LAWS4239 – Armed Conflict

Tips for Exam

 Write only the Article number. i.e. 36 – if the answer is Article 36
 Brackets for Geneva Conventions
 Dots for Additional Protocol

Week 1 – Introduction to IHL

 History of rules of warfare
 19th century – the birth of conventional IHL
 World Wars
 Modern LOAC

HISTORY OF LOAC
 Jus ad Bellum: going to war
 Jus in Bello: fighting the war

 China (4th Century B.C)

o Sun Tzu’s The Art of War set out a number of rules that controlled what soldiers were permitted to do
during war
 captives must be treated well and cared for; and
 natives within captured cities must be spared and women and children respected.
 Babylon (7th century B.C.)
o The ancient Babylonians treated both captured soldiers and civilians with respect in accordance with
well-established rules.
 Middle Ages
o Victors were entitled to spoils of war, only if war was just.
o Forces prosecuting an unjust war were not entitled to demand Jus in Bello during the course of the conflict.
o Red Banner of Total War. Signalled a party's intent to wage absolute war (Joan of Arc announced to British "no
quarter will be given")

Lack of Care or Protection for the Hors de Combat

 Little or no care was available for sick and wounded
 Medical personnel not respected
o Could be prosecuted for assisting enemy
 Conditions were often appalling
 Little, if any respect was given to prisoners
 US civil war was particularly brutal
o PW camps had an average 25% mortality rate

Lieber Code

 The "Lieber Instructions" represent the first attempt to codify the laws of war.
o Prepared during the American Civil War by Francis Lieber.
o Strongly influenced the further codification of the laws of war and the adoption of similar regulations by
other states.
o Formed the origin of the project of an international convention on the laws of war presented to the
Brussels Conference in 1874 and stimulated the adoption of the Hague Conventions on land warfare of
1899 and 1907

Articles within the Lieber Code

• Art. 49 -...prisoners of war... [are]entitled to the privileges of a prisoner of war

• Art. 53 -The enemy's chaplains, ...medical staff, ... are not prisoners of war, unless the commander has reasons to
retain them.
• Art. 60 - It is against the usage of modern war ...to give no quarter.
• Art 76 - Prisoners of war shall be fed ... and treated with humanity

St Petersburg Declaration – 1868

• The Contracting Parties engage mutually to renounce, in case of war among themselves, the employment by their
military or naval troops of any projectile of a weight below 400 grams, which is either explosive or charged with
fulminating or inflammable substances.

MODERN ERA

 Multilateral Treaties
 Customary Law

1. Geneva Stream
a. GENEVA CONVENTION: Protect the victims of war, e.g.:
i. Wounded and sick soldiers
ii. Wounded, sick, and shipwrecked sailors
iii. Prisoners of war
iv. Civilians
2. Hague Stream
a. HAGUE CONVENTION: Regulate the conduct of hostilities, e.g.:
i. Customs of land warfare
ii. Rights and duties of neutral powers
iii. Naval bombardment
iv. Poisonous gases
v. Cultural property

Geneva Stream
 Anything between 1864 to 1949 is historical
 1864 - Geneva Convention (Wounded) – Historical
 1906 - Geneva Convention (Shipwrecked) – Historical
 1929 - Geneva Conventions (Wounded & PW) – Historical
 1949 - Geneva Conventions (Wounded, Shipwrecked, PW & Civilians)
 1977 - Additional Protocols (International & Non-international Armed Conflicts)
 1998 - Rome Statute of the International Criminal Court
 2000 - Optional Protocol to the Convention on the Rights of the Child on the involvement of children in
armed conflict ( a human rights treaty)

Hague Stream

 1868 - St. Petersburg Declaration

 1899 - Hague Declaration - Asphyxiating Gases
 1907 - Hague IV Convention with Regulations
 1925 - Gas Protocol
 1954 - Hague Cultural Property Convention
 1980 - Conventional Weapons Convention
 1993 - Chemical Weapons Convention
 1997 - Anti-Personnel Mine Convention
 2008 - Convention on Cluster Munitions

Timeline of events

 1864
o Geneva Convention
  Sick and wounded shall be collected and cared for
 Neutrality of medical personnel and transports
 No prosecution of civilians who treat the wounded
 Adoption of the symbol of the Red Cross
 1868 protocol – extended to hostilities at Sea
 1899 to 1907
o The Hague Peace Conferences: The Hague
 Set out general rules for how we fight – intention was to get rid of war.
 No mention of God in regulation. First body of secular international law
 1906
o Geneva Convention
 Increased scope of respect and protection to medical personnel and the dead.
 1929
o Convention Relative to the Treatment of Prisoners of War
 Provisions for POW were contained in The Hague Regulations of 1899 and 1907.
o WW 1 - deficiencies & lack of precision.
o 1929 - ICRC draft submitted to the Diplomatic Conference convened at Geneva in 1929.
o 1929 Convention does not replace but only completes the provisions of the Hague regulations.
o Russia, Japan do not sign.

 1945 – WORLD WAR II

World War II then breaks out in 1945 – What does this mean about Germany and Russia. Germany doesn’t have to
apply to Russian Prisoner of War. Australian didn’t need to apply it, but they still did. Japan didn’t need to apply it
and they chose not to.

However, Germans treated in accordance to Geneva Convention. Did not torture and treat incredibly bad.

 1949
o The Geneva Convention of 1949 (Current Version)
 GC I – Wounded and Sick in Armed Forces in the Field
 CGII – Wounded, Sick and Shipwrecked in Armed Forces at Sea
 Civillians
 GC IV – Protection of Civilian Persons in the Time of War
 Note: If you are engaged in war and you are signatory, then you apply it – no matter who the
other side is.
 Note: There are no states that have not signed it. Part of ‘Statehood’ is signing the Geneva
Convention.
 1977
o Protocols Additional to the Geneva Conventions
 API – Protection of Victims of International Armed Conflicts (U.S.A has not signed up) –
Recognised ‘armed groups’ in international law and gave them similar rights to armed forces.
 AP II - Protection of Victims of Non-International Armed Conflicts
 AP III - Adoption of an Additional Distinctive Emblem

Other protections

 1954
o Convention for the Protection of Cultural Property
 Movable or immovable property of great importance to the cultural heritage of every people,
such as monuments, buildings of cultural significance, museums, art or history,
archaeological sites; … important collections of books or archives …
 Note: (1999 Protocol provides enhanced protection)

 1972
o Biological Weapons Convention
 States Party will never in any circumstances develop, produce, stockpile or otherwise acquire
or retain and will destroy:
  microbial or other biological agents, or toxins whatever their origin or method of production,
of types and in quantities that have no justification for prophylactic, protective or other
peaceful purposes;
 weapons, equipment or means of delivery designed to use such agents or toxins for hostile
purposes or in armed conflict.
 1980
o Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
 Non-Detectable Fragments (Protocol I);
 Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol
II); (amended 1996)
 Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III).
 Blinding Laser Weapons (Protocol IV)
 Explosive Remnants of War (Protocol V)
 Note: Weapons made by carbon are unlawful because they are undetectable by X-Ray.
 1993
o Chemical Weapons Convention (1993)
 Each State Party to this Convention undertakes never under any circumstances:
 To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or
transfer, directly or indirectly, chemical weapons to anyone;
 To use chemical weapons…
o Includes inspection and challenge mechanisms through OPCW
o Bans production, use or stockpiling of chemical weapons.
o He is qualified expert on chemical weapons. Be there to give legal advice.
How do we handle this?
 1997
o Ottawa Convention - Mines
 Each State Party undertakes never under any circumstances:

a) To use anti-personnel mines;

b) To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or

indirectly, anti-personnel mines….
 Note: Anti-Personnel Landmines. America will refuse to sign until Korean War is over. They
have stated that they will only use it in that area.

 2008
o Cluster Munitions
 Each State Party undertakes never under any circumstances to:
 (a) Use cluster munitions;
(b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or
indirectly, cluster munitions;
…

2. Paragraph 1 of this Article applies, mutatis mutandis, to explosive bomblets that are
specifically designed to be dispersed or released from dispensers affixed to aircraft.

 Note: USA has not signed it.

Customary International Law

 Plays a huge role in IHL

 Fills the gaps not covered by Conventions
 Particularly important in non-international armed conflicts
o Common Article 3
 Most aspects of conventional IHL are considered customary, especially protection of victims of warfare
 We can look to the conventions, particularly additional protocol 1. Most of the concepts are recognised as
customary international law by the whole world.
  Custom binds everybody. Even non-signatory. That law is going to apply to the individual. If they break
the rules of customary law, they can be held accountable in the International Criminal Tribunal.
 Ie. If Australian tried in Australian Court. Australia will determine whether it is a customary law based on
domestic law and Australia’s interpretation of customary international law. If Australian Government
doesn’t agree that its customary law, it will be fought in court.

Since, 2000 the vast majority have not been state on state armed conflict. The majority of armed conflict is non-
international – Additional Protocol 2 of the Geneva Convention is the only Treaty that applies.

Martens Clause

 The Maretens Clause states that insofar as the LOAC treaties are silent on a specific issue, customary
international law continues to govern the situation.
 Martens Clause implies that what is not expressly forbidden by the LOAC is not necessarily permitted.
 Compare to Luts Case

Week 1 – Jus ad Bellum

 Historical Overview
 Attempts to Outlaw War
 The Era of the UN Charter
 Customary Self-Defence
 Humanitarian Intervention
 Regional Stability Operations

World War I
 The casualties suffered by the participants in World War I dwarfed those of previous wars:
o some 8,500,000 soldiers died as a result of wounds and/or disease.
o The greatest number of casualties and wounds were inflicted by artillery, followed by small arms, and then by
poison gas. War was increasingly mechanized from 1914 and produced casualties even when nothing important was
happening.
o On even a quiet day on the Western Front, many hundreds of Allied and German soldiers died.
o The heaviest loss of life for a single day occurred on July 1, 1916, during the Battle of the Somme, when the British
Army suffered 57,470 casualties.
 WW 1 was considered “total” in character because it resulted in the mobilization of entire populations and economies for a
prolonged period of time, did not fit into the Clausewitzian pattern of limited conflict, and it led to a renewal of other theories.
 These no longer regarded war as a rational instrument of state policy. The theorists held that war, in its modern, total form, if
still conceived as a national instrument, should be undertaken only if the most vital interests of the state, touching upon its
very survival, are concerned.

The League of Nations

 During the war, influential groups in the U.S and Britain urged for the creation of such a body.
o A league covenant, embodying the principles of collective security (joint action by League members against an
aggressor), arbitration of international disputes, reduction of armaments, and open diplomacy, was formulated and
subscribed to by the Allies at the Paris Peace Conference (1919).
 The Covenant established the League’s directing organs:
o an assembly composed of representatives of all members;
o a council composed of permanent representatives of the leading Allied Powers (with additional rotating members);
and a secretariat (executive),
o presided over by a secretary general.
 It also provided for a Permanent Court of International Justice and for a system whereby colonies in Asia and Africa would be
distributed among the Allied Powers in the form of mandates.
 It was seriously weakened, however, by the non-adherence of the United States; the U.S. Congress failed to ratify the Treaty
of Versailles (containing the Covenant).

Kellog Briand Pact (1928) – Historical interest, superseded

 Three articles. Ratified by a number of countries. However, did not prevent war.
o First breach was Japan’s invasion of Manchuria in 1931
o Followed by breaches by US, Italy, USSR and Germany
 o Signatories waged war without declaring it
o Effects on future Treaties?
 Remove the boundary between peace and war.

Just War (Bellum Justum)

 Just War Theory (or Bellum iustum) is a doctrine of military ethics of Roman philosophical and Catholic
origin, studied by moral theologians, ethicists and international policy makers, which holds that a conflict
can and ought to meet the criteria of philosophical, religious or political justice, provide:
o the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave,
and certain;
o all other means of putting an end to it must have been shown to be impractical or ineffective;
o there must be serious prospects of success;
o the use of arms must not produce evils and disorders graver than the evil to be eliminated.
 Not a justification for going to war under the UN Charter

Use of Force Under the Charter of the United Nations

UN Charter Preamble:
 We the peoples of the United Nations, determined to save succeeding generations from the scourge
of war, which twice in our lifetime has brought untold sorrow to mankind…
 Purposes
o International peace & security
o Equal rights & self-determination
o International co-operation (economic, social, cultural, humanitarian)
o Harmonise actions of nations
o So no longer a sovereign right to wage war whenever see fit – now an international legal
regime governing
UN Charter

Article 1 – The Purposes of the United Nations are:

 To maintain international peace and security, and to that end:
 to take effective collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace....

Article 2(4):
 All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state.
 Even if you are not a member state, this is binding law – prohibition is binding law, because it is
custom.

Nicaragua vs. United States – Best interpretation of Prohibition

 Facts:
o 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favour of Nicaragua and against
the United States.
 Held:
o Court found a violation of art. 2(4) had occurred. However, later on the Court blocked enforcement of the
judgement by the UN Security Council and thereby prevented Nicaragua from obtaining any actual
compensation.
o The Court found in its verdict that the United States was "in breach of its obligations under customary
international law not to use force against another State", "not to intervene in its affairs", "not to violate its
sovereignty", "not to interrupt peaceful maritime commerce",

Chapter 5 – Security Council Intervention

Charter of the United Nations

  Article 39 – The Trigger
o Anyone can come to security council for relief.
o The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression
o If security council can reach an agree that threat exists, then it is a trigger for the use of
force. Does not mean a finding will result in a use of force. ONLY until security council
agrees.
o Security Council will then determine whether Chapter 7 action is the most appropriate.
 Article 40 – Demands for nations to comply (Enforcement option)
 Article 41 – Sanctions (Enforcement option)
 Article 42 - Restoring IP&S in a geographic area (Enforcement option)
o Implementing a Peace Plan
o Armed intervention
o Enforcement for Specific Tasks- humanitarian delivery/elections
 Article 51 – Self Defense under UN Charter

Article 40 – Call upon parties to comply

Article 41 – Measures not involving use of force / Sanctions – Not involving armed forces

 The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations to
apply such measures.

Article 42 – Restoring IP&S in a geographic area (Enforcement option)

 Should the Security Council consider the measures provided for in Article 41 would be inadequate
or have proved to be inadequate, it may take such action by air, sea or land forces as may be
necessary to maintain or restore international peace and security.

Article 51 – Self Defence under UN Charter

 WHO:
o Individuals or States have the inherent right of self defence if an armed attack occurs.
 WHAT:
o Self-Defence measure necessary to maintain international peace and security, while the
Security Council decides what to do (Self-Defense does not impair the authority of the SC to
take action).
o Self Defence can be triggered by:
 Armed attack
 Non-kinetic attack
 CONDITIONS:
o Actual/imminent armed attack
o Response by force must be necessary (last resort)
o Acts of self-defence must be strictly confined to the object of stopping the attack
o Acts of self-defence must be proportionate to the threat
 NB:
o Unwilling or Unable Doctrine
 A targeted killing conducted by one State in the territory of a second State does not
violate the second State’s sovereignty if either:
 (a) the second State consents, or
  (b) the first, targeting State has a right under international law to use force in self-
defence under Article 51 of the UN Charter, because . . . the second State is
unwilling/unable to stop armed attacks against the first State launched from its
territory.

Customary International Law - Anticipatory Self Defence

 Derived from The Caroline Case

 Requirements
o 1. Use of force is necessary because the threat is imminent and pursuing peaceful
alternatives is not an option;
o 2. The response must be proportionate to the threat.
 Necessary = "instant, overwhelming, leaving no choice of means, and no moment of deliberation"

Defence of Nationals Abroad

 Nations have a right and duty to protect their citizens

 Usually when there is a deteriorating security situation and the host state is unwilling or unable to
protect foreign nationals

Week 2 – Commencement and End of Application of IHL

1. Defining War and Armed Conflict
2. Legal Effects of Armed Conflict
3. Types of Armed Conflict
4. Contemporary Issues

1. Defining War and Armed Conflict

 No Specific Definition
o Oppenheim: “a contention between two or more States through their armed forces, for the purpose of overpowering
each other and imposing such conditions of peace as the victor pleases” – definition lacks non-state actors.
o Encyclopedia Britannica - a conflict among political groups involving hostilities of considerable duration and
magnitude – definition does not include religious groups,
o ICRC – when one or more States have recourse to armed force against another State, regardless of the reason or
the intensity of the confrontation – IHL will kick in whenever there is recourse to armed force amongst states.
o ICTTY Tadic Case, Appeals Chamber
 ‘…an armed conflict exists whenever there is a resort to armed force between States or protracted armed
violence between governmental authorities and organized armed groups or between such groups within a
State.’ – sets a standard for non-international armed conflict is that there has to be protracted armed
violence.
 TEST:
o One or more organized armed groups
o Engaged in fighting of some intensity

 Why is the definition of war important?

o Triggers International Humanitarian Law
 States can use force without saying self defence
o Rules of society are fundamentally changed

2. Legal Effects of Armed Conflict

 Law of Armed Conflict is triggered (lex specialis)

 Law of neutrality applies
 International Criminal Law applies
 IHRL derogation clauses apply
 Obligation to accept refugees

3. Types of Armed Conflict

 Geneva Convention comes into force

• Common Article 2 – International Armed Conflict
• In addition to the provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognized by one of
them.
•
• Common Article 3 – Non-International Armed Conflict
• In the case of armed conflict not of an international character occurring in the territory of one of
the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the
following provisions:
• TEST for NIAC:
• 1. Minimum Level of Intensity - When the hostilities are of a collective character or
when the government is obliged to use military force against the insurgents, instead of
mere police forces.
• 2. Non-Governmental Groups – must be considered ‘parties to the conflict’
• be under a certain command structure, and have the
• capacity to sustain military operations.
• NOTE: NIAC threshold matters because once it is met LOAC applies.

 Complex Situations
• Mixed International and Non-International Armed Conflicts
• Nicaragua
• Conflict between the contras' forces and those of the Government of Nicaragua is an
armed conflict which is 'not of an international character'.
• Whereas, the actions of the United States in and against Nicaragua fall under the legal
rules relating to international conflicts.

 End of Application of IHL:

• RULE:
• Unless there is a good reason of text, principle or policy that warrants an exception, the
application of IHL will cease once:
• the conditions that triggered its application in the first place no longer exist.’ (Milanovic
(2014) 170)
• general close of military operations, with no real likelihood of a resumption of hostilities
(Milanovic, 174)
• ‘a sufficiently general, definitive and effective termination so as to end the applicability
of the law of armed conflict…(Gotovina Case (ITCY – 2011)
• whether there was a general close of military operations and a general conclusion of
peace’ (para 1694)
• Threshold is very easily met – what is more important is for a degree of stability and permanence in the
cessation of hostilities.

 Consequence of Return to Peace

• Repatriation of PWs (GC III art 118);
• Targeting rules cease to apply (API art 3(b)),
 • IHRL Derogations end
• War crimes treaties/legislation no longer apply
• No blockades, no neutrality
 Occupation
• Difficult legal environment – especially if insurgents are active
• GC IV applies, CA 3
• Policing can be very difficult
• Court system should remain intact, but what if judges were all political appointments?
• What about those who are security risks?

4. Contemporary Issues

1. Global War on Terror

2. ISIS
3. Pakistan India Border Region
4. North Korean Aggression
5. Mexico

 Global War on Terror Algerian Hostage Situation

o Becomes difficult to find out where the threshold is and when it applies for modern day war on terror. Ie.
Melbourne man running people over in cars.. can the police just shoot him?
 ISIS – Syria and Iraq
o U.S, Australia, Canada, UK operating out of Iraq and attacking ISIS targets in Iraq and Syria without
permission of Syrian Government
 Pakistan India Border
o The South Asian rivals have fought two of three wars over territorial issue in 1947 and in 1965. A third
conflict between India and Pakistan erupted in 1999 after Pakistani-backed forces infiltrated Indian-
controlled Kashmir in the Kargil area.
 North Korean Attacks on South Korea
o Torpedo sinks South Korean Ship – broke in half, sank; 46 sailors killed.
o Technically still at war
 ‘the Armistice Agreement of 1953 is merely a ceasefire agreement and the parties are yet to
negotiate the peace agreement expected to formally conclude the 1950-53 conflict’.
 ‘Resort to armed force between States’ in the form of the alleged launching of a torpedo into the
Cheonan or the launching of shells into Yeonpyeong, created an international armed conflict
under customary international law’.

Week 2 – Fundamental Principles of IHL

 Primary Concepts
 Fundamental Principles
 Operational Principles

1. Core Principles

1. Military Necessity
2. Humanity
3. Distinction
4. Proportionality
NOTE:
 The four principles must be considered together in that no single principle can be considered in isolation from
the other two.
o In other words, whilst military necessity may justify a particular action, the action may cause
unnecessary suffering including civilian death, or damage may be totally disproportionate to the
military advantage to be gained. If so, the action should not proceed because the military necessity is
outweighed by proportionality and humanitarian considerations.

Military Necessity
 The principle whereby a belligerent has the right to apply any measures which are required to bring about the
successful conclusion of a military operation and which are not forbidden by the laws of war
 Recognises that violence is necessary for military purposes
 Violence is to only be directed to military objectives
o 1. Combatants
o 2. Unlawful Combatants
3. Military Objectives
 Serves as a benchmark - not a carte blanche for unrestricted violence
o What is not necessarily prohibited by LOAC, does not mean it is permitted.
 LIMITATION:
o ‘does not admit of cruelty – that is, the infliction of suffering for the sake of suffering’ 1863 Lieber
Code, Article 16
o The right of the parties to a conflict to choose methods or means of warfare is not unlimited
o act carried out cannot be defended under the principle of necessity if the act is forbidden by the
LOAC

Humanity
 Military Necessity always be compatible with respect for the human person. Even in an armed conflict, there
are certain basic human rights that must be respected.
 Chivalry
o Prohibits dishonourable and treacherous conduct
o Core factor in the prohibition against perfidy
 Hors de Combat status (out of combat) - shall be respected, protected and treated humanely.
 Presence in International Law
o Law of Geneva – protection for sick, wounded and shipwrecked; prisoner of war; civilians. Special
protection for Medical personnel, Medical transports, Medical facilities.
o Hague Law – Humane use of weapons

Distinction
 The obligation to identify and differentiate between military objectives (legitimate targets), and the civilian
population and civilian objects.
 Separates
o those who may be legitimately the subject of direct attack, namely combatants and those who take a
direct part in hostilities, from those who may not be so subject (civilians).
o It also separates legitimate targets, namely military objectives, from civilian objects.
 RULE:
o In order to ensure respect for and protection of the civilian population and civilian objects, the Parties
to the conflict shall at all times distinguish between the civilian population and combatants and
between civilian objects and military objectives and accordingly shall direct their operations only
against military objectives. AP1 Art. 48
o What is a Combatant?
 AP 1, Art 43
  The armed forces of a Party to a conflict consist of all organized armed forces, ….
Such armed forces shall be subject to an internal disciplinary system which, ' inter
alia', shall enforce compliance with the rules of international law applicable in armed
conflict.
 AP1, Art 44 – Duty to Distinguish
 Combatants are obliged to distinguish themselves from the civilian population while
they are engaged in an attack or in a military operation preparatory to an attack.
 He shall retain his status as a combatant, provided that, in such situations, he carries
his arms openly:
o during each military engagement, and
o during such time as he is visible to the adversary while he is engaged in a
military deployment preceding the launching of an attack in which he is to
participate.
o What is a Civilian?
 Does not belong to one of the definitions in Article 43 – Negative Definition.
 Cannot be the object of an attack – AP1 Art 51(2)

Proportionality
 The principle of proportionality balances the concepts of military necessity against the requirements of
humanity
 RULE:
o Is the expected incidental loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, excessive in relation to the concrete and direct military advantage anticipated?
AP1 Art 57(2)(a)(iii)

2. Operational Principles

 Military Advantage
o The military advantage at the time of the attack is that advantage anticipated from the military
campaign or operation of which the attack is part, considered as a whole and not only from isolated or
particular parts of that campaign or operation.

 Concrete and Direct Military Advantage

o A concrete and direct military advantage exists if the commander has an honest and reasonable
expectation that the attack will make a relevant contribution to the success of the overall operation.
o What constitutes a military advantage may include a variety of considerations, including the security
of the attacking forces.

Week 3 – Classification of Armed Conflicts

1. International Armed Conflict

2. Non-International Armed Conflict

International Armed Conflict

 Definition: Armed conflict which may arise between

o Two or more of the High Contracting Parties,
o Does not require the declaration of war CA 2(1)
 Threshold:
 o There needs to exist some form of armed violence between 2 states

 Applicable Law when IAC is triggered:

o Geneva Conventions and Protocols
o Hague Conventions and Protocols
 Chemical Weapons Treaties
 Anti-personnel mine Convention
 Cluster Munitions Convention
 Protection of Cultural Heritage
o Statute of the International Criminal Court
o and
o Customary International Law

Non-International Armed Conflict

 Definition: Conflict that takes place in the territory of a state between its armed forces and dissident armed forces
or organized armed groups.
 Often referred to as ‘civil war’ or ‘internal armed conflict’
 Threshold:
o The situation must reach a certain threshold of confrontation – AP 2 Art.1(2)
o ‘Protracted armed violence between governmental authorities and organized armed groups.. or such
groups within a state’ Tadic
 Why does it matter?
o It matters because once the threshold is met
 LOAC applies,
 Opposition groups can be targeted and their members killed
 Derogation of IHL

 Applicable Law when NIAC is triggered:

1. Common Article 3 GC-IV
2. Where applicable, APII
3. CIHL in NIAC (particularly for targeting)
4. International Human Rights Obligations (particularly in internal armed conflicts)

1. Geneva Convention – Common Article 3

a. Humane treatment
b. Non-discrimination
c. Prohibition of violence including cruel treatment and torture
d. Prohibition of taking hostages
e. Prohibition of outrages upon personal dignity
f. Indispensable judicial guarantee

2. Additional Protocol 2
a. All armed conflicts which take place in the territory of a High Contracting Party between its armed forces
and dissident armed forces or other organized armed groups which, under responsible command, exercise
such control over a part of its territory as to enable them to carry out sustained and concerted military
operations.

Provisions
b. Humane treatment (including special protection of children and women): Arts 4 & 5
 c. Non-discrimination: Art 2
d. Various fair trial requirements: Art 6
e. Protection of the wounded, sick, shipwrecked, and other protected personnel: Arts 7-12
f. Protection of civilians (including principle of distinction): Art 13
g. Protection of objects indispensable to the survival of civilians: Art 14
h. Protection of installations containing dangerous forces and cultural property: Arts 15 & 16; – also Hague
Convention on the Protection of Cultural Property and its Second Protocol.
i. Prohibition of forced displacement of civilians unless imperative military needs: Art 17

Rawanda – conflict between RPF and the Governmental forces of Rwanda. The RPF controlled Rwandan territory
and carried out continuous sustained military operations until cease fire. The RPF troops were disciplined and
possessed a structured leadership which was answerable to authority.

Internationalized Armed Conflict – Not Recognised in any Convention

 Definition:
o Armed conflict between two internal factions both of which are backed by different States;
o Hostilities involving foreign States that militarily intervene in an internal armed conflict in support of
opposing sides;
 This has become the norm in the Middle East/Afghanistan.
 What rules apply?
o Cannot kill civilians – transcends
o Common Article 3 – what extent does the rule applies – assume a liberal intention of customary
international law – majority of the rules relating to humanity, distinction, military.
o Additional Protocol 1 – applies virtually in situations of non-international armed conflict.

Who is subject IHL in NIAC?

 State Parties (regular armed forces)

 ‘dissident armed forces’ and ‘other organized armed groups’ (APII Art 1(1)).
 ‘Parties to the conflict’ and ‘members of armed forces’ (Common Article 3 GCI-IV)
 civilians taking a direct part in hostilities
 Recently, an increased number of states have called for respect for and compliance with IHL by non-state
armed groups.
o See also, Nicaragua Case [1986] ICJ Rep para.219.

Regular Armed Forces in NIAC?

 No rule on their status: ‘voids of the law of armed conflict’.

 Domestic law regulates who is authorised to use force (except for self-defence)
 However, the principle of distinction implicates that participation in hostilities is limited to members of armed
forces based on a status-based rule.

Types of Armed Forces

 Regular armed forces - Soldiers who participate in an armed conflict have a domestic status as people who have a
job to protect the state – solider has combatant immunity as long as their actions comply with the law of armed
conflict.

 Dissident armed forces – breakaway units from regular forces – but still required to be acting under responsible
command (e.g. APII Art 1(1)) – former soldiers who do not remain with their unit do not qualify. The term ‘armed
forces’ is to be interpreted broadly to include, eg, national guards, customs, police forces.

 Organised armed groups – don’t always wear uniform – they don’t want to be identified – they are classified as
‘continuous combat function’ linked to civilians’ direct participation in hostilities. Ie. Different criteria for
 membership (Unbalanced approach) – Only a very narrow group of people will qualify – does not matter about
whether they subjectively recognise themselves as an Organised Armed Group – they will be trialled in front of a
tribunal.

Should Organised Armed Groups be subjected to IHL?

 When one of the Parties to the conflict is not bound by this Protocol, the Parties to the Protocol shall remain
bound by it in their mutual relations. They shall furthermore be bound by this Protocol in relation to each of
the Parties which are not bound by it, if the latter accepts and applies the provisions thereof.
Article 96, AP1

Week 4 – Status of Persons in Armed Conflict

 Combatant
o Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains) are
combatants. They have the right to participate directly in hostilities. AP1 Art 43.2
o AP1 Art 44.3 – lowers the requirement for combatants
 Where it is not possible to distinguish themselves from civilians (eg. resistance movements),
personnel retain their status as combatant provided they carry their arms openly: (44)
 during each military engagement, and
 during such time as they are visible to the adversary while engaged in a military
deployment preceding the launching of an attack
o If they fall into adverse party, PW status (44)
o Rights to PW
o Combatants are to distinguish themselves
 Non-Combatant
o Non-combatants are not entitled to take an active part in hostilities
o Non-combatants may not be targeted unless and for such time as they are taking a direct part in
hostilities
o Non-combatants may be punished for taking part in hostilities following a regular trial
o They can include:
 Civilians
 Chaplains
 Medical Personnel
 Journalists
 War correspondents
 Persons who accompany the forces
 Civilian crews of merchant marine vessels and civil aircraft
o What is the notion of direct participation?
 Civilians lose protection against direct attack for the duration of each specific act amounting to
direct participation in hostilities.’ Farmers by Day, Fighters by Night
 Restricted to specific acts that are so closely related to the hostilities conducted between
parties to the act that … ICRC, p.58
 Civilian protection is only suspended temporarily ICRC pp. 70-71.

 Loss of Civilian Protection

o Negative definition – ‘a civilian is any person who is not a combatant’ AP1 Art 50
o Protection of the Civilian population (AP1 Art 51(1)) + Customary International Law
 The civilian population and individual civilians shall not be the object of an attack and shall enjoy
general protection against dangers arising from military operations.

 Armed Forces:
o Armed forces of a party to the conflict consist of all organized armed forces, groups and units which are
under a command responsible to that party for the conduct of its subordinates (AP1 Art 43.1)
 o Also includes ‘members of other militas and members of other volunteer corps, including those of
organised resistance movements, even of this territory is occupied, provided … they fulfil the following
conditions:
 (a) being commanded by a person responsible for his subordinates ;
(b) having a fixed distinctive sign recognizable at a distance;
(c) carrying arms openly;
(d) conducting their operations in accordance with the laws and customs of war. (GC3, Art 4)

Week 4 – Detention in Armed Conflict

Skim through GC III and GC IV (at a minimum be aware of the Chapter/Section headings/topics)
Read Articles 43-45 of Additional Protocol I (API)
Read Articles 4-6 of Additional Protocol II (APII)
Rona Article – Part 4

GC 3 – Protection of PW in times of war https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?

documentId=77CB9983BE01D004C12563CD002D6B3E&action=openDocument
 Section:
 Internment of PW – General Protections – Art 12 to 16
 Hygiene and Medical Attention – Art 29 to 32
 Medical Personnel and Chaplin Retained – Art 33 to 34
 Religious, Intellectual and Physical activities – Art 33 to 38
 Administration – Art 39 to 42
 Ranks – Art 43 to 45
 Conditions – Art 46 to 48
 Labour + PW- Art 49 to 57
 Financial Resources of PW – Art 58 to 68
 Relations of PW w/ exterior – 69 to 77

GC 4 – Protection of Civilians in times of war https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?

documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument
 Section
o General Provisions – Art 1 to 12
o General Protection of Population against certain consequences of war – Art 13 to 26
o Status and Treatment of Protected Persons – Art 27 to 46
o Occupied Territory – Art 47 to 78
o General Provisions to treatment of internees – Art 79 to 82
o Places of Internment – Art 83 to 88
o Food and Clothing – Art 89 to 90
o Hygiene and Medical Attention – Art 91 to 92
o Religious, Intellectual and Physical Activities – Art 93 to 96
o Personal Property and Financial Resources – Art 97 to 98
o Administration and Discipline – Art 99 to 104
o Relations with Exterior – Art 105 to 116
o Penal and Disciplinary Sanctions – Art 117 to 126
o Transfers of Internees – Art 127 to 159

AP 1 – ‘Combatant and PW status’

 Section
o Armed Forces (43), Combatants and PW (44), Protection of people who have taken part in hostilities
(45)
AP 2 – ‘Humane Treatment’
 Fundamental Guarantees (4)
o ‘respect for person, honour and conviction and religious practice (4)
 o ‘acts shall remain prohibited at any time and in any place whatsoever… violence to life, collective
punishments, taking of hostages, terrorism, outrages upon personal dignity, humiliating and degrading
treatment, rape, prostitution, indecent assault, slavery, pillage (4)
o ‘children shall be provided with care, education, religious and moral education, reunited with families,
o ‘children should be removed from the area in which hostilities are taking place to a safer area within
the country and to ensure that they are accompanies by persons responsible for safety and well-being.
(4)
 Liberty has been restricted (5)
o Wounded and sick shall be treated in accordance with Article 7
o Provided with food and drink to be afforded safeguards to health and hygine and protection against
the rigours of the climate and the dangers of the armed conflict.
o Allowed to receive individual or collective relief
o Practice their religion
o Made to work
o Women held in separate quarters
o Allowed to send and receive letters. Number can be limited by authority.
o Place of internment cannot be near combat zone
o Benefit of Medical Exams
o Physical or Mental Health shall not be endangered by unjustified acts or omission.
 Penal Prosecutions (6)
o ‘no penalty shall be executed on a person guilty of an offence except pursuant to a conviction
pronounced by a court offering essential guarantees of independence and impartiality.
o ‘convicted person shall be advised of his judicial and other remedies and of time limits within which
they may be exercised’
o death penalty shall not be pronounced on persons under 18 at time of offence or pregnant
women/mothers of young children.
o At the end of hostilities, authorities in power shall endeavour to grant the broadest possible amnesty
to persons who have participated and been deprived of their liberty in an armed conflict

Detention in NIAC

 The ground for detention is acceptable under IHL, even in NIAC. However, it would not be acceptable under
IHRL due to the lack of specificity which begs the question of whether the interning state must derogate from
its relevant human rights obligations for internment not to be considered arbitrary detention.

Week 4 – Treatment of Hors de Combat

 Prisoners of War
o Source of War – Geneva Convention 3
o Status
o Rights and Privity
o Standard of Treatment
 Casualties of War

 Skim through GC I, II and III and GC IV

 Read Articles 8-47 of Additional Protocol I (API)
 Read Articles 4-12 of Additional Protocol II (APII)

Source of War – Prisoner of War

• Geneva Convention III

– Sets the standard of care and is the prime convention dealing with PW
– Common Article III
• Will apply to detained person in Non-International Armed Conflict
 • Most will apply – not absolutely. Ie. Mail privilege is only for International Armed Conflict
• Geneva Convention IV
– rights of interned persons
• Additional Protocol I, 1977
– Provides further details concerning status of combatants in International Armed Conflict
• Additional Protocol II, 1977
– Persons detained, captured or interned in NIAC

Status of POW

 Definition:
o 1. A combatant or other specified person who falls into the power of the enemy GC3 Art 4

 A) Combatant:
 ‘member of armed forces’ 4.1.1
 ‘members of regular armed forces who profess allegiance to a government or an
authority not recognised by the detaining power’ 4.1.3

 B) Other Specified Person

 ‘member of other militas and members of volunteer corps, including those of
organised resistance movements, provided that they fulfil all of the following
conditions’ 4.1.2
o that of being commanded by a person responsible for his subordinates
o that of having a fixed distinctive sign recognisable at a distance
o carrying arms openly
o conducting their operation in accordance with laws and customs of war
 ‘Civilians who have non-combat support roles with the military and who carry a
valid identity card issued by the military they support’ 4.1.4
 ‘Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do
not benefit by more favourable treatment under any provisions of international law.’
4.1.5
 ‘Inhabitants of a non-occupied territory, who on the approach of the enemy
spontaneously take up arms to resist the invading forces, without having had time to
form themselves into regular armed units, provided they carry arms openly and
respect the law and customs of war.’ 4.1.6

 C) Medical Personnel:
 Article 33 takes precedence for them.

o 2. Demonstrates an intent to surrender or is incapacitated and unable to fight.

 If they want to fight, then they cannot be a PoW i.e running away is not surrender

Status of Detained Person – NIAC

 Those who have no right to engage in armed conflict but have been captured for taking a direct part in
hostilities.
 No PW status
 No Combatant Immunity
 No right to be returned at end of hostiloities
 Humane Treatment

Women and Children as PW -

• Special Conditions:
• Women shall be the object of special respect and shall be protected in particular against rape, forced
prostitution and any other form of indecent assault.
 • Children shall be the object of special respect and shall be protected against any form of indecent
assault. The Parties to the conflict shall provide them with the care and aid they require, whether
because of their age or for any other reason
• If arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters
separate from the quarters of adults, except where families are accommodated as family units
• Article 18

Prisoner of War Status

 Status is a legal term of art
o Must be the right kind of person in the right kind of conflict.
 Right kind of conflict:
 Declared war GC Art.2
 Armed conflict between two or more parties GC Art.2
 Occupation GC Art.2
 Conflicts against racist regimes, colonial domination and alien occupation AP1
 Right kind of Person:
 Person who accompany the armed forces without being members i.e. civilian
members of military aircraft crews, supply contractors, members of labour units or of
services responsible for the welfare of the troops.
 Crew of the merchant marine or civil aircraft of the parties to the conflict
 War correspondents
 Personnel of the armed forces temporarily assigned to medical duties during a
limited period of time.
 (Journalist on their own – cannot be PoW)

People who do not have PW Status

 Civilians who take part in hostilities other than a levee en masse

o Mercenaries
o Spies
o Terrorists
o Others who have no lawful right to participate in hostilities

 Medical and Religious Personnel are not PW

o Should be returned because not needed,
o Must be afforded at least the same standard of treatment as PW.

Determination of PW Status

 Persons who take part in hostilities and fall into the power of an adverse Party shall be presumed to be a PW
if:
o They claim the status of PW
o They appear to be entitled such status, or
o The Party on which they depend claims such status on their behalf.
 If it can’t determine, a tribunal will determine the status.

Primary Protections for Detained persons

1. Humane treatment (all)

2. No medical experiments (all)
3. Protection from violence, intimidation, insults, and public curiosity (all)
4. Equality of treatment (all)
5. Specific protections for women and children (all)
6. Free maintenance and medical care (all)
7. Respect for persons and their honour (all)
8. No reprisals (all)
9. No renunciation of rights or status (PW) – cannot take away
10. Combatant Immunity (PW)
 Captivity

Capture
 PW bound to give only name, rank, date of birth, and service number
 If PW wilfully refuses to provide above information, they may be liable to restriction of the privileges accorded to
their rank
 May give blood type, religion (as found on ID disks)
 PW are required to be provided with an identity card

Interrogation

 Persons who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous
treatment
o No physical or mental torture, nor any form of coercion, may be used to obtain information of any kind

Prisoners’ Property

 All personal effects except arms, military equipment, and military documents are to be retained by PW
 Individual protective equipment such as helmets, gas masks, mosquito netting etc.
 Feeding utensils and clothing are to be retained

Protection against public curiosity and intimidation

 PW must be protected, particularly against acts of violence or intimidation and against insults and public
curiosity.
 Measures of reprisal against prisoners of war are prohibited. GC III, art 13

GC 3 – Article 13
o PW must at all times be humanely treated.
o Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health
of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present
Convention.
o In particular, no PW may be subjected to physical mutilation or to medical or scientific experiments of
any kind which are not justified by the medical, dental or hospital treatment of the Prisoner concerned
and carried out in his interest.
o Likewise, PW must at all times be protected, particularly against insults and public curiosity.

Evacuation

 GC 3 – Article 19
o Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far
enough from the combat zone for them to be out of danger.
o Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being
evacuated than by remaining where they are, may be temporarily kept back in a danger zone.
o Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting
zone.

 GC 3 – Article 20
o The evacuation of prisoners of war shall always be effected humanely and in conditions similar to those
for the forces of the Detaining Power in their changes of station.
o The Detaining Power shall supply prisoners of war who are being evacuated with sufficient food and
potable water, and with the necessary clothing and medical attention.
o The Detaining Power shall take all suitable precautions to ensure their safety during evacuation, and shall
establish as soon as possible a list of the prisoners of war who are evacuated.
o If prisoners of war must, during evacuation, pass through transit camps, their stay in such camps shall be
as brief as possible.
Food and Shelter

 Food
o Food is to be sufficient in quantity and quality to maintain health
o Dietary requirements are to be respected
o Sufficient drinking water must be provided
o Rule: Fed to the same standard as your military
 Shelter
o Quartered under conditions similar to those of forces of the detaining power who are billeted in the same
area
o Protected from dampness
o Adequate heating and lighting
o Men and women in separate dormitories
o Rule: Living in the same standard as your military

 GC 3 – Article 26
o Basic daily food rations shall be sufficient in quantity, quality and variety to keep PW in good health and
to prevent the loss of weight or the development of nutritional deficiencies.
o Account shall also be taken of the habitual diet of the prisoners.
o Detaining Power shall supply PW who work with such additional rations as are necessary for the labour
on which they are employed
o Sufficient drinking water – be supplied to PW. Tobacco permitted.
o Disciplinary measures affecting food are prohibited.

 GC 3 – Article 25
o PW quartered under conditions as favourable as those for the forces of the Detaining Power who are
billeted in the same area.
 The said conditions shall make allowance for the habits and customs of the prisoners and shall in
no case be prejudicial to their health.
 Dormitories of prisoners of war: as regards both total surface and minimum cubic space, and the
general installations, bedding and blankets.
 The premises provided for the use of prisoners of war individually or collectively, shall be
entirely protected from dampness and adequately heated and lighted, in particular between dusk
and lights out. All precautions must be taken against the danger of fire.
o Separate dormitories for women and men.

 GC 3 – Article 27
o Clothing, underwear and footwear shall be supplied to prisoners of war in sufficient quantities by the
Detaining Power,
 which shall make allowance for the climate of the region where the prisoners are detained.
o Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the climate, be
made available to clothe prisoners of war.
 The regular replacement and repair of the above articles shall be assured by the Detaining Power.
 PW who work shall receive appropriate clothing, wherever the nature of the work demands.
 GC 3 – Article 29
o Detaining Power shall be bound to take all sanitary measures to ensure the cleanliness and healthfulness
of camps and to prevent epidemics.
o Prisoners of war shall have for their use, day and night, conveniences which conform to the rules of
hygiene and are maintained in a constant state of cleanliness.
o In any camps in which women prisoners of war are accommodated, separate conveniences shall be
provided for them.
o Also, apart from the baths and showers with which the camps shall be furnished PW shall be provided
with sufficient water and soap for their personal toilet and for washing their personal laundry; the
necessary installations, facilities and time shall be granted them for that purpose.

Transfer of PW to Other Power

GC3 Article 12
 o Detaining Power is responsible for treatment of PW.
o PW may only be transferred by the Detaining Power to a Power which is a party to the Convention
o Only if the Detaining Power has satisfied itself of the willingness and ability of such transferee Power
to apply the Convention.
o When PW are transferred under such circumstances, responsibility for the application of the
Convention rests on the Power accepting them while they are in custody.
o If the Accepting Power fails to carry out the provisions of the Convention in any important respect, the Power
by whom the PW were transferred must take effective measures.

Escape

 A PW who has successfully escaped and who is recaptured,

o shall not be punished for the previous escape
 A PW who fails in an attempt to escape shall
o only be liable to a disciplinary punishment, even if it is a repeated offence

Release and Repatriation of PW

 PW shall be released and repatriated without delay after the cessation of active hostilities.
 Does not necessarily apply to Captured Persons

National and Individual Responsibility

 The State is responsible for the proper treatment of PW and Detainees GC 3 Article 12
 Individuals who mistreat PW and captured persons are liable to be tried as War Criminals

Assumption of PW status until determined otherwise

OTHER STATUSES

Wounded and Sick Status

Any person
 military or civilian
 in need of medical assistance or care
 because of trauma, disease or other physical or mental disorder or disability,
 who refrains from any act of hostility
(see AP I Art. 8 (more precise), GC I Arts. 12&13 and GC II Arts. 12&13)
o includes maternity cases

Shipwrecked Status
Any person
 military or civilian
 in peril at sea or in other waters
 as a result of misfortune affecting them or the vessel or aircraft carrying them
 who refrains from any act of hostility
(see AP I Art. 8 and GC II Art. 12)
o Shipwrecked persons shall continue to have such status during their rescue until they acquire another status
under the GCs or AP 1 (e.g. PW) and provide they refrain from any act of hostility.

GC 2 – Article 12
o Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may
be,
o Without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any
other similar criteria.
 o Any attempts upon their lives, or violence to their persons, shall be strictly prohibited;
 in particular, they shall not be murdered or exterminated,
 subjected to torture or to biological experiments;
 they shall not wilfully be left without medical assistance and care, nor shall conditions
exposing them to contagion or infection be created.
 Only urgent medical reasons will authorize priority in the order of treatment to be
administered.
 Women shall be treated with all consideration due to their sex.

AP 1 – Article 8

FINDING CASUALTIES

 All parties to conflict are obliged to take all measures

o to search, collect and care for wounded, sick, shipwrecked and dead
 Important distinction: this obligation exists
o during land warfare at all times
o at sea only after an engagement

(see GC I Art. 15 & GC II Art. 18)

 While this obligation exits, it can only be actioned when circumstances permit or, in other words, when the
tactical situation permits.
o The obligation may be legitimately delayed or ignored if the Commander assesses there is a
reasonable risk of death or injury to his/her forces from an attack from other forces.
o GC II recognizes the practicalities of fulfilling this obligation at sea are more restrictive than on
land.

GC 1 – Article 15
o Parties to the conflict shall without delay take all possible measures to search for and collect the wounded and
sick,
o to protect them against pillage and ill-treatment,
o to ensure their adequate care,
o and to search for the dead and prevent their being despoiled.
o Likewise, local arrangements may be concluded between Parties to the conflict for the removal or exchange of
wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel
and equipment on their way to that area.

STANDARD OF TREATMENT
General Rule

 Rule:
o The wounded, sick & shipwrecked shall be
- respected
- treated humanely
- cared for
- protected
- without any adverse distinction
 Attempts upon their lives and violence against their persons are a serious breach

GC 1 & 2 – Article 12
o They shall not be murdered, exterminated, subjected to torture or biological experiments.
o They shall not be exposed to conditions of contagion or infection.
 o They shall not be left without medical assistance i.e. party that is compelled to leave them shall,
as far as military considerations permit, leave them with part of its medical persons and materials
to assist in the care.
Laconia Order
o Prohibiting all future rescue of shipwrecked persons unless
o ‘their statements would be of importance to your boat…
 Reason: ‘rescue run counter to the rudimentary demands of warfare for the destruction of
enemy ships and crews… Be harsh, having in mind that the enemy takes no regard of women
and children in the bombing attacks of the German cities.

Priority of Treatment

 There shall be no distinction among persons founded on any grounds other than medical.
o Uniform does not matter
 RULE: Person who needs it most, will get it first.
(see GCs I&II Art. 12 and AP I Art. 10)

Surgical Procedures

o RULE:
o A wounded person has the right to refuse any surgical operation
o Unconsciousness is implied consent

o Prohibited:
o any medical procedure
 not indicated by the medical condition of the person, or
 inconsistent with medical standards
o Physical Mutilation
o Medical or Scientific Experiments
o Removal of Tissues or Organs for transplant, except for blood for transfusion or of skin for grafting
(given free and voluntarily) AP 1 – Article 11

Standard of Treatment
o Any wilful act or omission that seriously endangers the physical or mental health of any person-in-the-power
of an adverse party
o GC I – Article 50
 ‘Involving any of the following acts, if committed against persons or property protected by
the Convention:
 Wilful killing,
 torture or inhuman treatment, including biological experiments,
 Wilfully causing great suffering or serious injury to body or health,
 and extensive destruction and appropriation of property – not justified by Military
Necessity and carried out unlawfully and wantonly.

MEDICAL STATUS

Medical Personnel

This means:
 military or civilian
 assigned exclusively to medical purposes
o (including administration of medical units or operation or administration of medical transports)
 Such assignment can be permanent or temporary AP I Art. 8
 Medical Personnel include:
o Doctors, Dentists, Nurses, Medical Orderlies, Transport Drivers, and Administrators
o Members of National Red Cross/Red Crescent and other voluntary aid societies recognised and
authorized by a party to the conflict
o Medical personnel attached to civil defence units
o Any personnel made available for humanitarian purposes by a neutral state, and
o An impartial humanitarian organization (most modern NGOs)

 Temporary status of Medical Personnel?

o “Temporary” status means those assigned to a medical purpose for a limited period (eg for duration of an
evacuation).
 Temporary pers are those who have trained for employment in case of need,
 such as hospital orderlies, nurses or auxiliary stretcher bearers.
 Temporary status does not authorize “velcro” protection ie removing and replacing the protective
emblem, particularly for permanent med pers!

Protection
 Medical Personnel are offered a protected status.
o GC I Arts. 19, 24, 35 & 36;
o GC II Arts. 22, 27, 36 & 37;
o AP I Arts. 8 & 12.
 This is until they commit acts harmful to adverse party (outside humanitarian duties)
 This also applies to military chaplains and civilian religious personnel and objects
o GC I Art. 23 & 24;
o GC II Arts. 36 &37;
o AP I Art. 8 & 15.

Medical Units

“Medical units” are:

 military or civilian
 organized for medical purposes
Can be:
 fixed or mobile
 permanent or temporary
 e.g. hospitals, blood transfusion centres, preventative medicine centres, medical transport locations, medical
depots, pharmaceutical stores

 Medical Units are also protected status

o Unless used to commit acts harmful to adverse party and outside their humanitarian duties (GC 1 –
Article 21, GC 2 – Article 34)
Features of Medical Status

 Distinction
o clearly display the distinctive emblem of the Red Cross, Red Crescent or Red Crystal
o Applies to permanent and temporary personnel and objects

 Are Medical Personnel allowed Weapons and Arms?

o with light individual weapons
o for their own protection or for that of the wounded and sick in their charge
 “light individual weapons” is open to some interpretation but reasonableness must prevail (no
crew served wpns, heavy wpns etc…)
o GC I Art. 22; GC II Art. 35 and AP I Art. 28

 Hospital Ships
o Built or equipped specially and exclusively to assist, care for and transport the wounded, sick and
shipwrecked
 Ships and lifeboats must be painted white with large red distinctive emblem on the hull and
horizontal surfaces
  Must fly distinctive emblem from mainmast along with national flag
o GC II Arts. 22, 24 & 26

 “Medical Aircraft” means:

o any medical transports by air
 Tactical medical helicopters may be used anywhere and at any time
 Entitled to protection if bearing the distinctive emblem
o GC 1 Art 36, GC2 art 39, AP1 art 8.

Missing and Dead persons

 Each party shall search for those reported missing by the adverse party
o as soon as circumstances permit
o immediately upon the end of hostilities
 The Dead shall be Identified and buried as soon as possible
o cremation only when absolutely necessary – health risk

Week 5 – Contemporary Challenges and the ICRC

What is the ICRC?

 Civilian Response Stakeholders
o Affected State, UN, International Organizations, Red Cross Movements, NGOs and Donors
 The ICRC
o Neutral, Impartial and Independent Humanitarian Organisation (NOT PART OF UN, NOT NGO)
 Impartial = Emphasis on fair and providing more to the group with the lesser ability.

o Mandate through the Geneva Convention by International Committee to
 protect and assist victims of conflict,
 promote the Law of Armed Conflict (IHL) and its implementation
o Similar to UNHCR, which is mandated by the Refugee Convention
o Work in situations of armed conflict and violence – presence in 80+ countries – to ensure continual
dialogue with Government even in situations where there is no armed conflict.
o Founding component of the Red Cross & Red Crescent Movement – ICRC, National Securities, Red
Cross and Red Crescent Societies.

Mandate of the ICRC

 In international armed conflicts:
 Geneva Convention – given a mandate to act
 In particular to visit POWs and civilian internees (Enemy
 It has the right of initiative – the detaining Power shall request or shall accept the
offer of services.
 In Non-International Armed Conflict:
 May offer its services to the parties to the conflict (Common art 3) because the actors don’t
have state-sovereignty.

 In Internal disturbances and tensions:

 In accordance with the Statutes of the Movement (Article 5(2)(d))
 Offer humanitarian assistance.

 When war breaks out (low threshold) …

o Reminds all parties of their obligation to respect IHL (document to capitals of armed conflict – what
particular laws and implications from those laws) –
 non-state actors will also have to abide to those laws because it is customary.
o Makes offer of service
 o Own needs assessment
o Carries out action according to its own priorities.

ICRC Operational Activities

 Protection in armed conflict

o Protection of prisoners of war and other detainees (Prison visits)
o Protection of civilians, documenting abuses against those not (or no longer) taking part in
hostilities.
o Central Tracing Agency – helping family members restore family links through National
Societies
 Assistance for Victims of armed conflict
o Medical Care, assisting hospitals and establishing mobile clinic, war surgery, mental health
o Rehabilitative services
o Food, Water, Sanitation and Shelter
o Economic Assistance to establish businesses
 Assistance for Persons deprived of their freedom
o On the basis of the GC for POWs and civilian detainees
o Security Detainees in non-international armed conflicts and disturbances
o Protection – register people to advise family that they are not dead. Outside body knows that
they are there.
o Assistance
o Confidential Relationship with authorities

 How do they do it?

o In close proximity to victim’s (needs-based basis)
o Engage in dialogue with all parties (including states and non-state armed groups) to reduce
the effect of conflict on civilians. Sometimes at the cost of lives.
 Increase dialogue when things go wrong – not within the sphere of the ICRC to
explain why the conflict is taking place – it is the ICRC’s role to ensure that it is fair
on victims.
 Impartiality is determined by who needs help more. Ie. If party B has more
humanitarian loss, ICRC will assist them more with operation
o Confidentiality and bilaterally – never disclose discussions – cannot be a witness in legal
proceedings.

Extra stuff

 Operations by size of expenditure – Syria, Iraq, South Sudan, Yemen, Nigeria. Normally stay in a
conflict region for average of 36 years.
 Staff – 16,000 in total. Communications and operations in Geneva.
 Funding – Total is 1.48Billion - 84% by Government – major donor is U.S.
 Accountability through Donations

Week 6 – Means and Methods

 Hague Convention – Weapons and how you use it in warfare

 Broad Requirement:
o MEANS - Weapons and ammunition must comply with the LOAC.
o METHODS - The way that they are used must also comply with the LOAC.
 Prohibition 1 – Superfluous Injury and Unnecessary Suffering
 Prohibition 2 – Indiscriminate Weapons

1. MEANS
 WEAPONS

PROHIBITION 1 – SUPERFLOUS INJURY AND UNNECCESSARY SUFFERING

 Prohibition 1:
o Superfluous Injury and Unnecessary Suffering
 The use of weapons or ammunition that cause superfluous injury or unnecessary suffering is
unlawful under the LOAC. AP1 Art. 35.2

 Types of ammunition prohibited:

o Weighted below 400 grams
o Expand or flatten easily in the human body
o Dipped in poison
o Laser weapons that blind – CCW Protocol IV, Art 1. Warning devices ok.
o Chemical Weapons – Chemical Weapons Convention, 1993. Riot control agents ok.

 Incendiary Weapons
o Allowed for Belligerents, Not allowed for Civilians
o Limited use by ground delivery in civilian areas if:
 (1) the target is clearly separated from the civilians; and
 (2) all feasible precautions are taken to minimize collateral civilian damage CCW Protocol III,
Art 2

PROHIBITION 2 – INDISCRIMINATE WEAPONS

 Prohibition 2:
o Indiscriminate Weapons
 Weapons whose method or means of delivery or effects cannot be directed at a specific military
objective. AP 1 Art 53.4

 Types of Weapons prohibited

o Antipersonnel Land Mines – Anti-Personnel Mines Convention
o Booby traps – ok, but cannot be used indiscriminately
o Cluster Munitions – Cannot use, cannot develop, cannot assist/encourage to use
o Depleted Uranium
o Undetected Fragments – Carbon fibre
o Directed Energy Weapons
o Less than Lethal Weapons

NEW WEAPONS

 TEST:
o In the study, development, acquisition or adoption of a new weapon a State is under an
obligation to determine whether its employment would, in some or all circumstances, be
prohibited by this Protocol or by any other rule of international law. AP1, art 36
o Needs to consider whether it can be “reasonably expected”
 New Technologies – Cyber Attacks, Autonomous Weapons System etc.

Emerging Legal Challenges – Is there an ‘armed attack’ in the sense of Art 51 of the UN Charter?

 Is there an ‘armed attack’ in the sense of Art 51 of the UN Charter?

 o Ie. Bank shutdown, Cyber-attacks,
o ‘necessary to distinguish the most grave forms of use of force (those constituting armed
attacks) from other less grave forms.’ Nicaragua
o Factor in ‘scale and effects.’ Nicaragua

 Is there an ‘armed conflict’ in the sense of GC CA 2 or 3?

o ‘hostilities’ ‘violence’ (cf employment of armed forces, occupation)

 Is there an ‘attack’ in the sense of Art 49(1) of API

o ‘acts of violence against the adversary, whether in offence or defence’
o Effects/Consequence, not ‘means’

Emerging Legal Challenges – Is it a weapon?

 ‘… a high contracting party is under an obligation to determine whether its employment would, in
some or all circumstances, be prohibited by this Protocol or by any other rule of international law
applicable to the High Contracting Party.’ API Art. 36 - as outlined above

 Definition
o ‘weapon’ = ‘a means of warfare used in combat operations… that is capable of causing
either
o injury to, or death of, persons; or
o damage to, or destruction of, objects’: HPCR (2009) Air and Missile Warfare Manual r.1(ff)

Emerging Legal Challenges – How do you assess the legality of using new technology weapons (e.g. autonomous
weapon systems)

 Does it cause unnecessary suffering/superfluous injury?

 Is it indiscriminate by nature?
o Reliability and accuracy of data
 Targeting Law Rules
o Distinction: capabilities + surrounding context/environment
o Proportionality: Collateral Damage Estimation Methodology (cf cyber mapping) + pre-
programming of values
o Precautions: feasible alternative options to minimise collateral damage + adjustment/setting
of operating parameters

Emerging Legal Challenges – What does ‘humanity’ mean for technological advances in warfare?
 Using small-scale explosives?
o 1868 St Petersburg Declaration Renouncing the Use, in Time of War, of Explosive
Projectiles under 400 Grammes Weight
 Using incapacitating chemical agents?
o 1993 Chemical Weapons Convention

Emerging Legal Challenges – Can civilian contractors control new technology weapons?

 Is it prohibited?
 What is the legal status of the contractor’s legal status?
o GCII, Art 4A(2) status
o DPH?
  Is it perfidious
 Failing to distinguish combatants from civilians?
 Failing to exercise precautions?

2. METHODS

1. Perfidy and Ruses

2. Improper use of emblems and uniforms
3. Denial of quarter
4. Sabotage and Espionage
5. Assassination
6. Protection of civilian population and objects
7. Protection of the environment

Ruses

 Definition:
• Acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no
rule of international law applicable in armed conflict.
 Ruses of war are not prohibited.
 Ruses are not perfidious because they do not invite the confidence of an adversary with respect to protection
under that law.
 Examples:
• Camouflage – Permitted, as long as a protected object/symbol is not used to cover military operations.
• Psychological Operations –Permitted so long as they are not designed to terrorize the civilian
population. Create doubt in the enemy.
• Deception/Feints – Permitted, as long as they do not violate the laws of war. Ie. Treachery.
• Sabotage – Permitted, as long as object is a legitimate military objective. Cannot be done by a civilian.
• Espionage – Permitted, if conducted by members of armed forces in Uniform. Then entitled to PW status.

Perfidy

 Definition:
o Inviting the confidence of an adversary, the intent to betray their confidence (subjective element) and to
betray it on a specific point, the existence of the protection afforded by international law applicable in
armed conflict (objective element) AP1, art 37.
o Central theme is the deliberate claim to legal protection for hostile purposes. The enemy attacks under
cover of the protection accorded by humanitarian law of which he has usurped the signs.
 Perfidy is Prohibited.
 Examples
o (a) the feigning of an intent to negotiate under a flag of truce or of a surrender;

(b) the feigning of an incapacitation by wounds or sickness;

(c) the feigning of civilian, non-combatant status; and

(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of
neutral or other States not Parties to the conflict. AP1, Art 37.
 Prohibited to use enemy’s flag, military emblems, insignia or uniforms of adversary parties while engaging in
attacks AP 1 Art 39.2

Non-Standard Uniforms

 LOAC Requirements:
o attire which incorporates a fixed distinctive sign recognizable at a distance.
  What is a “fixed distinctive sign”?
o A badge.
o Scarf or armband.
o Head-dress
 What is “recognizable at a distance”
o Unaided eye.
o Normal daylight conditions.
o Reasonable distance
 You would wear a non-standard uniform to maintain PW if captured

Denial of Quarter

 Definition:
o Imply or encourage that no prisoners will be taken;
o to threaten an adverse party that such an order will be given; or
o to conduct hostilities on the basis that no prisoners will be taken.
 Denial of Quarter is Prohibited.

Assassination
 Definition:
o The killing or wounding of a selected non-combatant for political or religious motive.
o I.e. President/Prime Minister
 Assassination is Prohibited.

Terrorizing the Civilian Population

 Definition:
o Acts or threats of violence, the primary purpose of which is to spread terror among the civilian
population. AP1, Art 51.2
 This is prohibited.

Starvation of the Civilian Population

 Definition:
o Attacks on objects indispensable to survival of civilian population
o Exception - objects used by an adverse party solely for its armed forces
 This is prohibited.

Scorched Earth
 Where a party to a conflict is defending its national territory against invasion, it may attack objects
indispensable to the survival of the civilian population if:
o the objects are within national territory of and under the control of the party; and
o an attack on the objects is required by imperative military necessity.

Natural Environment

 Attacks which are intended or may be expected to cause damage to the natural environment are prohibited.
o Care shall be taken in an armed conflict to protect the natural environment against widespread, long-
term and severe damage.
Week 7 – Law of Targeting

 Basic Principles
o Military Necessity - Distinction
o Proportionality
o Unnecessary Suffering

1. Targeting People

 DEFINITION:
o A person can be targeted if they ‘do not belong to one of the categories of persons referred to
in ...the Third Convention and in ...this Protocol.’
 Armed forces
 Militias or volunteer corps that are part of the armed forces
 Other militias or volunteer corps, including resistance movements:
 commanded by a person responsible for his subordinates; (b) fixed distinctive sign
recognizable at a distance;
 carry arms openly;
 conduct their operations IAW LOAC.
 ‘… in case of doubt, that person shall be considered a civilian.’ Article 51(1)
 ‘…shall enjoy protection until such time they take a direct part in hostilities.’
(Art. 51(3) API)
 TARGETS CAN BE:
o International Armed Conflict – Combatants, Lawful belligents, Civilians taking direct part in
hostilities.
o Non-International Armed Conflict – Dissident armed forces, Other organised armed groups,
Civilians taking a direct part in hostilities (DPH)

 SOLDIERS OUT OF COMBAT – Hors de combat

o TEST:
 (1) is under the control of an enemy;
 clearly expresses an intention to surrender; or
 has been rendered unconscious, or is otherwise incapacitated by wounds or sickness, and
therefore incapable of defending himself, and
 (2) provided that person abstains from any hostile act and does not attempt to escape.

 WHO IS PROTECTED?
o • Medical/religious personnel – Weapons?
o • Civil defence
 – eg. Firemen / Police / Ambulance personnel
 – permanently assigned military personnel
o • Civilians
 – Journalists
 – Government officials
 – Workers in a munitions factory

2. Targeting Objects

 MILITARY OBJECTIVES are:

1. Objects
a) which by their nature, location, purpose or use
b) makes an effective contribution to military action, AND
 2. whose total or partial destruction, capture or neutralization,
3. in the circumstances ruling at the time, offers a definite military advantage.
4. Article 52.2 GC

 CANNOT BE ATTACKED
 Medical
 Cultural Objects and Places of Worship
 Objects Indispensable to Survival of Civilian Population
 Works and Installations Containing Dangerous Forces (D, D & NEGS)
 Natural Environment if the attack will cause widespread, long-term and severe damage

 PROCESS TO STEP THROUGH FOR ATTACKING OBJECTS – API, ART. 57

 Do everything feasible to verify that targets are not civilians or civilian objects
 Take all feasible precautions in choosing between method and means
 Cancel attack if apparent target is not military objective OR disproportionate harm will occur
 Warn civilians, if circumstances permit
 When a choice is possible between several military objectives for obtaining a similar military
advantage, choose one that causes least incidental injury and collateral damage

 Remember Proportionality
o An attack is unlawful if the attack:
o may be expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated
o Rules of Engagement (ROE) or a Targeting Directive may prescribe authorisations.

 SIX STEP LOAC Targeting Process

1. Locate and observe the potential target and its surrounding area.
2. Assess whether the target is a valid military objective and that it is otherwise unprotected from
attack by IHL.
3. Take all feasible precautions to minimise collateral damage.
4. Assess whether any expected collateral damage is proportional (ie, not excessive) to the
anticipated military advantage to be gained from the attack.
o Proportionality = Collateral Damage vs. Military Advantage
5. Take such care as is appropriate in the tactical situation to release or fire the weapon to achieve
the best possible chance of hitting the selected aim point.
6. Cancel or suspend the attack should it become apparent that any one of the assessments made
under steps 2 or 4 is no longer valid.

Article 52.2:

 ‘Attacks shall be limited strictly to military objectives. Insofar as objects are concerned, military
objectives are limited to those objects which by their nature, location, purpose or use make an
effective contribution to the military action and whose total or partial destruction, capture or
neutralization … offers a definite military advantage.
o Customary Law
o Effective Control is undefined and is not obvious.

Article 48

 ‘The Parties to the conflict shall at all times distinguish between the civilian population and
combatants and between civilian objects and military objects.’
o Customary Law
AP1, Article 57.2 (a)

 ‘Those planning an attack do everything feasible to verify that the objectives to be attacked are
neither civilians nor civilian objects.’
o In determining this, take into account
 Means and methods
 Distance between victims
 Source of Fire
 Ongoing combat activity

SIX STEP LOAC TARGETING PROCESS

1. Locate and observe the potential target and its surrounding area.

 Necessary first step in applying distinction

o 1. Who am I shooting?
 Status
 Conduct
o 2. At what am I shooting?
 Character – Tank/Car
 Functionality

2. Assess whether the target is a valid military objective and that it is otherwise unprotected from
attack by IHL.

 Lawful target test for people?

 Lawful target test for objects?

3. Take all feasible Precautions to minimise collateral damage

 Check weapon use, is there a better weapon choice?

4. Assess whether any expected collateral damage is proportional (i.e. not excessive) to the
anticipated military advantage to be gained from the attack?

 Proportionality = Collateral Damage vs. Military Advantage

5. Take such care as is appropriate in the tactical situation to release or fire the weapon to achieve the best
possible chance of hitting the selected aim point.

6. Cancel or suspend the attack should it become apparent that any one of the assessments under steps 2 or
steps 4 is no longer valid.

Week 8 – NAVAL WARFARE

 Sources of Law
o Declaration of Paris
 o 1907 Hague Conventions ( vi,vii,viii,ix,x,xi,xiii)
o London Declaration concerning the Laws of Naval War (1909) (not entered into force)
o 1936 London Protocol
o GC 2 and AP1
o San Remo Manual (Not a convention)

 Definition
• Warship
• "warship" means a ship belonging to the armed forces of a State bearing the external marks
distinguishing such ships of its nationality, under the command of an officer duly commissioned
by the government of the State and whose name appears in the appropriate service list or its
equivalent, and manned by a crew which is under regular armed forces discipline. UNCLOS
Article 29
• Merchant Ship
• A ship that is primarily used to carry commercial cargo or fare-paying passengers.
• Enemy Merchant Ship
• A merchant vessel that is registered in, flies the flag of, or is under the control of, a belligerent
party to an armed conflict.
• An enemy merchant vessel is a civilian object.
• Neutral Merchant Vessel
• A neutral merchant vessel is one that:
• Is registered in, and flying the flag of, and under the control of, a neutral power
• AND
• Operates in accordance with the laws of neutrality

 Remember during War at sea:

• Principle of Distinction applies
• Attacks shall be limited strictly to military objectives SRM art 41
• Enemy warships and military aircraft are always legitimate military objectives wherever and
whenever encountered within the area of naval warfare.
• Limits on Means and Methods of Warfare
• The right of the parties to the conflict to choose methods or means of warfare is not unlimited.
• The right of belligerents to adopt means of injuring the enemy is not unlimited.

Belligerent Visit and Search

 1. Can the Warship or Aircraft be stopped?
 Belligerent Warships or Aircraft may stop merchant ships to determine
• Vessel’s character
• Nature of cargo
• Manner of employment
• Any other facts that bear on the vessel’s relation to the armed conflict where there are reasonable
grounds for suspecting there are grounds for capture.
 Flying flag of neutral state is prima facie evidence of neutral character

• Nature of Cargo - Contraband

• Goods which are ultimately destined for territory under the control of the enemy, and
• Which may be susceptible for use in armed conflict
• Not exports (eg oil) even if the revenue from these exports may allow the belligerent to buy
arms.

 2. Can the Warship or Aircraft be searched?

 Belligerent Visit and Search
• Must be conducted beyond the territorial sea of a neutral state
• Warships or government vessels
• Status of enemy merchant vessels

 RULE:
 • Merchant vessels and civil aircraft are civilian objects unless and until they become military objectives in
accordance with the principles and rules set forth in the law of naval warfare. SRM art 41
• Example activities that may render enemy merchant vessels military objectives:
• (a) engaging in belligerent acts on behalf of the enemy
• (b) acting as an auxiliary to an enemy’s armed forces,
• (c) being incorporated into or assisting the enemy’s intelligence gathering system,
• (d) sailing under convoy of enemy warships or military aircraft;
• (e) refusing an order to stop or actively resisting visit, search or capture;
• (f) being armed to an extent that they could inflict damage to a warship;
• (g) otherwise making an effective contribution to military action.

Merchant Vessels

 Enemy Merchant Vessels

• Liable to Capture
• Note: Definition of Military Objectives No Obstacle!
• Lawful Targets
• If they contribute to the enemy’s military action by use or purpose, they are
• Exceptions:
• Hospital Ships and Coastal Rescue Craft
• Small Coastal Fishing and Coastal Trading Vessels
• Vessels Transporting Cultural Property
• Passenger Vessels
• Religious, Scientific or Philanthropic Missions

 Destruction of Merchant Vessels

o a captured enemy merchant vessel may, as an exceptional measure, be destroyed … only if:
 the safety of passengers and crew is provided for;
 documents and papers relating to the prize are safeguarded; and
 if feasible, personal effects of the passengers and crew are saved.

 Capture of Neutral Merchant Vessels

o May be captured if it is determined as a result of visit and search that it is assisting the enemy or
otherwise in the armed conflict on behalf of the enemy
o Goods are subject to capture, if they are contraband
o Can be captured if used as a prize for adjudication.
o Under Convoy
 Where it is bound for a neutral port
 Under convoy of warship(s)
 The flag state warrants compliance with neutrality, and
 Cargo information is provided.
 Cannot be captured

 Destruction of Neutral Merchant Vessel is okay if:

o Deliberately attempts to breach a blockade and intentionally and clearly refuses to stop when ordered to
do so
o Intentionally and clearly resists visit, search or capture
o Engages in belligerent acts on behalf of the enemy
o Joins an enemy convoy

 Surface Engagements
o Surface vessels are required to abide by general rules of targeting IHL

 Missiles
o “Missiles and projectiles, including those with over-the-horizon capabilities, shall be used in conformity
with the principles of target discrimination …”
 Torpedoes
 o “It is prohibited to use torpedoes which do not sink or otherwise become harmless when they have
completed their run.” Hague VIII, 1907

 Naval Mines
o An explosive device laid in the sea, on the sea-bed or in the subsoil thereof, and designed to damage or
sink ships or of deterring/preventing ships from entering a sea area.
o Only used for legitimate military purposes – denial of sea areas to the enemy
o Cannot be in neutral waters
o Rules in Hague VII
 Anchored mines disable when free from mooring
 Unmoored automatic contact mines must become inactive one hour after control is lost
 Area of minefield must be recorded and notified
 May channel neutral shipping, but may NOT block international straits or Archipelagic sea lanes
 May be used in a blockade, but not solely to intercept commercial shipping
 Belligerents must remove mines when hostilities cease
 Submarines
o Same principles as warships

 Passenger Vessels
o Unless carrying members of a belligerent armed forces, passenger vessels, enemy or neutral, may not be
destroyed at sea.
o Can be diverted to an appropriate port.
o London Protocol 1936:
 “…A warship, whether surface vessel or submarine, may not sink or render incapable of
navigation a merchant vessel without having first placed passengers, crew and ship’s papers in a
place of safety . . .’

 Laconia Order
o ‘Every attempt to save survivors of sunken ships, also the fishing up of swimming men and putting them
on board lifeboats, the set upright of overturned lifeboats, the handing over of food and water have been
discontinued. These rescues contradict the primary demands of warfare especially the destruction of
enemy ships and their crews.

 Duty to Search
o Only after engagement
o Parties to the conflict shall without delay take all possible measures to search for and collect the
shipwrecked, wounded and sick.

 Protection of Sick, Wounded and Shipwrecked

o Persons who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances.
o Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they
may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or
any other similar criteria.

Week 9 – Emerging Technology and IHL

Solis pages 535-566.

AUTONOMOUS WEAPONS

What is ‘autonomous weapons’

 A definition of ‘autonomous’ is among the least agreed upon in LOAC, as there are almost as many definitions as
there are proponents and opponents of autonomous weapons.
o Weapon system that can learn or adapt their functioning in response to changing circumstances in the
environment in which they are deployed ICRC
 o All autonomous systems are supervised by human operators at some level
o Autonomy is better thought of as ‘a capability that enables a a particular action of a system to be
automatic or, within programmed boundaries ‘self-governing.’
o
 Four levels of weapon autonomy
o Human operated
o Human delegated
o Human supervised
o Fully autonomous

Testing Autonomous Weapon Systems

 When a fully autonomous weapon system actually arises it will have to comply with API Article 36
o ‘all new weapon systems be tested for compliance with LOAC and ‘any other rule of international law
applicable.’
 Determination of a new weapon’s LOAC compliance in the study development and acquisition phases of its
production.
o ‘For a State producing weapons ... reviews should take place at the stage of the conception/design of
the weapon and thereafter at the stages of its technological development (Development of prototypes
and testing)

 Article 36 — New weapons

o In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a
High Contracting Party is under an obligation to determine whether its employment would, in some
or all circumstances, be prohibited by this Protocol or by any other rule of international law
applicable to the High Contracting Party.

 Article 35 — Basic rules

o In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is
not unlimited.

Autonomous Weapon Systems and Core LOAC/IHL Principles

 Article 36 testing aside, autonomous weapons, whether semi-or fully autonomousn are bound by the four core
armed conflict constraints of
o distinction,
o military necessity,
o unnecessary suffering (Humanity)
o Proportionality

 Distinction
o Weapons need to be able to distinguish military from civilian
 Proportionality
o Articles 51(5)(b) and 57(2)(a)(ii) of API prohibits attacks which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof.
 Military Necessity and Unnecessary Suffering
o API Article 35.2 prohibits weapons, projectiles and materials and methods of warfare of a nature to
cause superfluous injury or unnecessary suffering, a prohibition applicable to enemy combatants and
fighters, as well as to friendly combatants, is a similarly relatively low threshold for autonomous
weapon system to overcome; and is most unlikely that an autonomous weapon system would employ
a weapon or munition that was per se unlawful.

To Ban or not to ban autonomous weapons?

 LEGAL - AWS could never meet the requirements of discrimination or proportionality.

o This assumes that the technology will never be good enough (an empirical/legal argument)
  MORAL – War/Targeting is an inherently human endeavour and, therefore needs human agency (a
philosophical/moral argument)
o As a moral matter, many people believe that the decision to intentionally kill should not be dedicated
to machines

Cyber Attacks

 Cyber Attacks – occurs jus in bellum and jus ad bellum.

o This is because cyber attacks may occur when no armed conflict is in progress between the victim state
and attacking state, or its proxies.

What constitutes a cyber attack?

o Distinction between a Cyber-attack and cyber-intrusion

o Cyber-attack = use of force
o Cyber intrusion or anything short of an armed attack = no use of force.
o No clear definition of Cyber Attack
o AP I – Article 49.1 tells us that attack means acts of violence against the adversary, whether in offence
or in defence.
 Attack not its usual meaning
 When an attack is directly endangered, it constitutes an attack.
 When an individual is directly endangered it constitutes an attack.
 ‘A cyber-attack is a cyber operation, whether offensive or defensive, that is reasonably expected
to cause injury or death to persons, or objects.
 Cyber theft, cyber intelligence gathering, and cyber intrusions that involve brief or
periodic interruption of non-essential cyber services clearly DO NOT qualify as cyber
attacks.
 Use of force?
 Any cyber operation causing greater than de minimis damage or injury suffices … in
particular, operations that non-destructively target critical infrastructure may come to be
viewed by States as presumptive use of force.
 States may begin to consider data-destruction as use of force.
 Armed attack?
 The use of any device, or number of device which results in considerable loss of life
and/or extensive destruction of property must therefore be deemd to fulfil the conditions
of an armed attack.
 Non-State actors
 ICJ ruled twice that it is only limited to state in Palestinan Wall case and Nicaragua

 API, art. 49: “Acts of violence against the enemy, whether in offence of defence”
o See also:
 Civilians enjoy “general protection against dangers arising from military operations” (art. 51.1)
 No “acts or threats of violence” intended to spread terror (art. 51.2)
 Proportionality: “loss of civilian life, injury to civilians, damage to civilian objects, or a
combination thereof” (arts. 51 & 57)
o Do not look at whether the means (Cyber) is violent but at the effects (or consequences)
 Analogy with chemical or biological attacks
 Consequence:
o ‘Reasonably Foreseeable’ + ‘Blocked or defeated attack is still an attack’
 Words matter:
o The prohibition is on attacking protected persons/places, not targeting them
o It is an ‘attack; if it results in death, injury, damage, destruction to either Target or as Collateral Damage.

 Tangible objects are ‘objects’ under LOAC

o Less clear in relation to data
 If data is not an object then the prohibition against attacks on civilian objects does not apply
  Other principles of LOAC continue to apply
o Proportionality – must weigh up expected damage to civilian objects and death/injury of civilians
o Defining the military objective – is the whole object a military objective if only partly used for military
purposes?

 AP 1 - Article 36
o Requiring testing of new weapons and weapons systems for conformance with LOAC illustrates that the
law of war and international humanitarian law (IHL) rule apply to new technologies

Space
Weapons to Space
• Direct-ascent kinetic anti-satellite (ASAT) weapon
• Electro-magnetic pulse (EMP)
• Directed energy weapon (DEW)
– Laser – depending on the power of the laser.
• dazzle/disrupt, shift-tumble, destroy
– High-powered microwave
– Particle beam
• Link segment
– Electronic warfare (EW)
– Cyber warfare

Weapons In Space
• Co-orbital kinetic/EW/EMP/DE anti-satellite weapon
• Mobile satellite ‘servicing’

Weapons from Space

 Kinetic rods ‘from heaven’

o Ballistic
o Guided
o Hypersonic
 DEW
 EMP

Space-specific treaties

 Outer Space Treaty (1967)

o 107 ratifications + 23 signatures
 Rescue and Return Agreement (1968)
o 92 ratifications + 24 signatures
 Liability Convention (1972)
o 89 ratifications + 22 signatures
 Registration Convention (1975)
o 67 ratifications + 3 signatures
 Moon Agreement (1979)
o 18 ratifications + 4 signatures

 Outer Space Treaty

o Preamble
 Recognizing the common interest of all mankind in the progress of the exploration and
use of outer space for peaceful purposes …
o Art IV
 The Moon and other celestial bodies shall be used by all States Parties to the Treaty
exclusively for peaceful purposes.
o Art I
  The exploration and use of outer space, including the Moon and other celestial bodies,
shall be carried out for the benefit and in the interests of all countries, irrespective of
their degree of economic or scientific development, and shall be the province of all
mankind.

 Outer Space Treaty

o Art III
 States Parties to the Treaty shall carry on activities in the exploration and use of outer
space, including the Moon and other celestial bodies, in accordance with international
law, including the Charter of the United Nations, in the interest of maintaining
international peace and security and promoting international cooperation and
understanding.
 UN Charter
o Art 2(4) – prohibiting a threat or use of force
o Art 51 – inherent right of national and collective self-defence

Nanotechnology

Targeted Killings

 UAVs and targeted killing are not the same thing.

 One is a technology and weapon platform, the other a way to use it.
 Targeted killing can be done not only with UAVs, but with human teams, too; as seen most dramatically in
the Bin Laden raid by the US Navy SEALs.

Week 9 – International Humanitarian Law and International Human Rights Law

 IHL and IHRL Compared

 Scope of Application
 Relationship Between IHL and IHRL
 Areas of Contention
 Australian Approach

IHL and IHRL – Primary Functions

 IHL –
o regulates the conduct of the parties to an armed conflict and the protection of categories of persons/civilians and
civilian objects.
o No derogations allowed for IHL

 IHRL –
o Protection of rights which accrue to individuals and groups vis-à-vis their governments
o lists a number of rights that can be claimed by individual persons against their own governmental authorities.
o Concept of derogation is recognised and incorporated in many IHRL instruments

 Primary IHRL Instruments

o 1948 Universal Declaration of Human Rights
o 1948 Genocide Convention
o 1950 European Convention on Human Rights
o 1966 ICCPR
 o 1966 ICESCR
o 1979 Convention on the Elimination of all forms of Discrimination Against Women
o 1984 Convention Against Torture
o 1990 Convention on the Rights of the Child
 Art 38 and Child Soldiers (15 years); 2002 Optional Protocol (18 years).

 IHRL Rights not found in IHL

o Right to self-determination
o Right to recognition as a person before the law
o Right to hold opinions without interference
o Right to peaceful assembly
o Right to freedom of association
o Right to marry
o Right to be registered after birth and have a name
o Right to acquire nationality
o Right to take part in public affairs
o Right of minorities
o Right to social security
o Right to enjoy benefits of scientific progress
o Protection of interests resulting from scientific literary or artistic production
o Prohibition on imprisonment based on inability to fulfil a contractual agreement

Scope of Application

IHRL IHL

IHRL instruments list a number of rights that can be
claimed by individual persons against their own
governmental authorities
The concept of derogation, is recognised and
incorporated in many IHRL instruments.
IHL regulates the behaviours of parties to an armed
conflict – in relation to the conduct of hostilities and in
relation to the treatment of specific categories of persons.
No derogation allowed for under IHL.

Methodological Distinctions
IHRL
 Governs relations between state and its citizens
 Not concerned with status/category of persons
 Terminology is vague/aspirational
 IHRL use of force deals with lethal force as a last resort/law enforcement context (proportionality has a different application
than IHL)

IHL
 Deals with relations between states in wartime.
 ties rights and obligations to categories (Combatant/PW/Civilian etc)
 Generally more prescriptive.
 Permits application of lethal force based on status and principles of distinction and proportionality (different to IHRL)

Relationship between IHL and IHRL

  Three views exist:
o Complementary/Convergence theory – most accept this theory at some level nowadays.
o IHL is part of IHRL
o IHL and IHRL are two mutually exclusive branches of international law; one is lex specialis whils the other is lex
generalis

I think the conclusion means that IHRL apply to the extent that it fills in gaps for IHL

Week 10 – International Criminal Law

 International Criminal Law

 Definition and Types of International Crimes
 Jurisdiction for the Prosecution of Breaches of LOAC
 Criminal Responsibility
 Defences

International Criminal Law

 Definition:
o The international effort to protect a certain international “public order” or core international values,
through the imposition of criminal sanctions in both international and domestic courts.

 International criminal law sits at the confluence of several important bodies of law:
o Public International Law
o The Law of Armed Conflict
o Domestic Criminal Law
o Human Rights Law

 International Criminal Law only kicks in when Domestic Criminal Law does not apply.

 Source of Law:
o Rome Statute which has the effect of codifying all of the “most serious crimes of concern to the
international community as a whole”
 Parameters of ICL
o Not all crimes committed during armed conflicts are subject to international criminal law.
 Purely domestic crimes which are committed during an armed conflict must necessarily be
distinguished.
o The Core Crimes in International Law
1. The Crime of Genocide
2. War Crimes
3. Crimes Against Humanity
4. The Crime of Aggression

Genocide
a. Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
i. (a) Killing members of the group;
ii. (b) Causing serious bodily or mental harm to members of the group;
 iii. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole
iv. or in part;
v. (d) Imposing measures intended to prevent births within the group;
vi. (e) Forcibly transferring children of the group to another group.
b. Intent
i. Intent of destroying ‘in whole or in part’ of the target group
c. Group
i. ‘National, racial, ethnic and religious’ group

1948 Genocide Convention Article 2; Art. 6 Rome Statute:

o Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T (Trial Chamber), June 7, 2001, para. 55.
o Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T (Trial Chamber), May 21, 1999,
para. 88: “[T]he crime of genocide is considered part of international customary law and, moreover, a
norm of jus cogens.”

War Crimes
 Violation of the laws of arm conflict

 IAC
 Grave breaches of the Geneva Conventions, other serious violations of the laws and customs applicable in
international armed conflict

 NIAC
 Serious violations of to the Geneva Conventions article 3, other serious violations of the laws and
customs applicable in armed conflicts not of an international character

 Australian Criminal Code

 Chapter 8 —Offences against humanity and related offences
o Division 268—Genocide, crimes against humanity, war crimes and crimes against the
administration of the justice of the International Criminal Court

Subdivisions to Division 268

B. Genocide
C. Crimes against humanity
D. Grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions
E. Other serious war crimes that are committed in the course of an IAC
F. War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed
in NIAC       
G. War crimes that are other serious violations of the laws and customs applicable in NIAC
H. War crimes that are grave breaches of AP1

 THERE NEEDS TO BE A NEXUS – Distinguish from Domestic crimes

o RULE:
 “For an offence to be a violation of international humanitarian law, therefore, this Trial Chamber needs to
be satisfied that each of the alleged acts was in fact closely related to the hostilities.
 It would be sufficient to prove that the
o (1) crime was committed in the course of or as part of the hostilities in,
o (2) or occupation of, an area controlled by one of the parties.” Tadic
 This is to be determined in the circumstance of each individual case

o “[n]ot only were the underlying crimes were made possible by the armed conflict, but they were very much a part of
it.
  The perpetrator acted in in furtherance of or under the guise of’ the armed conflict
 ‘‘the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact
that the victim is a member of the opposing party; the fact that the act may be said to serve the
ultimate goal of a military campaign and the fact that the crime is committed as part of or in the
context of the perpetrator's official duties.’
 Muslim civilians were killed, raped or otherwise abused as a direct result of the armed conflict and
because the armed conflict apparently offered blanket impunity to the perpetrators.”Prosecutor v.
Kunarac et al

Crimes against humanity

 “Crimes against humanity" is a collective category of crimes committed against any civilian population (local
or foreign) in relation to an armed conflict;
 Crimes against humanity are particularly odious offences in that they constitute a serious attack on human
dignity or grave humiliation or a degradation of one or more human beings.
 RULE:
1. There must be an attack;
2. The acts of the perpetrator must be part of the attack;
3. The attack must be ‘directed against any civilian population;’
4. The attack must be ‘widespread or systematic;’ and
5. The perpetrator must know of the wider context in which his acts occur and know that his acts
are part of the attack.”

 Crimes against humanity include the following crimes directed against any civilian population:
o murder;
o extermination;
o enslavement;
o deportation;
o imprisonment;
o torture;
o rape;
o persecutions on political, racial, and religious grounds;
o other inhumane acts.

 The Crime of Aggression

o Aggression was seen as a “crime against peace” and described as the “mother of all crimes” at
Nuremberg.
o Definition:
 Aggression may be defined as military action that is neither in self-defence nor authorized by
the Security Council.
 Only individuals in the highest spheres of the state (those involved in the decision to launch a
war) can be prosecuted for aggression.
 There is little consensus on the main parameters of aggression – e.g. humanitarian
intervention – Kosovo; annexation - Crimea.

… the use of armed force by a State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations…
(a) The invasion or attack by the armed forces of a State of the territory of another State , …, or any annexation
by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons
by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another
State;
 (e) (e) The use of armed forces of one State which are within the territory of another State with the agreement of
the receiving State, in contravention of the conditions provided for in the agreement or any extension of their
presence in such territory beyond the termination of the agreement;
(f) (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be
used by that other State for perpetrating an act of aggression against a third State;
(g) (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out
acts of armed force against another State of such gravity as to amount to the acts listed above, or its
substantial involvement therein.
 Rape and Sexual Violence

o Acts of sexual violence can constitute acts of genocide, crimes against humanity; war crimes; and torture.
 Recruitment and Use of Child Soldiers: Criminalization
o For the purpose of this Statute, ‘war crimes’ means: …
 “Conscripting or enlisting children under the age of fifteen years into armed forces or groups or
using them to participate actively in hostilities.” Rome Statute, Art 8(2)

Enforcement

 The most effective means of enforcing LOAC remains the prosecution and punishment of offenders within
national or international criminal jurisdictions.
o “the conviction of finding nowhere a span of earth where real crimes were pardoned might be the
most efficacious way of preventing their occurrence” and thus ensuring respect for the rule of law.
Cesare Beccaria 1764

 International Criminal Court

o Not Universal Jurisdiction – jurisdiction over crimes committed on the territory of, or by nationals of,
state parties;
o Cases are referred to the ICC by
 State(s) Party to the Statute;
 UN Security Council (Chapter VII);
 Prosecutor
o May only exercise its jurisdiction where the state is unable or unwilling to prosecute.
o States that are not signed on to the ICC can only be tried if the crime occurs in the territory of a State
Party
 States that have not signed include: China, Pakistan, Russia, Israel, Iran, India, Palestine,
Syria
 Australian Jurisdiction
o International Criminal Court Act 2002
 (1)  The principal object of this Act is to facilitate compliance with Australia’s obligations
under the Statute
 (2)  Accordingly, this Act does not affect the primacy of Australia’s right to exercise its
jurisdiction with respect to crimes within the jurisdiction of the ICC.
 Note: The crimes within the jurisdiction of the ICC are set out as crimes in Australia in
Division 268 of the Criminal Code.
o Australia has jurisdiction over crimes committed on Australian territory and by Australians anywhere
in the world;
o Australia has jurisdiction over crimes committed against Australian nationals; and
o Australia can prosecute any individual present in Australia for crimes listed in the ICC Act regardless
of that individual's nationality or where the crimes were committed.

CRIMINAL RESPONSIBILITY
 Any person who planned, instigated, ordered, committed (jointly or individually) or otherwise aided and abetted in
the planning, preparation or execution of a war crime may be held criminally responsible for the crime.
  Inciting Genocide through publication
o “As founder, owner and editor of Kangura, a publication that instigated the killing of Tutsi civilians, … the
Chamber finds… Ngeze guilty of genocide.”
o Prosecutor v. Nahimana, Barayagwiza and Ngeze ICTR (Trial Chamber)

 Commander Responsibility
o [Governments] and Parties to the Conflict shall require any commander who is aware that
subordinates or other persons under their control are going to commit or have committed a
breach…to initiate such steps as are necessary to prevent such violations…and, where
appropriate, to initiate disciplinary or penal action against violators thereof. AP1 Art 87
o The fact that any such crime was committed by a subordinate does not relieve a superior of
criminal responsibility if the superior knew or had reason to believe that the subordinate was
about to commit a war crime, and the superior failed to take the necessary and reasonable
measures to prevent or to punish the crime.
o ELEMENTS:
 The existence of a superior subordinate relationship of effective control between the
accused and the perpetrator of the crime;
 the knowledge, or constructive knowledge, of the accused that the crime was about to
be, was being, or had been committed; and
 the failure of the accused to take the necessary and reasonable measures to prevent
or stop the crime, or to punish the perpetrator.
Prosecutor v. Bagilishema
ICTR Trial Chamber
 Military Necessity Defence?
o ‘insofar as the impugned action can be justified as necessary in accordance with international humanitarian law.

 Just following orders – Nuremberg Principle

o The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from
responsibility under international law, provided a moral choice was in fact possible to him.

Week 11 – Military Occupation

 What is ‘military occupation’?
 Sources of the law
 Scope of application – when and who?
 Some obligations
 Human rights and occupation – ‘effective control’…
 Futures?

What is Military Occupation?

 Three types of occupation
o Peaceful occupation = one mode of territorial acquisition
o Belligerent occupation = occupation of foreign territory contrary to the will of the sovereign state
previously controlling that territory (even when it does not encounter armed resistance and therefore
there is no armed conflict: Art 2(2) GCIV)
o Military occupation = belligerent occupation + occupation of an area by UN peacekeepers or by a
foreign power not against the will of the sovereign state

Sources of Law
 1907 Hague Regs Arts 42-56
 1949 GCIV, Arts 13-34, 47-78
 1977 API
 1954 Hague Convention on Cultural Property and its two protocols
 Other rules of IHL applicable in IAC continue to apply
 Human Rights Law

Elements of Occupation

 When does an occupation commence?

o 1. Actually, placed under authority + effective control Art 42 Hague Regulations
o 2. During the ‘invasion phase’: Art 6 GCIV (‘from the outset’)
o 3. The Eritea/Ethiopia Claims Commission – a functional approach – CIL
 Scope over people
o Inhabitants of the occupied territory, including refugees (Art 73 API)
 When does an occupation end?
o Withdrawal
o Peace treaty – why/how does this end the occupation?
o Debellatio (defeat so complete that the enemy state has effectively ceased to exist)
o Art 6 GCIV: 1 year rule, but… (API Art 3(b)) – API overtakes

Obligations under Occupation

 Prohibition of Annexation
o The responsibility of the occupying power is limited only to the administration of the territory
 The occupying power is not and does not become the ‘sovereign’ in the occupied territory
 It is more a ‘suspension’ of the sovereignty of the occupied state for the duration of occupation
o Temporary nature is a core expectation
o Article 2(4) of the UN Charter
 Protection of Civilians
o Rules on the protection of civilian populations during an armed conflict continue to apply
o Exception on the ground of security of the occupying power
o Rules include:
 Respect for their persons, their honour etc: Art 27(1) GCIV
 protection of private property: Art 46(2) Hague Regs, Art 53 GCIV
 protection from violence: Arts 13 & 27 GCIV, Art 46 Hague Regs
 prohibit reprisals, collective punishment, intimidation: Art 33 GCIV
 prohibit deportation or transfer of local populations unless the security of the population or
imperative military reasons so demand: Art 49(1) GCIV; cf Art 49(5) – should not prohibit them
from seeking safety
 Also prohibition on transfer or settlement of own population into the occupied territory: Art
49(6) GCIV
 Prohibit civilian internment in the absence of ‘imperative reasons of security’ – the decision must be
reviewed by a competent body with a regular procedure: Art 78 GCIV
 Maintenance of Law and Order
o The occupant shall take all the measures in his power to restore and ensure, as far as possible, public order
and safety while respecting, unless absolutely prevented, the laws in force in the country’ Article 43 Hague
Regs
 Unless absolutely prevented?
 Art 64 GCIV – states the exceptions.
 with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to
its security or an obstacle to the application of the present Convention.

 Use of the Population?
o Cannot get population to
 Take part in ops against their own country
 Assist the occupier’s war effort against their own country
  Serve in armed or auxiliary forces of the occupier
 Give defence information to the occupier
 Move to another country to work
 To stay in their administrative posts (from the old government)
 Can’t requisition civilian medical units so long as they are needed for the treatment of the civilian
population
 Can requisition them in a limited number of situations
 Can’t compel population to give you most forms of their property, unless absolutely necessitated by
military operations
 Special rules for temporary requisition of buildings, transport, comms systems
 Special rules regarding public moveable property such as cash, arms etc
o Can get population to
 Assist the regular police in maintenance of public order
 Help with fire fighting
 Perform other duties that may be required of citizens for the public good

End of Occupation
 Absence of foreign force
 Local government consents to occupation
 Exercise of authority

Human Rights Law under Occupation

 Occupying power to apply the full range of human rights treaties to which it is a party
o secure respect for the applicable rules of international human rights law and international humanitarian law’
(Armed Activities Case (Congo) [2005] ICJ Rep at para.178)

 European Court of Human Rights

o States approaches to implement the Human Rights Convention obligations
 Loizidou v Turkey (1995/96) – ‘effective overall control of an area’ as the basis for human rights
jurisdiction
 Authority or control over an individual: see, eg, Cyprus v Turkey (1975); Issa v Turkey (2004); Pad
and Oths v Turkey (2007)
o Bankovic
 Court rejected the idea of requiring states to secure the Convention rights in a manner proportionate to
the level of control exercised in any given extra-territorial situation.
 That is, the rights cannot be ‘divided and tailored.’ – either all human rights or nothing.
 However, decision has been criticised
o Milanovic: ‘the necessary implication of its ruling was that the power to kill alone
could not constitute “authority and control”’ (EJIL 23, 2012, at 123)
o Al-Skeini (2008) – UK COURT
 ‘The obligation under article 1 [of ECHR] can arise only where the contracting state has such effective
control of the territory of another state that it could secure to everyone in the territory all the rights and
freedoms’
 1. Effective Control – vague concept.
o What is it? When does it kick in? Who does it cover? What does it mean for us in
terms of additional obligations?
 The presence of foreign forces
 The exercise of authority over the occupied territory
 The non-consensual nature of belligerent operations
 Local authorities have indirect effective control
 2. Not necessary that killings were breaches of ECHR ‘right to life,’ but more so that effective
control meant an obligation to conduct an investigation.
 European Court
  Affirmed that the ECHR (via UK HRA) rights can be ‘divided and tailored’ (at para
137)

 The main issue in Occupation Law now is whether our laws apply to the countries we control (Extraterritoriality)
+
 Reform?
o Incorporate Human Rights Law to Occupation Law
o Europeans don’t know until after the European Court of Human Rights have decided
o Different standards for different countries
 Geneva Convention IV, Article 13-96