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The Law of Armed Conflict
I. The Legal Regulation of the Use of Force in International Relations...................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........................................................................10
Historical Overview...........................................................................................................10Sources of International Law..............................................................................................11
Treaties / Conventions / Agreements bwn states.............................................................................11Customary Law.................................................................................................................................11Judgments, Case Law........................................................................................................................11Writings of Learned Scholars............................................................................................................11
Basic Principles..................................................................................................................12Military Necessity......................................................................................................................12Humanity...................................................................................................................................13Discrimination / Distinction.......................................................................................................13Proportionality...........................................................................................................................13
Proportionality 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...................................................................................18
Categorization of people in armed conflict........................................................................18Principle of Distinction......................................................................................................18
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Civilians............................................................................................................................................18Combatants......................................................................................................................................18« Everything » in between...............................................................................................................18
Combatants.......................................................................................................................18Criteria for Combatant Status...........................................................................................................19
Combatant Review Tribunals.....................................................................................................19Hors de Combat........................................................................................................................20
Spies and Mercenaries......................................................................................................20
V. Prisoners of War..............................................................................................21
Historical Overview....................................................................................................................21Pow Status: a Temporal perspective.........................................................................................21
Responsibility for POWs....................................................................................................21Requirements at the Outbreak of Hostilities.............................................................................21The Right to POW Status...........................................................................................................22
Determination of Status..................................................................................................................22POW Protection ...............................................................................................................22
General Protection....................................................................................................................22Prohibited Acts or Omissions....................................................................................................23Personal Belongings..................................................................................................................23Specific Provisions on the Internment of POWs.......................................................................23
VI. Wounded, Sick and Dead and the Medical Services........................................25
Wounded and Sick............................................................................................................25Definition...................................................................................................................................25Protection..................................................................................................................................25
The Missing and the Dead.................................................................................................25Medical Services...............................................................................................................25
Medical Personnel.....................................................................................................................25Military Non-Combattants...............................................................................................................25
Protection.........................................................................................................................................25Permanent Medical Personnel........................................................................................................26Temporary Medical Personnel........................................................................................................26
Medical Units and their Protection...........................................................................................26The Protective Emblem/Distinctive Sign...................................................................................26Rights and Obligations of the Medical Units............................................................................26Perfidy and Misuse....................................................................................................................26
Perfidy.............................................................................................................................................27
VII. The Conduct of Hostilities.............................................................................28
The Law of Targeting.........................................................................................................28The Principle of Discrimination.................................................................................................28Definition of civilians.................................................................................................................28Military Objectives....................................................................................................................28
Nature.............................................................................................................................................28Use..................................................................................................................................................28Effective Contribution.....................................................................................................................28Definite military advantage.............................................................................................................28Hard cases?.....................................................................................................................................28
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Duties of the Attacking Party....................................................................................................29Duties of the Defending Party...................................................................................................29The Principle of Proportionality................................................................................................29Practical Targeting Process.......................................................................................................29
Special Protection.............................................................................................................30Civilian Property........................................................................................................................30Medical Installations and Materiel...........................................................................................30
Medical Aircraft...............................................................................................................................30Civil Defence.............................................................................................................................30Cultural Property.......................................................................................................................30
1954 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................................................................................................................31The Natural Environment..........................................................................................................31Dangerous Forces......................................................................................................................31Specially Protected Zones..........................................................................................................31
Illegal Methods of Combat................................................................................................32Perfidy.......................................................................................................................................32Misuse of Enemy/Neutral Symbols...........................................................................................32Protection of Certain personnel................................................................................................32Hostage Taking and « Human Shields »....................................................................................32Prohibition on Certain Reprisals...............................................................................................32
VIII. Weapons (Means of Combat).......................................................................33
Historical 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.........................36
Personnel 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
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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;....................................................38Art. 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..................................................................................................................43
Applicable Law of Armed Conflicts...........................................................................................43Geneva 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..................................................46
Prevention........................................................................................................................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..........................................................................................................49
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Genocide...................................................................................................................................49
XIII. Maritime Warfare........................................................................................50
Historical Overview..........................................................................................................50Key Definitions.................................................................................................................50Areas of Naval Warfare.....................................................................................................51Neutral 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................................................................................................................52
Methods and Means of Warfare at Sea.............................................................................53Means........................................................................................................................................53Methods....................................................................................................................................53
Blockades.........................................................................................................................................53Zones...............................................................................................................................................53Deception, Ruses of War and Perfidy..............................................................................................53
Measures Short of Attack.................................................................................................54Hospital Ships...................................................................................................................54
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I. THE LEGAL REGULATION OF THE USE OF FORCE IN INTERNATIONAL RELATIONS
The law when a conflict is not actually declared. Not matter for soldiers – political decisions. Whether or not to wage war / legality of conflict. Points of view: Evil war vs. Just war.
The Ban on the Use of Force
State Practice: In real life: Great statesman / becoming great statesman by waging war on neighbours (Napoleon, etc...). The point of departure is a liberal approach to the use of force in international relations.
● The Versailles Peace Treaty of 1920: WW1 – main event: German attack on Belgium, August 1914. Agreements with other states to protect Belgium if it was under attack. In Treaty, want to bring Wilhelm II for war crimes. Trial never really became war crime trial though.
● Briand-Kellog Pact of 1928: Initiative taken to renounciation of recourse to war in 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 force against the territorial integrity or political independence of any state, or in any other manner inconsistent 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 any form of agression whatsoever is a crime under international law
○ Crafts a forum that could impose its will on other states that do not accept ban 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 as well as « organising or encouraging the organisation of irregular forces or armed bands ... for incursion 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 other states, also when
such use of force cannot be explained as self-defence, but that 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 other states ». ● 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 the Cold war). Used as pretext to send lightly armed troops in country to mediate/assist/help parties get to an understanding: role of UN troops is to monitor, 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 the right of self-
defence beside the mandate to collective use of force.
○ 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 »
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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 War 1991, 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 Security council 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 other state – more liberal
recourses to inferences possible:○ 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?
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● 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 use degree 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 allowed towards organised, non-state actors.
○ Security Council Resolution 1368 and 1378 (both 2001) are interpreted as expressing support for the existence of the right to self-defence against terrorist 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, in particual genocide, against crimes against humanity, etc.
● Example: Kosovo 1999.
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 international law or to make reparations.
● Since 1945, considered outlawed by the UN Charter.
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II. BASIC PRINCIPLES OF LAWS OF WAR
IHL, Law of Armed Conflict, they all mean the same. The law that applies during armed conflict of any nature. Laws of War encompass all conventions that applies during an armed conflict, including rules of neutrality, use of weapons + any other rules applicable 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: strategic considerations, 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. Tries to 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 combatants and to secure a minimum of rights for persons who do not or no longer take active part in 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 two things:
- Cofounded Commitee for Red Cross- Started up a process that would bind states to establish a medical service within 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 international humanitarian 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 war against 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 4th Hague Convention: « Regulations on Hague Warfare », governs questions such as combattant status, prisoner of war statut, means and methods of warfare.
● Doctrine of military necessity was taking form.●
● Art. 22: Note that use of means of warfare is not unlimited. That is the first time 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
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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 extent that 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 law as 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 or superflous injury. What this is remains to be analyzed. The Weapons Convention had 4 protocols: 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 these limitations. 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 because they felt legally bound to do so. Very important in IHL because internal armed conflicts remains 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 (ie Nuclear Weapons, Israelo-Palestinian wall).
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Writings of Learned Scholars
In many fields, no other sources. In IHL, scholars play specific roles re: Maritime Warfare (San Remo Manual 1994, compiled by a number of professors). Other area: Air Warfare.
1 st additional protocol: 85-86 ● Describes responsibility for breach if IHL. Binding if States implemented the conventions in their
law.
Basic Principles
Four 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 minimal expenses is allowed. Very political variable – soldier not really bound by this. It is meant to govern strategic plans.
● Arguments from commanders: « There might be a prohibition, but it is really necessary ». Art 23E of Hague Declaration: « allowed to destroy, seize ennemy property, 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 at the earliest possible moment and with the minimum expenditure of ressources.
● Specific consequences:○ Strateguc principle applicable to states: force must be controlled (The hostages case)○ The argument of Military Necessity can leas to derogation from IHL, the law itself 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 in cases where military necessity imperatively requires such a waiver ».
■ Ex: Scorched Earth Policy, Ap. 1, Art. 54, para. 5: « ... where required by imperative 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 have caused deaths and/or serious bodily injury within the civilian population or damage to civilian property. The parties to the conflict are obliged to attempt to distinguish between military targets and civilian persons or property. Targeting civilians or civilian property is 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. Civilian property covers any property that could not be legitimately considered a military objective . Such an attack must have been conducted intentionally
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in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity.
The appeals chamber corrected in its judgement dated 29 July 2004:109. Before determining the scope of the term “civilian population,” the Appeals Chamber deems it necessary to rectify the Trial Chamber’s statement, contained in paragraph 180 of the Trial Judgement, according to which “targeting civilians or civilian property is an offence when not justified by military necessity.” The Appeals Chamber underscores that there is an absolute prohibition on the targeting of civilians in customary international law”.
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 or unnecessary suffering. »
● Specific Conventions banning or limiting the use of certains weaponry and munitions.● Humanity dictates humane treatment of any person in the custody of a belligerent.
● The principle confirms the basic immunity of civilian population and civilian objects from attack because civilians and civilian objects make no contribution to military actions.
● Does not make unlawful unavoidable accidental death resulting from legitimate attacks upon military objectives.
● Proportionality: Damage must not be excessive in relation to the concrete and direct military advantage anticipated.
Discrimination / Distinction● There must be a clear distinction between the armed forces and civilians, or between combatants
and non-combatants, and between objects that might legitimately be attacked and those protected from attack.
● Only combatants are permitted to take a direct part in the hostilities (they may be attacked). Civilians may not take a direct part in hostilities and, for so long as they refrain from doing so, are protected from attacks.
● Personnel: attacker has to distiguish between civilian objects and military targets. Must make resonable effort to gather intelligence, reviews the intelligence available to him and concludes in good faith that he is attacking a legitimate military target.
● It is explicitly stated in AP1, Art. 48.● Definition of military objectives in AP1, Art. 52(2).
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● In planning and execution.
Proportionality● Requires that the lossed resulting from a military action should not be excessive in relation to the
expected military advantage.● It is a link between the principles of military necessity and humanity. Most evident in connection
with the reduction of incidental damage caused by military operations.
Proportionality in Ius ad Bellum
● Use of force in self-defence against an armed attack must be restricted to the repulse of the armed attack (and what is necessary to prevent further attacks) and must not entail reliatory or punitive actions.○ Reference: UN Charter Article 51 (proportionality not explicitly mentioned).
Proportionality in Self-Defence
● Personal defence as opposed to State self-defence as regulated in the Ius ad Bellum● The use of force must not go beyond what is strictly necessary to stop the attack and contrain the
threat.
Proportionality in Reprisals
● A reprisal need not conform in kind to the act complained of but shall not significantly exceed the adverse party's violation either in degree or in effect. (UK Manual, para. 16.17).
Proportionality in Ius in Bello
● The loss of civilian life and damage to civilian property resulting from an attack on a legitimate target must not be disproportionate to the military advantage expected of carrying out the attack. (UK Manual, para. 2.6).
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III. THE 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 between States or protracted armed violence between governmental authorities and organised 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 armed conflict even if no
actual fighting takes place.○ Factual finding of an armed fighting between organised forces of two or more States 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 to notion 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 Operations
Armed 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 armed conflict.
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 all states had to sign to the Convention. « General Participation Clause »: If one party to the conflict has not ratified a relevant convention, no one is obliged to apply 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 thus binding on everybody regardless of ratification.
○ Exception 2: The not-bound party declares that it will apply the law and actually does so, AP I Article 96(2) in fine.
● Bottom line: You are only bound by LOAC when the other party is also bound 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 theater to make everybody sleep withotu having to shoot. However, the gas killed over 100 persons. Russians would not claimed this was non-international armed conflict, but rather a criminal act. However, when Russia went in chechnya for the first time, case at the Russian Constitutional court, which found the conflict was non-international armed conflict, thus Additional Protocol II applies.
● It is defined by default – all armed conflicts which are not international armed conflicts.● 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 territorial control and is able to conduct what amounts to military operations and is as 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 states take into consideration when applying national law (ban against killing, torture, etc.).
Case Study: Afghanistan
● The Conflict between Taliban and Northern Aliance c. 1996-2001
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○ = 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. THE LAW OF BELLIGERENTS
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) More generally, 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 the criteria 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 is not 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 the conflict 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 are civilians that follow armed forces.■ Any attack on them is unlawful, so they can use necessary force to protect themselves
against unlawful attacks. In some countries, civilians are 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○ AP 1. Art. 50.1:
■ Basically, a civilian is anyone who is not a combatant.
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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 organised resistance
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 or authority not recognized by the detaining power.
4) Levée 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 law applicable in armed conflict.
● Art 43, para 2: Members of armed forces, apart from chaplains and medical personnel 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 under command of the armed forces of the country. No longer a requisite to respect laws 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 the enemy, 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 part in hostilities, that would be tried under the national law of the nation who has jurisdiction over civilians. However, there is a minimum protection requirement for all the persons who are not otherwise protected by the laws of war (art. 75). It is considered today to be customary international law.
● Art. 75 is pretty much a copy of the ICCPR.
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Distinction from Civilians – Minimum Requirements
● Art. 44: Only Relevant for combatants:○ Para 3: Normally : A combatant shall distinguish himself from civilians while engaged in attack
or in a military operation preparatory to an attack.○ Para 3: Exceptionally : In recognition of certain situations where a combatant 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 tried and punished for war crimes, he does not lose his status as combatant or POW in 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 standard outlined in art. 75.
● Art. 44.7: Good practice of wearing uniform remains unaffected by these rules.
Combatant Review TribunalsTwo rules dealing with CRT (3rd Geneva Convention and AP1)
III GC, art. 5« Should any doubt arise they shall enjoy the protection of the convention until such time as their 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 prima facie, 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 tribunal either. There is a need to do something else: to be put before a judge or internal measures.
● 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 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 hors de combat shall not be made the object of an attack.
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● GC III as a specific rule describing escaping POWs. Use of weapon permitted only if absolutely necessary. A person must thus do anything he can to stop this escape without using a weapon.
Spies and Mercenaries
SpiesSpy: « Works under clear intentions to dupe the enemy and gather information, under false 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.
MercenariesAP 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. PRISONERS OF WAR
3rd Geneva Convention: most expansive catalog of rights of detainees. Main reference for POW status and treatment. + some developments in AP1.
Historical OverviewAncient History: Started 400 BC. Reasons at this time had nothing to do with humanitarian consideration. More mercantile view – want to keep POWs in good condition 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 both willing 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)c) Establish an information bureau to register the name and whereabouts of POW in the custody of the
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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, grave registration 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 in AP1, 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, supply contractors...
○ Members of crews of civil aircraft and the merchant marine, who do not benefit 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).● 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.
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○ Non discrimination (Art. 16) « Equal but separate ».● A POW may be questioned in captivity, but there is very strict provisions, which regulate 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 for therapeutic 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 they attemps to flee.● Solitary and collective confinment only when necessary of reasons of health or security.● 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.
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● 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. WOUNDED, SICK AND DEAD AND THE MEDICAL SERVICES
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 when they 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 Geneva Convention 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 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.
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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 international humanitarian 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 Parties but ICRC is also
entitled to use it as well as national Red Cross and Red Crescent Societies (for indicative purposes).● Armlet with the distinctive sign should be issued and stamped by the military authority, 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.● 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.
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○ 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 intent to betray that confidence with the purpose to kill, wound or take an adversary prisoner, 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. THE CONDUCT OF HOSTILITIES
Important to read the primary sources *** Hague Regulation (qannex to 4th Hague Convention) Modern interpretation found in AP1 of GC. Mainly, art. 48 to 67 of the Protocol.
The Law of Targeting
The Principle of Discrimination
AP1, Art. 48« ... the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct 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 Objectives
AP1, art. 52(2)« ... military objectives are limited to those objects which by their nature, purpose or use make 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 military advantage ».
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 military effort.
Effective Contribution
Definite military advantage
Examples of possible military objectives: (see para 5.4.5).● However, determination always involves a concrete appreciation of the actual facts and
circumstances ruling at the time of attack.
Hard cases?
● The sinking of the General Belgrano, Falkland War, 1982.○ It was absolutely and without doubt a military objective – really no LOAC issue at all –
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nevertheless, there was a controversy because of the many drowned 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 the circumstances, 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 are neither civilians nor
civilian objects, AP1, 57(2).● Party must give warning, if an attack will affect civilian population, unless such warning 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 ») which would be excessive (« non-proportional ») in relation to concrete and direct military 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 military advantage 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.
3. May there be a special prohibition on attacking the object?○ Special procedures to observe?
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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 Convention IX 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 such cultural property; « centres containing monuments » (Art. 1).■ The protection can be waived ony in cases of imperative military necessity (Art. 4, para. 2).
« 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.
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■ Protection can normally only be waived in cases of exceptional cases of unavoidable military necessity and the decision must be taken by at least a 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 the greatest importance to humanity » Art. 10.
● Introduces criminal responsibility (almost universal jurisdiction) for certain crimes against certain cultural property (Art. 15-21).
The Law of Armed Conflicts Conventions must not be confused with the 1972 UNESCO World 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 and severe 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.● 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.
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● 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 the adversary nor demilitarized (BiG military operations continued from the zones).
○ 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 in hostilities.■ No special protection – can be compared to civilians working in a military installation who
can be targeted together with the military objective in question.■ 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. WEAPONS (MEANS 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 aggravate the 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 belligerents to 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 a bullet is not a violation of the Geneva or St. Petersburg Conventions, … I would observe that bullets are primarily intended to kill, and that these bullets
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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 is flagrantly violating the decisions of the Hague Conference, he cuts off your head. It is for this reason that the English delegate demands the liberty to use 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 situations where 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 unnecessary suffering, 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
■ 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
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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, remove and destroy
explosive remnants of war on territory under their control (art. 3(2)); if not on own territory, provide, where feasible, technical and other 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. PROTECTION OF CIVILIANS IN THE HANDS OF A PARTY 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 in Art. 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. 5 and AP. 1, art. 45?
Additional Protocol I, art. 50.2: « The Civilian Population »● Comprises all who are civilian.
General Protections
Under AP 1It supplements general protection provided to all civilians or certain groups of civilians in 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 from military operations.○ Direct movement of civilians in order to attempt to shield military objectives from attacks or to
shield military ops.
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● Precautions in attack and defence (AP1, art. 57 and 58).
Civilians taking a direct part in hostilities● Direct part in hostilities
○ Pictet pr. 1942 commentary: « hostile acts should be understood to be acts, which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces ».
○ « Direct » demands a causal connection between the action and the damaging effect. Discussion: Instructions, Intelligence gathering, « total defense », terrorists, PMC's.
● « ... and for such time ... » ○ Not only the attack itself, but also deployment and movement after the attack, until « back at
base ».○ Problem: Revolving Door...
● The Consequences ○ The civilian becomes a legitimate target.○ If captured, he does not have the right to POW status, but is treated in accordance with GC.IV
or at least AP.1, art. 75.○ Can be prosecuted for any criminal acts he/she might have committed.
General Protection under GC.IVRules providing General Protection of Populations against certain consequences of war.
● Note on applicability - « populations of the countries in conflict » ... as opposed to « Protected persons only (Part 3) »
● Hospitals and neutral zones, art. 14-15.● As far as military considerations allow;
○ Search for casualties (Art. 16).○ Protected persons exposed to grave danger against pillage and ill-treatment (Art. 16).○ Endeavour to agree on evacuation of elderly, children and maternity cases from besieged areas
and to ensure free passage for priests, medical personnel and equipment (art. 17).○ Certification of – and respect for civilian hospitals, civilian medical personnel and civilian
medical transports (Art. 18-22).○ All states shall allow free passage of all consignments of medical and hospital stores (and
consignments solely for religious worship) as well as consignments of essential foodstuffs, clothing intended for children, elderly and maternity cases, if:■ No serious reasons for fearing that consignmnts may be diverted from their destinations,■ That the control may not be effective, or,■ That the receiving party gains a definite military advantage (Art. 23).
● Take care of orphaned children under 15 (e.g. By providing for reception in neutral country). (Art. 24).
● Allow inhabitants to give and receive news of a strictly personal nature to families (Art. 25).● Make an effort to rejoin dispersed families – encourage organizations engaged on this task (Art.
26).
Protected Persons
Who are protected persons under GC.IV?
Art. 4:
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● Armed conflict or occupation,● « In the hands of » a party to the conflict in which you are not a national.● Only nationals of High Contracting Parties covered,
○ Exclusion 1: Nationals of neutral or allied states only protected if no diplomatic representation.○ Exclusion 2: Persons protected by GC1-III.
In more practical terms:Civilians – as defined in API art. 50.1 – stateless or belonging to an adversary state – or other state if no diplomatic representation with that state is in place – and who finds themselves in territory controlled by enemy authorities whilst not protected as sick, wounded, shipwrecked or POW.
The status and treatment of protected persons
Provisions Common entail different subjects of protection comparable to the rules found in AP1:● Art. 27 : In all circumstances and without discrimination entitled to respect to their persons, their
honour, their family rights, their religious convictions and practices, manners and customs.● However parties may take suck measure of control and security in regard to protected persons as
may be necessary as a result of the war.● Art. 31: Prohibition of physical or moral coercion, in particular to obtain information.● Art. 32 : Prohibitiom of any measure of brutality...● Art. 33: Prohibition of collective punishment, pillage or terrorism.● Art. 34: The taking of hostages is prohibited.
Aliens in the Territory of a Party to the Conflict● At the outset of hostilitiers, aliens shall be allowed to leace unless contrary to the interests of the
belligerent state – Art. 35-36.● As a minimum – receive individual and collective relief, medical attention, practice religion and
move if area is particularly exposed to dangers of war (art. 38).● Possibility to find paid employment (Art. 39).● Only compelled to work to same extent as nationals (Art. 40).● Other measure « assigned residence, or internment » - if the security of the detaining power makes
in absolutely necessary and subject to certain rules of procedure – including having action reconsidered (Art. 41-45).
Zones of Protection
Art. 14: Unilateral, Hospitals and Safety Zones – to Protect;
Art. 14 GC IV.[In time of peace: Creation of safety zones (see below).]Upon the outbreak of hostilities and during the course of hostilities, the Parties concerned may conclude agreements on mutual recognition of the zones and localities they have created...
○ Wounded and sick;○ Aged persons;
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○ Children under 15;○ Expectant mothers;○ Mothers of children under 7.
Art. 15: Neutralized Zones – bi-lateral
Any Party... may ... propose to the adverse party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war on the following persons, witout distinction:
(a) Wounded and sick combatants or non-combatants;(b) civilian persons who take no part in the hostilities, and who, while they reside in the zone, perform no work of a military character.
○ In regions where fighting is taking place;○ To shelter wounded and sick or non-combatants;○ Civilians who take no part in hostilities and who, while residing in the zone, perform no work of
military character;○ Based on agreement on the modalities of the zone (duration, place)
AP.I, art. 59: Non-defended localities, « Open cities »○ Unilateral declaration○ Purpose is to spare civilian population and civilian objects.○ Military personnel and material must be evacuated from the area prior to declaration○ No acts of hostility...
AP1, art. 60: Demilitarized Zones○ Bi-lateral – Express agreement (verbally or in writing)○ Conditions as non-defended localities, and all activities in support of military operations must
have ceased in the zone.○ Protection ceases if action contrary to the agreement is taken.
AP. 1 Art. 75 Minimum Protection
Entails a customary norm of minimum protection of personnel, who does not benefit from better protection elsewhere in the laws of armed Armed Conflict:
● Very much inspired by the ICCPR.● Humane treatment● Respect for the person, its honour, convictions and religious practices,● Prohibits violence to life and health, humiliations or degrading treatment or other physical or
mental infrigements of the well-being of persons.● Provides for a Fair Trial.● Gender-based respect – women held in quarters separate from that of men.● Duration of protection until final release or repatriation.
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X. OCCUPIED TERRITORY
Nature of Belligerent Occupation
● Occupation is always temporary in nature.● Sovereignty of occupied nation is « suspended »● The OP must uphold law and order whilst respecting the law of the land – unless absolutely
prevented. The rule reflects the temporary nature, the constitution and legislation of the occupied territory must be respected.
● Existing law must not be changed unless:○ Security of the OP○ Welfare of the inhabitants○ Maintenance of law and order○ Existing laws are seen to be contrary to international law (Especially IHL).○ UN SC Mandated (ex.: 1483 Judicial Reform) (VF CPA Orders).
● Own laws are not in effect in the Occupied Territory.● Occupation can be partial and does not rule out armed conflict in other parts of the same country.
Beginning and End
● Application of conventions from the beginning to the end of the occupation (AP1, Art3(b)).● Beginning : HLR Art. 42 – criteria:
○ Is the former administration unable to fulfil its function?○ Is the occupying power able to take over?○ Have enemy forces withdrawn?○ Have inhabitants been disarmed?○ Have measures been taken to secure a safe environment for civilian population?○ Are there troops enough available to administer occupation?○ Has there been a proclamation of occupancy? (OPROP vf)○ Has a commissioner been appointed?
● End : LR Art. 42 À contrario, & GC.IC, art. 6:○ Has the occupation ended? - have military forces retreated – driven out?○ Does the military evacuate the area?○ Has there been a formal TOA?○ Occupation can continue even with certain degree of rebellion and/or organized resistance – as
long as the OP deals with it!○ Art. 6 – certain rules continue to have effect 1 year after occupation (AP1, Art.3b. - the parties
are not bound by a one year rule!).
Belligerency Before, During and After Occupation
● LOAC continues to apply during occupation...● Civilians taking active part in the hostilities may be punished by the OP (UK-Manual – Unpriviliged
Belligerents).● If support to resistance by civilians is of an indirect nature, the OP can enact legislation prohibiting
such support and by that legislation – punish such activity – SEE GC IV Art. 68 – only intern or imprison.
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Duties of the Occupying Power
Administration● The Public officials may abstain from working for the OP on grounds of conscience.● Law enforcement officials cannot be required to act against the lawful combattants of own state!
(might act against own conscience and would be supporting the war effort of the enemy).● If officials refuse obedience to the OP they may be dismissed (GC:IV, art. 54).● Courts may be allowed to function, but such courts may preliminarily examine whether or not OP
legislation is in accordance with international law. They must otherwise apply and respect such law.● Enact new legislation to allow for such administration: Commerce, currency, censorship, postal
services, requisitioning of transport and/or means of communication.● May impose restrictions on civilian population such as:
○ Require specific ID-Cards.○ Restrict FOM○ Forbid changes of residence,○ Forbid visiting particular districts,○ In case of imperative reasons of security (Art. 78), subject to appeal and administrative boards:
■ Assigned residence.■ Internment.
Civilian Population● Must not be deported unless imperatively necessary for reasons of their own security;● Own population must not be moved into occupied territory.● Foreign nationals shall be allowed to leave occupied territory.s
Other Duties● Collect taxes and duties to finance costs of occupation to the extent the financial capacity of the
occupied state is able to do so (Nuremberg). If it does, it must use such revenue to cover expenses. LKR, Art. 48.
● Responsible for medical care of inhabitants – existing medical system should be allowed to continue○ Private medical units may only be requisitioned if needs of civilian population can be fulfilled
without.● Food and supplies shall be made available to the fullest extent possible (GC IV, Art. 55, 69, 70)
○ If ressources are insufficient, they must be supplemented by OP and / or○ Arrangements made for other organizations or states to provide relief schemes. (all states must
permit free passafe – subject to security measures).○ Including: clothing, bedding, shelter and facilities for worship of religion.
● Schools: Education system must be allowed to continue as unhindered as possible (50).● Children: special identification and registration of parentage.
○ Special part of national identification bureau to deal with children.
Prohibited Acts
● Compelling the civilian population to take part in operations against their own state (HLKR, Art. 23.h.). or any other manner compel inhabitants to assist the war effort.
● HLR, Art. 52: requisition in kind ans services only insofar as it does not involve inhabitants in the
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obligation of taking part in military operations against their own country.● Compelling the civilian population to serve in the armed forces of the OP (GC.IV art. 51) –
Interpreters.● Require civilians to give information to OP, which would be contrary to the interests of own state.● Swear allegiance to occupying power.
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XI. NON-INTERNATIONAL ARMED CONFLICT
Definition
● It is defined by default as « all armed conflicts which are not international armed conflicts »● 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 Armed Conflict ») but is not restricted to these types of conflicts only.● Primary difference from the law of International Armed Conflict: There is no combattant status to
insurgents in non-international armed conflict and consequently no legal « equality » between the parties to the conflict.
Applicable Law
Applicable Law of Armed Conflicts
Geneva Convention Common Art. 3 (1949)
● Applies in all armed conflicts that are not international.● It is in itself a « mini-convention »: Default protection of the most basic « human rights » and
human dignity:○ Obligation to offer humane treatment without discrimination to people who have laid down
their arms.○ Prohibition on murder, cruel treatment, torture, hostage taking, outrages upon personal dignity
and denial of justice.○ Obligation to care for sick and wounded persons.○ Possibility for impartial humanitarian bodies (e.g. ICRC) to offer its services.○ Recommendation to apply by agreement other parts of International Humanitarian Law.
Additional Protocol II
Article 1 – Material Field of ApplicationThe Protocol... shall apply to all armed conflicts which are not covered with are not protected by (AP1, art.1) 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.
● Threshold of application: Only applies in situations of a certain amount of organization of insurgent units, Article 1, para. 1:○ « organized armed groups »○ « under responsible command »○ exercising control over part of territory ○ enabling them to carry out concerted military operations, and○ to implement Protocol II.
● Human Treatment, art. 4-6.● Wounded, Sick and Shipwrecked, Art. 7-12.
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● Prohibitions on attacks against certain civilian objects, Art. 13-18.
Non-Applicability to Internal Disturbances
Protocol II, art. 1(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.
Operational Regulation in APII
● Prohibition on making civilians the object of attack (Art. 13, cf. Article 51(2) of AP1).● Prohibition against starvation of civilians as a method of combat (Art. 14, cf. Art. 54 AP1)● Protection of works and installations containing dangerous forces (Art. 15, cf. Art. 56 of AP1)● Protection of cultural objects etc. (Art. 16; cf. Art. 53 of AP1)● Prohibition of forced movement of civilians – unless because of security of the civilians or
imperative military reasons (Art .17)● Relief societies may offer their humanitarian services (Art. 18(1)).● Relief actions in support of the civilian population shall be undertaken with the consent of the High
Contracting Party concerned (Art. 18(2), cf. Art. 81 of AP1).
Specific Rules in Other Conventions
● 1954 Hague Cultural Convention, Art. 19.● 1980 UN Convention on Certain Conventional Weapons, Art. 1.● Possibility to apply further parts of humanitarian law by agreement by the parties, as
recommended in GC Common Article, para. 3.
Customary Law
● The importance of customary law: development towards the application of more and more provisions from LOAC applicable in international armed conflicts, regardless of the fundamental diffrenences between the two types of conflict.○ E.g.: jurisprudence of the international Criminal Tribunal for the former Yugoslavia.○ The ICRC Customary Law Stuyd (2005) lists 161 customary law rules considered equally
applicable in non-international armed conflict.
International Human Rights Instruments● International human rights law is about protecting individuals against (own) state authority.● It applies in peace-time, some rules can be derogated from in time of emergecy.● Copier?: « Diffrences between LOAC and most national law???.
Important Human Rights Instruments● 1948 Universal Declaration of Human Rights● 1950 European Convention on Human Rights● 1966 UN Covenants
○ Covenant on Civil and Political Rights○ Covenant on Economic, Social and Cultural Rights
● Other regional documents (Africa, America, etc.).
● * They are also relevant to soldiers in Peace Support Operations when there is no armed conflicts.
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Jurisprudence (ICJ)
● Advisory opinion in the Nuclear Weapons Case (1996), para. 25.○ The 1966 Convention on Civil and Political Rights shall continue to apply even in war unless and
to the extent derogated from.
In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then fails to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. This whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Art. 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.
● Advisory opinion on the construction of a wall in the occupied Palestinian Territories (2004).○ The 4th Geneva Convention applies, paras. 89-101.
« In order to answer the question put to it, the Court will hav to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.
○ Breach of Art. 12 of the CCPR (during occupation)○ Breach of GC4, art .49 (prohibition of demographic changes).
Focus Areas
● Use of force against civilians○ Use of force in self-defence○ Use of firearms/deadly force against civilians○ Handling of civilian riots○ Non-lethal weapons○ Necessity of operational solutions which imit the number of dead or injured civilians
● Detaining persons● Detention facilities● Searching of civilians and civilians property● Special consideration of exposed groups: women, children, handicapped persons, etc.
National Legislation
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XII. ENFORCEMENT OF THE LAWS OF ARMED CONFLICT
Prevention
Dissemination
AP1, Art. 83undertake... to disseminate the Conventions and this Protocol as widely as possible in their respective countries.
Legal Advisors
Ap1, Art. 82... shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol...
Alternatives
● The Protecting Powers, AP1, Art. 5.
Art. 5(1), AP1Duty.... from the beginning of that conflict to secure the supervision and implementation of the Conventions and this protocol by the application of the system of Protecting Powers...
● The rôle of the ICRC, AP1, Art. 5 + 81.● The International Fact-finding commission, AP1, Art. 90● Compensation, Hague IV, Art.3 + AP1, Art. 91.● « Belligerent Reprisals »
Belligerent Reprisals
Definition
○ An otherwise illegal act under LOAC carried out.○ In response to serious and manifestly unlawful acts commited by the enemy,○ with the purpose of compelling the adversary to observe the LOAC,○ in proportion to the original violation,○ and publicized as a reprisal.
● Compare UK Manual para. 16.16 and 16.17
Reprisal Bans
● The sick and wounded, etc., G1 46, AP1 20.● The sick, wounded and shipwrecked, GII 47, AP1 20.● Prisoners of War, GIII 13(3).● Civilians/the civilian population,GIV 33(3), AP1 51(6).● Civilian Property, AP152(1)
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● Cultural Property, Hague Cultural Convention 4(4) and AP1 53(c)● The Natural Environment, AP1 55(2)● Works containing dangerous forces, AP1 56(4)
Note UK reservations on ratification of Additional Protocol I in UK manual ara. 16.18-16.19.2.
Prosecution
Development● National trials: access to prosecute enemy offenders and duty to prosecute own personnel.
○ Example: The Andersonville (Henry Witz) Trial, 1865.○ Example: The « Breaker » Morant Trial, 1901-1902.
● « Semi-international »: « Pooling of jurisdiction »○ The Leipzig Trials after WW1○ The Nuremberg (international military tribunal – IMT) and Tokyo (International Military
Tribunal, Far East) Trials after WW2.● « Back to national trials » after 1946:
○ 12 « major » US War Crimes trials held for the (US) Nuremberg Military Tribunals 1947-48■ Ministries, Justice, High Command, Hostages, Medical,RuSHA, Einsatzgruppen, Krupp,
Milch, Pohl, Flick and IG Farben Trials.
Command Responsibility● A military commander is responsible not only for violations of IHL commited or encouraged by
himself, but also for violation committed by his subordinates, provided he knew or should have known about the crimes and did not take action either to prevent or to afterwards punish the perpetrators.○ AP1, 87○ ICC Statute, 28.
Superior Orders● Following an unlawful order from a superior will not relieve you from responsibility unless you were
unaware that the order was unlawful.○ ICC Statute, 33.
Universal Jurisdiction
GC I, Art. 49 (1949)The High Contracting Parties undertake to enact legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. (…)
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● Practical example:○ The Saric Case (Judgment of the Danish Supreme Court of 15 August 1995): Trial of Bosnian
national found guilty of grave violence and ill-treatment towards prisoners in a Bosnian-Croat prison camp in Bosnia in 1993.
Recent Developments● « Truly » international Prosecution:
○ The International Tribunal for the Former Yugoslavia 1993○ The International Tribunal for Rwanda 1994○ Hybrid and other Courts:
■ The Special Court of Sierra Leone■ The Ad Hoc Human Rights court for East Timor
The ICC and On-going Investigations
● The Rome Statute of the ICC 1998 – entered into force on July 1st 2002○ Can only hear a case if a State which have jurisdiction is either unwilling or unable to prosecute
(So-called Principle of Complementarity, ICC Statute, Art. 17).● As of December 2007, 4 on-going investigations:
○ The Democratic Republic of Congo (referral by State Party)○ The Lord's Resistance Army (Uganda) (referral by State Party).○ Central African Republic (referral by State Party).○ Darfur (Sudan) (referral by UN Security Council).
● On additional situation (Ivory Coast) under consideration and pending a declaration from a non-State Party.
War Crimes● They are distinct from violations of international human rights law in peace-time by the nexus with
an armed conflict (international or internal).● They can, however, be committed both by military personnel and civilians, by government agents
and by insurgents and terrorists● The ICC Statute defines those war crimes falling under the jurisdiction of the ICC in Art. 8 of the
Statute.● War Crimes might be defined differently according to special national legislation applicable.● In international armed conflict (ICC Statute, Art. 8, 2(a)+(b))
○ E.g.: Grave breaches of the Geneva Conventions, other violations of the laws or customs of war in international armed conflict.
● In non-international armed conflict (ICC Statute, Art. 8, 2(c)+(e))○ E.g.: violations of Common Article 3 of the Geneva Conventions
● Example: a murder of a person during armed conflict in violation of the Laws of war (for example, snipers shooting an innocent civilian (Sarajevo) or killing of soldiers who have surrendered (Srebrenica).
Groups of War Crimes
● Killing of defenceless people, torture and other maltreatment of detainess, including POWs, denial of justice, in particular if committed against specially protected persons.
● Deliberate targeting of non-military objectives○ Targeting civilian property not being used for military purposes.
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○ Conducting indiscriminate attacks○ Conducting attacks with the purpose of terrorising the civilian population
● Targeting of specially protected persons or property○ Medical installations○ Cultural property○ Installations containing dangerous forces (dams, dykes and nuclear power plants)○ The natural environment○ Civil defence units or installations○ Humanitarian relief, ICRC delegates, UN Peacekeepers, etc.
● Use of prohibited weapons○ Poison○ Gasses○ Dum-dum bullets or similar ammunitition causing unnecessary suffering○ Anti-personnel land mines (providd High Contracting Party is party to the 1997 Ottawa
Convention)● Use of prohibited methos
○ Perfidy (treacherously inducing the enemy to believe that you are protected under international humanitarian law in order to kill, wound or capture him).
○ Misuse of enemy flag or uniforms○ Reprisals against POWs, other protected persons or property○ Taking of hostages.
Crimes Against Humanity● Defined in Article 7 of the 1998 Statute of the ICC● Characterized by:
○ Part of a widespread or systematic attack○ against any civilian population
● Example: A murder of a person as part of a widespread attack against (a part of) a civilian population○ E.g. The Bosnian-Serb ethnic cleansing of the non-Serb population in Prijedor (North-Eastern
Bosnia) 1992.
Genocide● Defined in Article 6 of the 1998 Statute of the International Criminal Court (Art. II of the 1948 UN
Convention on the Prevention and Punishment of Genocide)○ Characterized by the specific intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such.
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XIII. MARITIME WARFARE
Historical Overview
● 1856: Paris Declaration● 1899: Hague Convention III● 1907: Hague Conventions:
○ VI: Status of merchant ships upon outbreack of hostilities (desuetude)○ VII: Convention of merchant ships into warships○ VIII: The Laying of automatic submarine contact mines○ IX: Bombardment by naval forces in time of war.○ X: Wounded and Sick (superseded byGCII)○ XI: Right of Capture○ XII: International Prize Court (never into force...)○ XIII: Neutral Powers in Naval War
● 1909: London Declaration – Blockades (signed but never ratified)● 1913: Oxford Manual on the laws of naval war governing the relations between belligerents.● 1930: London Naval Treaty.● 1936: Proces Verbal● 1949: Geneva Convention II – Shipwrecked● 1977: AP1.● 1982:UNCLOS (lex generalis)● 1994: San Remo Manual
Key Definitions
● Neutral: means any state not party to the conflict (d).● Warship is a ship; (g)
○ Belonging to the armed forces of a state○ bearing external marks distiguishing the character ans nationality of such a ship○ under the command of an officer duly commissioned by the government of that state and○ whose name appears in the appropriate service list or its equivalent and,○ manned by a crew which is under regular armed forces discipline
● Auxiliary Vessel:○ Other ship owned by a state or○ under the exclusive control of the armed forces of a state and○ for the time being under government non-commercial service.
● Merchant vessel○ Vessel other than a warship, an auxiliary vessel or a state vessel such as customs or police
vessel which is engages in commercial or private service.● Prize
○ A technical term applicable to those vessels or goods, which may legitimately be seized and condemned to the use of the captor because they are intended for or may be used on behalf of the enemies war effort.
● Contraband○ Which is ultimately destined for territory under the control of the enemy and which may be
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susceptile for the use in armed conflict (148).
Areas of Naval Warfare
● Territorial waters, internal waters, exclusize economic zone and archipelagic waters of belligerent states.
● The High Seas,● Exclusive economic zone by neutral states (certain conditions rule 34 & 35)● The actual « combat zone » may be further limited such as was the case in the Falkland war. The
Argentine Warship « General Belgrano » was subject to much discussion sunk by a UK Submarine just south of the Falklands – outside such a declared « Combat Zone ». The Cpt. Of Belgrano humself declared afterwards, that the criticism was nonsence and that he would have sunk any British Warship wherever it was (VF- Belgrano).
Neutral Waters
● Neutral States must enforce their neutrality. No hostile acts must be tolerated in its territory.● Corollary: No belligerent use of or sanctuary taken in neutral waters.● German Altmark WW2 rule 22 (Warning unheeded)● Neutral states may allow (24hrs rule):
○ Passage through its waters○ Vessels of the belligerent states to replenish food, water and fuel enough to reach nearest own
port.○ Repairs necessary to make to ship seaworthy (no improvementS)○ Graff Spee Case 1939, Montevideo, scutlled itself because of the awaiting destiny. Needed 15
days to repair – was given 3 by the Uruguayans.
Basic Rules
● Humanity (means and methods of warfare not unlimited), 38, 42a.● Rule of distinction, 39, 42 (indiscriminate attacks are forbidden).● Lawful military targets, exactly as land warfare, 39,40,41.
○ Merchant vessels, civil aircraaft are civilian objects, unless... 41.○ Surface ships, submarines and aircraft are bound by the same rules... 45.
● Precautions in attack as in land warfare (46).
Vessels « Hors de Combat »● It is forbidden to attack a vessel which has clearly indicated an intention to surrender, normally
done by:○ Hauling down the flag, hoisting a white flag, stopping the engines and responding to the
ennemies signals;○ by the crew taking lifeboats or in the case of submaries: surfacing.○ At night, stopping the vessel and switching on navigation, masthead and deck lights.
● At the end of a combat situation everything feasible should be done to recover shipwrecked and the dead. (GC II Art. 18).
Enemy Vessels Exempt from Attack● Exemption from attack: General rule 47 lists vessels which are exempt from attack such as hospital
ships and other vessels protected by GCII, vessels transporting passengers, cultural property,
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fishing vessels.● Conditions for exemptions:
○ Innocently employed in their normal rôle,○ Submit to identification and inspection when required, and○ do not intentionally hamper the movement of combatant and obeys commands to stop or
move when required.
Loss of Exemption● Hospital Ships:
○ Breach of conditions○ Due warning, reasonable time limit.
● Consequence○ Capture or other necessary measure to enforce compliance.○ Attach, last resort if:
■ Diversion or capture is not feasible■ No other method is available to gain military control ■ Breach of condition sufficiently grave (proportionality – 1)■ Collateral casualties or damage will not be disproportionate to (proportionality 2)
● Loss of exemption for all other vessels: As above, but without warning.
Merchant Vessels
Enemy Merchant Vessels
Can only be attacked if they are a military objective. Examples of actions which may render such vessels military objectives (60):
● Engaging in belligerent acts.● Acting as auxiliary (ex: carrying troops or replenishing warships)● Assisting the enemies intelligence system.● Sailing under convoy of enemy warships.● Refusing to stop or actively resist visit, search or capture.● Being armed to an extent that would be able to damage a warship.● Otherwise making an effective contribution to military action.
Neutral Merchant Vessels
They may not be attacked unless:● Are belives on reasonable grounds to carry contraband or breach a blockade and after prior
warning they clearly and intentionally refuse to stop, or clearly and intentionally resist vist, search or capture.
● Engage in belligerent acts on behalf of the enemy.● Act as auxiliaries on behalf of the enemies armed forces.● Incorporated into or assists the enemies intelligence systems.● Sail under convoy of enemy warships. Or● Otherwise make an effective contribution to the enemies military action – and it is not feasible for
the attacking force to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given warning, so that they can reroute, off-load or take precautions.
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Methods and Means of Warfare at Sea
Means● Missiles and other projectiles, including over the horizon capabilities: shall be used in conformity
with the principle of target discrimination.● Torpedoes: Must sink or become harmless when they have completed their run.● Mines: Entire regime having to do with maritime security and freedom of movement 80-92.
○ Used only for legitimate military purposes including denying sea areas to the enemy,○ Effective neutralisation, when no longer control.○ Forbidden to use free floating mines (unless against military targets and self-destruction).○ End of hostilities a state must inform other states of mines laid in their waters and sweep mines
in its own waters, Corfu Chanel and Albania's failure to sweep the Corfu Channel and inform others of them = they were liable for the loss of two UK vessels.
Methods
Blockades
● Shall be declared and notified to all belligerents and neutral states. (commencement, duration, location and extent).
● Blockades can only be instituted by belligerent governments.● Effective (based on fact).● Merchant vessels believed to breach a blockade may be captures (or attacked if prior warning
remains unheeded).● Blockade must not bar access to neutral ports or coasts.● A blockade must be enforced impartially to vessels of all states.● A blockade is unlawful if:
○ Sole purpose is starvation of civilian pop or denying other objects essential for survival.○ Damage to civilian population is or may be expected to be disproportionate.
● Medical supplies shall be allowed through.
Zones
● A belligerent may exceptionally establish « security zones » but it does not absolve him from his duties and obligations of IHL.
● The same body of law exists inside and outside of such zones.● Extent, location and duration of zone and the measures imposed may not exceed what is strictly
required by military necessity and proportionality.● Extent, location and duration of zone shall be publicly declared.● Due regard to neutral states to legitimately use the seas.● Safe passage shall be given if affecting key areas of naval trafic.
Deception, Ruses of War and Perfidy
● Military and auxilliary aircraft are prohibited from feigning exempts, civilian or neutral status.● Ruses of war are permitted: false flag may be used (see AP1, Art. 39.3 exempting article 39 and
37.1.d from naval war). Exceptions:○ Never simulate status as hospital ship, humanitarian mission vessels, passenger vessels, UN
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vessels.○ Never conduct attack whilst carrying false flag.
● Perfidy is prohibited:○ Attacking while betraying the confidence of the adversary e.g. By geigning protected status of
sending distress signals/sending personnel in life rafts (when not attacking, it is not prohibited to feign merchant or neutral vessel status).
○ In 1914 the German Cruiser Emden rigged a dummy fourth smoke stack and flew the Japanese flag to enable it to enter the port of Penang. It then replaced this flag with German Ensign and torpedoed the Russian cruiser Zhemshug then lying at anchor there.
Measures Short of Attack
● Visit and Search○ A commander of a warship, who suspects that what appears to be a neutral merchent vessel is
in fact a belligerent merchant vessel may visit and search and/or divert.○ If he proved himself rights, the enemy merchant vessel may be captures as PRIZE, subject to
adjudication.● Neutral Merchant
○ Vessels outside neutral waters may be visited and searched to establish if they are subject to capture unless:■ He is bound for neutral port,■ He is accompanied by a neutral warship, provided
● There is an agreement to this end between the involved states.● The commander of the warship warrants that the neutral merchant ship is not carrying
contraband and ● Provides necessary information on the merchant vessel and its cargo.
Hospital Ships
GCII, Art. 22.
● They must fly a large red cross or red crescent flag from the mainmast, be painted white and display large red cross insignia on the hull and horizontal surfaces as well as display their national flag.
● If the Hospital ship belongs to a neutral state, but is attached to one of the belligerent states, both flags must be waibed.
● A belligerent warship is entitled to search any hospital ship and can refuse its assistance, order it to follow a particular course or not use its radio and place a comissioner aboard to see that its orders are followed.
● Enemy wounded and sick may be removed from a hospital ship provided they are fit to do so and provided the warship has available sick bays.
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