Public International Law Week 7

Question 1

What is jus ad Bellum?

Answer 1

The law on the initiation of war (use of force)

Question 2

What is jus in bello?

Answer 2

The law that applies within war. It does not concern imitation of use of force or respond to self-defence, but rather concerns rules that apply to specific acts of force and to specific military operations. Also referred to as IHL.

Question 3

Relation between jus ad Bellum and jus in bello

Answer 3

They are mutually exclusive: the lawfulness of one does not impact or guarantee the lawfulness of the other.
e.g., if the initiation of the use of force (jus ad bellum) was unlawful, this does not mean that the jus in bello acts will all be unlawful
e.g., if Russia unlawfully attacked Ukraine (jus ad bellum), this means nothing in terms of the lawfulness of their actual military actions (jus in bellow)

Question 4

International Armed Conflict (IAC)

Answer 4

Use of armed force of one state against another state using armed force

Question 5

Non-International Armed Conflict (NIAC)

Answer 5

Governmental use of armed force against non-state actors using armed force.

Question 6

Sources for IAC

Answer 6

1949 Geneva Convention + Additional Protocol I
Customary international law
Many rules of IHL (jus in bello) recognized as CIL

Question 7

Sources for NIAC

Answer 7

Common Art 3 Geneva Convention + Additional Protocol II
Customary International law
NIAC IHL found in CIL

Question 8

Basis of detention difference between IAC and NIAC

Answer 8

In IAC, when a state captures enemy soldiers, they become prisoners of war and there is the 3rd Geneva convention of 1949 is only concerned with that. Thus, the basis of detention in IAC is international law, not national law.
In NIAC, when state captures individuals’ part of a non-state armed group, they do not get POW status. So, there is no basis in international law to detain them. So, the legal basis must be found in national law regarding these people.

Question 9

Combatants privilege and immunity difference between IAC and NIAC

Answer 9

In IAC, soldiers can engage in acts of war (killing people, destroying property, etc.) and is given this privilege and when they engage in lawful acts of war they cannot be prosecuted for that.
In NIAC, this privilege and immunity has no status in NIAC. States do not recognize that individuals within their territory have the right to bear arms against the government.

Question 10

When is there an IAC?

Answer 10

Common Article 2 Geneva Convention: “…shall apply to declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”
ICTY Tadic: an armed conflict exists whenever there is a resort to armed force between states…

Question 11

Occupation under IAC

Answer 11

Art 2 Geneva Convention: “The Convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party, even if the said occupation meets with no armed resistance.”
I.e., basically, if a state immediately surrenders, there is still an armed conflict

Question 12

Art 42 Hague Regulation

Answer 12

Territory considered occupied when it is actually placed under the authority of the hostile army. Extends only territory where such authority has been established and can be exercised.

Question 13

Art 1(4) Protocol I GC

Answer 13

Include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimens in the exercise of their right to self-determination.
E.g., says that Algeria getting independence from France (while colonized) is an IAC
E.g., also applies to alien occupation when foreign state occupies colony
E.g., reference to racist regimes would apply to South Africa and the armed struggles of ANC against the SA apartheid regime

Question 14

When is there an NIAC?

Answer 14

Common Art 3 GC: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties…”
Art 1(2) Protocol II: Shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” E.g., Capitol riots, Brasilia riots
ICTY Tadic: “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”

Question 15

Combatants defined

Answer 15

Art 4 GC III; Art 43 Protocol I
Members of the armed forces of the state are considered combatants.
Means: entitled to engage in acts of war against an enemy and they can be targeted by enemy forces.

Question 16

How to define militia or volunteer corps under ‘combatants’?

Answer 16

Militia or volunteer corps, forming part of the armed forces of a party to the conflict are combatants (e.g., national defence forces (Syria) if…
- commander responsible for subordinates,
fixed distinctive sign, recognizable at a distance, carry arms openly, and their operations conform to the laws and custom of war.

Question 17

Art 43 GC Protocol I

Answer 17

Concerns guerrilla fighters/organized resistance fighters. While combatants have a responsibility to distinguish themselves from the regular population, however, Art 43 says that owing to the nature of the conflict, if a certain person cannot distinguish themselves, they will still be a combatant when fulfilling the requirement of carrying weapons openly

Question 18

Persons hors de combat

Answer 18

Art 41 Protocol I:Applies to people wounded, incapacitated, unconscious, have surrendered, are POW… if they do not engage in hostile acts or do not attempt to escape. Once determined hors de combat, they are no longer military target and point is to give them protection

Question 19

Combatants privilege

Answer 19

Art 43(2) Protocol: may only engage in lawful acts of war (acts of armed force permitted under IHL only considered as lawful act of war)

Question 20

Combatants immunity

Answer 20

A person having combatants’ status cannot be prosecuted for lawful acts of war (e.g., killing soldiers, destroying property, etc.)

Question 21

Civilians defined

Answer 21

Negative definition: everyone who is not a combatant is a civilian. They do not have combatants immunities and privileges, so if a civilian engages in war they can be prosecuted.

Question 22

What happens to civilians if they engage in hostilities?

Answer 22

In principle, the engagement needs to be direct (i.e., link act concerned to armed conflict). They lose their civilian protection. Art 5 GC IV, art 51(1) Protocol I

Question 23

Unlawful combatants/unprivileged combatants

Answer 23

A civilian engaging in war would be considered this. However, they are unprivileged in the sense that civilians are not prohibited from engaging in acts of force, but also not allowed to participate in hostilities, they just lose their privilege and immunity once engaging.

Question 24

Legitimate objective of war

Answer 24

Art 22 Hague Regulations: the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy.”

Question 25

Principle of military necessity

Answer 25

Everything is allowed, subject to limitations under IHL, to overcome the enemy. However, when no military advantage is anticipated, it is impossible to speak of the existence of military necessity to purse a certain conduct. So, the idea of military necessity implies the idea of a military advantage as a result of the actions you take. Can’t just kill and destroy for no reason – need to prove that a military advantage would be the result.

Question 26

Principle of humanity

Answer 26

Protects hors de combat and combatants from unnecessary suffering and be treated humanely at all times. This counterbalances military necessity.Allowed to do everything to overcome enemy, but not allowed to attack people who are not participating in hostilities.

Question 27

Principle of distinction

Answer 27

Combatants must be able to recognize which objects or persons are military targets and those which are civilian targets.
Art 44(3) Protocol I: obligation to distinguish: attacks shall only be directed against military objectives
Art 48 Protocol I: Parties to conflict shall at all times distinguish between civilians and combatants, military objectives and civilian objects - aiming attacks only against military objectives

Question 28

Legitimate military objectives: who can you target?

Answer 28

Combatants can always attack military targets (except if they are persons hors de combat or not part of the conflict): Art 48, 44(3), and Protocol I.
Military objectives: Art 53(2-3) Protocol I lists who you can attack:
- Persons
Objects which by their nature, location, purpose, and/or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization offers a definitive military advantage.

Question 29

Prohibition of indiscriminate attacks

Answer 29

Art 51(4) Protocol I: prohibits the use of weapons or methods of warfare that are of a nature to strike without distinction. Also, can’t attack civilian areas as you can’t distinguish who is who. If only attacking military area, then it is fine to use these weapons.

Question 30

Principle of proportionality

Answer 30

Art 51(5)(b) Protocol I: The cause of incidental loss of civilian life and/or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated.
Must compare the military advantage to number of civilian (including objects) casualties based on context and circumstances at moment of time attack takes place
E.g., if there are 300 civilian casualties, that must be disproportional but also what for military commander knowledge – if he didn’t know then it is not unlawful. Military advantage also needs to be assessed.

Question 31

Law of the International Criminal Court

Answer 31

Rome Statute

Question 32

Purpose of ICC

Answer 32

Relates to prosecuting people of states, especially state officials.

Question 33

Jurisdiction of the ICC

Answer 33

First jurisdiction is that of states (through the principles - e.g., territoriality, active personality, etc.). However, if state is unwilling or unable to prosecute a certain individual for one of the crimes subject to court jurisdiction, then the Court will take over.

Question 34

Art 1 Rome Statute

Answer 34

ICC will deal with the most serious crimes of international concern to the international community as a whole.

Question 35

Crimes subject to the jurisdiction of the ICC

Answer 35

Art 5 Rome Statute: crime of genocide, crimes against humanity, war crimes, crime of aggression.

Question 36

Genocide

Answer 36

Art 6 Rome Statute: Concerns extermination of certain groups and certain criminal acts committed against specific groups.

Question 37

How to prove genocide?

Answer 37

When these acts are committed (actus reus), have to show there was intent to commit these acts (mens rea) and show the acts that were committed with the intent to destroy the group as such (dolus specialis/special intent) - must show this to prove genocide under international criminal law.

Question 38

Crimes Against Humanity

Answer 38

Art 7 Rome Statute: For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: such as murder, extermination, enslavement, torture, etc.
Must still show proof and evidence and show how broadly these acts are being committed.
Don’t have to prove there is a special intent to destroy a specific group as it is enough that members of the state’s community are suffering in relation to this.
Can prosecute both state officials and private persons under this.

Question 39

War crimes

Answer 39

Article 8 Rome Statute: The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. Thus, not just any crime in war, but rather crimes that are proven to be part of a plan or policy that commissions such crimes.

Question 40

War crimes in IAC vs war crimes in NIAC

Answer 40

IAC: war crimes can be committed which are defined as grave breaches in Geneva Convention 1949 and Additional Protocol I, and other serious violates of laws and customs of war (e.g., use of indiscriminate weapons)
NIAC: relates to serious violations of Common Art 3 Geneva Convention and other serious violations of laws and customs of war that happen in NIAC
Note: All war crimes must be violations of IHL but not all violations of IHL are war crimes

Question 41

Crime of Aggression

Answer 41

Art 8bis Rome Statute: Means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. Conduct concerned must produce a manifest violation (can be no doubt it is a violation).

Question 42

How to determine if conduct is a manifest violation = crime of aggression?

Answer 42

Violation concerned must be manifest by virtue of character, gravity, and scale
Gravity and scale = quantitative elements
Character = something with aggressive intent
However, f state acts aggressively in another state to protect human rights, it will not fall as aggression (i.e., no aggressive intent and thus, no character that is manifest of a violation) - E.g., when NATO bombed Serbia to protect Kosovo
So, some violations are not that bad as they are being done for good reasons. Basically, character of the aggression must be bad and there must be a pretty big gravity and scale of the act to determine it is a manifest violation of the UN Charter and thus fall under crime of aggression.

Question 43

Triggering mechanisms of the ICC

Answer 43

Art 13 - 15 Rome Statute:
- (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
- (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
- (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Question 44

Preconditions to the exercise of ICC Jurisdiction

Answer 44

Relate to Art 12
1. Jurisdiction can be exercised if alleged crimes committed are being committed by nationals within the territory of a state party - E.g., Israeli’s committing crimes within Palestinian territory are subject to ICC jurisdiction
2. If crimes committed are committed by nationals of a state party - clear linkage between territorial jurisdiction principle and active nationality principle
3. ICC may exercise jurisdiction over any persons which relate crimes in situation referred to ICC and can include states which are not party to the Rome Statute - E.g., referral of situation in Sudan is an example of this as Sudan is not party to member of Rome Statute. Also same for Libya. This also activates universal jurisdiction

Question 45

Principle of complementarity

Answer 45

Art 1 and 17 Rome Statute: National jurisdiction comes first and ICC jurisdiction comes second - meaning that the ICC functions basically as a court of last instance (if state party is unwilling/unable to prosecute). Double jeopardy outlined in Art 20 Rome Statute.

Question 46

When does ICC jurisdiction come in?

Answer 46

State is unwilling to genuinely prosecute individuals concerned (e.g., state just doesn’t want to) or when state is unable to prosecute individuals (e.g., their judicial system is in shambles so they can’t)

Question 47

ICC jurisdiction over persons

Answer 47

No jurisdiction for legal persons, only natural persons.
No jurisdiction over minors (e.g., people under the age of 18 when they committed the act).

Question 48

Command responsibility

Answer 48

Commanders have obligation to prevent crimes from happening and also have obligation to repress crimes (can take criminal proceedings against subordinates).

Question 49

Superior responsibility

Answer 49

Don’t have to be commander in chief of army, but be in that superior position (i.e., political figures).

Question 50

Can you make a plea saying that you did something because you were ordered to do so?

Answer 50

No - the idea is that obligations under international law preempt orders under national law (i.e., military orders or executive orders, etc.). Also, states cannot use their national law to justify non-performance of international obligations (Art 3 ARSIWA, Art 27 VCLT).

Question 51

No crime without law, no punishment without law

Answer 51

Conduct is only criminal if it had been established as criminal before the act took place. It also cannot be punished unless there was punishment contained in the law before it had been committed.

Question 52

Non-retroactive jurisdiction of ICC

Answer 52

The ICC has no retroactive force for state parties. So, the state party can only give jurisdiction to the ICC for the future. I.e., if you accept ICC jurisdiction in 2015, then only crimes from 2015 onwards can be prosecuted.

Question 53

Irrelevance of official capacity

Answer 53

Art 27(1) Rome Statute: the fact that you are a state official does not relieve you from criminal prosecution or responsibility and provides no ground for reduction of sentences.

Question 54

Immunities under the Rome Statute

Answer 54

Art 27(2) Rome Statute: Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
This is mainly concerning immunities under international law as national law immunities are irrelevant before an international court (i.e., immunities to diplomats, state officials, etc.)
If someone comes before court and tries to invoke their immunities of the state, the Court will invoke Art 27(2) which says you do not have immunities under here.
The difficulty comes when individual is not yet before the court. Rome statute does not allow criminal proceedings in absentia. The person must actually be before the court. So the issue is how the individual gets before the court.

Question 55

Article 98(1) Rome Statute

Answer 55

Court cannot request surrender or assistance which would require the requested state to act inconsistently with its obligations under international law.
So, if person has immunities, person cannot be arrested. So first the state (which gave that person immunities) needs to waive that persons immunities.
Difficulty is that the court doesn’t accept immunities but states are required to respect immunities - so there’s an uh-oh, doublefuck here.

Question 56

Issue between Art 27(2) and Art 98(1) Rome Statute, and its current result.

Answer 56

After the Al-Bashir controversy, where states would not arrest him even though ICC had an arrest warrant out, because he had personal immunities as the head of state of Sudan, the ICC said: All state parties can now expect that ICC chambers will say that immunities cannot be invoked in any case - not by state officials of the party or third-parties.
Thus, immunities cannot be invoked. If states try to say you cannot arrest certain people because of immunities, the chamber will say no, people don’t have immunities before ICc.
Basically says that art 98 ICC not applicable, just follow Art 27(2).
“The Appeals Chamber held that article 27(2) of the ICC Rome Statute, stipulating that immunities are not a bar to the exercise of jurisdiction, reflects the status of customary international law. It concluded that there is no Head of State immunity under customary international law vis-à-vis an international court. Thus, in the present circumstances, where Jordan (a State Party) is requested by the Court to arrest and surrender Mr Al-Bashir (the Head of State of Sudan at the relevant time), when Sudan is under an obligation to cooperate fully with the Court in accordance with the ICC Rome Statute due to UNSC resolution 1593, Head of State immunity is equally inapplicable.”