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PIL (Leiden) > Week 7 - IHL > Flashcards

Week 7 - IHL Flashcards

1
Q

What is ‘Equality of Belligerents’? (2)

A

1) All parties to an armed conflict must always comply with their IHL obligations
2) API Preamble

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2
Q

What is ‘Non-reciprocity of humanitarian obligations’? (3)

A

1) IHL must be respected even if violated by adversary
2) Common Art 1;
3) CIHL Rule 1

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3
Q

What 2 principles does IHL balance?

A

1) Military Necessity (Art 35(1) API)

2) Humanity

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4
Q

What is the principle of ‘Distinction’? (4)

A

1) Belligerents must distinguish between civilians and combatants and civilian objects and military objectives
2) only the latter must be targetted
3) Art 48 API
4) Rules 1 and 7 CIHL

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5
Q

What are the 2 elements of the principle of ‘Precaution’¨?

A

1) Precautions in attack (Art 57 API)

2) Precautions against the effects of attack (Art 58 API)

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6
Q

What is the principle of ‘Proportionality’? (4)

A

1) Attacks must not excessively cause incidental loss of civilian life, injury or damage to civilian objects in relation to the concrete and direct military advantage anticipated
2) Arts 51(5) and 57 API
3) CIHL Rules 14, 18 and 19
4) only relevant for attacks directed against lawful targets

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7
Q

What is the principle of ‘Unnecessary Suffering’ (3)

A

1) Weapons and methods of warfare cauing unnecessary suffering are prohibited
2) Art 35(2) API
3) CIHL Rule 70

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8
Q

What is the principle of ‘Humane Treatment’?

A

1) Persons not taking active part in hostilities shall in all circumstances be treated humanely without discrimination
2) Common Art 3(1)
3) CIHL Rules 87 and 88

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9
Q

What are the most important sources applying to IACs? (4)

A

1) 1949 Geneva Conventions I-IV
2) Additional Protocol I
3) Specific Weapons Treaties (e.g. Convention on Certain Conventional Weapons)
4) Customary IHL

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10
Q

What is an IAC? (2)

A

1) International Armed Conflict

2) armed conflict between 2 or more States

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11
Q

What is a NIAC? (3)

A

1) Non-International Armed Conflict
2) they may be transnational
3) between States and Non-Governmental Armed Groups or between such groups only

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12
Q

What are the most important sources applying to NIAC? (3)

A

1) Common Art 3
2) Additional Protocol II
3) Customary IHL

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13
Q

What is the status of Common Article 3? (2)

A

1) applies to ALL armed conflict as CIHL

2) Military and Paramilitary Activities

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14
Q

What is the difference between jus ad bellum and IHL? (2)

A

1) jus ad bellum: regulates when resort to use of force is lawful
2) regulates armed conflict once arisen

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15
Q

What are 3 points of difference between IHL and HRL?

A

1) Territorial Scope
- IHL: territories of belligerents and where forces meet
- HRL: only territory controlled by State

2) Scope of protection
- IHL: no enforceable individual rights; protects objects; binds armed groups
- HRL: individually enforceable rights and binds only states

3) Derogability:
- IHL: no derogation
- HRL: derogation but applies in peacetime

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16
Q

What happens when HRL and IHL apply to same situation?

A

1) may mutually reinforce if convergent

2) where contradiction, IHL applies as lex specialis (Legality of Threat or Use of Nuclear Weapons)

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17
Q

What are the largest issues for IHL today? (3)

A

1) Asymmetric Conflict straints non-reciprocity and equality of belligerents
2) Remote-controlled drones: inability to capture rather than kill
3) Cyber warfare: what amounts to an ‘attack’ (Art 49(1) API)

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18
Q

What are the 2 types of ‘Law’ in IHL? (3)

A

1) Hague Law: means and methods of warfare
2) Geneva Law. protection of individuals not particpating in fighting
3) API and APII blur the distinction

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19
Q

When does IHL apply? (2)

A

1) Governs armed conflict and actiosn taken for reasons related to the conflict
2) Art 1(2) APII

20
Q

What aspects of IHL apply outside the ‘armed conflict’ itself? (5)

A

1) Weapons Treaties
2) State obligation for IHL training and dissemination
3) State obligation to prosecute war crimes
4) obligations regarding detainees for reasons related to armed conflict until repatriated or status normalized
5) Occupied territories remain covered until political solution to status is found

21
Q

What are 2 reasons for distinguishing between NIACs and IACs?

A

1) Higher threshold of violence for NIACs to permit law enforcement
2) Avoid legitimizing insurgencies (common Art 3 - not affect legal status of parties)

22
Q

What are the 2 requirements for an IAC? (3)

A

1) Common Art 2;
2) Legal Status of Parties (must be Contracting States or group recognized in Art 1(4) API)
3) Nature of confrontation (must be war, armed conflict or occupation)
4) no requirement for recognition of govt of adversary (Art 4(A)(3) GC III)

23
Q

What are 2 Elements of the Nature of Confrontation in IACs?

A

1) Belligerent Intent (can be implied by use of armed forces by States)
2) Use of force (very little required if belligerent intent)

24
Q

What are 3 caveats to the ‘Use of Force’ requirement in IAC’s?

A

1) National liberation movements (Art 1(4) API) may have higher threshold for force like NIACs
2) Formal declarations of war obviate need for use of force
3) territorial occupation of another State’s territory obviate need for use of force

25
Q

When do IACs begin and end? (2)

A

1) Begin: satisfaction of the 2 requirements
2) End: intention of belligerent parties to bring it to permanent conclusion in circumstances reasonably interpreted as general cessation.

26
Q

What is the territorial scope of IACs? (3)

A

1) IHL extends to any act carried out for reasons related to the conflict
2) not limited to belligerents’ territories
3) Tadic (ICTY)

27
Q

What does common Article 3 tell us? (5)

A

1) all persons taking no active part in hostilities shall be treated humanely
2) prohibition on violence to life and person
3) prohibition on hostage-taking
4) prohibition on outrages on personal dignity
5) prohibition on sentencing an executing without judgment

28
Q

When does APII apply? (7)

A

1) Art 1 APII
2) applies to NIACs
3) on territory of Contracting State
4) between armed forces and armed groups
5) under responsible command
6) exercising such control over part of territory to enable sustain and concerted imlitary operations
7) and to implement the protocol

29
Q

What is required for a NIAC? (3)

A

1) Tadic (ICTY)
2) a minimum level of organization
3) ‘Protracted violence’ (interpreted in Haradinaj as referring to intensity)

30
Q

What factors are indicative in assessing organization of NSAG? (8)

A

1) Haradinaj
2) Command Structure and disciplinary rules
3) HQ
4) control of territory
5) access to weapons, equipment, recruits and training
6) ability to plan, coordinate and carry out military operations
7) ability to define unified military strategy and military tactics
8) ability to speak with unified voice

31
Q

What factors are indicative in assessing intensity of NIAC? (9)

A

1) Haradinaj
2) Number, duration and intensity of confrontations
3) type of weapon and equipment
4) number and calibre of munitions fired
5) number of persons and type of forces
6) number of casualties
7) extent of material destruction
8) number of civilians fleeing combat zone
9) involvement of UNSC

32
Q

What is the temporal scope of NIACs? (2)

A

1) Begin: once 2 thresholds are met

2) end: once peaceful settlement is achieved (Tadic)

33
Q

What is the territorial scope of NIACs? (2)

A

1) common Art 3: requires territorial state to be contracting State
2) Art 1 APII requires territorial State to be both contracting state AND a belligerent party
3) IHL applies to territory controlled by belligerent party and situations with nexus to conflict (Tadic)

34
Q

What happens when NIACs spill over into third States (according to ICRC)

A

1) if consent of neighbouring state –> join original NIAC

2) if no consent of neighbouring State –> IAC (disputed whether subsumes the NIAC)

35
Q

What are pros and cons of IHL applying? (2)

A

1) Pro: permits use of force against non-state actors (especially on foreign territory)
2) Con: limits ability to suppress internal uprisings

36
Q

What is the result of intervention in a NIAC by third States? (3)

A

1) intervention to support State against NSAG–> NIAC
2) intervention to support NSAG against State –> Concurrent NIAC and IAC
3) overall control of NSAG fighting State –> only IAC (Tadic)

37
Q

What is required for ‘overall control’ of a NSAG by a State? (3)

A

1) Tadic AJ (ICTY)
2) General organization, coordination and planning of the group’s military activities
3) does not require issuing specific instructions for specific acts (Cf. ‘Effective Control’ in Nicaragua - requires this)

38
Q

When are irregular militia and volunteer corps considered ‘members of armed forces’ and thus combatants? (3)

A

1) Art 1 Hague Regulations
2) Must be commanded by person responsible for subordinates
3) must carry arms openly

39
Q

What are participants in a levée en masse? (4)

A

1) inhabitants of non-occupied territory spontaneously taking up arms to resist invaiding forces without time to form regular armed units
2) must carry arms openly and respect laws of war
3) Art 2 Hague Regulations
4) treated as combatant

40
Q

What are consequences of combatant status under IAC? (3)

A

1) Loss of civilian status and its protection against direct attack
2) Combatant’s privilege to particpate in hostilities on behalf of party to IAC (Art 43(2) API)
3) right to be treated as PoW

41
Q

What is a civilian? (2)

A

1) all persons neither members of armed forces nor participants in a levée en masse (Art 50 API; CIHL Rule 5)
2) If doubt, presumption in favour of civilian (Art 50 API)

42
Q

What is the rule regarding civilians particpating in hostilities? (3)

A

1) civilians are entitled to protection against direct attack
2) unless and for such time as they take direct part in hostilities
3) Art 51(3) API; CIHL Rule 6

43
Q

What is a military objective? (3)

A

1) objects by their nature, location, purpose, or use make effective contribution to military action and whose destruction, , capture or neutralization offers a definite military advantage
2) Art 52(2) API; CIHL Rule 8
3) if doubt presumed to be civilian object (Art 52(3) API)

44
Q

Dual use objects? (2)

A

1) both a civilian object and military objective

2) negative impact on civilian population only relevant for proportionality assessment

45
Q

What is the interrelation between principles of precaution and proportionality?

A

1) applied in conjunction but also independently
2) Thus, despite an attack being proportionate, all feasible precaution must still be taken to avoid as much incidental harm as possible

46
Q

What are 2 views about the status of members of armed groups?

A

1) members of ‘armed forces’ of one party to conflict
2) civilians taking direct part in hostilities

–> either way legitimate targets

47
Q

What are 2 problems with US White Paper on Al-Qaeda proclaiming global NIAC?

A

1) whilst all situations with nexus to NIAC fall under IHL there must be a NIAC somewhere
2) does AQ have characteristics of single armed group? more of a network

PIL (Leiden) (9 decks)

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