Section 9 - Jus in Bello

Question 1

What does jus in bello mean

Answer 1

legal restraints on battlefield.

Question 2

what does jus ad bellum mean?

Answer 2

rules that determine under what conditions its lawful for the state to resort to military force, attack.

Question 3

What are the three main sources of humanitarian law?

Answer 3

International customary law
1899 and 1907 Hague Conferences (Conventions)
1949 Geneva Conventions + Protocols

Question 4

What are the four core principles of humanitarian law?

Answer 4

Distinction
Military necessity
Unnecessary suffering
Proportionality

Question 5

what is the function of humanitarian law?

Answer 5

it is not made to rule out war, but its function is to make war as humane as possible

Question 6

Explain the distinction principle

Answer 6

Who are you allowed to target in the context of a harmed conflict, aka can you apply ur right to kill?

you can’t target civilians.

you can target combattants, and SOME kind of civilians.

“you can kill them all”

Question 7

explain the necessity principle

Answer 7

everything must serve military object, a purpose in war

Question 8

explain the unnecessary suffering principle in IL

Answer 8

suffering ur gonna cost in any war must not be unnecessary. if there was another way to get to same point, same advantage in war goals and this implies causering less suffering, you have legal obligation to do that rather than following your initial plan
This also applied to the choice of weapons used

Question 9

Explain the proportionality principle and give an example

Answer 9

this puts limits on the limit of collateral damage which is appropriate, it shall not be excessive.

EX: targeting military objectives, i.e. weapons factories. There are civilians in this factory. destroying the factory and casualty of 50 workers passes the proportionality test.
Lets say, 1k civilians were hiding underneath it. then states cant be held accountable bc they didnt know.
BUT states have a responsibility to keep civilians off battlefields and away from military objectives, its war crimes.

Question 10

Explain the inherent problem w the proportionality test

Answer 10

PROBLEM: asking states to compare apples with oranges, impossible to compare in mathematical sense. it shouldn’t be seen as mathematical test between civilian harm and military advantage.

This test calls for a value judgment. any reasonable party with this info should be able to demonstrate they could’ve made the same decision given the info available.

Question 11

What are the four criteria fpr a militia to obtain combattant privilege?

Answer 11

-Always wore uniform or something that distinctive element that allows other to know not civilian

-Always carry weapon in the open (not hidden)

Belligerent organization has to be hierarcly organized recquries line of command

-The militia cannot engage in war as a way that systematically violates the laws of war

If they dont fill out all of these criteria, then they’re a non combatant (but not civilian?)

Question 12

How do you define a combattant in Jus in bello?

Answer 12

• De facto fighters of the state
• Means you can be legally targeted but have the right to kill
• Can be targeted at any time (price to pay for right to kill)

Question 13

How do you define a civilian in IHL

Answer 13

So civilians innocent
- Not right to kill
- But cannot be targeted

Question 14

What are the four categories of ppl in war?

Answer 14

Combattant
Non-combattant
Civilian
Dangerous Civilian

Question 15

What does Continuous Combat Function mean?

Answer 15

Continuous combat function requires lasting integration into an organized armed group acting as the armed forces of a non-State party to an armed conflict.

individuals member of unlawful combattant group are set to have Continuous Combat Function, meaning theyre lawful targets of any time, not only when they are shooting at ennemy but literally any time

Question 16

what are human shields, and when are they war crimes?

Answer 16

Civilians can be targeted if they are being used for military purposes. ppl use them to raise the cost of enemy attack.

Combattants are commiting a war crime – by using human as war shield – to raise the cost of intervention

when it is involuntary, it is harder to asess proportionality principle

Question 17

what is the difference between a combattant and a non-comabttant at a personal level?

Answer 17

if you capture combatants, you have diff rights than civilians engaged in war.
ie, combatants don’t commit murder when they kill someone, but a civilian does.
no distinction between civilians engaging in hostilities/those who are away. they are all non combatants formally, but there still is a distinction to be made
direct vs continuous combat function

Question 18

Redraw the schema of determining the status of conflict

Answer 18

see drawing

Question 19

what are the legal consequences of being considered a combatant?

Answer 19

you get the right to kill and the right to libert.

Question 20

Why did the ICJ agree to issue an advisory opinion on the legal consequences of the construction of a wall in occupied Palestinian territory?

Answer 20

nothing in statute says that (not abstract, IRL ref) they would have to reject this kind of question, although it has to pass judgement on a state which has not given consent. no legal aspect which they’re violating.

importance/impact of AO vs ruling will depend on how legitimacy of the state is affected by it. this doesn’t depend on whether the ruling is legally binding or not. This has to do with the reaction of other states and how they perceive the bad ruling.

Question 21

What is the difference between contentious cases and advisory opinions? politically speaking

Answer 21

Legally binding becomes more of a formality, but the real diff between contentious case and AO is that contentious cases refer to specific states and their specific behaviour, whereas AOs are implicitly expected to be about abstract questions, and not to pass judgement on state behaviour and THIS IS WHY they’re non-binding.

Question 22

What international laws were applicable in assessing the legality of the wall built by Israel in Palestine 2000?

Answer 22

UN Charter (prohibition on acquisition of territory by force).

Customary International Law (general rules on occupation and annexation).

International Humanitarian Law (including the Fourth Geneva Convention).

Human Rights Law (ICCPR, ICESCR, rights to self-determination, movement, residence, health, and education)

Question 23

What was the ICJ’s conclusion regarding the legality of the wall built by israel in Palestine?

Answer 23

The prohibition on annexation: Acquisition of territory by force is illegal under international law.

Customary International Law and Humanitarian Law: Prohibited forcible transfer of protected persons under the Fourth Geneva Convention.

Human Rights Law: Violated rights to self-determination, movement, health, education, and access to water.

Question 24

What is the difference between annexation and occupation under international law, and why did the ICJ view the wall in Palestine as a step toward annexation?

Answer 24

The permanent nature of the wall, along with settlement activities and demographic changes, signaled de facto annexation of Palestinian territory.

Question 25

What justification did Israel use for the wall, and why did the ICJ reject it?

Answer 25

Self-defense under international law requires an armed attack attributable to a state. The acts of violence cited by Israel could not be attributed to a state (before Palestine’s recognition as a state by the UNGA).

Question 26

What was the advisory opinion and remedies put forward by the ICJ reg the wall in Palestine?

Answer 26

Stop further construction of the wall.
Dismantle parts already constructed.
Provide reparations for damage caused.
States should not recognize the situation as lawful or assist in maintaining it.

Question 27

What is the challenge for international organizations like the ICJ when addressing politically sensitive issues?

Answer 27

The ICJ must balance assertiveness with reassurance, as its legitimacy depends on how states regard its decisions. Alienating powerful states could undermine its relevance and authority.

Question 28

Who requested teh OA on the legality of the wall built by Israel?

Answer 28

the UN GA

Question 29

what does article 2(4) of the UN charter declare?

Answer 29

[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

This provision is regarded now as a principle of customary international law and as such is binding upon all states in the world community. The reference to ‘force’ rather than war is beneficial and thus covers situations in which violence is employed which fall short of the technical requirements of the state of war.

Question 30

Upon what Declaration is UN Charter 2(4) based upon?

Answer 30

1970 Declaration on Principles of International Law

Question 31

What are the three categories of compulsion open to states under IL?

Answer 31

Retorsion
Reprisal
Self Defence

Question 32

Define retorsion

Answer 32

Retorsion is the adoption by one state of an unfriendly and harmful act, which is nevertheless lawful, as a method of retaliation against the injurious legal activities of another state.

Examples include the severance of diplomatic relations and the expulsion or restrictive control of aliens, as well as various economic and travel restrictions.

Retorsion is a legitimate method of showing displeasure in a way that hurts the other state while remaining within the bounds of legality.

Question 33

Define reprisals

Answer 33

Reprisals are acts which are in themselves illegal and have been adopted by one state in retaliation for the commission of an earlier illegal act by another state. They are thus distinguishable from acts of retorsion, which are in themselves lawful acts.

Question 34

What are some of the difficulties surrounding article 51, or the right to self-defence?

Answer 34

1. When can you use and argue it?
2. What constitutes an armed attack?
3. Does it apply in response to attacks by non-state entities?
4. What about third-parties which constitute a threat to you?
5. Does the right to anticipatory/pre-emptive self-defence exist?

(non of these are black or white answers)

Question 35

What was the ICJ’s ruling regarding self-defense in the Nicaragua case?

Answer 35

In the Nicaragua case, the Court did not accept that the right of self-defence extended to situations where a third state had provided assistance to rebels in the form of the provision of weapons or logistical or other support, although this form of assistance could constitute a threat or use of force, or amount to intervention in the internal or external affairs of the state

Question 36

What is anticipatory self-defence?

Answer 36

concept of self-defence extends to a response to an attack that is reasonably and evidentially perceived to be imminent, however that is semantically achieved

Question 37

What is the main difference between lawful and unlawful combatant

Answer 37

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Question 38

Define civilian and civilian population

Answer 38

A civilian is any person who is not a member of the armed forces or organized armed groups. Civilians are protected from attack under international humanitarian law unless they directly participate in hostilities, in which case they temporarily lose this protection during their participation.

All persons classified as civilians. The presence of individuals not classified as civilians within a civilian population does not affect the population’s overall civilian status or protection under international law.