11: Law of Armed Conflict

Question 1

Codification:

Answer 1

4 Geneva Conventions + 3 Additional Protocols
A series of other conventions + CIL and manuals

Question 2

Armed conflict definition:

Answer 2

Tadic: armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities or within states.

No qualification as to the scope, duration or intensity requirements.

Question 3

AP I: International armed conflict:

Answer 3

Art 1(3) and (4): shall apply in situations mentioned in Art 2 which are common to all of the Geneva conventions.
1(4) Quite controversial, hence why not many parties have ratified AP I.

Question 4

Non-International armed conflict:

Answer 4

Common Art 3: armed conflicts not of an international character…. the following provisions apply.

+ AP II.
Tadic defintion.

Question 5

Non-International Threshold:

Answer 5

Lower threshold, Common art 3.
ICRC commentary: ‘as widely as possible.’
intensity > duration (Haradinaj)
Hadman: covers all conflict that was not International.

AP II threshold: Art 1
all armed conflicts which take place in the territory of a High Contracting party, or other organised armed groups…
Art 1(2): should not apply to situations of internal disturbances or tensions.

Question 6

Non-International status of persons:

Answer 6

Organised armed groups & individuals fighting against a State force = civilians not combatants.

AP III Art 13(3): those who take direct part in hostilities.

Question 7

Protections under Common Art 3:

Answer 7

humane treatment
non-discrimination
prohibition of violence - cruel treatment, torture.
prohibition of taking hostages
prohibition of outrages upon person dignity
indispensable judicial guarantees.

Question 8

Protections under AP II:

Answer 8

4,5: humane treatment
2: non-discrimination
6: various fair trial requirements
7-12: protection of wounded, ship-wrecked, sick, and other protected personnel.
13: protection of civilians
14: protection of objects needed for survival of civilians.
15,16: protection of installations containing dangerous forces.
17: forced displacement of civilians unless imperative military need.

Question 9

International vs Non-International examples:

Answer 9

between 2 states? (international).

between state & rebel group? (non-international). but then this state intervenes to help rebels? (International).

implosion of State amidst civil war? (non-international). 2 independent states then emerge? (international).

intervention by one state on the side of another state? (non-international).

between 2 armed groups within a state? non-international).

Question 10

Distinction principle: who may be targeted?

Answer 10

Art 48 = basic rule.

May target:
combatants (regular forces)
civilians taking direct part in hostilities

May not target:
civilians not taking part in hostilities.
chaplains
medical personell
those who are hors de combat: shipwrecked, injured, surrendered.

Question 11

Prisoner of war status:

Answer 11

Given to combatants (regular and irregular).

must place POW under immediate authority of a responsible commissioned officer with copy of convention.
humane treatment, visits by protecting powers allowed.

those taking part in hostilities = no POWS, may be targeted.

insurgents & others = no POWS, may be targeted.

Question 12

Lawful Targets - Military Objectives:

Answer 12

API Art 52(2): objects by which their nature, location, purpose or use makes a contribution to:

military action
war fighting
offers definitive military advantage

Question 13

Nature:

Answer 13

fundamental character; military aircraft, missiles, warships, tanks, military fortifications.

Question 14

Location:

Answer 14

Mountain pass, bridge, jungle trail.

Question 15

Purpose:

Answer 15

Intended future use - distinguish from use - must be future usage.
e.g. buildings being renovated

Question 16

Use:

Answer 16

Present function, may be civilian but converted to military use.

Question 17

Protection of civilians & civilian objects:

Answer 17

API: Arts 50, 52
cannot attack civilians, and in cases of doubt, must assume they are civilians.

cannot attack civilian objects - same goes for locations. can assume schools, homes etc.

Question 18

Indiscriminate attacks:

Answer 18

Art 51(4) API: indiscriminate attacks are prohibited.

e.g. those not directed at a specific military objective.

those which employ a method or means which cannot be directed at a specific military objective (e.g cluster munitions).

those which cannot be limited as required by this Protocol (chemical or biological weapons).

anything without distinction.

Question 19

Protection of the environment:

Answer 19

Art 35(3): care shall be taken in warfare to protect the natural environment against widespread, long term, severe damage.

also note environmental protection convention in 1977.

Question 20

Proportionality principle:

Answer 20

Arts 57, 51(5)(b) and 52 API:
refrain from launching attack where which it can be expected to cause:

incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof which would be excessive in relation to the military advantage anticipated.

ratio between military value & loss of civilian life. no concrete measurement device for this. just a legal standard.

Question 21

Galic test:

Answer 21

Proportionality - examine whether a reasonably well-informed person in the same circumstances as the perpetrator (with info @ the time), could have expected excessive casualties to result from the attack.

Question 22

Precautions in attack:

Answer 22

Art 57(2)(a): requires those planning or deciding to attack must take certain precautions:

• must do everything feasible to verify military objectives
• take all feasible precautions in the choice of means/methods of attack - minimising incidental loss of civilian life, injury or damage to civilians.
• attacks cancelled when objective is not military or disproportionate loss is expected.
• review of weapons systems, times or attack and approaches to attack.
• when many choices available, choose option with the least effect/danger.

Question 23

Non-International - who can be targeted?

Answer 23

Customary law says:

no civilians unless direct part in hostilities
only on military objectives
military objectives under Cil have same definition as in AC law.
prohibition on attack expected to cause excessive loss of life/damage.
feasible precautions taken.