IHL: Jus in Bello

Question 1

What are the objectives of IHL?

Answer 1

1) To restrict the means and methods of warfare.

2) To ensure protection and humane treatment for persons who are not, or no longer, directly taking part in hostilities.

Question 2

What is the principle of the equality of belligerents?

Answer 2

IHL is equally binding on all parties to an armed conflict, irrespective of their motivations or of the nature of origin of the conflict.

Question 3

What is non-reciprocity of humanitarian obligations?

Answer 3

Obligation to respect, even if violated by their adversary.

Question 4

What was the only provision catering for NIAC before the Additional Protocols?

What did it do?

Answer 4

Common Article 3

Required the protection and humane treatment of persons not taking part in hostilities.

Question 5

What did Additional Protocol I do?

Answer 5

1) Protects victims of IACs.
2) Applies to wars of national liberations, eg against colonialism or racist regimes.

Therefore, also offers some insurgent forces rights and privileges.

Question 6

What does Additional Protocol II do?

Answer 6

1) Protects victims of NIACs.

2) Strengthens and develops guarantees by CA 3.

Question 7

Identify two current and emerging challenges?

Answer 7

1) ‘War on terror’ and Rise of Organised Crime

2) New Weapons Technologies

Question 8

What is the most important difference between an IAC and NIAC?

Answer 8

• States must be able to use force against groups or individuals for purpose of law enforcement = matter of national criminal law.
• Also concerns about giving armed opposition groups international status - violations of sovereignty.

Therefore, threshold to trigger NIAC is higher.

Question 9

What two factors determine existence of an IAC?

Answer 9

1) Legal status of belligerent parties
- Between states (Tadic)
2) The nature of the confrontation between them
- Belligerent confrontations
- Belligerent intent is an implied prerequisite for existence of IAC.
- This is derived from factual recognition.

Question 10

What does Additional Protocol II do?

Answer 10

• Applies only to armed conflicts involving a contracting state as a party to conflict.
• Part of state’s territory must be under effective control of the opposition forces - role of de facto authority.
• High threshold of applicability.
• Doesn’t apply to internal disturbances or riots in contracting state.

Question 11

What are the two criteria for NIACs?

Answer 11

1) Threshold of organisation:

Minimal organisation as a defining element of armed forces.

Level: Existence of command structure and disciplinary rules and mechanisms; headquarters; controls certain territory; ability to gain access to weapons etc (Haradinaj)

2) Threshold of intensity:

Requires the intervention of armed forces.

Haradinaj - factors including ‘the number, duration and intensity of individual confrontations, the types of weapons and other military equipment used; the number and calibre of munitions fired; number of persons and type of force partaking in fighting…’