Session 6 Flashcards
What was the background and the main objective of the first IHL instruments?
- Rooted in the mid-19th century, influenced by Henri Dunant’s experience at Solferino (1859).
- Led to the 1864 Geneva Convention,
- focusing on protection of wounded soldiers and medical personnel.
-Humanitarian protection during armed conflict, - limiting suffering and balancing military necessity with humanity.
What has driven the development of the law of armed conflict over time?
- Technological advancements in warfare (e.g., chemical weapons, aerial bombing).
- Shifts in military strategy (e.g., total war vs. limited war).
- Expansion of human rights and humanitarian concerns.
Response to historical atrocities (e.g., WWII, Vietnam, Yugoslavia, Rwanda).
What are the four fundamental principles of IHL?
- Distinction – Between combatants and civilians.
- Proportionality – Prohibits excessive force in relation to military advantage.
- Military Necessity – Allows force only to achieve a legitimate military aim.
Humanity – Prohibits unnecessary suffering and superfluous injury.
Explain the rationale behind each of the four principles?
- Distinction: Prevents indiscriminate attacks and safeguards civilian populations.
- Proportionality: Ensures military actions do not cause excessive harm.
- Military Necessity: Justifies only those attacks essential for military success.
Humanity: Maintains ethical conduct in war, avoiding unnecessary cruelty.
How are the four principles interrelated? (Hint: try to analyze some random rules from the treaties and see, how the individual principles influences the rule).
- Distinction & Proportionality: Collateral damage is assessed under proportionality, requiring distinction between civilians and combatants.
- Military Necessity & Humanity: Actions must be necessary for military success but cannot violate humane treatment norms.
- Example: Prohibition of indiscriminate weapons (e.g., chemical weapons) follows from all four principles.
What is the relationship between the general principles and the specific rules?
- General principles (e.g., distinction, proportionality) form the foundation of IHL.
- Specific treaty rules (e.g., Geneva Conventions, Additional Protocols) operationalize these principles in concrete scenarios.
When no specific rule applies, general principles guide interpretation.
Explain how civilian casualties (collateral damage) may be permissible in war?
- If civilian harm is not excessive compared to the concrete and direct military advantage gained.
- Indiscriminate or intentional attacks on civilians remain prohibited.
What is primary criterion that determines whether an armed conflict may be classified as international or non-international?
- International Armed Conflict (IAC): Involves at least two states.
Non-International Armed Conflict (NIAC): Occurs within a single state between government forces and non-state armed groups or between such groups.
What is the rationale behind the classification of armed conflicts? (Hint: why was international armed conflict the “original” type of armed conflict, and why did the regulation of non-international armed conflicts happen much later?)
- IAC was historically the primary focus as wars were traditionally fought between states.
- Regulation of NIACs developed later due to concerns over state sovereignty and reluctance to grant legitimacy to non-state actors.
Why are non-international armed conflicts less regulated in treaty law than international armed conflicts?
- States resist to maintain sovereignty.
- Governments fear recognizing rebel groups may legitimize them.
- IACs historically posed greater risks to international stability
Which ”test” is used to determine whether a non-international armed conflict has been internationalized through involvement by third states?
Overall control test (established in Tadić case – ICTY):
* A non-state armed group is deemed under the control of a foreign state if that state organizes, supports, and has a significant influence over the group’s military operations.
If met, the conflict may be reclassified as an IAC.
Q: What is International Humanitarian Law (IHL) and its main purpose?
A: IHL regulates armed conflicts by balancing military necessity with humanitarian considerations. It protects non-combatants (civilians, POWs) and limits warfare methods to reduce suffering.
Q: How did IHL develop historically?
A: IHL evolved from ancient warfare customs
- codified with the 1864 Geneva Convention.
- expanded through the Hague Conventions (1899, 1907) and Geneva Conventions (1949, Additional Protocols 1977) in response to wartime atrocities.
Q: What are the main sources of IHL?
Treaty Law – Geneva Conventions, Hague Conventions, Additional Protocols.
Customary Law – Unwritten but widely accepted rules.
Case Law – ICC, ICJ, ICTY, ICTR rulings.
Soft Law – Military manuals, UN resolutions.
Q: What are the four fundamental principles of IHL?
Distinction – Separates civilians from combatants.
Proportionality – Prevents excessive harm relative to military objectives.
Military Necessity – Allows only justified use of force for military aims.
Humanity – Prohibits unnecessary suffering and indiscriminate weapons.
Q: How does IHL classify armed conflicts?
International Armed Conflict (IAC): Between states, fully covered by Geneva Conventions.
Non-International Armed Conflict (NIAC): Within a state, regulated by Common Article 3 and Additional Protocol II.
Q: What are some modern challenges in enforcing IHL?
Asymmetrical Warfare – Non-state actors (terrorists, militias) complicate legal enforcement.
Technological Advances – Cyberwarfare, drones, and autonomous weapons create new legal dilemmas.
Enforcement Issues – War crimes tribunals (e.g., ICC) face compliance and jurisdictional challenges.
Q: How does IHL classify armed conflicts?
International Armed Conflict (IAC): Between two or more states, regulated by the Geneva Conventions and AP I.
Non-International Armed Conflict (NIAC): Within a single state, involving government forces and armed groups, regulated by Common Article 3 and AP II.
Q: What are the key features of an IAC under IHL?
Defined as armed conflict between states.
Includes wars of national liberation (under AP I).
Geneva Conventions apply automatically without state consent.
Occupation without resistance is still considered an IAC.
Q: What are the key criteria for a conflict to be classified as a NIAC?
- Within a single state.
- Involve organized armed groups engaging in sustained hostilities.
- Minimum level of intensity (not just riots or criminal violence).
- Less legal regulation than IAC due to state sovereignty concerns.
Q: What are the main difficulties in classifying conflicts under IHL?
- multinational interventions and proxy wars blur
- Terrorist groups and transnational conflicts complicate legal application.
- Internationalization of NIACs: If a state controls a rebel group (Tadić case), a NIAC can become an IAC.
- Modern warfare does not fit traditional IHL frameworks, requiring legal evolution.
Q: Why is NIAC regulation weaker than IAC regulation?
IHL treaties focus more on IACs, with fewer detailed rules for NIACs.
NIACs occur within sovereign states, making international regulation politically sensitive.
Customary IHL helps fill gaps, but enforcement remains challenging.
Most conflicts today are NIACs, making better regulation necessary.
Q: What are the legal challenges concerning non-state actors in armed conflicts?
- not direct parties to treaties but may be bound by customary IHL.
- Enforcement is difficult, especially in failed states or when groups ignore IHL.
- Strengthening accountability mechanisms for non-state actors is crucial.
Q: What is the significance of combatant status in IHL?
- Combatants are lawful participants in hostilities and receive POW status if captured.
- Civilians cannot be targeted unless they take direct part in hostilities (DPH).
- Modern conflicts blur the distinction between combatants and civilians, complicating targeting decisions.
Q: What are the four criteria for combatant status under the Third Geneva Convention?
- Belong to an organized armed force under a responsible command.
- Have a fixed, recognizable emblem visible at a distance.
- Carry arms openly during military engagement.
- Conduct operations in accordance with IHL (no war crimes).
- These criteria were designed for state armies and are difficult to apply to insurgents and militias.
Q: When can civilians be lawfully attacked under IHL?
- directly participate in hostilities (DPH).
- lack of a clear legal definition of DPH creates uncertainty in targeting.
Issues:
Cyberattacks: Is hacking a military system a DPH act?
Drone operators: Are remote operators lawful targets?
Q: Who are unprivileged belligerents, and what protections do they have?
Fighters not meeting combatant criteria (e.g., spies, mercenaries, terrorists).
Do not receive POW status and can be prosecuted for participating in hostilities.
Human rights concerns: Some states deny them legal protections, leading to debates on fair treatment.
Q: What are the main challenges IHL faces in regulating modern warfare?
Non-state armed groups (NSAGs): Operate outside traditional military structures.
Asymmetrical warfare: Combatants blend with civilians, making targeting difficult.
Cyberwarfare: Blurs definitions of combatant status and direct participation.
IHL struggles to adapt to these new threats, requiring evolving legal interpretations.
Q: Who are considered protected persons under IHL, and what protections do they have?
POWs, civilians, and medical personnel are protected under the Geneva Conventions.
Indiscriminate attacks violate distinction and proportionality principles.
Weak enforcement in conflicts involving non-state actors limits effectiveness.
