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The 3rd Hague Peace Conference

:
“Modernizing the Geneva
Conventions”
Haagse Hogeschool, 2 July 2015

Dr. Robert Heinsch, LL.M. - Associate Professor of Public International Law
Kalshoven-Gieskes Forum on International Humanitarian Law

Leiden University. The university to

Outline
I.

Introduction:
Do we need a revision of the GCs?

II. Contemporary Challenges:
IAC vs. NIAC (“Humanity for all”?)
III. Contemporary Challenges:
Asymmetric Conflicts: Armed Conflict vs.
Law Enforcement (“War against Terror et al.”)
IV. Contemporary Challenges:
Modern Technologies (“Cyber War, Drones, and
Killer Robots”)
V. Conclusion
Leiden University. The university to

I. Introduction

In 1859 Henry Dunant, a Swiss citizen, witnessed the aftermath of the Battle of
Solferino. Horrified by the sight of thousands of wounded soldiers lying helpless and
abandoned led him to suggest setting up voluntary societies who could be trained during
peace time to care for the wounded in times of war. He also called for an international
agreement to protect the wounded, and those who cared from them, from further
attacks: This was the birth of the Int’l Red Cross Movement & Modern IHL.
Leiden University. The university to

Introduction The 1949 Geneva Conventions and their 1977 Additional Protocols form the core of International Humanitarian Law. THEY WERE DRAFTED 66 AND 38 YEARS AGO! Leiden University. which regulates the conduct of armed conflict and seeks to ameliorate its effects.I. The university to . They protect people not taking part in hostilities and those who are no longer doing so.

The university to . Introduction: past wars 1899 1864 The evolution of armed conflict 1977 1945 1907 Leiden University.I.

Introduction: today’s wars Armed conflict today Leiden University. The university to .I.

The university to . even if the state of war is not recognized by one of them. under responsible command. exercise control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. Contemporary Challenges : IAC vs. NIAC: dichotomy International Armed Conflict (IAC): Non-International Armed Conflict (NIAC): Common Article 2 GC: Common Article 3 GC: “…all cases of declared war or of any other armed conflict which may arise between two “in case of an armed conflict not of an international character…” or more of the High Contracting Parties. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party.II.” Leiden University. even if the said occupation meets with no armed resistance” Article 1(4) AP I of 1977: “include ACs in which peoples are fighting against colonial domination and alien occupation against racist regimes in the exercise of their right to selfdetermination…” ICTY Tadić §70: “protracted armed violence between governmental authorities and organised armed groups or between such groups within a State” Article 1 APII 1977: “…take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which.

NIAC “Internationalized” Armed Conflicts • • E. of Nicaragua under the law of NIACs“ ICTY 1995 Tadić jurisdiction appeal decision: “conflict in the former Yugoslavia had both internal and international characteristics.g. Foreign intervention in support of an insurgent group fighting against government ICJ 1986 Nicaragua case: “conflict between the US and Nicaragua to be analysed under the law of IACs.g.II. determination has to be taken in each particular case whether IAC or NIAC“  ICJ Nicaragua “effective” vs. The university to . both backed by different States E. Between two internal factions. Contemporary Challenges : IAC vs. ICTY Tadić “overall” control tests? Leiden University. and conflict between Contras and the govt.

NIAC The nature and pattern of armed conflicts has changed over time. Contemporary Challenges : IAC vs. Leiden University.II. The university to . Traditional “Territorial Wars” have become the exception rather than the Rule.

State C -State A v. State B -State A v. NSA1 -NSA1 v. NSA2 “internationalized” NIAC: Intervention of armed forces of a foreign power -State C + NSA1 v. State C (NIAC) -State B v.II. State B v. The university to . State B Leiden University. NIAC (IAC) -State A v. Contemporary Challenges : IAC vs.

Contemporary Challenges : IAC vs. The university to .II. NIAC: Treaties/Conventions IAC  1907 Hague Regulations  1949 Geneva Convention (I)  1949 Geneva Convention (II)  1949 Geneva Convention (III)  1949 Geneva Convention (IV) NIAC  Common Article 3. Leiden University. Geneva Conventions I-IV  Additional Protocol (II) to the Geneva Conventions 1977  1977 Additional Protocol (I) to the Geneva Conventions  1980 Weapons Convention  etc.

NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 1) Inoperability “a crazy quilt of norms that would be applicable in the same conflict” [Theodor Meron. International Criminalization of Internal Atrocities.II. 89 AM Int’l L 554 (1995). Contemporary Challenges : IAC vs. The university to . 238]  Difficulty in laying down objective criteria to distinguish IAC / NIAC  The problems of parallel application of IAC / NIAC  Arbitrariness and uncertainty of dichotomy  Difficulty making the real world ‘fit’ Leiden University.

Contemporary Challenges : IAC vs. NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 1) Inoperability  Ukraine An “internationalized” non-international armed conflict?  Syria “The violence in the Syrian Arab Republic mutated from unrest in March 2011 into internal disturbances and the emergence of a non-international armed conflict in February 2012. UN Report of the Independent CoI on the Syrian Arab Republic] Leiden University. 2015.II.” [February 5. The university to .

whether the war was international. or whether the participants were privileged combatants of unlawful combatants. NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 2) Discriminatory “it is reasonable to surmise that if a uniform law had been in place. Crawford. The university to . non-international or some hybrid. 2007. Leiden Journal of IL.” [E.II. irrespective of conflict type Leiden University. there would be no need to ascertain whether the duty arose in treaty or custom. The prima facie approach would always be one of “does an armed conflict exist” and “have the laws of armed conflict been breached” rather than having to debate the origins. 464]  IHL has the same function in IAC / NIAC. Unequal Before the Law. namely to humanise and regularise the hostilities in the course of an armed conflict  Inequality before the law: protections should be the same before the law. status and character of the conflicts and the participants. Contemporary Challenges : IAC vs. Vol 20.

“dissidents”. ISIS. -command structure and disciplinary rules and mechanisms within the group. 2008 TC judgement. AlQaeda Normative gap: those falling below threshold? Human rights? -controls a certain territory. -headquarters. “organized armed groups”. para. other military equipment. -ability to gain access to weapons.“rebels”. NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 2) Discriminatory no definition of “combatants” for NIAC : “fighters” . The university to . Leiden University. 60 -Article 1(1) AP II (if ratified)  higher threshold: 1) responsible command 2) control over part of territory/ability to conduct sustained and concreted military ops against govt armed forces 3) ability to implement the Protocol examples of NSAs which qualify: Taliban. recruits and military training. Haradinaj. Contemporary Challenges : IAC vs. “civilians directly participating in hostilities”… level of “organization” required? -Common Art 3 GC elaborated in ICTY.II.

“How can we achieve a common regime of IHL for both international and non-international armed conflicts?” Leiden University. NIAC Central question: . Contemporary Challenges : IAC vs. The university to .II.

Terrorists. Goliath) .Parties often driven by ideology.III. children . and other non-State actors have not taken part in the drafting of the respective international treaties (Acceptance? Compliance?) Leiden University. Law Enforcement (HRL) Paradigm “New Wars”: .The rise of non-state actors .Conflict very often characterized by an inherent imbalance between the parties (David vs. women.Consequence: extreme violence against civilians. Asymmetric Conflicts: Armed Conflict (IHL) vs. religion which leads to extreme measures again the “unfaithful” . The university to .Leads to intentional disrespect of existing legal rules governing the conflict . armed groups.

III. Asymmetric Conflicts: Armed Conflict vs. The university to . Law Enforcement Paradigm Leiden University.

Articles 4 + 13 APII • only acts aimed at terrorising the civilian population • A lot of situations below the threshold of armed conflict • Extra-territorial applicability of HRL? • Problem: mainly regional HR-Conventions & diverging jurisprudence Leiden University. Article 51(2) API. Contemporary Challenges : Armed Conflict vs. The university to .III. Law Enforcement Paradigms • Starting point: Terrorism as a social phenomenon • no established legal definition for “terrorism” • Is IHL the right regime to deal with terrorism? • Terrorism in IHL (if in armed conflict) • Article 33 GC IV.

1979 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. 1973 Convention against the Taking of Hostages. 1997 International Convention for the Suppression of the Financing of Terrorism. 1970 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. Asymmetric Conflicts: Armed Conflict vs. The university to . 1999 International Convention for the Suppression of Acts of Nuclear Terrorism. 1963 Convention for the Suppression of Unlawful Seizure of Aircraft. 1971 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons. including Diplomatic Agents.III. Law Enforcement Paradigms The “Global War on Terror”: very scattered system of int’l treaties • • • • • • • • • Convention on Offences and Certain Other Acts Committed on Board Aircraft. 1988 International Conventions for the Suppression of Terrorist Bombings. 2005 Leiden University.

The university to . Law Enforcement Paradigms Rights of detainees provided by IHL & IHRL • • • • • IAC: 175 provisions regulating detention NIAC: no comparable regime Customary International Law? IHL non-derogable HRL violations only invoked against the State Leiden University. Contemporary Challenges : Armed Conflict vs.III.

The university to . Contemporary Challenges : Armed Conflict vs. Law Enforcement Paradigms • Problem: Scope of Application • US claimed existence of a global NIAC • “Terrorism” • cannot be a Party to the conflict • What about terrorists? • Status classification creates difficulties: • Are “terrorists cells” criminals.III. or organized armed groups? • Ratione loci • Does conflict have to occur “on the territory” of a High Contracting Party? • what does this mean for “targeted killings” outside the US? (IHL or HRL?) Leiden University.

Asymmetric Conflicts: Armed Conflict vs.III.Is the current IHL regime sufficient in order to deal with asymmetric warfare. based on the essential considerations of human rights law? Leiden University. or do we have to establish a new “International Security Law”. Law Enforcement Paradigms Central question: . The university to . which deals with situations below the threshold of armed conflict.

IV. Leiden University. Contemporary Challenges : Modern Technologies The way we conduct armed conflict has changed. The university to .

acquisition or adoption of a new weapon. Leiden University.” However: applying pre-existing legal rules to a new technology raises the question of whether the rules are sufficiently clear in light of the technology’s specific characteristics. Article 36 API: “In the study. development. in some or all circumstances. a High Contracting Party is under an obligation to determine whether its employment would. be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party. Contemporary Challenges : Modern Technologies The Geneva Conventions were drafted for “conventional” hostilities. means or method of warfare. The university to . but the battlefield has evolved.IV.

Contemporary Challenges : Modern Technologies DRONES an unmanned aerial vehicle (UAV) under real time human control While not unlawful in themselves. their use is subject to international law Pros: Cons: • Attacks are more precise from greater • “PlayStation” mentality: distances disconnection from • Results in fewer consequences causalities and less • Civilian losses destruction • Limited abilities: cannot • Relatively inexpensive capture surrendering weapons military personnel • Prevent “boots on the • Risk of take over by ground” combat: low enemy forces risk Leiden University.IV. The university to .

“Armed Conflict”: legal terms of art… what is a ‘cyber attack’?  “Cyber Combatancy”?  Can Cyber Weapons adhere to the fundamental principles of IHL. Contemporary Challenges : Modern Technologies CYBER WEAPONS “the fifth domain of warfare”  Know no geographical borders. e. The university to .g.IV. or State lines  “Attack”.: Distinction? -Proportionality? -Necessity? - Leiden University.

IV.Are the current IHL provisions regulating the means and methods of warfare enough to limit the dangers from the use of modern technology or do we need an updated system of weapons control? Leiden University. The university to . Contemporary Challenges : Modern Technologies Central question: .

but by continual adaptation follows the need of a changing world. 1948. The university to . Conclusion “[The law of war] is not static.V. Vol.” [Trial of the Major War Criminals before the International Military Tribunal.]  The world has changed … so have the wars…  We are witnessing a decisive moment in international law where the importance of conflict between States is diminishing. 22. p. 464. and the dangers from conflicts with non-State actor participation is rising  This is also the chance to bring together a broad consensus for necessary changes  It is now time to act and take measures in order the prepare the International Humanitarian Law regime for the 21st century! Leiden University.

Thank you for your attention! Dr.aspx Facebook: https://www. LL.org/Kalshoven-GieskesForum.leidenuniv.nl Website: http://www. The university to . Robert Heinsch.M.com/KalshovenGieskesForum Leiden University.grotiuscentre.facebook. 2311 ES Leiden.w.heinsch@law. Steenschuur 25. Kalshoven-Gieskes Forum on International Humanitarian Law Leiden University. The Netherlands E-Mail: r.