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Law of Armed Conflict. Week 3 : Classification and Triggers. Classification & Triggers – IAC . Review. Common Article 2 = IAC Trigger The entire body of the law of war is triggered based not on labels but on whether the instrumentality of armed force is used
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Law of Armed Conflict Week 3: Classification and Triggers
Classification & Triggers – IAC Review • Common Article 2 = IAC Trigger • The entire body of the law of war is triggered based not on labels but on whether the instrumentality of armed force is used • Armed conflict = de facto standard • Decline of reciprocity; “Principles respected for their own sake”
Classification & Triggers – IAC Review • Common Article 2 = IAC Trigger • The entire body of the law of war is triggered based not on labels but on whether the instrumentality of armed force is used • Armed conflict = de facto standard • Decline of reciprocity; “Principles respected for their own sake” • Additional Protocol I • Represents a controversial expansion of the LOW to cover wars of national liberation in pursuit of the right of self-determination (CARs) • But… CARs provision never used • Codifies customary int’l law • Ratified by most of the world (169 parties) • Probably unlikely that the U.S. will ever ratify
IHRL National law PEACECONFLICT internal international Classification & Triggers – NIAC LOAC GP II G I-IV, GP I Art.3 Art.3 DDHH LOAC NIAC IAC
Page 155 • Overall control test • Sending by or on behalf of test
Terrorist Attacks + Cross-Border Attacks • Pg. 157
Tadic • Pg 175
Common Article 3 “Convention in Miniature”
Classification & Triggers – NIAC Common Article 3 • “Convention in miniature” • It has the merit of being simple and clear. It at least ensures the application of the rules of humanity which are recognized as essential by civilized nations . . . The text in question has the additional advantage of being applicable automatically, without any condition of reciprocity.” ~ Commentary
Classification & Triggers – NIAC “Armed Conflict not of an International Character” • “What is meant by "armed conflict not of an international character“? • That was the burning question which arose again and again at the Diplomatic Conference. The expression was so general, so vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms -- any form of anarchy, rebellion, or even plain banditry.” ~ Commentary
Classification & Triggers – NIAC Pictet Factors • “Pictet Factors” = guidance, not criteria • Organized military force • Act under organized authority • Act within determinate territory • Respect / comply with the LOW • Government responds with regular forces • Recognized as belligerents • Goal: maximize protection!
Classification & Triggers – NIAC Common Article 3 (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
Classification & Triggers – NIAC Scope of Substantive Protection • “The value of the provision is not limited to the field dealt with in Article 3. Representing, as it does, the minimum which must be applied in the least determinate of conflicts, its terms must a fortiori be respected in the case of international conflicts proper when all the provisions of the Convention are applicable. For "the greater obligation includes the lesser", as one might say.” ~ Commentary (1949)
Classification & Triggers – NIAC Scope of Substantive Protection • “Article 3 … defines certain rules to be applied in [NIAC]. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to IAC; and they are rules which in the Court’s opinion, reflect … ‘elementary considerations of humanity.’” ~ ICJ in Nicaragua Case (1986)
Classification & Triggers – NIAC Scope of Substantive Protection • “CA3’s text provides substantial reason to think that it refers specifically to a condition of civil war, or a large-scale conflict between a State and an armed movement within its own territory. . . . It does not sweep in all armed conflicts, nor does it address a gap left by CA2 for IACs that involve non-state entities (such as [al-Qaeda]) as parties to the conflict.” ~ Bybee Memo (OLC) (2002)
Classification & Triggers – NIAC Scope of Substantive Protection • “The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.” ~ Hamdan (2006)
Classification & Triggers – NIAC DODD 2310.01E, 5 Sep 06 • It is DOD Policy that: • 4.2. All persons subject to this Directive shall observe the requirements of the law of war, and shall apply, without regard to a detainee’s legal status, at a minimum the standards articulated in Common Article 3 to the Geneva Conventions of 1949 . . .
Classification & Triggers – NIAC Common Article 3 The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Additional Protocol II Controversial “Shrinkage”
Classification & Triggers – NIAC Additional Protocol II, Preamble • Recalling that the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August 1949, constitute the foundation of respect for the human person in cases of armed conflict not of an international character, • Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person . . . • Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates or the public conscience . . .
Classification & Triggers – NIAC Additional Protocol II, Article 1 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.
Classification & Triggers – NIAC Additional Protocol II, Article 1 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.
Classification & Triggers – NIAC Additional Protocol II, Article 3 Non-Intervention 1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.
Classification & Triggers – NIAC Additional Protocol II • Substantive Provisions • Part II – Humane Treatment • Articles 4-6 • Part III – Wounded, Sick, and Shipwrecked • Articles 7-12 • Part IV – Civilian Population • Articles 13-18
IHRL National law PEACECONFLICT internal international Classification & Triggers – NIAC LOAC GP II G I-IV, GP I Art.3 Art.3 DDHH LOAC NIAC IAC
NOT FOR CLASS – For Student Review at a later date if they choose
Classification & Triggers – NIAC Common Article 3 • Final Thoughts: • Tensions • Human rights vs. sovereignty • Concerns about legitimacy • Lack of reciprocity • “Who decides?” • Substance • “Necessity of analogy” / CIL “catch-all” • No combatant status • Enforcement / Accountability • Weak, but seems to be getting stronger (see Tadic and Rome Statute)
Classification & Triggers – NIAC State of Conflict Today • “In fact, during the entire period 1997–2006 only three conflicts were fought between states: Eritrea–Ethiopia (1998–2000); India–Pakistan (1997–2003); and Iraq versus the USA and its allies (2003). The remaining 31 major armed conflicts recorded for this period were fought within states and concerned either governmental power (21) or territory (10).” • ~ Patterns of major armed conflicts, 1997–2006, SIPRI.org
NIACs • (non-Int. armed conflicts) • 90-95 % of all ”massive organized violence” 1990-2008 • only a limited part of IHL treaty law and IHL customary law applicable • ”..armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” GC Common art. 3 (lowest threshold) IACs (Intl. armed conflicts) • 5-10% of all ”massive organized violence” 1990-2008 • Entire body of IHL treaty law and IHL customary law applicable • ”…declared war or…any other armed conflict which may arise between two or more of the High Contracting Parties” GC Common art. 2
IAC versus NIAC IAC : • State parties at ’both sides’ • State party on one side, the non-state party consisting of (peoples) ”…fighting against colonial domination and alien occupation and against racist regimes” API art 1(4) NIAC • State party(ies) at only one side 2) No state party at any side
Ad bellum / in bello • IAC : • Jus ad bellum : why you fight does not affect your rights and duties in fighing ( jus in bello) • NIAC • Why you fight, can influence which rules are applicable. API art 1(4)”fighting against colonial domination and alien occupation and against racist regimes…” ’converts’ NIAC to IAC
Structure , default regime IAC • Reciprocity • Equality of belligerents • Absence of IHL : very little protection • IHL gives more protection than default regime (’no rules’) NIAC • Asymmetry • No equality of belligerents • Absence of IHL : IHRL is default regime IHL provides ’less protection’ than default regime (human rights regime)
The making of treaty law in NIAC ( cont.) CONVENTIONAL LAW OF NIACs • Geneva Conventions Common art. 3 (1949) • Humane treatment • Care for sick and wounded • Cultural Property Convention art. 19 (1954) • Respect for cultural property • Additional Protocol II to the Geneva Conventions (1977) • 28 articles – approx. 10 of which have substantive content (protection) Treaties expanded to NIACs • Blinding Weapons Protocol (1995) • Mines Protocol (1996) • Protocol 2. to the Cultural Property Convention (1999) • Weapons Convention (2001) Treaties applicable to NIACs from first entry • Chemical Weapons Convention ( 1993) • Landmine Convention (1997) • ICC art 8 (2) (1998) • Clusterbomb Convention (2008)
Classification & Triggers – NIAC Agenda • Common Article 3 • Additional Protocol II • Contemporary NIAC Regulation • Conflict Classification / Exercise
Classification & Triggers – NIAC Common Article 3 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:
Classification & Triggers – NIAC Common Article 3 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:
Contemporary NIAC Regulation Tadic and the Rome Statute
Classification & Triggers – NIAC Tadic Case (1995) • Tadic Case • Procedural Jurisdiction • Subject-Matter Jurisdiction Dusko Tadic
Classification & Triggers – NIAC Tadic Case (1995) Para 97: “international legal rules have increasingly emerged or have been agreed upon to regulate internal armed conflict.” … A state sovereignty-oriented approach has been gradually supplanted by a human being-oriented approach … it follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned.”
Classification & Triggers – NIAC Celebici Case (2001) • “to maintain a legal distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the differences in the nature of conflicts would ignore the very purpose of the Geneva Conventions…” ~Delalić,, para. 172.