Genocide & Atrocity Crimes

Table of Contents

Principles of International Humanitarian Law 2

Introduction 2
Protection of 2
Constitutional Review of Additional Protocol II 2
Minimizing Unnecessary Suffering 3
Mission Fulfillment 3
Key Sources of LOAC 3
Treaties 3
Customary International Law 3
David J. Bederman, International Law Frameworks 3
Key Actor: The Role and FUnction of the International Committee of the Red Cross 4
Jus Ad Bellum vs. Jus in Bello 4
Introduction 4
Jus Ad Bellum 4
Jus ad Bellum in an Age of Counterterrorism 5
Separation of Jus ad Bellum and Jus in Bello 5
Prosecutor v. FOFANA and KONDEWA 5
Intersection with and Distinction from Human Rights Law 5
Introduction 5
Theodor Meron, The Humanization of Humanitarian Law 6
Legality of the Threat or Use of Nuclear Weapons 6
Basic Principles 6
Purposes 6
The Four Fundamental Principles 7
Military Necessity 7
Introduction 7
USA v. Wilhelm List et Al (The Hostages Trial) 7
Humanity 7
Introduction 7
The Martens Clause 8
Distinction 8
Introduction 8
 Proportionality 8
Introduction 8

Principles of International Humanitarian Law

Introduction
I. Treaty of Mutual Guarantee
II. 1928 Treaty of Paris
III. Law of Armed Contact
A. International Humanitarian Law
B. Law of War
C. Governs the conduct of both sides and individuals during armed conflict and
seeks to minimize suffering in war by protecting persons not participating in
hostilities and by restricting the means and methods of warfare
D. Designed to protect those who cannot protect themselves
IV. Captain Rich Whitaker
A. JAG
B. Taught his class to soldiers on the third Geneva Convention

Protection of
I. One of LOACs central goals is to protect civilians from the horrors of war and reduce
suffering during conflict
II. It does so through rules that prohibit attacks on civilians, torture, and other violence that
set standards for detention and treatment that in generla seek to minimize the effects of
war on civilian populations

Constitutional Review of Additional Protocol II

I. The compulsory nature of international humanitarian law applies to all parties to an
armed conflict, and not only to the armed forces of States which have ratified the relevant
treaties
II. An armed individual may not cite failure to comply with humanitarian law by his
adversary as an excuse for his own violations of these rules, sinc ehte restrictions
pertaining to behavior in combat apply for the benefit of the individual
III. The distinctive feature of this law is therefore that it rules constitute inalienable
guarantees
Minimizing Unnecessary Suffering
I. Seeks to protect those who are fighting from unnecessary suffering
II. Wounded soldiers must be cared for, protected from danger, and treated with dignity
III. First Geneva convention was signed, obligating countries to provide protection to
wounded soldiers from both sides
IV. The limitations on the means and methods of warfare, prohibiting the use of weapons that
cause unnecessary suffering such as poisonous gas
V. Article I of Additional Protocol states that
A. It is prohibited employ weapons, projectiles, and material and methods of warfare
of a nature to cause superfluous injury or unnecessary suffering

Mission Fulfillment
I. An essential component of good military discipline and effective military operations
II. History includes examples in which violations of the law compromised mission success
by bolstering enemy motale– whether because of the killing of prisoners of war, abuses
against civilians, or other violations
III. Compliance with the law and adherence to basic notions of humanity also provide greater
potential for success in the post conflict stage

Key Sources of LOAC

Treaties
I. Main sources of LOAC are treaties and customary law
II. The four Geneva conventions of 1949 are the centerpiece of the lOAC and are ratified by
every country in the world
III. Treaties do not trump custom
IV. Derogat fenerali
A. Specific law prevails over general law
V.

Customary International Law

I. Develops from the general practice of states
II. Accepted and observed as law

David J. Bederman, International Law Frameworks

I. Two key elements in the formation of customary international law
II. Expressed in Article 38 of the ICJ Statute
III. Evidence of a general practice accepted as law
IV. Must prove the satisfaction of the relevant decision maker (whether it be an international
tribunal, domestic court, or government or inter-government actor
A. Been followed as a general practice
1. Have international actors really followed the rule?
B. Has been accepted as law
1. Why the actor has observed a particular practice
a) Is it observed out of a sense of legal obligation or out of courtesy
and politeness?
V. General Practice element is objective inquiry

Key Actor: The Role and FUnction of the International Committee of the Red Cross
I. THE IRC’s work
A. Operational, helping victims of armed conflict and other situations of violence
B. Developing and promoting international humanitarian law and humanitarian
principles
C. Impartial, neutral, and independent
II. The IRC has a universal covation. Its work is not limited to certain places or certain types
of people
III. IRC gets involved during the emergency phase and stays for as long as necessary
IV. IRC engages in dialogue with all those involved in an armed conflict or other situation of
violence that may have some influence on its course
V. Whether they are recognized by the community of States or not

Jus Ad Bellum vs. Jus in Bello

Introduction
I. Jus in bello is Latin for the law governing the conduct of hostilities and the protection of
persons in times of conflict
II. Jus ad bellum is the latin term for the law governing the resort to force when a state may
lawfully use force on the territory of another state

Jus Ad Bellum
I. International law provides only three justifications that rebut this presumption against the
use of force therefore any use of force not falling within one of these three justifications
violates Article 2(4) and fundamental prohibition of the use of force by one state against
another
A. A state may use force in the territory of another state with the consent of that state
B. The multinational use of force authorized by the Security Council under Chapter
VII(Article 42)
C. The inherent right of self-defense in response to an armed attack (Article 51)
 II. Under Article 51 and the historical right of self-defense, a state can use force in self-
defense in response to an armed attack as long as the force used comports with the
requirement of necessity, proportionality, and immediacy in repelling the attack or ending
the grievance
III. Proportionality focuses on the degree of the force needed to eliminate the danger or repel
the attack

Jus ad Bellum in an Age of Counterterrorism

I. A terrorist group based thoands of miles awat in the remote reaches of a developing
nation can pose a significant threat to a powerful industrial nation

Separation of Jus ad Bellum and Jus in Bello

I. Jus ad bellum is not concerned with the conduct of hostilities, the targeting of persons or
objects, or the extent of civilian casualties

Prosecutor v. FOFANA and KONDEWA

I. Civil war rages in Sierra Leone, between the government and rebel forces including the
Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC)
II. Three leaders of the Civil Defense Forces which fought on the side of the government
were prosecuted for war crimes, crimes against humanity,and other serious violations of
the international humanitarian law
III. Trial chamber convicted fofana and kondewa
IV. War crimes but reduced their sentences because they fought on the side of the
government against the rebel RUF forces
V. Held that a convicted person’s motivation of just cause contravenes the sentencing
purpose of affirmative prevention

Intersection with and Distinction from Human Rights Law

Introduction
I. International human rights law governs the relations between a state and individuals
within its territory and jurisdiction, guaranteeing certain protections to individuals from
state encroachment on their rights
II. Universal Declaration of Human Rights
A. Common standard achievement for all peoples and all nations
B. Right to life, the right to be free from torture and inhuman treatment, right tobe
free from arbitrery detention, right to a fair trial, and others, are highly relevant
during times of conflict and civil strife
Theodor Meron, The Humanization of Humanitarian Law
I. Unlike human rights law, the law of war allows, or at least tolerates:
A. The killing and wounding of innocent human beings not directly participating in
an armed conflict, such as civilian victims of lawful collateral damage
B. Permits certain deprivations of personal freedom without convictions in court of
law
C. Allows an occupying power to resort to internment
D. Limits the appeal rights of detained persons
E. Permits limitations of freedom of expression and assembly
F. Law of armed conflict regulates aspects of a struggle for life and death between
contestants who operate on the basis of formal equality
II. Human rights laws protect physical integrity and human dignity in all circumstances
III. Lex specialis, a latin term meaning law governing a specific subject matter
IV. Lex specialis derogat legi generali and addresses the interpretation of laws in either the
domestic or international law context

Legality of the Threat or Use of Nuclear Weapons

I. Relevant applicable law
II. Article 6 of the International COvenant on Civil and Political Rights
A. Every human being has the inherent right to life.mThis right shall be protected by
law. None shall be arbitrarily deprived of his life
III. A particular loss of life is to be considered an arbitrary deprivation of life contrary to
Article 6 of the Covenant, can only be decides by reference to the law applicable in
armed conflict and not deduced from the terms of the Covenant itself

Basic Principles

Purposes
I. Humanitarian Purpose
A. Protect people from the horrors of warfare
II. Regulation of the means and methods of warfare
A. Protecting the people fighting
 The Four Fundamental Principles
I. Creates a framework that can guide examination of the obligations and actions of parties
to conflicts and the rights and privileges of individuals in the conflict zone
A. Military Necessity
B. Humanity
C. Distinction
D. Proportionality

Military Necessity
Introduction
I. A military has the right to use any measures not forbidden by the laws of war which are
indispensable for securing the complete submission of the enemy as possible
II. Principle of authority to use force to accomplish strategic and national security goals
III. Military necessity does not admit cruelty
IV. Military necessity has four basic elements
A. Force used can be and is controlled
B. Necessity cannot excuse a departure from the law
C. The use of force in ways which are not otherwise prohibited is legitimate if it is
necessary to achieve, as quickly as possible, the complete or partial submission of
the enemy
D. Conversely, the use of force which is not necessary is unlawful, since it involves
wanton killing or destruction

USA v. Wilhelm List et Al (The Hostages Trial)

I. Part of the Nuremberg Trials
II. Defendants were twelve German generals accused of responsibility for hostage taking
and reprisal killings against partisans during Germany’s 1941 offensive into Greece,
Yugoslavia, and Romania
III. Many hostages taken by Germans were innocent civilians
IV. Defense gave the plea of military necessity
V. US Military Tribunal stated “the rules of international law must be followed even if it
results in the loss of a battle or even a war”

Humanity
Introduction
I. Also known as the principle of unnecessary suffering
II. Aims at minimizing suffering in armed conflict
III. Infliction of suffering or destruction not necessary for legitimate military purposes is
forbidden
IV. Once a military purpose has been achieved, the infliction of further suffering is
unnecessary

The Martens Clause

I. A direct outgrowth of the code of chivalry
II. Chivalry was code of conduct for knights during medieval times and included specific
rules for fighting, treatment of other combatants, quarter and mercy– all based on loyalty,
honor, justice, and courage
III. Also serves a constant reminder that the principle of humanity remains relevant and
retains its primacy even as new developments, whether in the types of conflicts, tech, or
weapons outpace of codification

Distinction
Introduction
I. One of the most fundamental issues during conflict is identifying who or what can be
targeted
II. Principle of distinction– sometimes refered to as a discrimination– requires that any party
to a conflict distinguish between thos ewho are fighting and those who are not, and direct
attacks solely at the former
III. Jean-Jacques Rousseau
A. “It is legitimate to kill the latter’s defenders so long as they are carrying arms, but
as soon as they lay them down and surrender, they cease to be enemy or agents of
the enemy, and again become mere men and it is no longer legitimate to take their
lives”
IV. Distinction was first set forth in Article 22 of the Lieber Code
A. The unarmed citizen is to be spared in person, property, and honor as much as the
exigencies of war will admit

Proportionality
Introduction
I. Proportionality requires that parties refrain from attacks in which the expected civilian
casualties will be excessive in relation to the anticipated military advantage gained
II. Jus in bello differs substantially from jus ad bellum proportionality
III. Principles balances military necessity and humanity, and is base on the confluence of two
key ideas:
A. The means and methods of attacking the enemy are not unlimited. Rather, the
only legitimate object of war is to weaken the military forces of the enemy
B. The legal proscription on targeting civilians does not extend to complete
prohibition on all civilian deaths
 What is Armed Conflict?

Introduction
I. States deploy military forces in a wide range of situations encompassing far more than
what might be traditionally termed “war”. Disaster relief, peacekeeping, peace
enforcement, humanitarian relief, counterterrorism operations– these can all involve
significant commitments of personnel, materiel, and technological military resources–
and et such operations will not necessarily engage legal obligations under LOAC.

Geneva Conventions Framework

I. Classic definition of war appears in Oppenheim's Treatise on international law:
A. War is 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
II. Common Article 2
A. “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.
B. The Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation meets with no
armed resistance…”
C. Common Article 2 does not specifically define armed conflict, but is generally
understood to apply to any situation in which the armed forces of two states
engage with each other
D. Many conflicts involve fighting between a state and non-state entities within the
state, or among multiple non-state groups competing for power and authority in a
state or particular region of a state
E. Such conflicts are not international armed conflicts
III. Common Article 3
A. In the case of armed conflict 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
1. Persons taking no active part in the hostilities, including members of
armed forces who aid down their arms and those places hors de combat
B. Article 3 effectively establishes a minimum threshold of treatment and conduct
for all situations of armed conflict
 Defining Armed Conflict
Intro
I. When events in a particular locale suggest the existence of armed conflict, the
first questions must be: Is there an armed conflict, and if so, what kind of armed
conflict?
Abandoning Old Concepts of War
I. Historically, a declaration of war was often considered a necessary prerequisite to
the existence of warthe motion that war only existed in the legal sense
II. Long before the Geneva Convention, the motion that war only existed in the legal
sense after a formal declaration of war began to be discarded
III. More functional approach to identifying armed conflict and the obligations and
privileges that accompany it
The Prize Cases
I. U.S v. Plenty Horses (1891)

Modern Definition of Armed Conflict

I. Definition of Armed Conflict
A. 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
II. International Armed Conflict
A. Common Article 2 applies to any conflict between two states involving their
armed forces no matter how minor or short-lived, even if one or both states deny
the existence of the conflict
III. Non-International Armed Conflict
A. Common Article 3 is the primary measure of the existence of non-international
armed conflict
B. Applies in all situations that could constitute non-international armed conflict
under the conventions as explicated in the cases below
C. Common Article 3 does not apply to riots, mere acts of banditry, or an
unorganized and short lived rebellion.
D. Article 3 armed organized armed strife between governmental armed forces and
insurgents

Counterterrorism as Armed Conflict?

Introduction
I.

Determining the Applicable Law

I. Introduction
 Cyber Operations as Armed Conflict
Introduction
I. Cyber warfare has been defined broadly to include, among other actions:
A. Defending information and computer networks
B. Deterring information attacks
C. Denying an adversary’s ability to defend networks and deter attacks
D. Dominating information on the battlefield
II. One common approach to determining whether a cyber operation constitutes an armed
force is to equate “acts of violence against the adversary, whether in offense or defense”
III. Cyber operations can cause violent consequences, so “to the extent that they result in
injury or death of persons or damage or destruction of property, they are attacks
satisfying the armed criterion of armed conflicts”
IV. Identifying where an attack originated and who carried it out
A. An International Armed conflict
1. Is between two states “the use of armed force in the cyber arena must be
attributable to a state to trigger an international armed conflict.”
B. Non-international armed conflict
1. Cyber activity and operations as armed conflict can be more complicated.
Two main criteria: intensity and organization
a) Intensity: could likely be characterized in a manner similar to the
methodology used now, “network intrusions, the deletion or
destruction of data (even on a large scale), computer network
exploitation, and data theft do not amount to a non-international
conflict” not would the “blocking of certain internet functions and
services” or defacing governmental or other official websites.
b) Organization: A non-state armed group that is “sufficiently
organized to be a party to a conventional non-international armed
conflict would be sufficiently organized to be a Party to a conflict
that includes or is solely based on cyber operations.”

Classifying Conflicts
 Introduction

Distinguishing and Transitioning Between International Armed Conflict

Introduction
I. Characterization of a conflict as international or non-international is straightforward.
Many conflicts, however, are more complicated and display characteristics of both
international and internal

Foreign State Involvement in a Non-International Armed Conflicts

I. State involvement in some way in a conflict that is taking place within another state is
quite common. The question is whether the foreign state’s involvement changes the
characterization of the conflict such that it converts a non-international armed conflict
into international armed conflict.
II. Foreign state involvement in a conflict can take several different forms, including
financial assistance to one party, transfer of weapons and material, assistance through
advisors and trainers, introduction of some soldiers and units, or even full-scale
intervention of combat units

Extraterritorial Force Against Non-State Armed Groups

I. The following types of conflicts identified by the IRC in a report on contemporary
challenges in LOAC
A. Spill-over conflicts in which a non-international armed conflict between
government forces and one or more organized armed groups within the territory
of a state “spill-over” into a neighboring state
B. Multinational non-international armed conflicts where milti-national armed forces
fight alongside the forces of a “host” state in its territory, against one more
organized armed groups
C. A subset of multi-national non-international armed conflicts United Nations or
regional forces support a “host” government involved in hostilities against one or
more organized groups
D. Cross-border conflicts where the forces of a state are involved in hostilities with a
non-state party operating from the territory of a neighboring host state without
that state’s control or support
E. The law applicable to these different types of non-international armed conflict is
the same Common Article 3 and all customary law applicable to non-international
armed conflict
Complex Conflicts
I. In many conflicts, a multitude of groups– both state and non-state– may be fighting, some
against each other, some in concert, some simply in the same area but unrelated to each
other in goal or strategy

Special Agreements
I. Parties to a non-international armed conflict ma choose to enter into an agreement to
apply provisions of the Geneva Conventions beyond Common Article 3
II. Common Article 3 even encourages such agreements
A. The parties to the conflict should further endeavor to bring into force, by means of
special agreements, all or part of the other provisions of the present Convention

Combatants

Introduction
I. LOAC’s key goals are to regulate the conduct of hostilities and protect persons and
objects during conflict
II. Once we have analyzed the nature of the conflict and determined that the situation in
question does trigger the application of LOAC— next step is to identify the status of the
persons in the zone of combat and their rights, obligations and privileges
III. Individual status, whether on the battlefield or off, determines whether a person can
lawfully engage in hostilities, is immune from attack, enjoys the privliges of prisoner of
war (POW) status upon capture, and host of other issues.

Definition and Classification

Introduction
I. All enemies in regular war are divided into two general classes– that is to say, into
combatants and noncombatants, or unarmed citizens of the hostile government
II. Once one is accorded the status of a belligerent,m one is bound by obligations of the laws
of war, and entitled to the rights which they confer

Combatant Status and the Four-Part Test

I. Combatant is only applicable in international armed conflict
II. The laws, rights, and duties of war apply not only to armies, but also to militia and
volunteer corps fulfilling the following condition
A. To be commanded by a person responsible for his subordinates
 B. To have a fixed distinctive emblem recognizable at a distance
C. To carry arms openly
D. To conduct their operations in accordance with the laws and customs of war
III. Hague COnvention before sets forth four additional criteria such groups must meet before
their member are entitled to POW status and thus be called combatants
IV. Specifically, such militia must be
A. Under responsible command
B. Have a fixed distinctive sign
C. Carry arms openly
D. Conduct operations in accordance with the laws of war

Treatment and Protection of POWs

I. Article 13 must be humanely treated at all times

Class Notes

Class One: 09/09/22

I. Exam
A. One hour, one question, one fact pattern
B. Closed note, closed book

International Law
Sources of International Law
I. Treaties/Conventions
A. Written down and try to figure out what we’re trying to do here
B. Treaty means it goes to U.S Senate with 2/3rds passage in US
C. International agreement in international law
II. International Custom
A. Customary international law
1. Widespread state practice
a) regular/repeated behavior
b) Grows
c) There are going to be disruptions and violations
d) Look at whether or not something is grown organically
e) No timeline
 f) Being a persistent objector is how you defeat something from
being international customary law
g) U.S position acting as a persistent objector (size and power of
nation has a big effect)
h) Freedom of Navigation
(1) FON OPS
(2) For the entire world
(3) Issues of who owns what a bit of water for fishing (ex)
(4) Driving ships through disputed waters in order to make
claim as persistent objector
B. Opinio Juris
1. Sense of legal obligation
2. Departure from this practice would result in sanction
3. Diplomats (ex.)
a) Not supposed to be subject of jurisdiction in U.S. courts
b) Non-combatants
c) Not supposed to be killed, taken hostage, arrested
III. General principles of law
A. International law is not built in a vacuum, it is in a field and looks around for what
is useful
B. For atrocity crimes, it is pretty well accepted that beyond a reasonable doubt is the
standard
C. Pick and choose things out then put into the international system
IV. Judicial decisions/publicists
A. Look around and see what different supreme courts are saying
B. See what judicial decisions impact international law

I. Tier
A. Genocide
1. Based in race, ethnicity, religion
B. Crimes Against Humanity
1. Specific plan in place (ie. women held in gymnasium for weeks being
raped)
C. War Crimes

D. Treaties/Conventions
1. Written down and try to figure out what we’re trying to do here
2. Treaty means it goes to U.S Senate with 2/3rds passage in US
3. International agreement in international law
E. International Custom
1. Customary international law
 2. Widespread state practice
a) regular/repeated behavior
3. Opinio Juris
a) Sense of legal obligation
b) Departure from this practice would result in sanction
c) Diplomats (ex.)
(1) Not supposed to be subject of jurisdiction in U.S. courts
(2) Non-combatants
(3) Not supposed to be killed, taken hostage, arrested
F. General principles of law
G. Judicial decisions/publicists
II. Tier
A. Genocide
1. Based in race, ethnicity, religion
B. Crimes Against Humanity
1. Specific plan in place (ie. women held in gymnasium for weeks being
raped)
C. War Crimes

ICRC
I. Did a lot on international customary law, 3 volume set
II. Real organic thing that we continue to do

Enforcement of International Law

Unilateral Self-Help
I. Diplomatic
II. Political
III. Economic
IV. Resort to force

I. Difficult to force anything by sanctions

II. Sanctions can however still work
III. Travel sanctions drove the end of Gaddafi

Judicial/Arbitration
I. International court of justice
II. European court of human rights
III. European court of justice
IV. ICTY/ICTR
V. ICC
VI. Court of World Opinion
 A. How the world views matters

Collective Action
I. United Nations
II. Regional Organizations

United Nations Charter

I. Chapter VI: Pacific settlement disputes (Articles 33-38)
A. Focus on keeping the peace
B. Making sure people aren’t violating this shit
C. Lightly armed, not there to fight
D. Act as monitors, resolve conflict before it gets worse
E. Peace keepers are based on consent
II. Chapter VII: Action with respects to threats to the peace, breaches of the peace, and acts
of aggression (Articles 39-51)
A. Use any means necessary to enforce what the UN is trying to enforce
B. UN is all of us, so when it says let’s do a chapter VI or VII, they don't have a
standing army
C. They put at a call to all armies that are members
D. TCC (troop contributing countries)
1. India, Pakistan, Fuji big contributors
2. UN pays per head per day per mission
3. China is starting to do more peacekeeping
4. Scandinavian countries and Ireland see it as part of their heritage to
contribute
5. U.S doesn’t really contribute due to how military has been trained, not law
enforcement but combatants
III. Chapter VIII: Regional Arrangements (Articles 52-54)

International Humanitarian Law/ Law of War/ Law of Armed Conflict

I. All terms used interchangeably, depends on who is using it
II. LOAC is the Navy term and professor's term
III. LOAC is more broad than law of war
IV. Armed conflict is when this body of law kicks in

Human Rights v. LOAC

I. Under umbrella of human rights all the time
II. Lex generalis
III. Lex specialis- trumps the generalized law
IV. Once armed conflict has begun, LOAC is what is followed
 V. International Humanitarian Law makes it sound softer to some

Human Rights
I. Is punching someone in the face for no reason violating human rights?
A. Right not to be punched in the face
B. Violation of human dignity and person
C. Violation of peace
D. NOPE (unless they’re a state actor)
II. Human rights violations are ONLY enacted by state actors/states
A. Police brutality
B. ISIS was never technically a government but they were an organized group in
control and they violated a fuckton of human rights
C. COuntry A invaded COuntry B, it’s organized classic armed conflict
D. How do you differentiate what a group does and what russia has done?
E. Targeting civilians could be terrorism
F. TOns of different deifnitions of terrorism
G. Terorism:
1. violence against civilians to achieve a political objective
H. What are the Russians doing in Ukraine?
1. State A invading State B
2. Doing bad things out there
3. RUssia is just targeting everything, not making a distinction between what
they’re targeting
4. Terrorism is a squishy thing
5. One man’s freedom fighter is another man’s terrorist
6. Using one of the 4 crimes is a longer lasting label for russia
7. Benefits Ukraine more to call Russia an aggressor
I. Forums are always a big question- where can you take these?
III. COmbatant immunity
A. SO long as you fight it right, you’re immune from prosecution
B. As long as you’re targeting the right things, that’s legal and armed conflict
C. If you end up as a POW you can’t be prosecuted
D. What’s a combatant? Who’s a combatant?
E. First need to identify that there’s an armed conflict
F. Then identify who’s who
G. Geneva convention civilian is anything that’s not a combatant
H. If you’re a civilian you’re afforded all of the protections of a civilian
I. Civilians will be collateral damage

General Principles
 I. Definition: That part of international law that regulates the conduct of hostilities
II. Sources
A. Custom
B. Treaties
1. A lot are retrospective after seeing awful things
2. Based on custom law
III. Division
A. Jus ad bellum
1. WHy goin to war law
B. Jud in bello
1. Law in war (bigger focus)
2. The civilians who didn’t have a say into this invasion, the soldiers, are
going to be the ones caught up in this
3. Determines how this is going to go- if people are going to die that
shouldn’t
IV. Three ways to put forces in other countries
A. Self-defense
1. Victim of an armed attack
2. Ability to fight back
3. 9/11 deemed an armed attack
4. Article 51
5. Imminent threat
6. Preemptive self-defense is what Bush tried to do after 9/11
B. Consent
C. UNSC CH VII

Class Two: 09/10/22

I. Saint Augustine/ St. Thomas Aquinas

II. Code of Chivalry (Europe)
III. Bushi-Do (Japan)
IV. Mercenaries
A. Looking through an economic sense
V. 1618-1648
A. Thirty Years War/ Treaty of Westphalia
VI. 1625- De jure belli ac pacis- Grotius (the law of war and peace, father of int. law)
VII. 1679 - early 1800s - Ad hoc agreements
VIII. Era of Enlightenment
A. Rosseau/ Franklin
 B. Looking through a human sense
IX. 1854-56
X. Crimean War
1. Thinkin bout civilians
2. Journalists present
3. Generals and head people the ones who are telling the stories
B. Charge of the Light Brigade,
1. Horrors of war starting to get through the cracks
C. Florence Nightingale
1. Nurse on battlefield
XI. 1859-
A. Italian War of Unification
B. Battle of Solferino
1. Typical battle, nothin fancy going on
C. , Henri Dunant/ ICRC (1863)
1. Swiss businessman, trying to get in touch with Napoleon III
2. Witnesses the battle of solferino
3. Starts ICRC
XII. American Civil War/Lieber Code
A. Lieber is a Prussian Jew, teaches at University of South Carolina
B. Leaves SC because fuck slavery
C. Teaches law at Columbia
D. Lincoln asks Lieber to write the war of armed conflict for the US Army
E. COnfederacy adopts lieber code as well bc that shit’s good
F.
XIII. 1864 Geneva Convention
A. Using a protected symbol (red cross)
B. Cannot target people with the red cross, will help all the wounded
XIV. 1868 Declaration of St. Petersburg
XV. 1899- Hague Convention
A. Geneva Convention- People
B. Hague Convention- Methods and means
C. All fixed in LOAC
XVI. 1906- Geneva Wounded & Sick Conv
XVII. 1907- Hague Convention
XVIII. 1914 US Army field manual: Law of Land Warfare
XIX. 1922 Treaty of Washington
XX. 1925 Geneva Gas Protocol
XXI. 1928 Treaty of Paris/ Kellogg-Briand Pact
XXII. 1929 Geneva Convention- POWs
 Four Geneva Conventions
I. Wounded & Sick= GWS
II. Wounded, Sick, & Shipwrecked at Sea= GWS (Sea)
III. Prisoner of War= POW
IV. Civilians- GC
A. New concept being put forward

I. Self Defense (Article 51)

A. Israel used SD in 82
B. Said ISrael went too far because the threat wasn’t imminent
C. 9/11 was an armed attack so we gucci
D. ANa rmed attack on one is an armed attack on all NADO
II. Consent
A. Inviting peacekeepers in, peace deals
B. SOFA with Iraq expired in 2011
C. Status of Forces Agreement
D. Criminal jurisdiction makes it less boring
E. Universal Code of Military Justice 24/7
1. People can be prosecuted off time (ie. drunk driving on honeymoon)
2. How do we resolve this?
a) Compensatory damage
b) Who’s the victim?
F. Why we’re still in Iraq
III. Chapter VII Article 42
A. UN Security Council Authorization
B. Did we have authorization to go into Iraq?
1. Nope
2. Illegal war (legal argument)
C. If you don’t have those three, the law isn’t on your side

Application of LOAC
I. International AC- YES
A. Starts when countries are goin at it
II. Belligerency- YES
A. More like what civil wars are
B. Specific legal meaning where two entities have significant territory in one country
battling it out
III. Insurgency/NIAC- NO (except for common article 3)
A. Non-International Armed Conflict (Internal Armed Conflictt
IV. Must be an armed conflict before LOAC kicks in
 V. When does the armed conflict begin?

Non-International Armed Conflict

I. Threshold:
A. Intensity
1. What is the intensity of these exchanges?
2. Is it just a few people with guns?
3. Need to understand the facts
B. Organization

NIAC Intensity
I. Number, duration, and intensity of individual confrontations
II. Types of weapons and other military equipment used
III. Number and types of forces engaged
IV. Number of casualties
V. Geographic and temporal distribution of clashes
VI. Number of civilians fleeing conflict zone
VII. All live under human rights umbrella until we say armed conflict
A. One person, protest, bigger protest, violence, armed conflict

NIAC Organization
I. Existence of hierarchical structure
II. Territorial control and administration
III. Ability to recruit and train administration
IV. Ability to issue operational orders
V. Ability to launch operations using military tactics
VI. Ability to enter into ceasefire or peace negotiation

Common Article III

Forbids
I. Violence to life and person
II. Taking of hostages
III. Outrages upon personal dignity
IV. Failure to afford all the judicial guarantees recognized as indispensable by civilized
people
V. THese conventions apply to IAC
VI. BUT for other AC that aren’t international in nature, there are these rules that forbid shit
VII. Not going to agree to things that look inside the black box
VIII. We don’t want anyone lookin inside
IX. Article 3 is all we have for armed conflict in a NIAC
IAC v. NIAC
I. IAC
A. All Geneva Conventions
B. Additional Protocol I
C. CIL
II. NIAC
A. Article 3
B. Additional Protocol II
C. CIL

Additional Protocol I to Geneva Convention of 1949

I. Protocol I=Protection of victims of international armed conflicts including “fighting
against colonial domination, alien occupation, and racist regimes” in other words “wars
of national liberation”
II. Expands definition of combatants relaxing requirement to wear distinct insignia
III. Expanding what an international armed conflict is
IV. USA not a party to I or II but nearly all of our allies are
A. Lawyers have to work out who will be able to work out what part of the mission
when countries that are and aren’t following

Additional Protocol II to Geneva Convention of 1949

I. Protocol II= Protection of VIctims of Non-International Armed Conflict
II. Supplements Common Article 3

Human Rights Umbrella

I. LOAC
A. NIAC
B. Needs to use human rights stuff due to lack
C. NIAC no such thing as POW (called detainees)
D. US has approached this problem by making a policy statement that even if we’re
in a NIAC we will follow all the rules as if we’re in an IAC
1. Trained these marines and soldiers under LOAC
E. When can law enforcement use deadly force?
1. As a last resort
F. When can combatants use deadly force?
1. Immediately when you identify the enemy

Application of the Law of Armed Conflict

I. United Nations’ Peace Operations
II. Terorism
 A. Law enforcement endeavor
B. Terrorism continues to be a law enforcement paradigm
C. Not going to roll out the military for a white supremacist
III. Riots
A. Human Rights Paradigm
IV. Domestic Crime

FUndamental Principles
I. Military Necessity
A.
II. Proportionality
III. Discrimination/Distinction
IV. Unnecessary Suffering/Humanity/Honorable Contract
V. If you understand this you understand LOAC

Rules of Engagement
I. Policy
II. Law
III. Strategy

IV. Ex. not going into mosque with shoes on, male soldiers not patting down females
V. Issued as an order
VI. Could be prosecuted under an orders violation
VII. Not a war criminal, didn’t violate a war crime
VIII. Positive ID reemphasizes
IX. Drone can do a pattern of life analysis by following a dude
X. If you’ve identified someone as a combatant, you can shoot him in the back as he runs
away
XI. If you’re a combatant, you’re always a target once identified

Military Necessity
“That principle which justified those measures not forbidden by the law which are
indispensable for securing the complete submission of the enemy as soon as possible” - U.S.
Army Definition
Go, fight, win but don’t violate that law
Under military necessity had to finish the mission is not a defense
Can 100% shoot back if person is shooting from top of hospital but can’t drop a bomb on it
Don’t have to die for the LOAC (ie. if someone is shooting at you with a human shield, you can
shoot back and kill that shield too damn)
If you’re being shot at in a protected position and shooter has a human shield, they’re not a threat
and can’t shoot
Proportionality
I. An attack which 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” - AP I, Art. 57(2)(a)
(iii)
II. 5 story building first 3 floors civilian establishments, top 2 enemy forces. What do?
A. Nothin/monitor
B. Protect those who cannot protect themselves
1. Civilians, sick and wounded
C. Special forces
D. Evacuate those three ones
E. Some strategy to force people out
F. If it’s the eagles nest at the top floor, only there for lunch 12-1, you gotta analyze
the expected civilian life and see if it would be excessive to the advantage
G.
H. Wait til nightfall, only the janitor and schmuck walking by die

Class Three: 09/16/22

I. Fundamental Principles
A. Proportionality
1. An attack which may be expected to cause identical 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
B. Intelligence
C. What happens if intelligence is wrong or awful? Lead to more civilian casualties
than you believed?
D. Intel people have every reason to know what is being passed on

I. Laying out the plan, people are executing it

II. Can’t use citizens to protect military things

I. What about the commander who organized it?

A. He was also operating it
B. Given the intelligence that he had at the time,
C. Expected less civilians

Proportionality
 I. Collateral damage
II. Military targets evaluated by the risk of harm to civilians and their property
III. Is the risk greater than the value of the military objective to be gained
IV. “Deceased equine”

Discrimination and Distinction

I. AP I- Art 48
II. “Hope those weren’t our guys”
III. Doesn’t have time to make distinction/discriminate, which is how that shit(friendly fire)
happens
IV. Supposed to specifically target something
V. Have to get through human shields even if it’s a horrible situation
VI.

Unnecessary Suffering/ Humanity/ Honorable Conduct

I. Kinds of degrees of violence not necessary for overpowering an opponent
II. THis does not prohibit the use of overwhelming force against legitimate enemy targets
unless it causes superfluous injury and has no9 military value
III. Once wounded and out of the fight, efforts are made to save them whether they’re friend
or foe
IV. Glass can’t be detected under X-Ray oof yikes
V. Glass is illegal cause of that
VI. Bullet that flattens out is gonna be an inevitable slow death
VII. There are times where they use hollow points
VIII. Hollow points travel truer over long distances
IX. Law enforcement uses hollow points
A. So the bullets flatten out and not pierce
X. Reprisal
A. COuld violate the LOAC if other side was violating LOAC
B. Kind of shit third graders do on the playground
XI. War Horse
A. “Very Steven Spielberg”

Weigh against the civilians

Proportionality isn’t saving american lives, it’s expected civilian casualties
We don’t bomb things to break the morale of civilian populations

Torture
I. Definitely unnecessary suffering (who would’ve thought)
 II. Illegal, duh
III. Practicality
IV. Tortrute doesn’t provide real intel
V. Wasting resources
VI. Doesn’t work practically
VII. Going to tell them whatever they want to hear to get it to stop
VIII. Don’t allow coerced confessions
IX. Torture warrant
X. Not only is it against the law, it doesn’t even work

I. Those who cannot be protected

II. Civilians, POWs, shipwrecked
III. Flee, shoot, surrender
IV. Once you surrender you’re a POW and get to safety
V. Combatant immunity
VI. Under 3rd Geneva Convention, if POW prosecuted for war crime
VII. Would go to same type of justice as a marine who stole a car in the states
VIII. If they’re POWs then they have to go to U.S Court Marshall
IX. Quiran case

Lawful Targets
I. Combatants
II. Military objects
A. Anything owned by the military
III. Defended places
A. Place that has been made a defendant place for combatants
IV. Objects not clearly or exclusively military in nature (dual use)
A. Train stations
B. Devil in the White City- Eric Larson
C. Airport
D. Oil pipeline
E. Highways

Combatants
I. Lawful Combatant (fighter)
A. Member of armed forces
B. Member of militia (4 criteria)
1. Responsible chain of command
a) Need someone to be liable for actions, proper avenue of
communication (organized effort)
 2. Fixed & distinctive insignia
a) Arm bands, hats, etc
3. Carry arms openly
4. Obey customs and laws of war
a) Taliban not combatants because they didn’t follow the laws
C. Forces of unrecognized government
1. Can’t unrecognize a country
D. Levee en masse
1. French term used for a policy of mass national conscription, often in the
face of invasion.
2. Napoleonic can fight for your homeland
3. Temporal component, at some point it’s gonna have to become a militia
4.
II. Distinction
A. Distinguish what you’re targeting at
B. Distinguish yourself from the civilian population
C. Can put on enemy uniform and use it to get through enemy lines, but have to be in
own uniform to fight
D. Spies are a lawful participant not a combatant
1. Different from reconnaissance

Class Four: 09/17/22

Exam
Is it an armed conflict?
What kind?
How much law?
Commander needs to have a bunch of bitches in the room
● Lawyer, intel, weather bitches,
Level of intensity? Level of organization??
Apply the principles

Civilian
● Don’t say what it is, say what it is not
● Not a combatant

Unlawful Targets
● Civilian objects
 ● Undefended places
● Religious, medical, and educational propertyC
● Cultural property
● Works and installations containing dangerous forces
○ Nuclear reactors dams, want more information
● Detainee- don’t know what you are so just gonna hold you for now
● Cultural property- stuff like the eiffel tower

Unlawful Targets: Persons

● Civilians
● Wounded and sick
● Enemy hors de combat
○ Out of combat
● Medical and religious personnel
● Pretend to be dead then ambush people is a no-no
● If there’s a military reason why you need something, you can take it off the body (ie.
boots)
● Dick move to pose with a dead body

Prisoner of War
● Combatants
○ Armed forces
○ Militia
○ Forces of unrecognized government
○ Levee en masse
● Noncombatants
○ Journalists
○ Contractors/laborers
● Retained Persons
○ Medical
○ Clergy/religious
○ Red Cross/ Red Crescent
○ Neutral Volunteers
○ Want to be on field when safe
○ Not actual POWs

Unlawful Participants
● Spies
● Civilian participants
● Direct participation hostilities (DPH)
 ○ Actionable item
○ Targetable
○ “We can put the habeas grabus on him”
● Can almost always detain people, but can you target people?
○ Yea if that dude is in the process of building a bond, not if he’s like shopping for
the shit to make it
○ Calling in coordinates is targetable
○ Treachery and perfidy are illegal ( would be war crimes)
○ They don’t stop being a combatant, they can either surrender or get back in the
action

Nine Marine COrps Principles

I. Fight only enemy combatants
II. DO not harm enemies who surrender
III. Do not kill or torture prisoners
IV. Collect and care for the wounded, whether friend or foe
V. Do not attack medical personnel, facilitis, or equipment
VI. Destroy no more than the mission requires
VII. Treat all civilians humanely
VIII. Do not steal— respect private property and possessions
IX. Do your best to prevent and report violations of the law of war

Question: Why Do We Follow the Law of Armed Conflict When Others Clearly Do Not?
● It is the law
● The Geneva Conventions are the supreme law of the land
○ US. Const. Art. VI, sec 2
● The Geneva Conventions are not reciprocal treaties

Political Support/ Considerations

● American public support– e.g. Vietnam
● Congressional support- $
● Allies support- troops
● International community support
○ Negotiations of other important issues
● Public relations/ affairs

Pragmatic
● It keeps people alive
● Good order and discipline/ unit effectiveness
● Assists in combined and joint ops with allies
 ● Durable peace
○ If you don’t fight for peace, you’re going to end up fighting again
○ Whole nation of Ignio Montoyas

Because We Should
● Moral high ground
○ A burden we must bear
● Moral authority
○ LOAC is derived from centuries of worldwide development
● Ethical considerations
○ Especially torture

Future Conflicts
● WHatever we do will be revisited upon us in the future
● We are obligated to care for and protect our troops now and in the future

Commander Responsibility
● Concept that commander knew or should have known
○ Reports received or generated by commander’s headquarters
○ Locality in relation to the offenses
○ Widespread in terms of numbers and time suggests a plan
○ All command responsibility convictions following WWII involved either
occupation or POWs
○ Experience of commander
● Actual knowledge, circumstantial evidence

Prevention of War Crimes

● Commanders must
○ Recognize factors which may lead to war crimes
○ Trains ubordinate commanders and trops on law of armed conflict
● GIve clear and unambiguous orders
○ Trains soldiers how to react if unclear
● SOldier’s duties
○ Insist on clarification
○ Disobey illegal orders
○ Report to appropriate authority
Violations

Crimes Against Peace

● War of Aggression
● War in violation of international treaties, agreements, or assurances
Crimes Against Humanity
● ICC- Rome Statute Article 7
● Any of the following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
○ Murder
○ Extermination
○ Deportation or forcible transfer of population
○ Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law
○ Torture
○ Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of secual violence of comparable gravity
○ Persecution against any identifiable group or collectively on political, racial,
national, ethnic, cultural, religious, gender
● Have to prove it’s widespread or systematic
● For genocide- racial, antional, ethnic, or religous
● Political, gener, and sexuality are not genocide
● Enforced disappearances of persons
● The crime of apartheid
● Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health
● A catch all
● Genocide is a specific intent crime
● CAH is easy to get to
○ Might not have to be an armed conflict or a war
○ If there’s not an armed conflict, there is no war crime

Genocide
● THe word genocide was not used in the london charter
● It is considered the quintessential or true, most basic crime against humanity
● Raphael Lemkin (made word)
○ Greek genos (race or tribe)
○ Latin suffix cide (to kill)

1948 Genocide Convention

● Convention of the Prevention and Punishment of the Crime of Genoicde
● Peace of War
● Intent to destroy, in whole or in part, a national, ethnical, racial, or religious group
● Cambodia- Buddhist monks being killed because they were buddhist monks
● Bernese taking babies from mother’s arms and throwing them in the fire or river
 ● Killing Members of the group
● Serious bodily or mental harm
● Infliction of conditions
● Preventing births
● Transferring children
● Who isn’t being targeted
● How else to prove specific intent
○ Communications

1948 Genocide Convention

● Genocide
● Conspiracy to commit
● Direct or public incitement
● Attempt to commit
● Complicity
● Constitutionally responsible rulers public officials, or private individuals
● Tribunal in the territory or
● National tribunal
● Extradite
● Plugged in Genocide Convention into ICC
● Didn’t want to waste time defining genocide
● Both going to have the same punishment

Atrocity Crimes
● Available remedies
○ International tribunals
■ Nuremberg
■ Tokyo
■ Rwanda
■ F. Yugo
■ ICTY
■ ICC
○ National tribunals
■ Different RWanda (ICTR)
■ Iraq
■ Ukraine
■ UCMJ
○ Hybid
■ Sierra Leone
■ Cambodia
■ Cassava
○ Hybrid courts
○ Truth and reconciliation commissions
○ Amnesty
○ Lustration
○ UN Investigative missions and subsequent UN sanctions