lecture 4 - IHL Flashcards
(40 cards)
What is the primary purpose of international humanitarian law (IHL)?
To regulate conduct during war and protect individuals not participating in hostilities.
- Nowadays ➞ we think that even when war goes on, we still need rules, to ensure fair play ➞ there should be limits etc
- The right of belligerents to adopt means of injuring the enemy is not unlimited, it isn’t a civilized thought to think that way
What does the term ‘jus in bello’ refer to?
The law governing the conduct of armed conflict.
What do these IHL rules do?
they talk about how weapons can be used and in what manner ➞ it regulates how they may be used and against whom
What is the dilemma faced by IHL?
Balancing military necessity with humanitarian considerations.
- sometimes you have to bomb/hurt certain areas to win a war, and then you have these thing colliding against one other
- Not always as easy to find this balance
What are the Geneva Conventions?
in regards to IHL
A set of treaties that establish standards for humanitarian treatment in war.
The rules have a strong legal force: states are expected to respect and ensure respect for IHL in all circumstances ➞ the Geneva Conventions also make this clear
- parties can’t say that they don’t respect it because their enemy isn’t doing so either ➞ no room for negative reciprocity arguments
- can also not say that it is allowed because people have allowed you to torture them for e.g.
True or False: States can ignore IHL if their enemy does not respect it.
False.
What is meant by ‘positive reciprocity’ in IHL?
When parties to a conflict reciprocate good behavior despite not being officially bound by IHL.
- when you see that your enemy is using good behavior, and therefore you will do so also
Customary law in IHL
Many of the rules nowadays hold the status of international customary law: so parties may be bound, even when they aren’t bound by a particular treaty
➞ only when it isn’t a customary rule for them (with constant protest to this rule etc)
The roman foundations & medieval practices in IHL
- Even in the roman time, there were things such as undignified types of behavior (killing hostages eg)
- Medieval practices, where knights did battle there were things you could do
- 1139: the invention of the cross-bow, but in this year they thought that this bow wasn’t fitting anymore (due to Christian warfare???
There was a modern rebirth in the second half of the 19th century (henri Dunant establishment of the ICRC, 1863)
What is the difference between the Law of Geneva and the Law of The Hague?
The Law of Geneva focuses on the protection of individuals (against whom and the persons), while the Law of The Hague concerns the methods of warfare.
What significant event in 1863 contributed to the establishment of IHL?
The establishment of the International Committee of the Red Cross (ICRC).
Fill in the blank: The first Geneva Convention was established in _______.
[1864]
An international document which they wanted to make sure that more civilized standards would be complied filth (= the first Red Cross convention)
What does the St. Petersburg Declaration (1868) address?
It aimed to limit the use of certain weapons in warfare.
- armed control, so people wouldn’t go too far with the things they used
What are the two additional protocols to the Geneva Conventions of 1977 focused on?
International armed conflicts and non-international armed conflicts.
The san Reno manual on warfare at sea (1994)
People come together and issued a manual (not binding). Its a re-statement of the customary rules. Helpful in that sense
Sources of IHL
- Customary international law
- The Hague convention of 1907
- The four Geneva Conventions of 1949
- Two additional protocols
- Various other specific treaties
When is there armed conflict
In the past you needed a declaration of war. Nowadays we don’t have to wait for an official declaration of war, but we look at the facts on the ground and what is actually going on
What is customary international law?
Law that arises from consistent and general practice accepted as legally binding.
What is the significance of Article 1 of the Geneva Conventions?
It establishes the obligation of states to respect and ensure respect for IHL.
When does IHL apply?
Jus in bello = IHL
(Jus ad bellu = the right to use force, so this is different)
Geneva conventions common article 2 for the application of IHL
- in armed conflict
- when there is an occupation (total or partial)
- in times of war
Difference between war and armed conflict
War is always an international armed conflict. A war is declared. A war is a legal sitauation where you have one state which declared that they are at war with the other (but it doesn’t mean that they always have to be fighting, it is a declaration).
An armed conflict is the oppossite (or can be). Everybody can see that there is violence (bombs, tanks, guns etc) ➞ so it is a factual time that exists
Why are wars sort of extinct?
It isn’t really necessary anymore. Nowadays we have the media etc, so states already know what is going on. Back in the day, they had to know if they were under attick to be able to actually have conflicts, and therefore needed the declaration
What is an armed conflict and what if you stay below the threshold?
Definition in Tadic case para 70
- There must be a cetain level of armed forced (either between state vs state, state vs armed group or armed group vs armed group). You must meet certain thresholds
- IHL applies from the moment the hositilies start, until they are factually ended
What if you stay below the threshold?: then you still have criminal law. Domestic laws. It is then a law enforcement thing.
So therefore it is stressed that you look at the factual situation and not what the states say. States can deny being in an armed conflic, but we must look at the factual situation and not what they are saying
Which types of armed conflicts do we distinguish?
- International armed conflicts (IAC)
- Non-international armed conflicts (NIAC)
