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ILOAC, Articles:
GCS
Common Art.1 GCs: the HCP must respect and ensure…
ILOAC
CONFLICT CLASSIFICATION
IACs
- involves only states
- we do not look anymore the formalities
- Art.1.4 AP I extend IACs also to for self-determination conflitcts
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NIACs
protracted armed violence between governmental authorities and organized armed groups or between such groups within a state
Common Art.3 GCs
armed conflict occurring in the territory of one of HCP > parties involved: government and groups but the first one is not necessary, it could be also only between non-statal groups (not every situation of armed violence within a state amount to a NIAC)
Difference:
- parties involves
- one of the parties need to be a state
- territorial control
- higher intensity of violence
Requirements:
- intensity of violence (number, duration, and intensity, type of militare equipment used, number of causalities, reaction by government
- degree of organization (some kind of command structure, logistical capacity of the group, ability to speak with one voice)
Internationalised NIAC: intervention of a state in a NIAC in the territory of another state
Situations:
- Option 1: State B intevenes in the territory of a State A at the invitation of Stat A to fight NSAG X = it remains a NIAC
- Option 2: State C intervenes in the territory of State A to fight alongside NSAG X against state = the NIAC transforms into an IAC
Art.1 AP II
this protocol shall not apply to situations of internal disturbance and tensions
- all armed conflict which are not covered by Art.1 AP I and which take place in the territory of HCP
- under responsible command, exercise such control over a part of tis territory as to enable them to carry out sustained and concerted military operations and to implement this protocol
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LAWFUL TARGET
- Principle of distinction
- Principle of proportionally
- Precautions
- Prohibitions of superfluous injury or unnecessary suffering
General protection from attacks > civilian object: every object that are not military object and they shall not be the object of attack or reprisal
- No direct attack (= intentionally > difficult to prove the state of mind)
- no indiscriminate attack (methods or means of combat which cannot be directed at a specific military object, and which cannot be limited as required by AP > it is possible that an indiscriminate attack is a direct attack)
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Principle of proportionally:
- avoiding incidental harm on civilian or civilian objects > prohibits atacks against military objectives expected to cause harm to civilians or civilians objects or a combination thereof which would be excessive in realtion to the concrete and direct military advantage anticipated
- referst to incidental (= collateral damage different from accidental = refers a non-intentional kill/damage and different from direct attack) harm to civilians/civilian objects resulting from attacks against enemy lawful targets
Art.51 API (= Art.57.2.iii on precaution):
- an attack which may be expected to cause incidental harm which would be excessive in relation to the concrete and direct military advantage anticipated
- it refers to each specific military attack
- it refers only to civilian
- excessive: the disproportion must be obvious
- expectation/anticipation: the outcome of the attacks is irrelevant
- = there must be a concrete and direct military advantage + expectation and related to the excessive
Principle of precaution:
- Active precaution in attack
- Planning/deciding an attack:
- do every feasible to verify that neither civilian nor civilian objects are not subject to special protection
- take feasibile precaution in the choice of means and methods of attack with a view to avoiding, and minimizing incidental harm
- refrain from any attack which may be expected to cays excessive incidental harm to civilian and civilian objects in relation to military advantage anticipated
- carrying out an attack
- an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection
- determinative factor: the information availed at the relevant time
- effective advance warning shall be given unless circumstance do not permit
- Passive precaution in attack
- the parties shall to do the maximum extent feasible (obligation are much stronger form the attacker side)
- endeavour to remove the civilian population from the vicinity of military objectives (without prejudice the prohibition of deportation)
- avoiding locating military objectives within or near densely populated areas
- take the other necessary precautions (eg. shelters)
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Special protection from attacks:
- hospitals (both military and civilian transports, units, personnel)
- loss of protection: if they are used, outside their humanitarian duties, for acts harmful to the enemy but it is not automatic, it will be so after numerous warnings to stop and a reasonable time limit + obligation to respect IL
- cultural property
- Works and installation containing dangerous forces > even where these objects are military objectives
- loss of protection: if used for other their normal function or provide significant and direct supporto of military operations and if such attacks is the only feasible way to terminate such support
- objects indispensable to the survival of the civilian population
Military objectives: those objects which by their nature (every military tools, factory that produce military objects, railways, airport), location (any objects that are within a military nature and near to the point of contact), purpose (intended future use) or use (anything that can transform as a military objective) make an effective contribution to military actions in the circumstances ruling at the time (= in a precise moment considered) offers a definite military advantage (concrete and perceptible = large-scale and long-term and not purely political)
So 2 cumulative criteria:
- Related to the object: effective contribution to military action for: nature, use, purpose, location + war-sustaining + war-fighting
- Related to the military advantage
Problems:
- police, are they targets? depends (if they are or are not integrated in armed forces)
- dual-use targets?
- civilian airports and maritime ports?
- minister of defense + any other governmental offices and members?
- Main question to do: is it contributing to the military actions?
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IMPLEMENTATION OF IHL
General mechanism:
- Reprisals
- Protecting powers (neutral party deisgnated to both belligerent to safeguard the interest of them) (if no accordance ICRC present a list of at least 5 state; if no foregoing accordance the ICRC can act as a subsitute with the consent of them)
- the international humanitarian fact-finding commission (IAC, on-site inspection possible, organ of individual, investigate allegation of grave breaches of IHL)
- alternative mechanism that are often used: investigation of UN
- other avenues for redress: IHRL
- ICJ
Grave breaches GCs and API and other war crimes
- wiful killing
- torutre
- inhuman treatment
- unlawful deportation
- causing great suffering or serious injury
- compelling a protected person to serve in the forces of a hostile power
any violation of IHL bring to the Int.responsability > the HCP undertake to enact any legislation necessary to provide effective penal sanction for persons committing or ordering to be committed
Domestic juridiction universal jurisdiction > IL permist state to exercise cirminal jurisdiction upon a number of grounds:
- the territorial principle
- the nationality principle
- the protecive porinciple (state may whish to exercise criminal jurisidiction to protect national interests)
- the universal principle (no terriotiral and nationality link = international crimes)
- extradition (based on bilaterale treaties)
ICJ and ICC
ICC
Jurisdiction
- Ratione materiae: Art.5 genocide, exc.
- Ratione loci and personae: on the state party and if the state accepted the jurisdiction = on the territory where the conduct occured and on the state of which the persons accused is a national
- Ratione temporis: after the enter into force of statute + if a state becomes party after, the jurisdiction only to crime committed after
trigger mechanism:
- state party initiative
- Prosecutor initiative (proprio motu)
- UNSC initiative (referral vs. dereferral)
Jurisdiction on the crime of aggression
- the court may exercise the jurisdiction on the state party unless it has previously delcared that it does not accept such jurisdiction
- non-state party shall not be subjected
- a prosecutor notify to UNSG and ascertain if the UNSC has decided and if has made such determination he/her may proceed. if no such determination is made by UNSC within 6 months after the notify to UNSG the pre-trial chamber can authorizes the investigation
Complementary of jurisdiction = the court can refers to the case law of the states parties; and revers the national courts can defer the case to the ICC + remeber criteria of inadmissibility
- 2 more items...
Inadmissibility:
- the case is being investigated or porsecuted by a state unless unwilling or unable
- has been inestigated (unless unwilling or inability)
- is not sufficien gravity to jutify the action of the court
- 1 more item...
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Articles:
- GCS
- Common Art.1 GCs: the HCP must respect and ensure respect the convention in all circumstances
- Common Art.2 GCs: definition of IAC + definition of belligerent occupation
- Common Art.3 GCs: definition of NIAC
- Art.4 III GC: definition of lawful combatants
- Art.34 IV GC: hostage taking
- Art.47 GCs: prohibition of annexation
- Art.118 III GCs: treatment of POW
- Art.18,19,21,24,35 I GC: special protection of hospitals (Art.21 I GC: loss of protection)
- API
- Art.1.4 API: extension of IAC for self-determination
- Art.4 API: no legal sovereignty change in occupation
- Art.12,15.1 API: special protection of hospitals
- Art.13.1 API: loss of protection of hospitals
- Art. 35 API: limitations of means and method of warfare
- Art.37 API: prohibition of perfidy
- Art.43 API: definition of regular armed forces
- Art.44 API: effective distinction between lawful and unlawful combatants
- Art. 45 API: in case of doubt of a person
- Art.46 API: spies treatment
- Art.47 API: mercenary treatment
- Art.48 API: principle of distinction (CIL)
- Art.50 API: protection of the civilian population
- Art.51 API: civilians who take DPH treatment + principle of proportionality + using human shields
- Art.52 API: definition of military objectives + in case of doubt
- Art.55 API: environmental protection
- Art.56 API: special protection of works and installations containing dangerous forces
- Art.57 API: precaution
- Art.57.2.iii API: principles of proportionality on precaution
- Art.58 API: passive precations
- Art.75 API: unlawful combatants minimum standards treatment
- APII
- Art.1 APII: definition of NIAC
- HRs
- Art.29 HRs: spies treatment
- Art.42 HRs: occupation when hostile and effective control
- Art.43 HRs: 3 elements for establishment of occupation + duty to respect local legislation
- ENDOM
- Art.2 ENDOM: definition of Environmental Modification Techniques
- Art.1 ENDOM: definition of military use of EMT
Palestine case:
- legal consequences of prolunged occupation:
- occupation is a temporal limti to the obligations = not aimed at relasing state from their obligation but based on that afert the end of the military operations, the local authorities largely would have resumed exercising functions.
- the continuing exercise of thjese functions bu the occupying state would not be necessary
- if, however, local aihotiries have not resume governmental functions, the occupying power is not released from the obligastions that arise out of tis continued effective control
- the fact that an occupation is prolunged does not in itself change its legal status under IHL
- question of the annexation
- definition of annexation (presupposes the intent of the occupying power to exercise permanent control voer the occupied territory
- inteds and practice of Israel:
- unilateral annexation of east jerusalem and its transfer as the capital of Israel + other measers serve to separete east jerusalem with west bank + measures create an inhospitable environment for palestinian
- israel'spolicies induce the departure of the palestinian
- this enable the further exapsion of israel's settlement olicy and the read integrationi of palestinian territory into Israel
- Court: practice amoun to annexation contrary of the IHL
- violation of: transfer of enemy popilation
- requsitition of land, resources and private/public property
- tratmen based on race, religion or political opionion, other human righ violations
- policies unlawful + violatioin of self-determination of paelstinian
Case of Ukraine
- Donbass region > issue: occupation of proxy:
- it is no clear the degree of control but there is no doubt that it is an occupation of proxy
- russia: funding payment, and deploying volunteers
- problem: if the independentists republic weas allied wirth rurssian or they are under control of russia
- in thisa case it needs an overall control
- no need to also prove the issuance of instrction fro the commision of specific acts contrary to IL
- Crimea > question about the hostile nature:
- there was no armed resistence and the consent by the President Yanokovic but at that time he as already ousted
- ICC on the referendum = lack of consent + unlawful of referendum + no armed resistance = ongoing occupation
- Deportation of Ukrainiain civilians:
- prohibition of deportations (people forced to move across a border)
- exceptions: evacuation
- rule abotu childern: it is allowed termporary evacuation to a foreign state for medical. healt and safety reasons
- Russia vioel IHL and amount to a war crime