Session 10 Flashcards
Q: What are the two criteria for identifying a Non-International Armed Conflict (NIAC)?
A: (1) A certain level of intensity in the violence; (2) the presence of organized armed groups.
Q: What treaty provision is considered the foundational legal source for NIACs?
A: Common Article 3 of the 1949 Geneva Conventions.
Q: What is the significance of Common Article 3 in the law of armed conflict?
A: It applies to all NIACs and sets minimum standards for humane treatment, including prohibitions on torture, murder, and degrading treatment.
Q: What are the conditions for Additional Protocol II (AP II) to apply to a NIAC?
A: The armed group must be organized, and must control territory and conduct sustained military operations against state forces.
Q: Why do many states hesitate to acknowledge a NIAC within their borders?
A: Recognizing a NIAC may legitimize insurgent groups and trigger international legal obligations.
Q: What role does customary international law play in NIACs?
A: It fills gaps in treaty law and extends protections found in IACs, such as the conduct of hostilities and protection of civilians.
Q: Which ICTY case expanded the definition of a NIAC and emphasized the criteria of intensity and organization?
A: The Tadić case (1995).
Q: Can war crimes be prosecuted in NIACs under international criminal law?
A: Yes. War crimes committed in NIACs are punishable under the Rome Statute and precedents from ICTY and ICTR.
Q: What are some examples of contemporary challenges in classifying NIACs?
A: The presence of transnational armed groups, spillover conflicts, and multiple non-state actors with shifting alliances.
Q: What protections exist for civilians in NIACs under IHL?
A: Prohibitions on indiscriminate attacks, starvation as a method of warfare, and forced displacement, mainly from CA3, AP II, and customary law.
Q: Why does Frédéric Mégret argue that justice for Ukraine depends on the outcome of the war?
A: Because meaningful accountability is more likely after a Ukrainian victory; a Russian victory or ambiguous peace could undermine legal efforts.
Q: How is Ukraine using international law in its response to Russian aggression?
A: Ukraine is actively using domestic and international legal mechanisms (e.g., ICC, ICJ, ECHR), not as lawfare but as a legitimate application of law.
Q: What is Russia’s strategy regarding international justice mechanisms?
A: Russia avoids jurisdiction, withdraws from institutions, and uses propaganda and distorted legal arguments (e.g., genocide claims) to justify its actions.
Q: What are the challenges to prosecuting Russian leaders for aggression?
A: Legal hurdles include sovereign immunity, lack of access to suspects, and Russia’s veto at the UN Security Council, which blocks tribunal creation.
Q: What does Mégret say about the proposed special tribunal for aggression?
A: It may be created for symbolic purposes, but will likely be ineffective unless it can actually arrest suspects and enforce rulings.
Q: How does Mégret describe the nature of Russian actions in Ukraine?
A: He suggests Russia may be pursuing an “almost genocidal” strategy, aimed at destroying Ukrainian identity, not just achieving military goals.
Q: What was Thomas Lubanga Dyilo charged with at the ICC?
A: War crimes for conscripting, enlisting, and using children under 15 to actively participate in hostilities in a non-international armed conflict.
Q: What was the ICC’s conclusion about the nature of the conflict in Ituri between 2002 and 2003?
A: It was a non-international armed conflict despite foreign involvement by Uganda and Rwanda, which did not internationalize the conflict involving the UPC/FPLC.
Q: How did the ICC define conscription, enlistment, and use in hostilities regarding child soldiers?
Conscription = forcible recruitment
Enlistment = voluntary recruitment
Use in hostilities = direct combat roles and support roles (e.g., scouts, bodyguards, messengers)
Q: Under which legal provision was Lubanga prosecuted for using child soldiers?
A: Article 8(2)(e)(vii) of the Rome Statute, which criminalizes the recruitment and use of children under 15 in non-international armed conflicts.
Q: Why was the “voluntary” nature of child participation rejected as a defense?
A: Because children under 15 cannot legally consent to enlistment, and international law prohibits their recruitment regardless of voluntariness.
Q: What is the significance of the Lubanga case in international law?
A: It was the first ICC conviction, establishing important precedents on the use of child soldiers and clarifying legal standards for NIACs.
Q: What is the main argument of the ICTJ briefing on Ukraine?
A: Justice in Ukraine must go beyond prosecutions and include victim-centered, restorative approaches to rebuild a democratic, inclusive society.
Q: What are some multilateral efforts underway to pursue accountability for crimes in Ukraine?
A: ICC investigations, the Joint Investigation Team (JIT), Ukraine’s ICJ genocide case, and proposals for special tribunals for aggression.
