Basics and History of IHL Flashcards
When can you bomb a hospital?
Hospitals are protected but no law about targeting or conduct of hostilities. However, can target a hospital with patience – the test is whether it is justifiable
There is no law or rule prohibiting the targeting of civilian schools or
There is no law about targeting or conduct of hostilities – eg. nothing about targeting civilian school or places. Hospitals are also protected. However, can target a hospital with patience – the test is whether it is justifiable
What is jus ad bellum?
Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed force in general.
What is jus in bello?
Jus in bello regulates the conduct of parties engaged in an armed conflict. IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible.
What is the First Gevena Convention?
For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (first adopted in 1864, revised in 1906,1929 and finally 1949). Usually only the Geneva Conventions of 1949 are referred to as First, Second, Third or Fourth Geneva Convention
What is the Second Geneva Convention?
For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea” (first adopted in 1949, successor of the Hague Convention 1907). Usually only the Geneva Conventions of 1949 are referred to as First, Second, Third or Fourth Geneva Convention
What is the Third Geneva Convention?
Relative to the Treatment of Prisoners of War (first adopted in 1929, last revision in 1949). Usually only the Geneva Conventions of 1949 are referred to as First, Second, Third or Fourth Geneva Convention
What is the Fourth Geneva Convention?
Relative to the Protection of Civilian Persons in Time of War (first adopted in 1949, based on parts of the Hague Convention). Usually only the Geneva Conventions of 1949 are referred to as First, Second, Third or Fourth Geneva Convention
The 1949 conventions have been modified with three amendment protocols. What does the first protocol of 1977 relate to?
Relates to the Protection of Victims of International Armed Conflicts
The 1949 conventions have been modified with three amendment protocols. What does the second protocol of 1977 relate to?
Relates to the Protection of Victims of Non-International Armed Conflicts
The 1949 conventions have been modified with three amendment protocols. What does the second protocol of 2005 relate to?
Relates to the Adoption of an Additional Distinctive Emblem
When do the Geneva Conventions apply?
The Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms. The details of applicability are spelled out in Common Articles 2 and 3.
What is perfidy?
- intentional misuse of a protected or particular status to invite or
encourage an adversary to believe that the perfidiously acting person is
immune from attack; - simulating the intent to negotiate under a flag of truce;
- simulation of surrender
What is a prohibited method of warfare?
(1) ordering or threatening that “no quarter” will be given”
(Article 40 AP I, Article 4 AP II)
(2) Perfidy
(3) Siege warfare and starvation of civilians
(4) Pillage/Unlawful taking of property
What is the definition of superfluous injury and unnecessary suffering?
“a harm greater than that unavoidable to achieve
legitimate military objectives”
ICJ, Nuclear Weapons advisory opinion, para 7
AND
“It is prohibited to employ weapons, projectiles,
substances, methods and means which uselessly
aggravate the sufferings of disabled adversaries or
render their death inevitable in all circumstances”
ICRC travaux preparatoires to APs
What do special protection regimes apply to?
- Cultural Property
*Natural Environment - Works and Installations containing dangerous forces
- Objects indispensable to the survival of the civilian population
- Non-defended localities
- Demilitarized zone
What is the test for poportionality?
Launching an attack which may 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 concrete and direct military
advantage anticipated, is prohibited
Who can be targeted during an armed conflict?
Regular rules of IHL apply.
- All members of a state’s armed forces/ anyone performing a ‘continuous combat function’ for a non-state armed group
- Other persons can only be subjected to attack while committing a specific act of
participation in hostilities
Definition of occupation:
Territory is considered occupied when it is actually placed under
the authority of the hostile army. The occupation extends only to
the territory where such authority has been established and can
be exercised. - Article 42 Hague Regulations concerning the Laws and Customs of War on Land
The authority of the legitimate power having in fact passed into
the hands of the occupant, the latter shall take all the measures
in his power to restore, and ensure, as far as possible, public
order and safety, while respecting, unless absolutely prevented,
the laws in force in the country. - Article 43
Definition of Prisoner of War:
Article 44 AP I – Combatants and prisoners of war
1. Any combatant, as defined in Article 43, who falls into the power of an
adverse Party shall be a prisoner of war.
2. While all combatants are obliged to comply with the rules of
international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.
How does prisoner of war status apply to armed forces?
- The armed forces of a Party to a conflict 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. - Members of the armed forces of a Party to a conflict (other than
medical personnel and chaplains covered by Article 33 of the Third
Convention) are combatants, that is to say, they have the right to
participate directly in hostilities. …
When can you capture a child combatant?
When they participate in hostilities?
When do children enjoy PoW status?
There is no age limit but no sentence for having borne arms
What rights do childs exist?
Right to be reunited with their parents in the same place of interment
○ physical conditions of internment appropriate to their age and additional food in
proportion to their physiological needs, education
○ physical exercise
○ disciplinary punishments must also take account of their age
○ No punishment for having taken a direct part in hostilities (unless, at the time of that
participation, their level of discernment was such as to enable them to understand
the implications and the consequences of their actions)
○ No death sentence
Name some basic rules of occupation?
● Population in occupied territory cannot be forced to enlist in the
occupier’s armed forces
● Collective or individual forcible transfers of population from and
within the occupied territory are prohibited
● Transfers of the civilian population of the occupying power into
the occupied territory, regardless whether forcible or voluntary,
are prohibited
● Collective punishment is prohibited
● Taking of hostages is prohibited
● Reprisals against protected persons or their property are prohibited
● The confiscation of private property by the occupant is prohibited
● To the fullest extent of the means available to it, the occupying
power must ensure sufficient hygiene and public health standards,
as well as the provision of food and medical care to the population
under occupation
Destruction or seizure of enemy property is prohibited
○ unless absolutely required by military necessity during the
conduct of hostilities
● Cultural property must be respected
● People accused of criminal offences shall be provided with
proceedings respecting internationally recognized judicial
guarantees (for example, they must be informed of the
reason for their arrest, charged with a specific offence and
given a fair trial as quickly as possible)
What are some special problems with occupation?
- Occupation after regime change may require
complete overhaul of existing legal system (eg
Iraq) - Question as to when exactly occupation begins:
any taking of control over territory or only if
quasi-sovereign authority is established? - Prolonged occupation (Israel-Palestinian
territory, Turkey-Northern Cyprus) - Occupation of non-state territory
(Israel-Palestinian territory, Morocco-Western
Sahara) - Occupation without actual presence on the
ground (Israel in the Gaza strip)?
What is international armed conflict?
International armed conflicts exist whenever there is resort to
armed force between two or more States.
What is non-international armed conflict?
Non-international armed conflicts are protracted armed
confrontations occurring between governmental armed forces and the
forces of one or more armed groups, or between such groups arising on the territory of a State. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.
Who founded the red cross?
Henry Dunant
Non-international armed conflicts and internal disturbances/tensions:
Paragraph 2 (c) applies to armed conflicts not of an international
character and thus does not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic
acts of violence or other acts of a similar nature.
When can you recruit a child for armed hostilities?
15 years
What is the definition of wounded or sick combatant in GC?
No definition, matter of common sense and good faith. Can be sickness/wounded plus acting of laying down arms/no act of hostility
When does a sick combatant no longer longer retain that status?
Status retained until another status (eg POW) is acquired
Who is not entitled to PoW status?
Civilians taking part in hostilities, medical and religious personal, spies and mercenaries
What is the main difference between international and non-international armed conflict?
o No prisoner of war-status in non-international armed conflicts
o Combatant-term only used in international armed conflicts
o Different lists of war crimes in ICC Statute
o More detailed rules for international armed conflicts
What is the distinction between guerrilla war and a conventional war?
The army fights to occupy territory, roads, strategic heights, vital areas; the guerrilla fights to control people, without whose cooperation
the land is useless to its possessor
