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War and Armed Conflict

War and Armed Conflict. Outline. Defining War and Armed Conflict Legal Effects of Armed Conflict Types of Armed Conflict Contemporary Issues. What is war and why does a definition matter?. What is War?. Oppenheim

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War and Armed Conflict

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  1. War and Armed Conflict

  2. Outline • Defining War and Armed Conflict • Legal Effects of Armed Conflict • Types of Armed Conflict • Contemporary Issues

  3. What is war and why does a definition matter?

  4. What is War? Oppenheim “a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases”

  5. What is War? Clausewitz “War is …an act of force to compel our enemy to do our will.” • The one-sided application of violence is not war • The coercion of another without the use of force is also not war.

  6. Armed Conflict Project Ploughshares • a political conflict in which armed combat involves the armed forces of at least one state (or one or more armed factions seeking to gain control of all or part of the state), and in which at least 1,000 people have been killed by the fighting during the course of the conflict

  7. War Encyclopedia Britannica • a conflict among political groups involving hostilities of considerable duration and magnitude

  8. War Oxford English Dictionary • a state of armed conflict between different countries or different groups within a country

  9. Definition Uppsala University Conflict Research Centre • a contested incompatibility which concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths.

  10. Armed Conflict ICRC • when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of the confrontation.

  11. Armed Conflict ICTY Tadic Case, Appeals Chamber • ...an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.

  12. Threshold • Two Characteristics found in all armed conflicts • One or more organized armed groups • Engaged in fighting of some intensity

  13. Organization of Armed Groups • ICC : Situation in the Republic of Kenya • To qualify as an armed group, an organization requires a specific collectivity of persons with some kind of policy level and hierarchical structure, the capacity to impose the policy on its members and to sanction them, induc[ing] a particular relationship between the policy level of that ‘organization’ and its members….

  14. Criterion of Intensity • state practice and opiniojuris, judicial opinion, and the majority of commentators support the position that hostilities must reach a certain level of intensity to qualify as an armed conflict.

  15. Why a Definition Matters • War/Armed Conflict is a situation in which the rules of involved societies are fundamentally changed and in which states may use deadly force and perform other aggressive acts against their foes.

  16. Legal Effects of Being in a State of Armed Conflict • IHRL derogation clauses apply • IHL regimes apply • Positive obligations for collective defence • Law of neutrality • ICC War Crimes • Obligation to accept refugees

  17. IHRL Derogation (ICCPR) art 4 • In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation…

  18. Implementation of IHRL Derogations • Existence of a public emergency that threatens the life of the nation • Proclamation and notification • Measures strictly required by the exigencies of situation: the principle of proportionality • The Principle of Consistency • Respect for Non-derogable rights • Prohibition of discrimination

  19. Application of IHL • Military objectives can be attacked at any time in any place • Combatant Immunity • Right to life from ICCPR is determined under lex specialis of IHL. • Internment, detention (fighters and civilians)

  20. Geneva Conventions Common Article 2 – International Armed Conflict • In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of 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.

  21. Geneva Conventions Common Article 3 – Non International Armed Conflicts • In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

  22. Types of Armed Conflict • International • Non-International • Common Article 3 • Additional Protocol 2 • Internationalized?

  23. International Armed Conflict • Armed conflict between two or more states, even if the state of war is not recognized by one of them. • What if the conflict is conducted under UN Ch VII and states are engaging under authority of UN?

  24. Non-international Armed Conflict A conflict that takes place in the territory of a state between its armed forces and dissident armed forces or organized armed groups… Often referred to as “civil war”

  25. NIAC Definition (Non Additional Protocol II) Armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government.

  26. Definition(Additional Protocol 2 Signatories) 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.

  27. NIAC Threshold • In order to distinguish an armed conflict from less serious forms of violence, such as internal disturbances and tensions, riots or acts of banditry, the situation must reach a certain threshold of confrontation. • The lower threshold found in Article 1(2) of APII, which excludes internal disturbances and tensions from the definition of NIAC, also applies to common Article 3.

  28. Why the NIAC Threshold Matters • Once in a NIAC, LOAC applies • Opposition groups can be targeted and its members killed • Derogation of IHRL • Etc. • Importance of an objective determination.

  29. Rwanda – APII Armed Conflict • A conflict between the RPF and the governmental forcesof Rwanda. • The RPF controlled Rwandan territory …and carried out continuous and sustained military operations until the cease fire. • The RPF troops were disciplined and possessed a structured leadership which was answerable to authority. AkeyesuCase ICTR

  30. Complex Situations ICJ Nicaragua Case • The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is 'not of an international character'. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character, whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.

  31. Internationalized Armed Conflict • Armed conflict between two internal factions both of which are backed by different States; • Hostilities involving foreign States that militarily intervene in an internal armed conflict in support of opposing sides; NOT RECOGNIZED IN ANY CONVENTION

  32. Contemporary Issues • Global War on Terror • Pakistan India Border Region • North Korean Aggression • Mexico

  33. Algerian Hostage Situation • U.S. Defense Secretary Leon Panetta, speaking to security specialists in London on 18 January 2013, said "Terrorists should be on notice that they will find no sanctuary, no refuge, not in Algeria, not in North Africa, not anywhere."

  34. US Drone Attacks in Pakistan • US attacking Al Qaeda and Taliban inside Pakistan • No permission from Pakistan • Is this armed conflict? • If so what type? • Why does it matter whether this is an armed conflict?

  35. Pakistan India Border • The South Asian rivals have fought two of three wars over the territorial issue -- in 1947 and in 1965. A third conflict between India and Pakistan erupted in 1999 after Pakistani-backed forces infiltrated Indian-controlled Kashmir in the Kargil area.

  36. Korean Peninsula • Countless skirmishes since end of Korean War • Artillery exchanges, vessel sinkings, commando raids, assassinations • Threats

  37. Questions?

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