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Public International Law > 6 : International humanitarian law > Flashcards

6 : International humanitarian law Flashcards

1
Q

How does IHL limit the humanitarian consequences of armed conflict ? (2)

A

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

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2
Q

What does IHL regulate and what does it not regulate ? (2)

A

1/ governs situations of armed conflict once they have arisen

2/ does not regulate the lawfulness of the use of force (jus ad bellum)

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3
Q

What separates IHL and jus ad bellum ?

A

principle of equality of belligerents

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4
Q

What does the principle of equality entail ? (2)

A

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

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5
Q

Evolution of relation btwn IHL and HRL ? (3)

A

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

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6
Q

What other fields of law does IHL have connections with ? (2)

A

1/ international criminal law

2/ law of neutrality

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7
Q

Core principles of IHL (7)

A

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

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8
Q

2 branches of IHL ?

A

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

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9
Q

What is the contribution of APs I and II ? (4)

A

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

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10
Q

Cultural relativism in IHL ? (3)

A

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

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11
Q

Current challenges regarding IHL ? (5)

A

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

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12
Q

2 types of armed conflict in IHL ?

A

1/ international

2/ non-international

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13
Q

On what is the distinction btwn IACs & NIACs based in IHL ?

A

distinction based on parties involved in the conflict, and NOT on territorial scope of the conflict

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14
Q

Scope of application of IHL in 3 different situations ?

A

1/ IAC : GCs, AP I and CIL

2/ NIAC : common Article 3 GCs, CIL and AP II

3/ internal riots & disturbances : national legislation

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15
Q

Definition of IAC in IHL ? (3)

A

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”

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16
Q

Characteristics of IAC (5)

A

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)

17
Q

What does AP II not apply to ?

A

Internal disturbances and tensions

18
Q

Tadic (1995) definition of NIAC and criteria for existence of a NIAC ? (2)

A

“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

19
Q

Which case developed “indicative factors” of the organization and intensity criteria ?

A

ICTY, Haradinaj (3 April 2008)

20
Q

Preconditions for application AP II ? (6)

A

( ! ) 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

21
Q

Territorial scope NIACs? (3)

A

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 ?
22
Q

When can an armed conflict be internationalised ? (2)

A

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

23
Q

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)

A

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

24
Q

Why does classification matter in IHL ? (4)

A

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

25
Q

Controlling provision principle of distinction ?

A

Article 48 AP I

26
Q

Legal consequences of combatant status ? (3)

A

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

27
Q

Who can be considered as combatants in IAC ? (3)

A

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

28
Q

When are irregular armed forces assimilated to regular armed forces in IACs? (4)

A

1/ under responsible command
2/ fixed distinctive emblem recognisable at a distance
3/ carry arms openly
4/ conduct war & operations in accordance with IHL

29
Q

When does combatant status cease ? (2)

A

1/ disengagement from active duty

2/ return to civil life

30
Q

When can a combatant lose its entitlement to POW status ?

A

when it fails to distinguish itself from the population by not carrying arms openly

=> this is considered perfidy

31
Q

What is a civilian ?

A

Negative definition : a civilian is someone who is not a combatant

32
Q

What happens in the case of doubt about a person’s civilian status ?

A

The person must be considered being a civilian

33
Q

When can civilians lose their protection ? (3)

A

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

34
Q

What are the conditions for considering a civilian takes a “direct part in the hostilities” according to the ICRC ? (3)

A

1/ threshold of harm
2/ direct causation
3/ belligerent nexus

35
Q

What is a military objective ? (4)

A

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

36
Q

What is a dual-use object ? (3)

A

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

Public International Law (9 decks)

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