6 : International humanitarian law Flashcards
How does IHL limit the humanitarian consequences of armed conflict ? (2)
1/ restrictions on the means and methods of warfare
2/ ensure the protection & humane treatment of persons who are not, or who are no longer, taking a direct part in hostilities
What does IHL regulate and what does it not regulate ? (2)
1/ governs situations of armed conflict once they have arisen
2/ does not regulate the lawfulness of the use of force (jus ad bellum)
What separates IHL and jus ad bellum ?
principle of equality of belligerents
What does the principle of equality entail ? (2)
1/ it is irrelevant for IHL whether the resort to force is lawful
2/ all parties to an armed conflict must at all times comply with their obligations under IHL
Evolution of relation btwn IHL and HRL ? (3)
1/ strict separation : IHL in war ; HRL in peace
2/ complementarity : IHL & HRL complement each other
3/ convergence theory : cumulative application for most effective protection of human beings
What other fields of law does IHL have connections with ? (2)
1/ international criminal law
2/ law of neutrality
Core principles of IHL (7)
1/ balancing btwn military necessity and humanity
2/ principle of distinction
3/ principle of precaution (in attack & against effects of attack)
4/ principle of proportionality
5/ prohibition to inflict unnecessary suffering
6/ non-reciprocity of humanitarian obligations
7/ humane treatment
2 branches of IHL ?
1/ Hague law : limitations to means and methods of warfare
2/ Geneva law : protection of persons who do not, or no longer, participate in the fighting
What is the contribution of APs I and II ? (4)
1/ extension + detail on fundamental guarantees for victims
2/ protection of civil population from effects of hostilities
3/ new rules on means and methods of warfare
4/ rules on conduct of hostilities
Cultural relativism in IHL ? (3)
1/ codification driven by European powers & influenced by Western culture
2/ Debate : are IHL rules & principles truly universal ?
3/ Nuance : key principles seem to be shared by many different schools of thought & cultural traditions
Current challenges regarding IHL ? (5)
1/ implementation
2/ fight against terrorism & role of non-State actors
3/ technological advances & new weapons
4/ cyber operations
5/ application of loose standards to concrete situations
2 types of armed conflict in IHL ?
1/ international
2/ non-international
On what is the distinction btwn IACs & NIACs based in IHL ?
distinction based on parties involved in the conflict, and NOT on territorial scope of the conflict
Scope of application of IHL in 3 different situations ?
1/ IAC : GCs, AP I and CIL
2/ NIAC : common Article 3 GCs, CIL and AP II
3/ internal riots & disturbances : national legislation
Definition of IAC in IHL ? (3)
1/ No precise definition in IHL treaties
2/ Common Article 2 GCs : “declared war”, “any other armed conflict”, “partial or total occupation”
3/ ICTY, Tadic (1995) : “an [international] armed conflict exists whenever there is a resort to armed force between States”
Characteristics of IAC (5)
1/ use of force btwn States in warlike manner
2/ recognition of state of war by parties to the conflict is irrelevant
3/ when armed forces of States are involved, no high threshold of intensity required
4/ belligerent occupation triggers application law IAC
5/ wars of national liberation also treated as IACs (AP I)
What does AP II not apply to ?
Internal disturbances and tensions
Tadic (1995) definition of NIAC and criteria for existence of a NIAC ? (2)
“protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (para 70)
1/ organization of the parties to the conflict
2/ intensity of the violence
Which case developed “indicative factors” of the organization and intensity criteria ?
ICTY, Haradinaj (3 April 2008)
Preconditions for application AP II ? (6)
( ! ) Higher threshold for NIACs
1/ conflict not covered by AP I
2/ conflict btwn armed forces & organized armed groups
3/ OAGs under responsible command
4/ control over part of the territory
5/ ability to carry out sustained & concerted military operations
6/ ability to implement AP II
Territorial scope NIACs? (3)
1/ conflict does not necessarily have to be internal
2/ IHL applies to areas of active hostilities & to operations that have a nexus to the conflict, regardless of their location
3/ extraterritorial NIACs ?
a) spill-over b) operations against NSAGs outside a State's borders c) a global battlefield ?
When can an armed conflict be internationalised ? (2)
1/ when external actors have a significant degree of control over a non-State armed group
2/ conflict becomes IAC if NSAG acts “on behalf of” another State
Criteria for internationalisation of armed conflict ? I.e. what are the conditions for a NSAG to be considered acting “on behalf of” another State ? (4)
1/ foreign State exercises overall control over NSAG (Tadic, 1999)
2/ general organisation, coordination or planning of NSAG’s military activities
3/ more than planning and financing the group
4/ but not necessarily issuance of specific instructions for specific acts
Why does classification matter in IHL ? (4)
1/ growing convergence in regulation of IACs/NIACs in CIL
2/ ICRC study on CIHL : 136 rules out of 161 apply equally in IACs/NIACs
3/ arguments in favor of an elimination of the distinction
4/ but distinction does matter regarding combatant/POW status & rules on detention
Controlling provision principle of distinction ?
Article 48 AP I
Legal consequences of combatant status ? (3)
1/ combatant privilege, i.e. right to participate directly in hostilities on behalf of a party to an IAC
2/ legitimate military target, i.e. loss of civilian status & protection against direct attack
3/ entitlement to POW status
Who can be considered as combatants in IAC ? (3)
1/ members of armed forces of belligerents
2/ armed forces comprise regular armed forces, irregular militia & volunteer corps
3/ also participants in a levée en masse if they carry arms openly & respect IHL
When are irregular armed forces assimilated to regular armed forces in IACs? (4)
1/ under responsible command
2/ fixed distinctive emblem recognisable at a distance
3/ carry arms openly
4/ conduct war & operations in accordance with IHL
When does combatant status cease ? (2)
1/ disengagement from active duty
2/ return to civil life
When can a combatant lose its entitlement to POW status ?
when it fails to distinguish itself from the population by not carrying arms openly
=> this is considered perfidy
What is a civilian ?
Negative definition : a civilian is someone who is not a combatant
What happens in the case of doubt about a person’s civilian status ?
The person must be considered being a civilian
When can civilians lose their protection ? (3)
1/ for such time they take a direct part in the hostilities
2/ but this term is not clearly defined
3/ there can for example be direct v indirect participation
What are the conditions for considering a civilian takes a “direct part in the hostilities” according to the ICRC ? (3)
1/ threshold of harm
2/ direct causation
3/ belligerent nexus
What is a military objective ? (4)
1/ object
2/ which by its nature, location, purpose or use
3/ makes an effective contribution to military action
4/ and whose destruction, capture or neutralisation offers a definite military advantage
What is a dual-use object ? (3)
1/ object simultaneously used for civilian and military purposes
2/ qualifies as military objective regardless of its dual use if it satisfies the military objective criteria
3/ application of principle of proportionality in assessing whether a dual-use object can be attacked
