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PIL Week 8 - International Humanitarian Law - Commonly known as the law of…

- - - - C. Principles of international humanitarian law (distinction and proportionality)
        
        Treatment of civilians
        
        Prisoners of war
        
        Hors de Combat - Persons who cannot be attacked.
        
        In the power of the adverse party
        
        Clearly expresses an intention to surrender or, is incapable of defending themselves because of unconsciousness, shipwreck, wounds or sickness, etc.,
        
        Abstains from any hostile act and does not attempt to escape.
        
        Scope of Protection - Ceases as soon as they cease to be a hors de combat i.e., they commit a hostile act or, attempt to escape.
        
        Perfidy v. Ruses of War (AP I 37)- Ruses of war do not invite the confidence of an adversary with respect to protection under the law i.e., no feigning surrender, etc., limited to mock operations, decoys, misinformation. Can mislead them, but not mislead them into thinking you are protected person under IHL.
        
        Prohibition on Perfidy - Killing, injuring or capturing. But, no prohibition on intelligence gathering i.e.,. being spies.
        
        Emblems of an Adverse or neutral party (AP I 39) -
        
        Prohibited to make use of flags, emblems of states not parties to the conflict.
        
        Same Prohibition but using uniforms of ADVERSE PARTIES to engage in attacks, shield, favour protect or impede military operations.
        
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        Denial of Quarter - Violation of IHL. Q. Ambiguous Commands from a commander - use whatever means necessary, etc.,
        
        Inability to take prisoners - Treaty IHL requires that they may be disarmed, but, shall be released and all feasible precautions shall be taken to ensure their safety.
        
        Sir says denial of quarter and hors de combat can be used to object to autonomous weapon systems instead of principle of distinction.
        
        Proportionality (KnH p. 48, Art. 51b of Additional protocol I) - All military measures taken by belligerents must be proportionate to the aim they seek to accomplish. Within the context of the law of armed conflicts, military advantage obtained by a particular operation must outweigh the damage caused to civilians and civilian objects by that action.
        
        Necessity (KnH 47) - that the belligerent only adopts such measures as are necessary to overpower the enemy and to bring about its surrender
        
        Distinction (KnH 46) - that belligerents distinguish between military objectives and civilian persons or objects at all times, and attack only military objective
        
        D. Law on neutrality
      - Means of Warfare (St. Petersburg Declaration) - Weaken the military forces of the enemy, thus, sufficient to disable the greatest number of men.
        
        Martens Clause - Until a more complete code of laws of war is issued, contracting parties declare that in cases not included in the regulations adopted by them, populations and belligerents remain under the protection of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.
    - - Internal or non-international armed conflict (CA 3, AP II)
        
        War of national liberation
        
        Common Article 3 Geneva Conventions - Identifies a number of key duties and prohibitions, providing a minimum of protection to all persons who are not, or no longer taking an active part in the hostilities. This must be applied as a minimum by each party to any armed conflict not of an international character.
        
        Effect of Additional Protocol II on CA 3 - Develops and supplements, but does not modify the conditions of application of CA 3. Instead, defines its own scope of application more restrictively, and cannot serve as a generic definition of NIAC.
        
        This is because AP II applies only to armed conflicts involving a contracting state as a party to the conflict and taking place in the territory of that state. That part of the territory must be under effective control of the opposition forces.
        
        In contrast, CA 3 it applies even if it is between non-state armed groups only.
        
        Party to an Armed Conflict (CA 3) - Presupposes a minimum level of organization without which, coordinated military operations and collective compliance with IHL would not be possible. No other metric of belligerency by the opposing state, popular support, political motivation or territorial control is required.
        
        Minimum Level of Organization (Melzer) - Assessed based on a series of indicate factors. Such as:
        
        The Existence of a command structure and disciplinary rules and mechanisms within the group
        
        The existence of a headquarters
        
        The fact that the group controls a certain territory.
        
        Ability to gain access to weapons, military equipment, recruits and military training
        
        Ability to plan, coordinate and carry out military operations, including troop movements and logistics
        
        ability to define a unified military strategy and use military tactics
        
        Ability to speak with one voice and negotiate and conclude agreements
        
        Starts of NIAC (Melzer) - As soon as armed violence occurring between sufficiently organized parties reaches the required threshold of intensity.
        
        End of NIACS (Prosecutor v. Tadic) - IHL applies until a peaceful settlement is achieved. For NIAC, unclear, hard to determine, unless there is a peace treaty.
        
        Territorial Scope of NIACS (Melzer, CA 3 & AP II) - Restricted to armed conflicts taking place in the territory of a high contracting party. Strict
        
        If strict application, this distinguishes NIAC from IAC. In IAC, if there is spillover to a third state, there is still IAC. In NIAC, if spillover to third state may not be NIAC
        
        Threshold of Intensity to trigger NIAC - A situation of protracted armed violence. In practice, refers more to intensity instead of duration. This considers factors such as:
        
        Number, duration and intensity of individual confrontations
        
        Type of weapons and other military equipment used
        
        Number and calibre of munitions fired
        
        Number of casualties
        
        Number of persons and type of persons partaking in the fighting
        
        Extent of material destruction
        
        Number of civilians fleeing combat zones
        
        UN involvement
        
        Sir says strategy here is look for similar cases to cite that identifies the situation as a NIAC with these similar factors.
        
        Analysis here is:
        
        Check if armed groups have minimum level of organization.
        
        Check if conflict reaches threshold of intensity
        
        Foreign Intervention - A special form of armed conflict, sometimes referred to as internationalized armed conflicts.
        
        Definition - A state or coalition of states intervening in a pre-existing non-international armed conflict, thereby becoming a co-belligerent or party to the conflict.
        
        i
      - Purpose for Distinguishing (Meltzer) - Primarily political, governments are reluctant to subject efforts to maintain law and order and public security within their territorial borders to international law.
      - How Declared (Gen. Convention Art. 2.1) - So long as there is belligerent intent. Formerly, by a declaration of war (formal) but now, belligerent intent can be presumed from facts. This applies even if the state of war is not recognized by one of them.
        
        Mere Occupation (Geneva Convention 2.2) - There is armed conflict so long as there is partial or total occupation of the territory, even if the occupation meets with no armed resistance.
        
        Q. If Chinese Occupation of EEZ triggers armed conflict?
        
        Forms of IAC -
        
        States v. State
        
        Self-Determination (Add. Protocol I, Art. 1) - Armed conflicts in which peoples are fighting against colonial domination and against racist regimes in the exercise of their right to self-determination.
        2a. This governs peoples within the definition of IHRL
        
        Determination of the Existence of an IAC -
        
        Legal Status of Belligerent Parties - Either state parties to the Geneva conventions or, certain types of national liberation movements.
        
        Nature of the Confrontation - Belligerent confrontations two or more states, or between national liberation movements and states.
        2a. Threshold of Violence - In National liberation movements, threshold of violence bay be more similar to NIACs.
        
        Belligerent Intent - However, only presumption. Thus, IHL cannot be triggered by erroneous or accidental causation of harm or, by violence on the part of individuals acting without the endorsement or acquiescence of the State they represent.
        
        Presumption of Belliegerent Intent - Belligerent intent is presumed to exist as soon as one state uses armed force against another state, regardless of the reasons for, or intensity of the confrontation, and irrespective of whether a political state of war has been formally declared or recognized.
        
        Q. Intentional but wrong intelligence - Sir says no belligerent intent still.
        
        Factual Considerations - in the absence of a formal declaration of war, belligerent intent is derived by implication from factual conditions, rather than from official recognition of a political state of war.
        
        International Armed Groups - Armed conflicts involving foreign intervention may be NIAC or IAC, depending on whether there is armed confrontations between states or between states and organized armed groups (paramilitary)
        
        Time period for Beginning of an IAC -
        
        With a declaration of war
        
        if no declaration, with the actual use of armed for expressing belligerent intent,
        
        By the mere fact of one state invading another within a view to occupying all or part of its territory, even when such invasion meets with no armed resistance.
        
        End of an IAC (Melzer) -
        
        Ends with a peace treaty or equivalent agreement
        
        With a unilateral declaration or other unambigious act expressing the termination of belligerent intent, such as capitulation, surrender, or withdrawal
        
        If problem has peace treaty but actual fighting ends at different time period, can answer either way, so long as cites legal basis.
        
        Decisive Criterion (Melzer) - Decisive criterion is that the armed confrontation between the belligerent parties has come to a lasting end in circumstances that can be reasonably interpreted as a general cessation of military operations
        
        Temporal Scope of IHL v. IAC - Remember that IHL can persist even after the end of IAC.
        
        Territorial Scope of IAC - The applicability of IHL not limited to the areas where actual combat takes place. It applies to any act having a nexus to the conflict i.e., carried out for reasons related to the conflict.
        
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    - - Examples -
        
        Duty to prosecute and investigate war crimes
        
        Prohibitions on use, development, stockpiling, production and sale of certain weapons.
        
        IHL applies in territories that remain occupied after the cessation of active hostilities.
        
        Release and Return of prisoners of war
  - - - Applicability of IHL - Applies universally, there can be no permissible derogation from IHL. This applies regardless if the other belligerent does not observe with IHL or, if complying with IHL would result in military disadvantage.
        
        Harsh Conditions (Gen. Convention, Art. I) - Belligerents cannot justify failure to respect IHL by invoking the harsh nature of armed conflict; they must comply with their humanitarian obligations in all circumstances.
        
        Non-Compliance of Adversary - This is founded on the principle of non-repciprocity of humanitarian obligations. The obligation to respect and ensure respect of IHL does not depend on reciprocity.
        
        Jus ad Bellum v. Jus in bello
        
        Jus ad Bellum - the law governing the use of inter-state force. UN Charter 2(4), states shall refrain in international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations Q. here is state validly used force?
        1a. Thus, it applies only international conflicts and applies specifically to territorial integrity or political independence.
        
        Jus in bello - the law governing armed conflict. Q. here is broader, governing conduct of hostilities. No absolute prohibition in use of force.
        2a. Art. 51 of UN Charter, self-defense, and Art. 42, security council
- - - - 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 a founded on race, colour, religion or faith, sex, birth or wealth, or any another similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
        1a. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
        1b. taking of hostages;
        1c. outrages upon personal dignity, in particular humiliating and de- grading treatment;
        1d. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples
        
        The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. 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
        
        Hors De Combat - the wounded and sick or prisoners of war
  - - - General Principles & Scope of Application -
        
        The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
- - - - Purpose (Melzer) -
        
        To protect the victims of armed conflicts and to regulate hostilities based on a balance between military necessity and humanity.
        
        To restrict the means and methods of warfare that parties to a conflict may employ and to ensure the protection and humane treatment of persons who are not, or no longer taking part in direct hostilities.
        
        Rationale - balance between military necessity and humanity.
        
        It recognizes military necessity, which justifies the use of death, injury, destruction and more severe security measures that would normally not be allowed in peacetime.
        
        However, necessity does not give combatants carte blance to wage unrestricted war. (AP I, Art. 35(1) & Hague Regulations, Art. 22)