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International Law in Times of Armed Conflict
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International Law in Times of Armed Conflict

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  • 1. INTERNATIONAL LAW IN TIMES OF ARMED CONFLICT Dr ANNYSSA BELLAL and GILLES GIACCA
  • 2. Purpose of International Humanitarian Law (IHL)
    • Broadly, IHL aims to limit the effects of war on the civilians and civilian objects.
    • Key message:
    • Do not attack people who no longer take part in hostilities;
    • Do not use weapons that make no distinction between combatants and civilians or weapons & methods of warfare which cause unnecessary suffering and/or damages.
    • .
  • 3.
    • IHL does not determine whether a State has the right or not to resort to armed force. This aspect is governed by a separate branch of public international law within the framework of the UN Charter.
  • 4. IHL General Legal Framework
    • 1864: First Geneva Convention;
    • 1907: Hague Conventions
    • 1949: Four Geneva Conventions ( Wounded and Sick in Armed Forces in the Field (I), Wounded and Sick in Armed Forces in the Field (II), Treatment of Prisoners of War (III), Protection of civilian Persons in Time of War (IV).
    • 1977: Two additional Protocols (Protection of Victims of International Armed Conflicts (AP I), Protection of Victims of Non-International Armed Conflicts (AP II).
    • 2005: Third additional Protocol (Adoption of an Additional Distinctive Emblem (APIII)
    • Weapons Conventions (chemical weapons, landmines, cluster munitions);
    • Customary International Humanitarian Law
  • 5. Definition of “armed conflict” for the purpose of IHL
    • International
    • Any military confrontation, however short, between the military forces or two or more States, or the bombardment of one State by another State, or the invasion of one State by another State, including occupation.
    • Non-international
    • A protracted military confrontation between governmental forces and armed groups, or between two or more armed groups, taking place within the territory of a State.
  • 6. Two branches of International Law: Complementary but applied differently
    • Int’l Humanitarian Law
    • Protects life/health/dignity of categories people (e.g. combatants or civilians, sick and wounded, prisoners of war) and there are special rules for each category.
    • 4 Geneva Conventions and 3 additional protocols
    • Duty falls on the belligerents : States and non-state armed groups
    • Protection applies to situations of armed conflict
    • Permit no derogations, armed conflict is a public emergency
    • Humanitarian law tailored for war ( lex specialis )
    • Protect people who don’t / no longer take part in hostilities
    • Mainly enforced today through international criminal courts and national courts
    • Human Rights Law
    • Protects life/health/dignity of individuals, apply to all persons without distinction
    • Along with the UDHR there are 8 major international treaties, and hundreds of regional and national instruments
    • Duty Falls on States (and non-state actors?)
    • Protection applies at all times (war and peace)
    • Treaties can permit derogation: authorize the suspension of some rights for limited time in public emergencies
    • Protect persons primarily from their own governments
    • Is enforced through the United Nations, regional courts
  • 7. Framing the Debate
    • Changing nature of contemporary warfare
    • Concurrent applicability of different legal regimes, i.e. Human Rights Law.
    • Current challenges
      • Implementation of existing rules
      • Prolonged conflicts
      • Aerial bombardments in urban warfare
      • Humanitarian Access to the civilian population
      • Armed non-state actors
  • 8. Rule of law in Armed Conflicts Project
    • www.adh-geneva.ch/RULAC
  • 9.
    • International Law and the Armed Conflict in Afghanistan
  • 10. Complex legal situation
    • Multiple actors involved:
    • The Afghan military forces;
    • NATO-led military operations (ISAF);
    • US-led coalition ‘Operation enduring Freedom’;
    • Private military and security companies;
    • The Taliban and other armed non-state actors;
  • 11. Obligations of the Afghan government
    • IHL is applicable to any military activities conducted by the Afghan State;
    • The Afghan State has human rights obligations and must report to human rights enforcement mecanisms (such as Human Rights Committee, Committee against Torture).
  • 12. NATO-led operations (ISAF)
    • International humanitarian law and human rights law is applicable to member States but not to NATO as such.
  • 13. NATO countries contributing to ISAF
    • Albania; Belgium; Bulgaria; Canada; Croatia; Czech Republic; Denmark; Estonia; France; Germany; Greece; Hungary; Iceland; Italy; Latvia; Lithuania; Luxembourg; Netherlands; Norway; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; Turkey; United Kingdom; United States.
  • 14. Difficulty
    • Member States have different legal obligations:
      • Ex: Germany is a party to Additional Protocol II but not the United States;
  • 15. Private Security and Military Companies
    • Several are active in the Afghan conflict
    • In general are not directly accountable for their acts under international law;
    • But can be responsible under national law either of the contracting State or of the territorial state of activity;
    • States are internationally responsible for the ‘private actors’ that perform acts of a sovereign nature (law enforcement or military activities)
    • Development of a ‘Voluntary Code of conduct’
  • 16. Armed Non State Actors
    • ‘ any armed group, distinct from and not operating under the control of the State or States in which it carries out military operations, and which has political, religious, or military objectives’
  • 17. International humanitarian law
    • Is applicable to Armed Non State Actors;
    • Common Article 3 to the Geneva Conventions;
    • Protocol Additional II to the Geneva Conventions.
  • 18. Common Article 3 of the Geneva Conventions
    • Applicable to each Party to the Conflict.
    • Prohibition of
    • murder of all kinds, mutilation, cruel treatment and torture;
    • taking of hostages;
    • outrages upon personal dignity, in particular humiliating and degrading treatment;
    • the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
  • 19. Conditions of applicability of APII
    • Organized armed groups;
    • Responsible command;
    • Control of territory.
  • 20. Human Rights and Armed non State Actors
    • Applicability of international human rights law to Armed Non State Actors is very controversial.
    • Human Rights Law regulates the relationship between the State and individuals under its jurisdiction;
    • The United Nations does however address violations committed by Armed Non State Actors in situations of armed conflict (ex: the recruitment of child soldiers)
  • 21. Individual criminal responsibility
    • Members of Armed Non State Actors can be held criminally responsible at the international level (ICTY; ICTR; ICC) for the commission of international crimes (war crimes; crimes against humanity; genocide, torture)
  • 22. Lack of ‘ownership’ of norms
    • Armed Non State Actors cannot participate to the elaboration of international norms that applies to them;
    • Can be prosecuted for having taken the arms of the government (e.g.: no prisoner-of-war status).
    • Only obligations and no “privileges”
    • Adopt illegal strategies to compensate military disadvantage (hiding among civilians)
    • Reject the law adopted by States;
  • 23. How to enhance ownership of norms?
    • Identify the incentives (reasons for Armed Groups to comply)?
    • Many humanitarian organizations engage with armed Non State Actors;
    • Some groups have their own codes of conduct and make unilateral declarations to respect IHL.
  • 24. Taliban Code of Conduct
  • 25.
    • On prisoners:
    • "Whenever any official, soldier, contractor or worker of the slave government is captured, these prisoners cannot be attacked or harmed.
    • On civilian casualties:
    • "Governors, district chiefs and line commanders and every member of the Mujahedeen must do their best to avoid civilian deaths, civilian injuries and damage to civilian property. Great care must be taken.  
    • On suicide attacks:
    • "Suicide attacks should only be used on high and important targets. A brave son of Islam should not be used for lower and useless targets. The utmost effort should be made to avoid civilian casualties.“
    • On relations with the Afghan people:
    • "The Mujahideen have to behave well and show proper treatment to the nation, in order to bring the hearts of civilian muslims closer to them. The mujahideen must avoid discrimination based on tribal roots, language or their geographic background
  • 26. Conclusion
    • Armed conflicts do not take place in a legal vacuum;
    • Contemporary legal framework regulating armed conflicts aims at the protection of human life and dignity;
    • Challenge lies today in a stronger implementation of the law.
  • 27. Further reading
    • Andrew Clapham, “Human Rights: A very short introduction”, Oxford University Press, 2007
    • Crimes of war Project. What the public should know book , www.crimesofwar.org
    • www.icrc.org
    • www.adh-geneva.ch/RULAC

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