refugee law 1-3

Question 1

what is intl humanitarian law

Answer 1

International Humanitarian Law (IHL) is a compilation of rules that aim to mitigate the humanitarian consequences of armed conflict.

It protects those who are not or are no longer engaged in hostilities and limits the means and techniques of warfare. It is also known as the law of war or the law of armed conflict.

Question 2

Jus In Bello and Jus Ad Bellum

Answer 2

Jus ad bellum refers to the right to resort to war or to the use of armed force in general. The prohibition against the use of force amongst States and the exceptions to it (self-defence and UN authorization for the use of force), set out in the United Nations Charter of 1945, are the core ingredients of jus ad bellum
Also known as the law on the use of force or jus contra bellum

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. Applies to all parties in an armed conflict, regardless of the reasons for the conflict

Question 3

what is synergy in IHL

Answer 3

Synergy
Common purpose: Both laws aim to protect human life and dignity.
Mutual reinforcement: In many cases, the two laws complement each other, especially when protecting people who are under the control of a party in conflict.
Application in armed conflict: Both laws apply in armed conflict, but IHL deals with the conduct of parties to the conflict, while IHRL protects individuals from arbitrary state behavior.

Dissonance
Non-state actors: It’s contested whether non-state actors have human rights obligations.
Military necessity: IHL tries to balance military necessity with common humanity.
Derogations: Some IHRL treaties allow governments to limit certain rights in public emergencies, such as armed conflict.
Application

IHL
IHL applies in armed conflict, and no derogations from its provisions are allowed.
IHRL
IHRL applies at all times, including during armed conflict. However, some rights may be limited in public emergencies.

Question 4

Fundamental Principles of International Humanitarian Law

Answer 4

1. Humanity
   The principle of humanity reflects the idea that people should be treated with respect and protected from unnecessary suffering
2. Proportionality
   This article prohibits attacks when the
   civilian harm would be excessive in relation to the military advantage sought. This is an area of
   hostilities where we often hear the term ‘collateral damage’.The principle of proportionality limits the degree of force that can be used in a conflict.
3. Distinction
   The principle of distinction requires that civilians be protected from attacks and that military objectives be clearly separated from civilian objects The principle of distinction is set out in Articles of Additional Protocol 1 to the Geneva Conventions. The Conventions define who is a combatant and a military object that can be lawfully attacked
4. Military necessity
   The principle of military necessity limits the use of force to what is necessary to achieve a legitimate military objective

Question 5

Armed conflict.

Answer 5

Armed conflict. ‘An armed conflict is said to exist when there is an armed confrontation between the
armed forces of States (international armed conflict), or between governmental authorities and organised armed groups or between such groups within a State (non-international armed conflict). Other situations of violence, such as internal disturbances and tensions are not considered to be armed conflicts.’ (International Committee of the Red Cross – ICRC)

International armed conflict (IAC)
Involves the armed forces of states
* Can include the invasion of another state’s territory
* Can include the occupation of another state’s territory
* Can include minor skirmishes between armed forces
Non-international armed conflict (NIAC)
* Involves armed groups and governmental authorities, or between armed groups within a state
* Can include armed confrontations between governmental armed forces and armed groups

Question 6

SOURCES OF IHL

Answer 6

‘Treaty law’ and ‘customary international law’ are the main sources of international
humanitarian law. Treaties, such as the four Geneva Conventions of 1949 and their Additional Protocols of 1977, are written sources in which States formally establish certain rules. Customary international law derives from “a general practice accepted as law”.

Question 7

geneva conventions

Answer 7

The First Geneva Convention protects wounded and sick soldiers on land during war.

The Second Geneva Convention protects wounded, sick and shipwrecked members
of armed forces at sea during war.

The Third Geneva Convention applies to prisoners of war.

The Fourth Geneva Convention affords protection to civilians, including in occupied
territory.

Question 8

Martens Clause

Answer 8

It states that when there is no specific IHL treaty covering a topic, the principles of
humanity and public conscience must protect civilians and combatants.

The clause provide that something which is not explicitly mentioned prohibited under
a treaty is not ipso facto permitted.
It is not possible for complete codification of the modern rules of IHL, therefore, the
Martens clause prevents one from suggesting that something which isn’t protected is
permitted.

Question 9

Kunduz Hospital Attack (KW Case)

Answer 9

US airstrike on Doctors Without Borders, in Kunduz Afghanistan killing 42 people
Justification by U.S.: U.S. officials claimed the strike was intended to target Taliban insurgents.

The Kunduz hospital was a protected facility under IHL, and no evidence suggested itwas being used for military purposes. The attack violated the principle of distinction
and precaution.

Question 10

HASSAN VS. UNITED KINGDOM

Answer 10

Tarek Hassan, an Iraqi national, was detained by British forces in Iraq in April 2003 during the hostilities following the U.S.-led invasion.
Hassan was taken to a detention facility, interrogated, and later released without charge after a brief period of detention.

Tarek Hassan’s detention violated Article 5 (right to liberty and security) of the European Convention on Human Rights (ECHR).

JUDGEMENT

The ECtHR ruled that the detention was not arbitrary and did not violate Article 5.
The Court acknowledged that the UK was conducting operations under IHL during an international armed conflict.
\The Court concluded that IHL allows for the detention of individuals as prisoners of war or for imperative security reasons, which can justify certain derogations from
Article 5.
The Hassan v. UK case remains a cornerstone judgment for understanding the
interplay between IHL and IHRL, especially regarding the detention and treatment of
individuals during armed conflict.

Question 11

Prosecutor v Tadic

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Answer 11

an armed con
flict involving non-state groups arises only if the violence is protracted and the non-state groups are organised
1. Charges: Crimes against humanity, war crimes, and grave breaches of the Geneva Conventions
that the main parties to the conflict in
were the government of the Republic of Bosnia and Herzegovina, on
the one hand, and the Bosnian Serb forces, on the other.

1. The ICTY ruled that the conflict in Bosnia was both international and non-international in nature, depending on the involvement of foreign actors (like Serbia). This helped clarify when an armed conflict transforms from non-international to international based on external state control.
2. Before this case, war crimes were mainly recognized in international conflicts. this case held that individuals could be held responsible for war crimes in non-international conflicts too.
3. Doctrine of “Overall Control”- tribunal ruled that a state (serbia) can be held responsible for actions of a group if it has overall control, even if it does not directly order every act.
   this differed from the “effective control” test established later by the ICJ in Nicaragua v. USA, which required a higher threshold of control.

it also discussed on how to qualify a situation as armed conflict in order to apply IHL to it, stating that theres a certain level of organisation of a group as prerequisite for applicability for intl humanitarian law, specially involing non-state actors in order to distinguish armed conflict from sporadic outbreaks of violence like riots typically it requires armed grp to have organised and a clear chain of command

Question 12

human rights law vs intl humanitarian law

International humanitarian law (IHL) and human rights law are complementary.

Answer 12

Human rights law applies at all times and in all circumstances, and it concerns all persons
subject to the jurisdiction of a State. Its purpose is to protect individuals from arbitrary
behavior by the State. Human rights law, therefore, continues to apply in times of armed conflict.

In times of armed conflict, a special system of law, IHL, comes into effect. It is a set of rules
especially adapted to armed conflict that serves to protect the victims of war and those no longer involved in hostilities (civilians,
wounded and sick, prisoners, displaced, etc.) and to regulate the conduct of hostilities.

IHL can govern extra territorially- given that its purpose is to regulate the conduct of one or
more States involved in an armed conflict on the territory of another.IHL binds all parties to an armed conflict and thus establishes an equality of rights and obligations between the State and the non-State side for the benefit of everyone who may be affected by their conduct.

Human rights law explicity governs relationship between a State and persons who are on its territory and/or subject to its jurisdiction (an essentially ‘vertical’ relationship), thus HR law only binds STATES

Question 13

Lieber Code

Answer 13

The earliest attempt for the codification of the law relating to war was made in the US.
Francis Lieber, was asked to frame rules concerning conduct during civil war. He formed
“Instructions for the Government of Armies of the US in the field” later known as Lieber code.
It was heavily drawn upon as the basis for Hague and Geneva Conventions.
It identified the principle of military necessity to limit violence.
It also distinguished between combatants and non-combatants
Conditions for the prisoner of war.

Question 14

IHL IN ISLAMIC RELIGION

Answer 14

The Islamic concept of humanitarian law is based on Quran and Sunna.

Like modern humanitarian law, Islam think of war only as avoidable, not as desired, or to be sought after.
It is resorted to under extraordinary circumstances
when all means fail.

Under Quran, War is permitted under only in defense -especially of defense of religion. The
aggressive war is against the teaching of Quran.
The idea of respect for the dignity and integrity of the human is central to the Islamic concept humanitarian law.
1. The Islamic humanitarian law forbids Muslim combatants to torture their enemies or prisoners of war
to subject them to treatment contrary to human dignity.

2. Islam advises to refrain from shedding of blood, or destruction of property not
   necessary for achieving the objective of war.
3. Islam also acknowledges the distinction between civilian and non-civilian population and establishes protection of to people who are not directly involved in conflict. prohibits killing of women and childeren

Question 15

IHL In christianity

Answer 15

There has been two strands of thought on war in Christian history; 1) Christian Pacifism; and 2) rules of just war.
Under this, aggressive war was considered a sin. The justness of war was considered as irrelevant.A military career for Christians were disapproved. This was in the pre-Constantine era.

There were just conducts of war given; 1) war should be waged only under necessity;2) war
must have a just cause; 3) war should be waged by a legitimate ruler.

Question 16

IHL and ancient greece

Answer 16

Plato’s Republic, written around 375 BCE,
where it is noted that citizens of occupied territories should not be enslaved or attacked, corpses should not be robbed and conquering forces should refrain from burning houses or destroying occupied lands.

He noted the importance
of maintaining goodwill between states even in times of armed conflict, in order to facilitate the progress of their common culture. although these protections were given only to other greeks and not other races who plato considered barbarians (barbs included women and slaves) who he thought did not have aspirations and common goals as citizens of greece and thus were beneath them

Question 17

common article 3 geneva conflict

Answer 17

Common Article 3 of the Geneva Conventions

Common Article 3 is a key provision in the 1949 Geneva Conventions that applies to non-international armed conflicts (civil wars, insurgencies, and internal conflicts). Unlike other Geneva Convention rules that primarily govern conflicts between states, this article ensures minimum humanitarian protections in internal conflicts.

Key Provisions of Common Article 3

1. Applies to Non-International Armed Conflicts
   
   • Covers conflicts within a single country (e.g., civil wars, rebellions).
   • Binds both government forces and non-state armed groups (e.g., rebels, militias).
2. Minimum Protections for Those Not Fighting
   
   • Prohibits violence against:
     
     • Civilians
     • Wounded or sick combatants
     • Prisoners or detainees (those who have surrendered or are out of combat).
3. Prohibitions Against Atrocities
   
   • Murder (killing civilians or captured fighters).
   • Torture and inhumane treatment.
   • Taking hostages.
   • Humiliating or degrading treatment (e.g., public shaming, sexual violence).
4. Fair Trials for Detainees
   
   • Anyone accused of crimes must receive a fair trial by a properly established court.
   • Summary executions and arbitrary punishments are strictly prohibited.

Significance of Common Article 3

• First time international law applied to internal conflicts, not just wars between states.
• Inspired the development of customary international law on war crimes.
• Used as a basis for prosecutions in war crimes tribunals, including the ICTY, ICTR, and ICC.
• Reinforced in Additional Protocol II (1977)

Question 18

common article 2 of geneva convention

Answer 18

attempts to define when intl humanitarian law will apply as armed conflict is too vague.
states that the convention will apply to all cases of declared which may arise between 2 or more contracting parties even if one of them doesnt recognise the declaration of war.

it will also also apply to the all cases of partial or total occupation of the territory even if the occupation is not met with armed resistances.
further elaborated and used in prosecutor v tadic

Question 19

in Prosecutor v Tadic what test was laid down

Answer 19

two distinct
tests for the existence of an armed conflict.

The first test refers to ‘a resort to armed force between States’. This is the classic
definition of an international armed conflict. It traditionally involves a formal declaration of warfare by one or both states, although this is not strictly necessary.

The second test refers to ‘protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State’. This formulation recognizes that international humanitarian law may also
apply to conflicts involving non-state groups.
The test covers both conflicts involving a combination of states and non-state groups
and conflicts in which no states are directly involved.

Question 20

Elements of organized armed force

Answer 20

Existence of a command structure. Example; existence of a headquarters, high command, internal regulations,

Existence of military (operational) capacity: ability to use military tactics,
ability to carry out large scale military operations,

Existence of logistical capacity.

The ability of the group to speak with one voice. Example; political negotiations

Question 21

Examples of Non-International Armed Conflict

Answer 21

Syrian Civil War (2011–present)

• State Party: Syrian government forces (backed by allies like Russia).
• Non-State Armed Group: Free Syrian Army (FSA) and other opposition forces.
• The FSA, formed by defectors from the Syrian Armed Forces, became one of the
  primary organized groups fighting against the Assad regime.
• Over time, numerous other factions, including extremist groups like ISIS and Jabhat
  al-Nusra, entered the conflict.

Question 22

scope of armed conflict

Answer 22

Geographical armed conflict: Some aspects of international humanitarian law apply within the ‘entire territory’ of
the parties for the duration of the conflict.In the case of non-international conflicts, international humanitarian law applies in
so much of the territory as is under the control of one or more of the parties to the conflict.

Temporal armed conflict-The temporal reach of international humanitarian law, on the other hand, extends
from the initiation of hostilities until ‘a general conclusion of peace is reached’. Declaration of an armistice or ceasefire does not have the effect of terminating an armed conflict unless it constitutes a peace agreement and is followed by a general cessation of hostilities. Prisoners of war, for
example, gain the protection of Geneva Convention III from the time they fall into the power of the enemy until their final release and repatriation.

Question 23

Prosecutor v. Kunarac

Answer 23

The Appeals Chamber judgment in Kunarac sets out a list of factors that may be
considered in assessing whether an act is related to the conflict. These include:
1. the fact that the perpetrator is a combatant;
2. the fact that the victim is a non-combatant;
3. the fact that the victim is from a group associated with the enemy;
4. the fact that the act may be said to serve the perpetrators of military campaign; and
5. the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.

Question 24

Test of Control

Answer 24

When is a party to a non-international conflict deemed to be acting ‘on behalf of’ a
third-party state, thereby internationalizing the conflict?

The first test arises from the International Court of Justice (ICJ) decision in the case
of Nicaragua v United States.

In that case, the ICJ held a party is acting on behalf of a state if the state has ‘effective control’ over the group. The ICJ in Nicaragua presented the effective control test as generally applicable to determining state responsibility for the actions of non-state groups
asks whether the state ‘wields general control over the
group, not only by equipping and financing [it], but also by coordinating or helping in the general planning of its military activity’..

Question 25

to be a lawful combatant requirements:

Answer 25

• Be a part of hierarchical military organization
• Wear a uniform and a distinctive sign recognizable at a distance
• Carry arms openly
• Conduct operations according to the laws and custom of wars

The types of situations envisaged in Additional Protocol I where it is not possible for
combatants to distinguish themselves from civilians include resistance movements in
occupied territories, wars of national liberation and civilians spontaneously taking up
arms as the last line of defence.

Question 26

Rights and Protection of Lawful Combatants

Answer 26

If captured, lawful combatants are treated as prisoner of war. This status affords them several protections under the Geneva Conventions, including:
1. Humane treatment without any adverse distinction

2. The right to communicate with the outside world
3. Protection against violence, intimidation, insult, and public curiosity

Question 27

Article 4 of Geneva Convention III

Answer 27

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following
categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps
forming part of such armed forces.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members
of military aircraft crews, war correspondents,

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to
resist the invading forces, without having had time to form themselves into regular armed units, provided they
carry arms openly and respect the laws and customs of war.

3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by
the Detaining Power.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance
movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this
territory is occupied, provided it is organised:
(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

Question 28

Unprivileged Belligerents

Answer 28

If a non-combatant becomes directly involved in the conflict and is subsequently captured,
she or he will not be entitled to prisoner of war status. This is why fighters who do not
qualify as combatants are sometimes called ‘unprivileged belligerents.

The fact that unprivileged belligerents do not qualify for prisoner of war status if captured
therefore provides a real disincentive for non-combatants to take up arms.

Question 29

do unpriviliged belligerents have rights

Answer 29

1. ‘protected persons’ regime in Part III of Geneva Convention IV, which extends detailed protections to people who fall into the hands of a party to a conflict of which they are not nationals. but ofc this doesnt apply if they are in th ehands of their allies or own state
2. Article 75 of Additional Protocol I,
   which lists the ‘fundamental guarantees’ that protect all persons who fall into the hands of a party to an armed conflict. only applies to intl armed conflict

Answer 30

Regarding international armed conflicts, Additional Protocol II provides special safeguards
for civilians who take part in hostilities, but they do not correspond to the reality and
activities of non-state armed groups, who are also present in international armed conflicts.

The two 1977 Additional Protocols have tried to extend the status of combatant in international armed conflicts and to create regimes of protection for civilians who directly
participate in hostilities in the two types of conflict

The view that combatant status does not exist in non-international conflicts also risks giving
the impression that captured fighters in such conflicts are entirely at the mercy of the enemy.
Captured fighters in internal conflicts are afforded a range of protections under international
law, including those contained in Common Article 3 to the Geneva Conventions and Articles
4, 5 and 6 of Additional Protocol II.