The law of armed conflict/International Humanitarian law/law of war

Definition: regulates the conduct of
hostilities- including the use of weaponry-
and the protection of victims in situations
of both international and non-international
armed conflict

when and how humanitarian law applies (the
scope of application ) is not quite as
straightforward. Partly because of some
uncertainties surrounding the def. of armed
conflict itself and partly because of the
different types of armed conflicts that are
recognised in the contemporary law.

applies to declared war ot any other armed
conflict

ex: in 1982 during the Falklands War, UK publicly denied that it was at war with Argentina, yet it applied the law of armed conflict in all its military operations.

ICTY in Tadic: an armed conflict exist whenever there is a resort to armed conflict between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within state.

Requirement that hostilities be substantial,
protracted(förlänga) and large-scale.

Determining when IHL applies
(Gringon)

One state will refuse to consider that it is involved in a NIAC in its territory in order to reject the application o fIHL, while other will justify some of the measures it is taking by referring to the global war on terror. In any event, such pomitions must have no effect on the applicability of IHL if parties refuse to acknowledge that IHL applies, they may use this argument to deny humanitarian agencies access to the territory where there are persons affected by the armed conflict.

Vite: It does not include a full definition of those situations that fall within its material field to application.

It is true that the relevant convention refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally

ICTY Tadic

Decisions and Judgments of the ICTY tests
categories: (1) the application of the test of
state responsibility for rebel groups
propounded by the ICJ in the Nicaragua
case, with varying interpretations on what
this test actually entails. (2) THe view that as
the Yugoslav conflict was undoubtedly
international after recognition of hew states
of Croatia and BH, the conflict must be
viewed as remaining so until the end of
hostilities, unless there is good evidence
that the international conflicts ceased and
that new non-related internal conflict then
commenced. (3) The now dominate view
that the Nicragua test does not apply, and
that the appropriate test is whether the
state concerned has overall control of the
para-military group. (Byron)

The classification of armed conflicts in greys
areas usch as the conflict in the former
Yugoslavia is complicated and confusing.
Nevertheless, while there remains a
difference in the law applicable in the two
situations, determining the nature of the
conflict will be a necessary pre-requisite to
encouraging conformity with international
humanitarian law and to prosecuting
individuals for offences, such as grave
breaches of the Geneva C, which can only
be committed in an international armed
conflict.

The appeals chamber considered whether
there was an armed conflict taking place in
the Prijedor region of BH at the time of the
alleged offences and if so whether the
conflict wa son an internal or international
character. THe defiant submission the three
had been no IAC, on appeal he sought to
argue that there had been no armed conflict
of any kin at the relevant time in that
region.

This argument assumes that an armed conflict exists only in those parts of a state where actual fighting is taking place at any given time. The appeals chamber held that there is nothin in the Geneva C or other rules o fIHL to justify such an assumption. And therefore held the decision see the other bubble!!

Armed conflicts: International or
non-international (Byron)

International Armed Conflicts

Consent

i.e. Uganda's conduct in the DRC, when a
state requests the assistance of another
state in order to combat an armed group in
its territory, but subsequently withdraws its
content. The DRC has initially requested
suport from Uganda in its armed struggle
against rebel armed groups. uganda had
therefore used force in the territory of the
DRC with the letters consent. After while
DRC denounced the invasion o f their
territory by Uganda. Therefore DRC
considered Uganda's presence to be
unlawful.

In order to ascertain when IHL begins to apply, the following questions must be asked: When may it be said that a way has been declared? When does an IAC exist, including a situation of occupation? What events mark the beginning of a war of national liberation? What indicators point to the hesitance of NIAC and hence to the moment when IHL of NIAC begins to apply.

Capture: of enemy soldiers is another form of violence and can constitute an act triggering the applicability of IHL. art. 2 Commentary to 3rd Geneva Convention

the mention article is straightforward but art. 4 in convention 4 is more delicate

Geneva C does not provide any real def.
and there is no universal authority
responsible ofr classifying conflicts, the
existence of an IAC must be determined on
the basis of facts.

if non-state forces have sufficient control of
territory to satisfy the requirements of
Protocol II, non-international conflicts are
governed by the Protocol in addition to
Common Article 3, if other states intervene the conflict may become internationalized, leading to the application of the Geneva conventions in full, plus protocol I if the state cornered are parties thereto.

Two positions serve as a point of departure for determining the beginning of the applicability of IHL: 1) In the one proposed in the commentaries to the Geneva comments(also referred as the first shot theory). 2) the one adopted by ICTY in the Tadic case.

In keeping with the pragmatism
characterising IHL, determining the moment
at which its applicability is triggered must
not be made subject to any international
recognition process, or to any reaction on
the part of UN. Though it can be difficult to
be dependent on the factual finding if the
new 'State' no longer recognises the central
government, is in sole command of its
territory, and has its own armed forced. How
can a distinction be drawn between these
attributes and those of an armed group which
could not be termed a party to an IAC within
th meaning of IHL?

IHL will begin to apply when armed forces
of one or more state are involved

Against whom must the armed force be
direct, and under what conditions, in order
for iHLR pertaining to IAC to apply?

Geneva: art. 2.'armed conflict between two
high contracting parities'(sovereign entities, States. ). Tadic:
the use of armed force between "States"

Synonymous?

therefore necessary to abide by the conditions which PIL lays down for recognition of a state by the international community.

An IAC will exist if one State employs armed force against another, even if the latter does not relate. Thus the intervention of members of the armed forced of either High sonctracting party is sufficient.

Amy use of force by a third state int the territory of these countries, and directed against them would be subject to the riles of IHL.

the mention article is straightforward but
art. 4 in convention 4 is more delicate

The use of force on the territory of another
stat must be hostile in nature.There is no need for the armed forced of the state at the receiving end of the violence to be targeted directly.

Slutligen, It begins to apply as soon as one state employs force in the territory of another state without the later's concept, provided that the violence is of a collective nature, regardless of the kind of objects or persons targets.

Today: armed conflict is classified into:
International or non-international. And 'internationalized' in certain circumstances by the participation of forced from another.

Internationlized:intervention in a previously
existing internal conflict. i.e. a foreign
power sends troops into a territory to
support a movement opposing the local
government.

Proxy: When that power merely support and
guides the uprising from a distance. In that
case it is then vital to determine to
determine the level of control that make it
possible to classify the armed conflict as
international.

ICTY: control by a state over subordinate armed forced or militias or paramilitary units may be of an overall character and must compromise more than the mere provision of financial assistance or military equiment or training. Overall control: is achieve when the foreign state has a role in organising, co-ordinating or planning the military action of the military support to that group

IAC does not exist when the target state has given its consent for a third state to take action in its territory

The law that determines whether a conflict
is international or not is only of interest if
there is a difference between law applicable
one act situation. (Byron)

Non-International Armed Conflict

The Law in NIAC

Common Article 3: requires that persons taking no part in hostilities, include this e who have surrendered or arehors de combat, be treated humanely and without diverse discirimination; to that end, it prohibits violence to lee nd person, hostage-taking, humiliating and degrading treatment, and the passing of sentences and the carrying out of executions without previous judgement pronounced by a regular constituted court.

Implementation: Reprisals, State responsibility, Dissemination and supervision, Implementation and prosecution, external scruntiny

Today: it is accepted that IHL will begin to
apply to a NIAC as soon as it is clear the the
parties to the conflict are sufficiently
organised and that violent clashes have
reached a certain level of intensity.

Treaty law does not define when a NIAC begins. OBS! NIAC is discussed in connection with
the determination of the jurisdiction of ICC.

The uncertainty of determining the exact
beginning go application of IHL in NIACs

The criterion of organisation

Syria: The weapons used by both the armed opposition groups and the government armed forces, the army's inability to regain control of certain areas, the tens of thousands of victims, the mass mass flight of civilians into neighbouring countries, the mounting violence, UN's involvement in a fruitless effort to restore peace, in addition the intensive and constant use of force on the gov. side. In regards to organisation: the Free Syrian Army, the main armed group present at 2011-2012 had a general staff, controlled certain parts of the territory or was at least capable of preventing the Syrian army from entering certain areas, and had spokespersons and representatives. Thus the Free Syrian Army's degree of organisation appears to have met the relevant requirements. And can therefore be concluded that there was an ongoing NIAC, to which Common art. 3 can be applied.

The criterion of intensity of the violence and the notion of protracted armed violence

The two key criteria are the organisation of the parties to the conflict and the level of intensity of the violence. These criteria have formed the subject of in-depth annuluses in case law and literature. Some challenges stem form the temporary element of the protracted duration of the violence, especiallyy in vires of its implication in the initial phase of customary IHL.

Article 3 Common to the 1949 Geneva
Conventions and Article 1 of Additional
Protocol II of 1977

Article 3: Ir refers back to common article 2,
which deals with conflicts between states.
Armed conflicts that arena to fan
international governmental character are
those in which at least one of the parties
involved is not governmental. Dependings of
the case, hostilities take place either
between one or more armed groups and
government forces or solely between armed
groups. The threshold of intensity required in
that case is higher than for an IAC. According
to ICTY: it has to be (a) the intensity of
violence (b) the organisation of the
parties.These two criteria is evaluated on
case by case basis

Article 1 of Additional Protocol II: applies to
NIAC 'which take place in the territory of a
High Contracting Party its armed
forces and dissident armed forces or other
organised 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'.

betweenDoes not apply to wars of national
liberation, which are equated wit
international armed conflicts by virtue of art.
1(4) of Additional Protocol I

just like common article 3, a NIAC within
the meaning of Additional Protocol II can
only exist if the situation attains a degree of
violence that sets it apart from cases of
internal tensions or disturbances. Though
this article, defines more limited field of
application than that of common art. 3. It
requires non-gov. forces to have a
particularly high level of organisation, in the
sense that they must be placed under
responsible command exercise territorial
control, allowing them to carry out sustained
and concerted military operations and to
implement this Protocol. Art. 3 also
presumes that armed group are able to
demonstrate a degree of org, it does not
stipulate that these groups should be able
to control part of territory. All the armed
conflicts covered by Add. Pro II are also
covered by Common Article 3.

Controversial classification of certain armed
conflicts. (Vite)

Control of a territory without military
presence on the ground:i.e. the Gaza Strip
following the Israeli withdrawal. In Sep.
2015, the last Israeli troops finished
withdrawing from that region in which they
had maintained a continuous presence
since the Six Day War in 1967. Was the
physical withdrawal of the Israeli forces
enough to admit that effective territorial
control characteristic of occupation dis not
exist any longer at that time? Some
observers answer that question negative. It
was thus recalled that Israel retained
susbtantial control over the Gaza Strip,
although its troops were no longer
deployed in that area. Isreal has the
advantage of being able to enter the
Palestinian territory at any time in order to
maintain public order. However, other
observers consider that a closer study of the
treaty texts shot that the ability of an
occupier to impose its authority cannot be
separated from its physical presence in the
territory under its control.

Foreign intervention in NIAC: two forms of intervention(a) When one or more third states become involved in aNIAC in support of one to other of the parties to the conflict; (b) when multinational forces become involved in a NIAC in the course of peacekeeping operation.

(a) Also referred to as a 'mixed conflict. The configurations o parties involved can vary which raises the issue of the legal def. of those situation that do not fit into the standard categories of conflicts establishes by IHL. Case by case basis. '

Intervention of multinational forces in NIAC

the presences of these forces can be limited to interposition or observation and may only resort to usingg armed forces in the case of self-defence. i.e. UN Org.Mission in DRC provided military support for the gov. of DRC in order to repel the offensives launched by the armed opposition. When International troops are deployed without supporting one of the warring camps, their status will be determined in accordance with the criteria normally used to evaluate the existence of NIAC. For most authors, these situations are to be equated with IAC. To the extent that the operations concerned are decide,d defined and carried out by Its they ar bey nature included in that category. In contrast, if fighting is between this troops and NG groups it is the law of NIAC which must prevail. The legal regime applicable in the same conflict thus varies depending on the adversaries present in each situation.

NIAC taking place on the territory of several
states. Can be in various scenarios

Scenario 1:Exported NIAC: The parties to a classic NIAC may well continue their frightening on the territory of one or more third states with the explicit or tacit consent of the govs. concerned. In principle, the governmental forces involved are pursuing the armed group seeking refuge in the territory of a neighbouring state. In that kind of situation, IAC does not exist since there is no conflict between two or more states, given that the intervening state acts with the consent of the territorial sovereign. Some argue that wha tis being dealt with here is a different form of conflict and recommended wording of a new form of IHL.They insider that, from the perspective of the parties involves, these armed conflicts are very similar to NIAC, as they involve government forces in conflict with armed groups. From the territorial point of view, these conflicts are characterised by internalisation, as they are no ponied with the border so a single state bu concern two or more states.

Cross-border NIAC

Another possibility is that States forces enter into conflict with a NG armed group locate din the territory of neighbouring state. IN that case, there is no spillover or exportation of a pre-existing conflict. The hostilities take place on a cross border basis. If the armed group acts under the control of it sState of residence, the fighting falls with the def. oa IAC between two states concerned. If, however, this group acts on its own initiative, without being at the service of a government party, it become more difficult to categorize the situation.

i.e. Lebanon summer 2006: attacks by Hezbollahs military on positions and villages in Israeli territoryThe Israeli retaliated by launching a ground, air and sea offensive on lebanon. It keeps on until August, when a ceasefire that htbeen agreed by the two governments entered into effect. UNHR council considered an IAC but the lebanese armed forces never took part of it. but Hizbollah is represented in the parliament and therefore a military belonging to a party to the conflict.

The question of international fight against
terrorism

Al qaeda's way of operating probably excludes it from being defined as an armed group that could be classified as a party to a global nNIAC. It is rather to be loosely connected, clandestine network of cells. These cells do not meet the org. criterion for th existence on NIAC within the meaning of humanitarian law. Some experts nonetheless think the tis not impossible for a conflict between one or more state a transnational armed group to reach that level one day.

Does it constitute a new type of armed conflict giving rise to the application of a legal regime that has yet to be established?

Conduct of hostilities

The principle of distinction: to distinguish
between combatants and military
objectives; and civilians and civilian objets.
Anyone who is not a combatant is a civilian, but because in contemporary warfare the two categories are not always clearly distinguishable, the principle of distinction is moderated by a proportionality test.

problem with dual use objects

The law recognises the permissibility of civilian causalities or damage to civilian objects by the gym but function doctrine of collateral damage; such casualties or damage is proportionate if it is not clearly excessive in relation to the concrete and direct military advantage anticipated from the attackk.

in certain context the fight against terrorism
may also take the form of an armed conflict.
The tis the case when it results in a clash
between states i.e. USA attacked afghanistan
in Oct. 2001. That fight may also be
equivalent of a classic internationalized NIAC
as was the case in Afghanistan from June
2002 onwards, on which date a transition
government was established.

The classification of situations of armed violence is also often linked to political consideration. They prefer to play down th einteisty of the situation by claiming to carry out an operation to maintain public order. In so they deny the applicability of humanitarian law. This tendency tis encouraged by the fact there is no independent international body authorised to decide systematically on cases that are likely relate to one or other form of armed conflict.