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Various Branches of International Law > International Humanitarian Law > Flashcards

International Humanitarian Law Flashcards

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1
Q

Purpose of IHL

A

Regulate in a technical sense conduct of hostilities

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2
Q

Ius in bello VS ius ad bellum

A

Rules during armed conflict (which weapons + against whom) VS rules to start armed conflict (prohibited art 2 UN)

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2
Q

IHL definition

A

Law of armed conflict

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3
Q

IHL has strong legal force

A
  • a lot of norms are in treaties
  • most rules are custom
  • Common articles from Geneva Conventions say
    • rules apply even if armed conflict is not recognized
    • rights cannot be given up
    • no negative reciprocity argument
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4
Q

Sources of IHL

A
  • Customary international law
  • The Hague Convention 1907
  • The 4 Geneva Conventions of 1949
  • The 2 Additional Protocols of 1977
  • Other specific treaties
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5
Q

IHL: regulates what and where

A

regulates
- conduct of hostilities
- protection of visìctims
In armed conflict
- international (IAC)
- non international (NIAC)

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6
Q

HIstory: milestones

A
  • Romans: no killing hostages
  • Medieval times: beg for mercy + no crossbow
  • 1648: peace of westfalia -> war is a public activity
  • XVIII century: concept of reciprocity
  • mid XIX century: humanitarianism
  • 1863: ICRC (Battle of solferino)
  • 1864: First Geneva Convention
  • 1899 + 1907: The Hague Conventions
  • 1949: other 3 Geneva Conventions
  • 1977: API + APII
  • 1994: San Remo manula on warfare at sea
  • 2005: ICRC study on customary IHL
  • 2009: Harvard manual on air and missile warfare
  • 2013 2017: Talinn manual on cyber warfare
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7
Q

Cornerstone of IHL

A

Geneva conventions
- accepted by all states
- are custom
- but problematic enforcement

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8
Q

IHL vs HR law

A
  • States towards nationals of other contries VS States towards their own nationals
  • lex specialis (only in armed conflicts) VS lex generalis (always applicable)
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9
Q

Scope of application

A

In all armed conflicts (IAC and NIAC) to all parties in a conflict, also if
- state of war has not been recognized
- ius ad bellum: illegal resort to force (this is ius in bello)

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10
Q

IHL is not applicable in

A

Internal disturbances and riots (art 1 APII)

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11
Q

2 types of armed conflicts

A
  • IAC > also cases of occupation, even if no resistance
  • NIAC <- Common art 3 Geneva Conventions
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12
Q

What is a NIAC?

A

armed conflicts not of an international character that are ‘occurring’ in the territory of one of the High Contracting Parties (Common Art 3 GC)

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13
Q

Scope of application extended by

A

Additional Protocols
- API: armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes for their right of self determination are to be considered international conflicts
- APII: to all armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which,
- - under responsible command,
- - exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations
- - certain level of intensity

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14
Q

Protection of victims: categories

A
  • wounded and sick
  • Prisoners of War
  • civilians
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15
Q

Protection wounded and sick

A
  • From Battle of Solferino 1859 -> ICRC + First Geneva convention
  • Principles
    • Protective signs recognized and respected
    • Inviolability of medical personnel and units
    • relief must be provided without distinctions
16
Q

What happens if misuse of respected special signs?

A

War crime of perfidy if to kill, injure, capture

17
Q

Protection Prisoners of War

A
  • From Third geneva convention
  • Derives from notion of reciprocity
  • Some principles
    • Soldiers who surrender are under protection fo the enemy state -> cannot be ill treated
    • Detained in special camps
    • Cannot be forced to reimpatriate/remain there after hostilities
    • Cannot be forced to disclose info, a part from name, rank, date of birth, military number
18
Q

Protection civilians

A
  • From geneva convention 4
    • safeguard from direct effects of hostilities
    • no protection for national of neutral strates
  • Civilian = anyone who is not a combatant
  • In case of occupation
    • occupying power has duty to respect civilians’ rights
    • civilians cannot be deported
19
Q

IHL in NIAC: sources

A
  • Common Art 3 Geneva Conventions: minimum yardstick of humanitarian protection in all armed conflicts. Which means human treatment for ppl not taking part in the hostilities (no hostages, no violence, no outraging personal dignity, no sentences without fair trial)
  • APII: if organization (responsible command) + control part of territory
  • Tadic decision: customary IHL is applicable in NIAC
20
Q

Implementation and enforcement of IHL (7 ways)

A
  1. Belligerent reprisals = permitted vilations of LOAC after prior vilation, kind of prohibited
  2. State responsibility:
    - State’s are legally responsible for violations of LOAC by their armed forces.
    - Weak: no responsibility for non state actors
  3. States’ duty to disseminate IHL to armed forces
  4. Commander’s duty to supervise conduct -> liability if knowledge/reason to know
  5. State’s duty to implement IHL and sanction violations
  6. Ciminal investigation and prosecution
  7. External scrutiny
21
Q

How can the external scrutiny be applied?

A
  • media: resporting abuses and stimulating investigations (Amnesty International, Human Rights watch “name and shame”)
  • Protecting Power system
  • International HUmanitarian Fact Finding Commission: after invitation, if state accepts its jurisdiction, can investigate, but no enforcement power
  • International Committee of the red Cross/Crescent/Crystal -> Confidential results of obaservation to urge parties to take action
22
Q

Definition of civilian

A

Art 50 API: Any person who does not belong to categories of art 4 III Gen Conv or art 43 API

23
Q

Leading principles of IHL

A
  • Distinction
    • Civialian objects - military objectives
    • Comabatants - non combatants - civilians
  • Proportionality
24
Q

Dinsticion civilian objects-ilitary objectives: sources

A
  • Art 48: alway distinction and attacks only on military objectives
  • Art 52:
    • Civilian objects = non military objectives
    • Military objectives = those whose distruction is real military advantage + their use makes affective contribution to military action
    • if doubt on nature of something assume it is civilian
25
Q

Protection for retained ppl

A
  • Civilians: no POW
  • Non combatants (religious/medical personnel): Special protection art 33 III Geneva Convention
  • Combatants: POW
26
Q

Sources for legal protections for combatants

A
  • Annex to the hague convention
    • Art 1: Characteristics to have soldier status
    • Art 2: Also POW for levée en masse (if behave like art 1 says)
  • III Geneva convention, Art 4: who can have POW
  • Additional Protocol 1
    • Art 43: characteristic armed forces
    • Art 44: combatants have POW
27
Q

Definition proportionality principle

A

Combatants can only apply force necessary to defeat the enemy -> margin of appreciation for collateral damage

28
Q

Sources proportionality principle

A
  • Additional Protocol 1
    • Art 35
      • Right of parties to choose means/methods of warfare not unlimited
      • no superflous injury/unnecessary suffering
      • no wide spread, long lasting, severe harm to environment
    • Art 51: protection civilian population
    • Art 57: precautions in attack
  • The hague regulation, art 23: Forbidden means/methods of war
29
Q

4 main methods to prevent IHL breaches

A
  1. intruction + education obligations
  2. Protecting powers
  3. ICRC
  4. Prosecution on the basis of individual/collective responsibility
30
Q

Other bodies for implementation and enforcement of IHL

A
  • UN security council (but 5 veto powers)
  • UN Secretary General
  • NGOs
  • International Fact Finding Commission
  • Claims Commission
  • UN High commissioner for HR + UN HR Council

Various Branches of International Law (8 decks)

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