when does ihl apply material field of application and situations ...

1. 1 When does IHL apply?Material field of application and situations covered IHL Workshop, Santa Clara, February 15, 2008

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3. 3 I. The notion of "armed conflict" What is an armed conflict? "Armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organised armed groups or between such groups within a State." ICTY, Tadic case, Jurisdiction, para. 70

4. 4 II. International Armed Conflicts (IAC)

5. 5 International Armed Conflict

6. 6 International Armed Conflict

7. 7 International Armed Conflict

8. 8 General Definition of International Armed Conflict Art. 2. 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.

9. 9 Applicable Law from 1864 to today

10. 10 Sources of PIL/IHL

11. 11 III. Non-international armed conflicts (NIAC)

12. 12 Situations in which hostilities break out between armed forces or organized groups within the territory of a single State. Insurgents fighting against the established order would normally seek to overthrow the government in power or alternatively to bring about a secession so as to set up a new State. see: Commentary on the Additional Protocols of 1977, p 4341 General Definition of Non-International Armed Conflict

13. 13 Development of the Law on Non-International Armed Conflict United Nations Charter, Article 2(7): nothing in the Charter enables the United Nations to intervene in matters which are essentially the internal affairs of any State unless there is a threat to peace, a breach of peace or an act of aggression, in which case the United Nations is entitled to have recourse to enforcement measures under Chapter VII of the Charter. D�claration of St-Petersbourg (1868) � �������� le premier instrument international qui interdit ou limite l'usage de certaines armes: �������� interdiction d'employer des projectiles de moins de 400 grammes contenant une charge explosive ou des substances incendiaires, consid�r�s particuli�rement inhumains (causant des blessures plus s�v�res que d�autres balles en utilisation � l'�poque) Si on regarde le texte de la D�claration, des principes tr�s importants y sont contenus qui constituent aujourd'hui encore des principes de base du DIH. Notamment, �������� le seul but l�gitime que les �tats doivent se proposer, durant la guerre, est l'affaiblissement des forces militaires de l'ennemi, il suffit de mettre hors de combat le plus grand nombre d'hommes possible �������� il est interdit d'utiliser des armes qui aggravent inutilement les souffrances des bless�s ou rendent leur mort in�vitable. La formulation classique de l�interdiction actuelle d'employer des armes, des projectiles et des mati�res ainsi que des m�thodes de guerre de nature � causer des maux superflus. D�claration of St-Petersbourg (1868) � �������� le premier instrument international qui interdit ou limite l'usage de certaines armes: �������� interdiction d'employer des projectiles de moins de 400 grammes contenant une charge explosive ou des substances incendiaires, consid�r�s particuli�rement inhumains (causant des blessures plus s�v�res que d�autres balles en utilisation � l'�poque) Si on regarde le texte de la D�claration, des principes tr�s importants y sont contenus qui constituent aujourd'hui encore des principes de base du DIH. Notamment, �������� le seul but l�gitime que les �tats doivent se proposer, durant la guerre, est l'affaiblissement des forces militaires de l'ennemi, il suffit de mettre hors de combat le plus grand nombre d'hommes possible �������� il est interdit d'utiliser des armes qui aggravent inutilement les souffrances des bless�s ou rendent leur mort in�vitable. La formulation classique de l�interdiction actuelle d'employer des armes, des projectiles et des mati�res ainsi que des m�thodes de guerre de nature � causer des maux superflus.

14. 14 Belligerent Recognition The government of the United States has recognised the existence of a civil war between Spain and her colonies and had avowed a determination to remain neutral between the parties and to allow to each the rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us as a belligerent nation having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. Source: Santissima Trinidad and the St. Sander (1822) US Supreme Court

15. 15 Belligerent Recognition The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt to other courtesies and rules common to public or national wars. Source: Prizes case (1862) US Supreme Court

16. 16 Resolution adopted by the XVIth International Red Cross Conference in 1938: "The Conference,(�) recalling the Resolution relating to civil war adopted by the Xth Conference in 1921, requests the International Committee and the National Red Cross Societies to endeavour to obtain:(a) the application of the humanitarian principles which were formulated in the Geneva Convention of 1929 and the Tenth Hague Convention of 1907, especially as regards the treatment of the wounded, the sick, and prisoners of war, and the safety of medical personnel and medical stores;(b) humane treatment for all political prisoners, their exchange and, so far as possible, their release;(c) respect of the life and liberty of non-combatants; (�)(e) effective measures for the protection of children, Pre-1949 Development

17. 17 Material field of application: Different types of conflicts

18. 18 The Tadic Appeal Decision Juridisprudential threshold for armed conflict Armed violence between an organized armed group and the State or another armed group; Applicability of IHL from the beginning of the conflict until the end of hostilities; Applicability of IHL to the whole territory controlled by the parties to the conflict; Nexus between the specific incident and similar or related events within the territory. SIUS: ICRC Customary Law Study: although there is general agreement on the existence of the rule in customary law, views differ on how it can actually be determined that a weapon causes SIUS States generally agree that suffering that has no military purpose violates the rule ICJ Advisory Opinion: SIUS consists of harm that uselessly aggravates the suffering of combatants, that is to say a harm greater than that unavoidable to achieve legitimate military objectives Some States suggest that proportionality is relevant: the rule would require that a balance be struck between military necessity and the expected injury or suffering of a person One author vehemently disputes this application of the proportionality principle (Dinstein) Some States also refer to the availability of alternative means as an element to be considered in the assessment of whether a weapon causes SIUS Examples include exploding bullets and blinding laser weapons. According to military manual of some States, bayonets with serrated (jagged) edges SIUS: ICRC Customary Law Study: although there is general agreement on the existence of the rule in customary law, views differ on how it can actually be determined that a weapon causes SIUS States generally agree that suffering that has no military purpose violates the rule ICJ Advisory Opinion: SIUS consists of harm that uselessly aggravates the suffering of combatants, that is to say a harm greater than that unavoidable to achieve legitimate military objectives Some States suggest that proportionality is relevant: the rule would require that a balance be struck between military necessity and the expected injury or suffering of a person One author vehemently disputes this application of the proportionality principle (Dinstein) Some States also refer to the availability of alternative means as an element to be considered in the assessment of whether a weapon causes SIUS Examples include exploding bullets and blinding laser weapons. According to military manual of some States, bayonets with serrated (jagged) edges

19. 19 NIAC 74. (�). The distinction is between international armed conflicts, non-international or internal armed conflict, and domestic situations of tensions or disturbances. The Geneva Conventions set out an elaborate framework of rules that are applicable to international armed conflict or �all cases of declared war or of any armed conflict which may arise between two or more of the High Contracting Parties�. Common Article 3 of the Geneva Conventions and Additional Protocol II set out the prerequisite of a non-international armed conflict. It follows from the above definition of an international conflict that a non-international conflict is a conflict without the involvement of two States. : [Source: Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Geneva 25 January 2005; footnotes are partially reproduced; full report available on http://www.ohchr.org/english/darfur.htm]

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22. 22 AP II Definition of NIAC Art 1. Material field of application 1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and 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 and to implement this Protocol.

23. 23 AP II vs. Common Article 3 1. Firstly, whereas common Article 3 applies to any armed conflict not of an international character, Protocol II has quite strict requirements regarding command of the dissident forces, control of territory and the ability to carry out sustained and concerted operations, i.e. it applies to situations that are at or very close to the level of a full-blown civil war. 2. Secondly, whereas Protocol II applies only to a conflict between a State�s armed forces and rebel or dissident movements, common Article 3 is broader and covers a conflict between the same sorts of groups competing for power within a State when the government is not involved or, in the case of fragmented States, has ceased to exist. Guerrilla or partisan forces constantly on the move and lacking any fixed location from which to exercise control are also covered by common Article 3 rather than Protocol II.

24. 24 Art. 3 vs AP II (�) The final text of Protocol II did not meet all the desires of the United States (�) the Protocol only applies to internal conflicts in which dissident armed groups are under responsible command and exercise control (�) This is a narrower scope than we would have desired and has the effect to exclude many internal conflicts (�) we are therefore recommending that US ratification be subject to an understanding declaring that the United States will apply the Protocol to all conflicts covered by Article 3 common (�) [Source: Message from the President of the United States, US Government Printing Office, 100th Congress, 1st Session, Treaty doc. 100-2, Washington, 1987.]

25. 25 "Internationalised" NIAC internal conflict charaterized by the intervention of the armed forces of at least one foreign power

26. 26 "Internationalised" NIAC When does an intervention "internationalise" the conflict?

27. 27 2. This Protocol 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. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 AP II Internal tensions anddisturbances

28. 28 4476 As regards ' internal tensions, ' (28) these could be said to include in particular situations of serious tension (political, religious, racial, social, economic, etc.), but also the sequels of armed conflict or of internal disturbances. Such situations have one or more of the following characteristics, if not all at the same time: EXTRA-CONVENTIONAL SITUATIONS

29. 29 [ ] The ICRC gave the following description of internal disturbances during the first session of the Conference of Government Experts in 1971: (27) During the 1990-1991 Gulf War, it is reported that one of the justifications given by the Coalition planners for degrading power supplies was �to paralyse the leadership, cause political turmoil and lead to the demise of Saddam Hussein.� Attacks against the empty Baath Party headquarters were justified in terms of destroying Saddam Hussein�s legitimacy as a Head of State. In an interview with the Washington Post, Lt. General Charles Horner, U.S. air commander during the 1990-1991 Persian Gulf conflict, explained the rationale for bombing the Baath Party headquarters: we looked at Saddam Hussein and the Baath Party as one. We wanted to show weakness in the Baath Party and thus weakness in Saddam Hussein. We wanted to embarrass him in front of his people as well as limit the loss of life. In 1999, during Operation Allied Force, it is alleged that NATO specifically targeted objects with the intention of undermining Serbian support for Milosevic�s regime. In a radio interview on September 15, 1999, the Joint Forces Air Component Commander made the following comments, confirming such allegations: There can be no doubt in your mind that with the power down as the result of a hard kill and refrigerator not running and no water in your house and the public transportation system in Belgrade not running and no street lights, that the war was brought home, not just to the ruling elite, but to the average Serb on the street. During the 1990-1991 Gulf War, it is reported that one of the justifications given by the Coalition planners for degrading power supplies was �to paralyse the leadership, cause political turmoil and lead to the demise of Saddam Hussein.� Attacks against the empty Baath Party headquarters were justified in terms of destroying Saddam Hussein�s legitimacy as a Head of State. In an interview with the Washington Post, Lt. General Charles Horner, U.S. air commander during the 1990-1991 Persian Gulf conflict, explained the rationale for bombing the Baath Party headquarters: we looked at Saddam Hussein and the Baath Party as one. We wanted to show weakness in the Baath Party and thus weakness in Saddam Hussein. We wanted to embarrass him in front of his people as well as limit the loss of life. In 1999, during Operation Allied Force, it is alleged that NATO specifically targeted objects with the intention of undermining Serbian support for Milosevic�s regime. In a radio interview on September 15, 1999, the Joint Forces Air Component Commander made the following comments, confirming such allegations: There can be no doubt in your mind that with the power down as the result of a hard kill and refrigerator not running and no water in your house and the public transportation system in Belgrade not running and no street lights, that the war was brought home, not just to the ruling elite, but to the average Serb on the street.

30. 30 Other Situations of Internal Violence force is used as a preventive measure to maintain respect for law and order; serious political, religious, racial, social, economic etc tensions or sequel to armed conflict or internal disturbances minor or no violent clashes large-scale arrests large numbers of political prisoners, allegations of disappearances; probable existence of ill-treatment, suspension of fundamental judicial guarantees examples: China (Falun gong) UK (N. Ireland) Kenya Togo Mexico qualification is an objective fact � not up to the parties to take a subjective decision Why is ICRC competent to qualify? (IAC -ICJ, perhaps SC; NIAC � state) In light of tasks conferred by GCs and Statutes ICRC qualification not binding; but parties obliged to consider it in good faith; though the ICRC has this competence, it need not exercise if interest of victims dictates otherwise Role of the ICRC in the legal qualification of situations internal analysis from the time a situation of armed violence emerges�does IHL apply, I so, what type of conflict is it and what is the applicable law, and what is the legal basis for the ICRC's action when the ICRC can formulate a fact- and law-based appreciation of the situation, it generally qualifies the conflict and informs the parties of the applicable law as quickly as possible but before, the ICRC examines (1) the type of conflict; (2) the humanitarian needs of the victims � short, medium, and long terms; (3) the ICRC's objectives in the field; (4) the reaction/ point of view of third parties � other members of the international community; and (5) the expressed and presumed position of the belligerents if the ICRC decides to qualify the situation, it does so in the same way to each party to the conflict once it has informed the parties of its qualification, the ICRC makes the determination public unless (1) publicity would go against the humanitarian interests of the victims; or (2) publicity it would endanger the ICRC's action in some situations, parties may not accept the qualification, but might agree to apply certain rules; pragmatic approach. force is used as a preventive measure to maintain respect for law and order; serious political, religious, racial, social, economic etc tensions or sequel to armed conflict or internal disturbances minor or no violent clashes large-scale arrests large numbers of political prisoners, allegations of disappearances; probable existence of ill-treatment, suspension of fundamental judicial guarantees examples: China (Falun gong) UK (N. Ireland) Kenya Togo Mexico qualification is an objective fact � not up to the parties to take a subjective decision Why is ICRC competent to qualify? (IAC -ICJ, perhaps SC; NIAC � state) In light of tasks conferred by GCs and Statutes ICRC qualification not binding; but parties obliged to consider it in good faith; though the ICRC has this competence, it need not exercise if interest of victims dictates otherwise Role of the ICRC in the legal qualification of situations internal analysis from the time a situation of armed violence emerges�does IHL apply, I so, what type of conflict is it and what is the applicable law, and what is the legal basis for the ICRC's action when the ICRC can formulate a fact- and law-based appreciation of the situation, it generally qualifies the conflict and informs the parties of the applicable law as quickly as possible but before, the ICRC examines (1) the type of conflict; (2) the humanitarian needs of the victims � short, medium, and long terms; (3) the ICRC's objectives in the field; (4) the reaction/ point of view of third parties � other members of the international community; and (5) the expressed and presumed position of the belligerents if the ICRC decides to qualify the situation, it does so in the same way to each party to the conflict once it has informed the parties of its qualification, the ICRC makes the determination public unless (1) publicity would go against the humanitarian interests of the victims; or (2) publicity it would endanger the ICRC's action in some situations, parties may not accept the qualification, but might agree to apply certain rules; pragmatic approach.

31. 31 Internal Disturbances = troubles interieurs state uses armed froce to maintain order; confrontation of a certain degree of seriousness, duration; acts of revolt ? fighting between more or less organised groups and authorities police forces/army called in examples: Zimbabwe China (Tibet) Nigeria= troubles interieurs state uses armed froce to maintain order; confrontation of a certain degree of seriousness, duration; acts of revolt ? fighting between more or less organised groups and authorities police forces/army called in examples: Zimbabwe China (Tibet) Nigeria

32. 32 Personal field of application: who is bound/covered? Parties to the NIAC Effect of IHL on the status of parties

33. 33 Legal Status The application of the preceding provisions shall not affect the legal status of the Parties to the conflict

34. 34 The Applicable Law Geneva Conventions of 1949, Common Article 3 Protocol II of 1977 Article 19 of the 1954 Cultural Property Convention and its Second Protocol of 1999 Protocol II to the Conventional Weapons Convention, on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended on 3 May 1996; Ottawa landmines treaty of 1997. Customary Norms of IHL: distinction, proportionality, military necessity, limitation, good faith and humane treatment Martens Clause

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36. 36 Main Differences between rules applicable in IAC and NIAC Combatant status Protected persons Military occupation [Criminal responsibility]

37. 37 No Combatant Status Combatant status does not apply Protection not on the basis of their status but rather of their actual activities. A distinction must be made between those who take a direct part in hostilities and may therefore be attacked (during the time of their participation), and those who do not and are therefore protected from attack

38. 38 Breaches of Common Article 3 & AP II A. Violations of common Article 3 and many of the provisions of Protocol II committed by individual members of a party to an internal conflict are thus criminal offences under international law. Such crimes may be � and indeed are � already being tried by the international tribunals for Rwanda and the former Yugoslavia. B. The 1998 Rome Statute of the International Criminal Court lists the violations of the law applicable in a non-international armed conflict. ? Rome Statute, Art. 8 (2)

39. 39 Towards a convergence between IAC and NIAC?