Section 9 - Jus in Bello Flashcards
(38 cards)
What does jus in bello mean
legal restraints on battlefield.
what does jus ad bellum mean?
rules that determine under what conditions its lawful for the state to resort to military force, attack.
What are the three main sources of humanitarian law?
International customary law
1899 and 1907 Hague Conferences (Conventions)
1949 Geneva Conventions + Protocols
What are the four core principles of humanitarian law?
Distinction
Military necessity
Unnecessary suffering
Proportionality
what is the function of humanitarian law?
it is not made to rule out war, but its function is to make war as humane as possible
Explain the distinction principle
Who are you allowed to target in the context of a harmed conflict, aka can you apply ur right to kill?
you can’t target civilians.
you can target combattants, and SOME kind of civilians.
“you can kill them all”
explain the necessity principle
everything must serve military object, a purpose in war
explain the unnecessary suffering principle in IL
suffering ur gonna cost in any war must not be unnecessary. if there was another way to get to same point, same advantage in war goals and this implies causering less suffering, you have legal obligation to do that rather than following your initial plan
This also applied to the choice of weapons used
Explain the proportionality principle and give an example
this puts limits on the limit of collateral damage which is appropriate, it shall not be excessive.
EX: targeting military objectives, i.e. weapons factories. There are civilians in this factory. destroying the factory and casualty of 50 workers passes the proportionality test.
Lets say, 1k civilians were hiding underneath it. then states cant be held accountable bc they didnt know.
BUT states have a responsibility to keep civilians off battlefields and away from military objectives, its war crimes.
Explain the inherent problem w the proportionality test
PROBLEM: asking states to compare apples with oranges, impossible to compare in mathematical sense. it shouldn’t be seen as mathematical test between civilian harm and military advantage.
This test calls for a value judgment. any reasonable party with this info should be able to demonstrate they could’ve made the same decision given the info available.
What are the four criteria fpr a militia to obtain combattant privilege?
-Always wore uniform or something that distinctive element that allows other to know not civilian
-Always carry weapon in the open (not hidden)
Belligerent organization has to be hierarcly organized recquries line of command
-The militia cannot engage in war as a way that systematically violates the laws of war
If they dont fill out all of these criteria, then they’re a non combatant (but not civilian?)
How do you define a combattant in Jus in bello?
- De facto fighters of the state
- Means you can be legally targeted but have the right to kill
- Can be targeted at any time (price to pay for right to kill)
How do you define a civilian in IHL
So civilians innocent
- Not right to kill
- But cannot be targeted
What are the four categories of ppl in war?
Combattant
Non-combattant
Civilian
Dangerous Civilian
What does Continuous Combat Function mean?
Continuous combat function requires lasting integration into an organized armed group acting as the armed forces of a non-State party to an armed conflict.
individuals member of unlawful combattant group are set to have Continuous Combat Function, meaning theyre lawful targets of any time, not only when they are shooting at ennemy but literally any time
what are human shields, and when are they war crimes?
Civilians can be targeted if they are being used for military purposes. ppl use them to raise the cost of enemy attack.
Combattants are commiting a war crime – by using human as war shield – to raise the cost of intervention
when it is involuntary, it is harder to asess proportionality principle
what is the difference between a combattant and a non-comabttant at a personal level?
if you capture combatants, you have diff rights than civilians engaged in war.
ie, combatants don’t commit murder when they kill someone, but a civilian does.
no distinction between civilians engaging in hostilities/those who are away. they are all non combatants formally, but there still is a distinction to be made
direct vs continuous combat function
Redraw the schema of determining the status of conflict
see drawing
what are the legal consequences of being considered a combatant?
you get the right to kill and the right to libert.
Why did the ICJ agree to issue an advisory opinion on the legal consequences of the construction of a wall in occupied Palestinian territory?
nothing in statute says that (not abstract, IRL ref) they would have to reject this kind of question, although it has to pass judgement on a state which has not given consent. no legal aspect which they’re violating.
importance/impact of AO vs ruling will depend on how legitimacy of the state is affected by it. this doesn’t depend on whether the ruling is legally binding or not. This has to do with the reaction of other states and how they perceive the bad ruling.
What is the difference between contentious cases and advisory opinions? politically speaking
Legally binding becomes more of a formality, but the real diff between contentious case and AO is that contentious cases refer to specific states and their specific behaviour, whereas AOs are implicitly expected to be about abstract questions, and not to pass judgement on state behaviour and THIS IS WHY they’re non-binding.
What international laws were applicable in assessing the legality of the wall built by Israel in Palestine 2000?
UN Charter (prohibition on acquisition of territory by force).
Customary International Law (general rules on occupation and annexation).
International Humanitarian Law (including the Fourth Geneva Convention).
Human Rights Law (ICCPR, ICESCR, rights to self-determination, movement, residence, health, and education)
What was the ICJ’s conclusion regarding the legality of the wall built by israel in Palestine?
The prohibition on annexation: Acquisition of territory by force is illegal under international law.
Customary International Law and Humanitarian Law: Prohibited forcible transfer of protected persons under the Fourth Geneva Convention.
Human Rights Law: Violated rights to self-determination, movement, health, education, and access to water.
What is the difference between annexation and occupation under international law, and why did the ICJ view the wall in Palestine as a step toward annexation?
The permanent nature of the wall, along with settlement activities and demographic changes, signaled de facto annexation of Palestinian territory.
