic , March 2000: Court :

Unlawful attack against civilians (count 3); attack upon civilian property (count 4)180. As proposed by the Prosecution, the Trial Chamber deems that the attack must havecaused deaths and/or serious bodily injury within the civilian population or damage tocivilian property. The parties to the conflict are obliged to attempt to distinguish betweenmilitary targets and civilian persons or property. Targeting civilians or civilian propertyis an offence when not justified by military necessity. Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the armed forces. Civilianproperty covers any property that could not be legitimately considered a military objective .Such an attack must have been conducted intentionally in the knowledge, or when it wasimpossible not to know, that civilians or civilian property were being targeted not throughmilitary necessity.

The appeals chamber corrected in its judgement dated 29 July 2004:109. Before determining the scope of the term civilian population, the Appeals Chamberdeems it necessary to rectify the Trial Chambers statement, contained in paragraph 180 of the Trial Judgement, according to which targeting civilians or civilian property is an offencewhen not justified by military necessity. The Appeals Chamber underscores that thereis an absolute prohibition on the targeting of civilians in customary internationallaw.

Humanity Humanity forbids the infliction of suffering, injury or destruction not actually

necessary for the accomplishment of legitimate military purposes.

HLR, Art. 22: The right of combatants to adopt means of injuring the enemy is not unlimited .

HLR, Art. 23.e: Forbidden... to employ arms, projectiles, or material calculated to cause unnecessary

suffering .

AP1, Art. 35: methods and means of warfare is not unlimited ... It is prohibited to employ weapons,projectiles and materials and methods of warfare of a nature to cause superflous injury orunnecessary suffering.

Specific Conventions banning or limiting the use of certains weaponry andmunitions.

Humanity dictates humane treatment of any person in the custody of abelligerent.

The principle confirms the basic immunity of civilian population and civilianobjects from attack because civilians and civilian objects make no contribution

to military actions . Does not make unlawful unavoidable accidental death resulting from legitimate

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advantage expected of carrying out the attack. (UK Manual, para. 2.6).

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III. T HE APPLICATION OF THE LAW OF ARMED CONFLICTS

Armed Conflict No definition as such in Geneva Convention. ICTY Appeals Chamber in Tadic Jurisdiction , 2 October 1995. UK Manual Guidance (para. 3.3):

any difference arising between States and leading to the intervention of members of the armed forces in an armed conflict

an armed conflict exists whenever there is a resort to armed force betweenStates or protracted armed violence between governmental authorities andorganised armed groups within a State .

International Armed Conflict Geneva Convention Common Article 2, para. 1.

No declaration of war necessary, but declaration of war will constitute armedconflict even if no actual fighting takes place.

Factual finding of an armed fighting between organised forces of two or moreStates always constitutes armed conflict.

Additional Protocol I , Article I, para. 4 Expans definition of international conflict to include fighting against

colonial domination etc.

Occupation Even more difficult to call something occupation . Easier to succumb tonotion of new speak, police operations, friendly assistance . LOAC applies, even if only partial and even if no armed resistance to the

occupation takes place, Geneva Conventions Common Article 2, para. 2. Occupation is thus a factual test, rules applies regardless of what the parties

call the situation.

Human Intervention When there is fighting on the ground, law applies.

Peace Support OperationsArmed fighting during a Peace Support Operation (PSO) ?

SLIDE: LOAC applies.... See T&M, No. 13. UN changes their positions in 1999: new statement saying UN peace operations,

when becoming armed conflict. As long as shooting is going on, there is armedconflict.

The War on Terror

Only a public relations term. Makes no perfect sense in a legal way. LOAC applies? Contested whether Al-Qaeda is an organised military group.

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Equality of Parties to the Conflict as to the Application of the Law of International Armed Conflict

Traditional viewpoint : At time of Hague Convention , equality implies that allstates had to sign to the Convention . General Participation Clause : If oneparty to the conflict has not ratified a relevant convention, no one is obliged toapply the provision. Example: 1907 Hague IV Convention , Article 2.

Modern Approach: High Contracting Parties remain boung in their mutual relations, but not

obliged to apply the law towards party not bound by relevant convention: Example: 1977 Additional Protocol (AP) I Article 96(2).

Exception 1: The law in question is customary international law and thusbinding on everybody regardless of ratification.

Exception 2: The not-bound party declares that it will apply the law andactually does so, AP I Article 96(2) in fine.

Bottom line: You are only bound by LOAC when the other party is alsobound by the same law.

Non-International Armed Conflict Example: terrorist abducting people in a Russian theater. Menacing to kill

everybody if Russians don't stop war in Chechenya. Russians put gas in theaterto make everybody sleep withotu having to shoot. However, the gas killed over100 persons. Russians would not claimed this was non-international armedconflict, but rather a criminal act. However, when Russia went in chechnya forthe first time, case at the Russian Constitutional court, which found the conflictwas non-international armed conflict, thus Additional Protocol II applies.

It is defined by default all armed conflicts which are not international armedconflicts.

Distinguished from civil disturbances by the factual finding or armed fighting. Example:

Armed fighting between a government and a national insurgent movement(traditional civil war or internal conflict .

Note: No combattant status to insurgents in non-international armed conflict.

Applicable Law in Non-International Armed Conflicts Applicable Law

Geneva Conventions Common Article 3 (1949) Bottom line regulation of Non-international armed conflicts. Applies to all NIAC, without exception. Rules under APII apply only in

situations where there is an insurgent movement that has territorialcontrol and is able to conduct what amounts to military operations and isas such able to apply international law itself.

Additional protocol II (1977) Applicable only to NIAC. Very meager, only 28 articles.

Specific rules in other conventions Agreements between Parties International Human Rights Law may also apply.

National legislation always applies... HR law is law enforced when statestake into consideration when applying national law (ban against killing,torture, etc.).

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Case Study: Afghanistan The Conflict between Taliban and Northern Aliance c. 1996-2001

= Non international Armed Conflict. Coalition Intervention in support of Northern Alliance and directed against de

facto Taliban government Oct 2001-Summer 2002: = International Armed Conflict When fighting practically over, there was democratically new elected

government recognized by the UN. The Conflict between the democratically elected Karzai government in Kabul,

supported by international forces, against forces loyal to former Taliban etc.from summer 2002 onwards. = Non-International Armed Conflict (including according to statement by

ICRC + what the state says). If, for instance, Pakistan was providing support (see Nicaragua case), it

would then become again an international armed conflict.

Internal Disturbances Below the threshold of armed conflict. Consequently, LOAC does not apply, cf.

AP II, Article 1, Para. 2. Appropriate peacetime, International Human Rights Law legislation as well as

national legislation applies instead.

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IV. T HE LAW OF B ELLIGERENTS

Categorization of people in armed conflict

What is a combatant? Lot of confusion re: combatants and civilians. Historically,combatant used in two ways: (1) Lawyers in IL: used it for combatancy . (2) Moregenerally, as describing the fact that somebody takes part in hostilities, regardless of whether or not he fulfils the criteria.From there comes the term unlawful combatants : those who do not fulfil thecriteria but take place in hostilities. They are not privileged with POW if taken.** In IHL, only two categories, combatants and civilians . A civilian is anyone who isnot a combatant.

Principle of Distinction

Civilians Shall enjoy general protection against dangers arising from military operations,

AP1, Art. 50. Never be object of attack, AP1, Art. 51.

Combatants They have the right to participate directly in hostilities, AP1, Art. 43.2.

As lawyer, when applying IHL, must ask: who are the parties to this theconflict and what did they ratify?

If they fall into the hands of the adversary, they shall have the status of POW.(AP1, art. 44.1)

Everything in between Civilians who accompany armed forces.

How can civilians be part of the armed conflicts? Hague regulations, 3,both CMB and Non-CMB can be members of armed forces. There arecivilians that follow armed forces.

Any attack on them is unlawful, so they can use necessary force toprotect themselves against unlawful attacks. In some countries, civiliansare provided with weapons.

Civilians who take direct part in hostilities. Other personnel who do not fulfil criteria for combatant status.

Ex: War correspondants . (4(a) of GCIII) Supply Contractors.

Combatants International armed conflicts: our focus here Definitions:

1. Hague Regulations Art. 1-3; III. Geneva Convention: Art.4.A(1)-(3) and (6). AP 1, Art. 43-45

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AP 1. Art. 50.1: Basically, a civilian is anyone who is not a combatant.

Criteria for Combatant Status

Under the classical regime ( III GC Art. 4A.)

1) Members of regular armed forces, militias, and volunteer corps forming part of such armed forces.

2) Members of other militias and members of volunteer corps, including organisedresistance movements if:1. Commanded by a person, responsible for his subordinates2. Wearing a fixed distinctive sign, visible at distance,3. Carrying arms openly,4. Conducting operations in accordance with the LOAD

3) Members of regular armed forces who profess allegiance to a government orauthority not recognized by the detaining power.

4) Leve en masse (derogation from condition 1, above)New Combatant Regime

Art. 43, Para.1: redefines forces and compile IIIGC4A (1,2 and 3)

The armed forces of a Party consist of: All organized armed forces, groups and units which are under a command

responsible to that party for the conduct of its subordinates. Even if that party is represented by a government or an authority not

recognized by an adverse party. Such armed forces shall be subject to an internal disciplinary system which,

inter alia, shall enforce compliance with the rules of international lawapplicable in armed conflict.

Art 43, para 2: Members of armed forces, apart from chaplains and medicalpersonnel are combatants.

No mention of uniforms, no mention of weapons as in GCIII Art. 44, para 3 relates to these demands.

Combatants are armed forces but expands term to meet anyone undercommand of the armed forces of the country. No longer a requisite to respectlaws of war, as long as there is a disciplinary system to make sure the laws of war are respected.

Must distinguish yourself at all times. Further: in exceptional circumstances, may even restrain yourself from

distinguishing from civilians, but when visible (includes technology) to theenemy, must distiguish oneself. Note on visibility: it must adapt to new technologies: ie: night googles,

satellites, etc. US played a big role in the preparation of AP1 & AP2 (even though they did not

ratify!)

If not given combatant status, then considered to be a civilian. If must take

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part in hostilities, that would be tried under the national law of the nationwho has jurisdiction over civilians. However, there is a minimum protectionrequirement for all the persons who are not otherwise protected by the lawsof war (art. 75). It is considered today to be customary international law.

Art. 75 is pretty much a copy of the ICCPR.

Distinction from Civilians Minimum Requirements Art. 44: Only Relevant for combatants:

Para 3: Normally : A combatant shall distinguish himself from civilians whileengaged in attack or in a military operation preparatory to an attack.

Para 3: Exceptionally : In recognition of certain situations where acombatant can not so distinguish himself he shall retain that status if: He carry his arms openly during each military engagement. And during such time as he is visible to the adversary while he is

engaged in a military deployment preceding the launching of an attack(2) in which he is to participate (3).

Art. 44, para. 4 : Even if he does not fulfil these requirements and he is triedand punished for war crimes, he does not lose his status as combatant or POWin the process.

If he is not even a combatant in accordance with Art. 43, but a mere criminal,he is not protected by anything but the minimum required protection standardoutlined in art. 75.

Art. 44.7 : Good practice of wearing uniform remains unaffected by these rules.

Combatant Review Tribunals Two rules dealing with CRT (3 rd Geneva Convention and AP1)

III GC, art. 5 Should any doubt arise they shall enjoy the protection of the convention until such time astheir status has been determined by a competent tribunal..

If there is indeed no doubt as to status, there is no need for a tribunal. If primafacie , the person is indeed a combatant, there is no need for such review

tribunals to decide. There might arise situations where there is a doubt. If no doubt that person is clearly a civilian, there is no need for such a tribunaleither. There is a need to do something else: to be put before a judge or internalmeasures.

Internet: see absalon for link to CRT:http://www.defenselink.mil/news/Combatant_Tribunals.html

AP1, art. 45 (copier). If he claims the status of POW If his country clains it for him or If he appears to be entitled to such status

Right to habeas corpus : to have his status tried if he is held in remand without

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POW status and is to be tried by a court for offence(s) arising out of hostilities.

Hors de Combat Once out of combat, must not take part in hostilities and must not be attacked.

AP1, Art. 41, para 1A person who is recognized or who, in the circumstances, should be recognized to be horsde combat shall not be made the object of an attack.

GC III as a specific rule describing escaping POWs. Use of weapon permittedonly if absolutely necessary. A person must thus do anything he can to stop thisescape without using a weapon.

Spies and Mercenaries

SpiesSpy: Works under clear intentions to dupe the enemy and gather information, underfalse pretenses . Shall not have the right to POW Status, an may be treated as a spy.

See art. 46: does not outlaw the use of spies.

Mercenaries

AP art. 47

Not a combatant or POW. A mercenary: Specially recruited locally or abroad in order to fight in armed conflict. Does, in fact , take part in hostilities. Motivated by private gain and promised material compensation substantially in

excess of that paid to own forces of same rank and functions. Very difficult to prove.

Not a national of a party to the conflict. Not a resident of territory controlled by a Party to the conflict.

Not a member of the armed forces of a party to the conflict and Not sent on official duty by own states' armed forces.

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V. P RISONERS OF W AR3rd Geneva Convention: most expansive catalog of rights of detainees. Main referencefor POW status and treatment. + some developments in AP1.

Historical OverviewAncient History: Started 400 BC. Reasons at this time had nothing to do withhumanitarian consideration. More mercantile view want to keep POWs in goodcondition as to be suitable for exchange.1863: Lieber Code ; Intructions for the Government of the armies of the USA 1929: Real Convention, within Geneva Regime.1949: Geneva Convention III.1977: Aditionnal protocols, I and II.

Pow Status: a Temporal perspective.

Art 5 GCIII: protection upon capture. Art. 41 AP1: operations behing enemy lines. Art. 91: Escape of a POW Art. 109-116: Direct Repatriation POW Exchange: customary law . Art. 118-119: Repatriation by the end of hostilities. GCIII, art. 3: Final release and repatriation.

Responsibility for POWs There is a responsibility to respect and protect pows.

Observance of the rules is a state responsibility! POW's are in the custody of states not soldiers this it is a state responsibility,

that POW's are treated correctly. The rules cannot be altered even by agreement by the involved state, if such

agreements renounce protection or in any other matter lower the threshold of the minimum standard of protection as described by GCIII.

Transfer of POWs art. 12 Receiving state must be a party to the Convention. The detaining state must satisfy itself, that the receiving state are bothwilling and able to abide by the convention. The responsibility for the treatment of transferred POWs with the POW to th

receiving State. If the receiving state treats the POW contrary to the provisions of the

convention in any important respects...

Requirements at the Outbreak of Hostilitiesa) Establish a mixed medical commission to evaluate the health of POWs (GII, Art.

112).b) Appoint protecting power (E.g. ICRC, Ap1, Art. 5)

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c) Establish an information bureau to register the name and whereabouts of POW inthe custody of the State Party (GC III, Art. 122) and Central information bureau (GCIII,Art. 123).d) Issue ID Cards to the armed forces (GC III Art. 4 and 17).e) Inform opponents about rules relating to release on parole (GC III, Art. 21). Mandatory information to enemy: location and marking of POW camps,

correspondance exchange information, relevant legislation on wills, graveregistration service.

The Right to POW Status Outset: Any combatant shall be a POW if they fall into the power of the Enemy

(A1, art. 44.1) That status shall not be affected by the breaches of the LOAC commited by the

combattant unless taken flagrante delicto in not observing the criteria listed inAP1, Art. 44.3 (AP1, Art. 44.4).

Certain civilians have the right to POW Status: Persons accompanying the armed forces, without being members thereof...

EC: civilian members of military aircraft crews, war correspondents, supplycontractors...

Members of crews of civil aircraft and the merchant marine, who do notbenefit from more favourable rules.

NOT??? Others depicted in Art. 4B. Wounded and sick. Members of armed forces permanently assigned to civil defence work are

treated as non-combattants, but become POW's upon capture, (AP1, Art. 67) GC1 art. 28: Permanent medical personnel, religious personnel and members of

national Red Cross Societies.. Auxiliary medical personnel (Art. 29) Spies and mercenaries (NOT!).

Determination of Status

GC III art. 5 Rule of presumption Only if in doubt. Competent tribunal .

AP1, Art. 45 Objective Criteria

Detaines claims POW status Appears to be entitled to.... The party on which he depends claims such status...

Still rule on presumption Doubtful if Customary international law.

POW Protection

General Protection POW shall be evacuated as soon as possible from the battlefield (Art. 19).

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POW shall be treated humanely at all times (Art. 13). POW shall be protected, especially against violent acts, medical or scientific

experiment, intimidation or public curiosity (Art. 13). POW's person and honor shall be respected. Women shall be treated with all

regard to their sex. Non discrimination (Art. 16) Equal but separate .

A POW may be questioned in captivity, but there is very strict provisions, whichregulate such questioning. Free of charge medical protection (Art. 15). The POW shall inform the detaining power of his identity; ie: name, rank, date of

birth, military service number or equivalent. (Art. 17).

Prohibited Acts or Omissions Those unlawfully causing death or serious injury to health (GCIII, art. 13). Physical mutilation even with the consent of the POW Any medical treatment, even with the consent of the POW, including the

removal of tissue or organs for transplantation, unless it is: Necessitated by the health of the person concerned. Consistent with the generally accepted standards, and, Applied in similar circumstances to those which would apply to nationals of

the detaining power. Exception : Donation of blood for transfusion and skin grafting, provided

given voluntarily and without coercion or inducement and only fortherapeutic purposes. AP1, Art .11.

Violence, intimidation, insults and public curiosity.

Personal BelongingsArticle 18 defines the effects a POW shall maintain at his disposal:

Effects and articles for personal use except : Arms, horses , military documents and military equipment.

Protective gear, Effects used for their clothing and feeding shall remain in their possession even

if such effects belong to their regular military equipment. Always with identity documents, Badges of rank and nationality, decorations and articles having sentimental

value, Sums of money carried by the POW, unless an officer decides and then only

upon receipt. Other personal objects of value taken into custody shall be returned in their

initial shape... Military equipment (including money belonging to government may be

confiscated subject to the laws of war).

Specific Provisions on the Internment of POWs POWs may be interned and may be restricted further freedom of movement

within certain boundaries, but may not be subject to punishment if theyattemps to flee.

Solitary and collective confinment only when necessary of reasons of health orsecurity.

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Only interned on land. Health and Climate conditions shall be acceptable. Shall be assembled according to nationality, language and customs. PW and PG marking of Camps. Quartering shall be similar in quality of those of the armed forces of detaining

power (Art. 25). Daily food rations sufficient quantity, quality and variety to keep prisoners of

war in good health. The smoking of tobacco shall be permitted!!! Canteens for procurement of foodstuffs, soap and tobacco... The profit shall be

used for the benefit of the prisonners. Officers and prisoners of equivalent status shall be treated proper regard to

their rank and status. Officers cannot be compelled to work. Others can be compelled to work for the detaining power under certain

restrictions.

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VI. W OUNDED , S ICK AND D EAD AND THE M EDICAL S ERVICES

Wounded and Sick

Definition All personnel so categorized in armed conflict, whether civilian or military,

whether friend or foe. It is the need for medical assistance, not the cause of the need, that is

important. It is a prerequisite for protection, that the sick or wounded refrain from

engaging in hostilities. (API, Art. 8(A).) Shipwrecked at sea defined in AP1, Art. 8(b).

Protection Must not be made the subject of attack or reprisals. Duty to assist with medical care on a non-discriminatory basis. Priority to be diven on the basis of medical need (Triage) To the fullest extent practicable , AP1, art. 10; compare with UK Manual Para

7.3.2. (There is no absolute obligation to take in civilian wounded and sick whenthey can be treated elsewhere.)

Prohibition on any form of inhumane treatment, medical experiments, etc. Lex Mengele , see in particular AP1, art. 11.

On capture by enemy, sick or wounded military personal become prisoners of war.

Sick, wounded and shipwrecked at sea protected primarily through GenevaConvention II.

The Missing and the Dead Purpose of caring for missing and dead: the right of relatives to know the fate of

loved ones, AP1, Art. 32. Duty to search for an provide information on missing personnel, AP1, art. 33. Obligations towards the remains of the deceased and gravesites, AP1, Art. 34.

Medical Services

Medical Personnel

Military Non-Combattants Medical personnel, defined, AP1, Art. 8(c)

Exclusively assigned to medical purposes or to the administration of medical units .

Civilian medical personnel also enjoys protection. Chaplains and religious personnel enjoy same status and treatment as medical

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personnel, AP1, Art. 8(d)

Protection Must not be made the subject of attack. On capture, are technically not POWs but must be retained for the support of

ennemy wounded and sick. They enjoy, however, the same privileges as POWs).Geneva I Art. 28.

Permanent Medical Personnel Exclusively engaged , GI, Art. 24. Can only carry out medical duties. Must carry distinctive emblem and special military ID-Card, Geneva I Art. 40(2).

Temporary Medical Personnel Specially trained personnel, only protected when carrying out medical duties,

GI, Art. 25. May also perform other military assignments, including combat such. Wear smaller distinctive emblem and ID-Cards signifying their special training

(but different from ID Cards carried by Permanent Medical Personnel, G1, Art.41(1,2).)

Medical Units and their Protection May in no circumstances be attacked, but shall be protected at all times, G1,

art. 19 and AP1, art. 12. Civilian medical units are protected if they belong to a party to the conflict, are

recognized and authorized by one of the parties or by a recognized internationalhumanitarian organisation, AP1, Art .12.

Parties invited to notify each other of location of permanent medical units.

The Protective Emblem/Distinctive Sign Red Cross ( inverted swiss flag ) originally chosen as a coplimnt to the Swiss

hosts f the First Geneva Conference, Geneva I, art. 38(1). Applicable signs:

The Originals: Red cross, crescent, lion and sun, Geneva I, art. 38(2). Red crystal (or diamond), APIII of 8 december 2005.

Art. 39: displayed on medical personnel, materiel, transports and installations,etc.

It is the emblem of the military medical services of the High Contracting Partiesbut ICRC is also entitled to use it as well as national Red Cross and Red CrescentSocieties (for indicative purposes).

Armlet with the distinctive sign should be issued and stamped by the militaryauthority, GCI, art. 40(1), 41(1).

Rights and Obligations of the Medical Units Medical personnel can use their weapons solely in self-defence against an illegal

attack or in defence of patients entrusted to their care (e.g. Against robbers) They cannot participate in ordinary combat, not even for defensive purposes.

Must also not otherwise be used to commit acts harmful to the enemy GC1,Art. 21, AP1, Art. 13.

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The following are not acts harmful to the enemy : Personnel can be armed, at least with light individual weapons. Protected by sentires or escort Confiscated weapons and amunitions are kept within the medical

establishment. Combatants present for medical reasons.

Perfidy and Misuse Examples of illegal acts harmful to the enemy :

Taking active part in combat operations. Shielding military operations or objects of attack or using protected objects

for supporting military action. Other misuse of the protected emblem.

In case of violation, the offended party must, however, Issue a warning and, in all appropriate cases, set a reasonale limit, after which,

protection will only cease, when such warning has remained unheeded, GCI,art. 21, AP1, art. 13. The improper use of the emblem is prohibited even in peacetime, Geneva I art.

44(1).

Perfidy Is defined as inviting the confidence of an adversary to lead him to believe that

you are entitled to protection under the rules of international law with the intentto betray that confidence with the purpose to kill, wound or take an adversaryprisoner, AP1, Art. 37.

Both perfidy and improper use of the distinctive emblem in armed conflict: See

Art. 38 of AP1, are war crimes!

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VII. T HE CONDUCT OF H OSTILITIESImportant to read the primary sources *** Hague Regulation (qannex to 4 th HagueConvention) Modern interpretation found in AP1 of GC. Mainly, art. 48 to 67 of theProtocol.

The Law of Targeting

The Principle of Discrimination

AP1, Art. 48 ... the parties to the conflict shall at all times distinguish between the civilian populationand combatants and between civilian objects and military objectives and accordingly shalldirect their operations only against military objective.

Definition of civilians Aditional Protocol, Art. 50. The definition of civilians is by default only (who is not a combattant is a

civilian). There is a rule of presumption : If in doubt, an object must be considered of

civilian character . How is this rule interpretation? Only in case of substantial doubt . (UK

Manual, para. 5.3.4).

Military ObjectivesAP1, art. 52(2) ... military objectives are limited to those objects which by their nature, purpose or usemake an effective contribution to military action and whose total or partial destruction,capture or neutralization, in the circumstances ruling at the time, offers a definite militaryadvantage .

Nature

Inherently military objectives , such as military barracks, vehivles, fighter airplanes,units, etc.

Use

Use of civilian objects, building, etc. for military purposes or in support of a militaryeffort.

Effective Contribution

Definite military advantage

Examples of possible military objectives: (see para 5.4.5).

However, determination always involves a concrete appreciation of the actualfacts and circumstances ruling at the time of attack.

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Hard cases? The sinking of the General Belgrano , Falkland War, 1982.

It was absolutely and without doubt a military objective really no LOACissue at all nevertheless, there was a controversy because of the manydrowned combatants.

The bombing of the RTS Station, Belgrade, NATO Kosovo Intervention, 1999. It is debatable whether a media outlet consistutes a military objective

(although see ICRC list from 1956 (para (7)), but it was accepted under thecircumstances , because it was also used for military communication

purposes .

Duties of the Attacking Party Prohibition against attacking civilians, including in order to instill terror into the

population. (AP1, 51 (2)). Thre is a prohibition against

indiscriminate attacks, AP1, Art. 51(4)-(5),

Duty to do everything feasible to verify that objectives to be attacked areneither civilians nor civilian objects, AP1, 57(2).

Party must give warning, if an attack will affect civilian population, unless suchwarning is not permitted by the circumstances. AP1, art. 57 (2).

The Party must apply the Principle of Proportionality.

Duties of the Defending Party Duty to remove the civilian population from military objectives, AP1, art. 58(a). Refrain from positioning military objectives in the vicinity of densely populated

areas, AP1, art. 58(b). Take other necessary measures in order to protect the civilian population,AP1,

art. 58(c).

The Principle of Proportionality Attacks against a military object shall be cancelled if the attack must be

expected to cause incidental loss of civilian life ( collateral damage ) whichwould be excessive ( non-proportional ) in relation to concrete and directmilitary advantage anticipated.

References: Additional Protocol 1, Art. 51, para. 5(b). AP1 Art. 57, para 2(a)(iii), and AP1, Art. 57, para 2. (b).

Practical Targeting Process1. Does the intended object of attack qualify as a military objective?

Consider the possible military use by the adversary and concrete militaryadvantage to own forces by destruction...

2. Can the attack take place without violating the Principle of Proportionality? Consider the risk of collateral damage, the possible timing of the attack, the

choice of weaponry available etc.

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3. May there be a special prohibition on attacking the object? Special procedures to observe?

Special Protection

Civilian PropertyCivilian Property must not be used for military purposes.

Medical Installations and MaterielSee G1 + AP1.

Reaction in case of misuse of medical installations etc., G1, Art. 21. Protection will cease when used for acts harmful to the enemy . The adversary can attack, provided:

A warning has been delivered, A reasonable timelimit for compliance had been set (circumstances

permitting), and no reaction to the warning has been observed.

Medical Aircraft Primary regulation in AP1, art. 24-31. Described in UK Manual paras 12.104, 12.128. In friendly territory: no agreement is necessary. Contact zone: agreement is necessary, but a medical aricraft must be respected

if recognized. Areas controlled by the adversary: prior agreement is necessary to remain

protected.

Civil Defence Civil Defence personnel, material and installations, AP1, Art. 61-67. In case of misuse, reaction must correspond to such action taken in case of the

misuse of medical installations, cf, AP1, Art. 65, para. 1.

Cultural Property Overview of LOAC Conventional Protection:

1907, art. 27 of the Land Warfare Regulations and Art. 5 Hague ConventionIX on Naval Bombardment.

1935 Washington Treaty ( Roerich Pact ) American regional treaty only.

1954 Hague Cultural Property Convention

General Protection Moveable of immovable property of great importance to the cultural

heritage of every people ; buildings for the storing or exhibition of suchcultural property; centres containing monuments (Art. 1). The protection can be waived ony in cases of imperative military

necessity (Art. 4, para. 2).

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Special Protection a limited number of refuges, centres containing monuments, other immovable

cultural property of very great importance (Art. 8). Max 5 sites including St Peter and Vatican Museum in Rome and a small

number of refuges in Germany, Austria and Switzerland. Protection can normally only be waived in cases of exceptional cases of

unavoidable military necessity and the decision must be taken by at leasta divisional commander (normally a Major General ). Art. 11, para. 2.

Art. 53 of Additional Protocol 1 Protection granted to historic monuments, works of art or places of worship

which constitute the cultural or spiritual heritage of peoples .

1999 Second Protocol to the Hague Cultural Property Convention Expands protection of property under general protection by e.g. Demanding

decision to invoke imperative military necessity to be taken by batallion

commander (normally a Lieutenant Coloner), Art. 6(b). Introduces new concept of enhanced protection of cultural heritage of thegreatest importance to humanity Art. 10.

Introduces criminal responsibility ( almost universal jurisdiction) for certaincrimes against certain cultural property (Art. 15-21).

The Law of Armed Conflicts Conventions must not be confused with the 1972 UNESCOWorld Heritage Convention and the sites mentionned on the World Heritage List.

Scorched Earth Policy Protection of civilian property necessary for the survival of the civilian

population, AP1, art. 54. Prohibition against scorched earth policy Unless in defensive action on your own territory, claiming absolute military

necessity.

The Natural Environment Protection of the Natural Environment, AP1, Art. 55.

Duty to protect the natural environment against widespread, long-term andsevere damage .

Dangerous Forces Works and installations containing dangerous forces, AP 1, Art. 56, including;

Dams Dikes Nuclear Power Plants

Specially Protected Zones Hospital zones, G1, 15 + G2, 18, and Hospital and Security Zones, GIV, 14.

Must always be respected because of their purpose. Neutralized zones, GIV, 15.

Subject to agreement between the Parties.

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Non-defended localities, AP1, 59. Can be declared by one Party, only obligates enemy not to attack zone,

however he can take it over and use it for military purposes, if so desired. Demilitarized zones, AP 1 60

Subject to agreement between the parties.

Srebrenica , BiH, UN Safe Zone Established by UN Security Council Resolution to protect civilian population

in enclaves in BiH. It did not qualify as either a non-defended locality nor a demilitarized zone in

accordance with articles 59 or 60 AP1 since enclaves were not opened to theadversary nor demilitarized (BiG military operations continued from thezones).

Nevertheless, the murder of approx 6000 men and boys after the Bosnian-Serb entry into Srebrenica is the worst war crime / crime against humanity /genocidal act in Europe since World War II.

Illegal Methods of Combat Prohibition on ordering no prisoners (AP1, 40) Against attacking persons hors de combat (AP1, 41 (1)(2)). Against killing prisoners taken under unusual conditions (AP1, 41(3)). Against attacking persons leaving an airplane in distress (does not protect

paratroopers, AP1 142).

Perfidy Prohibition against pretending protected status and use the misunderstanding

by an adversary to kill, wound or capture him. AP1, art. 37. ( original perfidy ) Prohibition on the misuse of the Protected Emblems (eg: Red cross...), the UN

Flag, etc. AP1, 38. Both actions consitute a grave breach of the Protocol (= war crime), jf. AP1, 85

(3). Ruses of war are not prohibited (camouflage, misinformation, etc.) AP1, art

37(2).

Misuse of Enemy/Neutral Symbols Prohibition on the misuse of an adversary's or a neutral Party's flag, uniforms,

etc. while engaging in attacks or in order to shield, favour, protect or impede

military operations , AP1, 39.Protection of Certain personnel...

Hostage Taking and Human Shields Taking protected persons hostage or the use of such persons to shield military

operations (human shields) Voluntary human shields?

Multiple, possible solutions: All protection ceases, since persons involved take a direct part inhostilities.

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No special protection can be compared to civilians working in a militaryinstallation who can be targeted together with the military objective inquestion.

Objective protected by human shields can be targeted, but principle of proportionality must be applied.

Prohibition on Certain Reprisals

Ddsd

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VIII. W EAPONS (M EANS OF COMBAT )

Historical Precedents

Crossbows banned by the Third Lateran Council in 1179.St-Petersburg Declaration 1868

Expresses abstention from the employment of arms which uselessly aggravatethe sufferings of disabled men or render their death inevitable .

Specifically bans explosive projectiles under 400 grams weight.

Two Different Approaches Application of the Principle of Humanity (Prohibition on Unnecessary Suffering)

This is an Effects-based approach Concrete bans (or restrictions) on specific weapons Weapons-oriented

approach.

Application of the Principle of Humanity The Principle of Prohibition of Unnecessary Suffering as expressed in:

1868 St Petersburg Declaration ( uselessly aggravates the sufferings of the disabled men )

Repeated in 1907 Hague Regulations Art. 22 ( The right of belligerentsto adopt means of injuring the enemy is not unlimited )

And again in 1977 AP 1, art. 25, para 1 and 2 ( ... the right of the parties

to the conflict to choose methods or means of warfare is not unlimited. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. )

Rule 70 of the 2005 ICRC Customary Law Study. Duty to evaluate new weapons systems and consider whether they are

consistent with the obligations following from LOAC, AP 1, Art. 36. The Soldier's Obligation?

In the Code of Conduct of Canadian Forces Personnel, Rule #3: Do not alter your weapons or ammunition to increase suffering or use

unauthorized weapons or ammunition

Specific Prohibitions

Small Calibre Munitions Dum-dum bullets (Prohibited in the 1899 Hague Declaration) Prohibition given new form as projectiles,.... calculated to cause

unnecessary suffering (1907 Hague Rules on Land Warfare, art. 23(e)).

Winston Churchill book (1898): Of the [Dum-Dum] bullet it may be said that its stopping power is all that

could be desired. The result is a wonderful and from a technical point of

view a beautiful machine. Continental critics have asked whether such abullet is not a violation of the Geneva or St. Petersburg Conventions, I

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would observe that bullets are primarily intended to kill, and that thesebullets do their duty most effectually,

General Sir John Ardagh, 1899, in a Speech: In civilized war a soldier penetrated by a small projectile is wounded,

withdraw to the ambulance, and does not advance any further. It is very different with a savage. Even though pierced two or three times, he does not cease to march forward, does not call upon the hospital attendants, but continues on, and before anyone has time to explain to him that he isflagrantly violating the decisions of the Hague Conference, he cuts off your head. It is for this reason that the English delegate demands the liberty touse projectiles of sufficient efficacy against savage populations.

Chemical and Biological Weapons 1899 Protocol Concerning Asphyxiating Gases 1925 Gas Protocol: Prohibition on First Strike . 1972 Convention Against Biological Weapons 1993 UN Chemical Weapons Convention: Total ban on all chemical weapons.

The Convention also established the Organisation for the Prohibition of Chemical Weapons (OPCW) to supervice ans enforce prohibitionse etc.

Non-Lethal Chemical Weapons UN CWC Art. 1 (5) prohibits the use of Riot Control Agents as a method of

warfare - this must be construed as a prohibition in combat situationswhere the LOAC must be applied.

Other Non-Lethal Weapons No prohibition in the LOAC against other Non Lethal ( Less Lethal )

Weapons, unless if such weapons may be considered causing unnecessarysuffering, AP1, Art. 35 (principle).

Nuclear Weapons? Traditionally not specifically coverd not negotiated in the context of LOAC

Conventions. 1996 International Court of Justice Advisory Opinion

1980 UN Convention on Certain Conventional Weapons (CCW) The convention also applies in non-international armed conflict, amended

Art. 1 (2001) Prohibition against fragments which cannot be traced by using X-Ray (UN

CCW Protocol 1, 1980). Prohibitions against blinding laser weapons (UN CCW Protocol IV 1995).

Landmines UN CCW Protocol II (1980). Revised UN CCW Protocol II (1996). Ottawa Convention 1997

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Introduces total ban against all uses, etc. of anti-personel land mines. Ratified by all NATO countries, except USA and Turkey The Claymore Mine is it prohibited by the Ottawa Convention?

Possible future Protocol on Prohibitions or Restrictions on the Use of and Transfer of Mines other than Anti-Personnel Mines (= anti-tank mines?).

Incendiary Weapons (UN CCW Protocol III 1980) Napalm not prohibited per se , see article 2, para 2 and 3, a contrario

Cluster Bombs, etc. Explosive Remnants of War (UN CCW Protocol V, 2003)

Duty for High Contracting Parties inter alia to mark and clear, removeand destroy explosive remnants of war on territory under their control(art. 3(2)); if not on own territory, provide, where feasible, technical andother assistance (Art. 3(1)).

Protocol entered into force on 12 November 2006. Convention on Cluster Munitions adopted 30 May 2008 Total Ban ( Ottawa-Convention style ) on use, production, transfer,

etc. of (most types of) cluster munitions. Has not yet entered into force. A de facto danish moratorium on such munitions ( non-use ) since

2003.

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IX. P ROTECTION OF C IVILIANS IN THE H ANDS OF A P ARTY TO THE CONFLICT

Definitions

AP1, Art, 50.1:A civilian is any person who does not belong to one of the categories or persons referred inArt. 4A (1),(2),(3) and (6) of the Third Convention and in Article 43 of this Protocol.

IE, Anyone who is not: A member of the armed forces of a party to the conflict. Members of other militias or volunteer corps. Members of regular armed forces who profess allegiance to a government

or an authority not recognized by the detaining power, Levee en masse.

Presumption

Additional Protocol I, art. 50.1, In fine:In case of doubt whether a person is a civilian, that person shall be considered a civilian.

How does that fit with the presumption of POW status in GC III, art. 5and AP. 1, art. 45?

Additional Protocol I, art. 50.2: The Civilian Population Comprises all who are civilian.

General Protections

Under AP 1

It supplements general protection provided to all civilians or certain groups of civiliansin GC. IV (Ap. 1, art. 49.4) General protection from against dangers arising from military operations.(AP I,

Art. 51.1) unless and for such time as they take a direct part in the hostilities(AP1, art. 51.3).

Not object of direct attack (AP1, Art. 51.2). Not object of acts or threats of violence, the primary purpose of which is to

spread terror among the civilian population. (AP.I, art. 51.2, in fine). Prohibition against indiscriminate attacks (AP 1, art. 51.4-5). Prohibition against reprisals (AP1, art. 51.6). Using civilians as shields :

Civilians shall not be used to render certain points or areas immune frommili

Documents

The Law of Armed Conflicts - Copenhagen University - Fall 2008