Questions for group assignment

1. Make a rough reading of the four Geneva

conventions together with their commentaries
and determine the scope of application,
protected victims of war and the subjects of
protection of each instruments.
2. What is regulated and protected under IAC
and NIAC and what are the legal frameworks
constituting.
 Chapter Three
Scope of Application of IHL
Material scope of application
(when does IHL apply)
• IHL applies whenever there is armed conflict.
• It is also applicable in time of occupation.
three types of international armed conflicts:
• traditional international armed conflicts,
which directly oppose two or several states
• internationalized non-international armed
conflicts, which result from the transformation
of a non international armed conflict into an
international one because of the indirect
intervention of a foreign state and;
• wars of national liberation, which are
assimilated to international armed conflicts by
Additional Protocol I
Traditional international Armed Conflicts
• There is no clear definition constituting international armed
conflicts in the pre-1949 IHL conventions or in the four
Geneva convention.
• However, Common Article 2 to the four Geneva Conventions
provides interesting information in this regard.
• This provision states that the four Geneva Conventions apply
to ‘all case(s) 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.
• ICTY Chamber has given a straight forward definition saying
international conflicts exist ‘whenever there is a resort to
armed forces between States’.
 Traditional Armed Con…
Constituting Elements
•The first constitutive element of an international armed conflict
is that hostilities occur between two or more State entities.
•International organization may involve to constitute
international.
•Second, the number of victims are irrelevant for the
determination of whether an international armed conflict exists.
•Therefore isolated or sporadic interstate uses of armed forces –
such as the capture of military personnel – triggers the
application of the laws governing IACs international armed
conflicts.
 Elements of International…
• Thirdly, the fact that a State does not, for any
reason, explicitly refer to the existence of an
international armed conflict or declares war in a
given case does not prevent its being legally
classified as an international armed conflict.
• However, situations whereby the use of force is
the result of a pure error and are thus not
animated by the intention to harm another state
do not result in an international armed conflict.
 Internationalized non-international armed conflicts

• NIACs that are ‘internationalized’ because of the intervention of an outside

state or an international organization.
• ‘Third party’ intervention may take two forms. Direct intervention, when
other States or international organizations intervene by sending their own
troops or by accomplishing an act of war.
• Indirect intervention, where the state or an international organization
intervenes by exercising some sort of control over armed groups engaged in
conflict with the territorial sovereign.
• Internationalized NIACs represent an important category of armed conflicts
because most recent NIACs – be they in Afghanistan, Congo, the former
Yugoslavia, Mali, Libya, Syria, or Yemen – have at some point been
internationalized due to such direct and indirect interventions.
• Internationalized armed conflicts are not only increasingly common; they are
also controversial because they sit uneasily between the two classical
categories of armed conflict.
 Wars of national liberation
• A third category of international armed conflict,
which is subject to its own special regime, is wars
of national liberation.
• Article 1(4) of Additional Protocol I defines wars
of national liberation as being those wars ‘in which
people are fighting against colonial domination
and alien occupation and against racist regimes in
the exercise of their right of self-determination.
 War of …

•This type of war was recognized as NIAC, but latter, to widen the
protection, it was referred as IAC in the 1977 API.
•Pursuant to Article 1(4) of Additional Protocol I, national liberation
movements would qualify for protection providing that they were
fighting ‘in the exercise of their right of self determination’ against
‘colonial domination’, ‘alien occupation’, and ‘racist regimes.’
•The two are clear while racist regime particularly linked to the
apartheid.
•Should they be recognized by general assembly or fulfill other
requirements such as “proper organization” is not clear.
•Level of intensity is not also required, but some argue.
•the authority representing the liberation movement must address a
declaration to the Swiss Federal Council – depositary of the
Additional Protocols – by which it undertakes to apply the Geneva
Conventions and Additional Protocol I.
 NIAC
• Many armed conflicts today are non-
international in nature.
• An NIAC is an armed conflict in which
hostilities are taking place between the armed
forces of a State and organized non-State
armed groups, or between such groups.
• For hostilities to be considered an NIAC, they
must reach a certain level of intensity and the
groups involved must be sufficiently
organized.
 NIAC..
• IHL treaty law establishes a distinction between NIACs
within the meaning of common Article 3 and NIACs
falling within the definition provided in Article 1 of
Additional Protocol II.
• Common Article 3 applies to “armed conflicts not of an
international character occurring in the territory of one
of the High Contracting Parties.”
• These include armed conflicts in which one or more
organized non-State armed groups are involved.
• NIACs may occur between State armed forces and
organized non-State armed groups or only between
such groups.
 NIAC…
• Additional Protocol II applies to 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 and to implement this Protocol.”
(See Article 1, paragraph 1, of Additional
Protocol II.)
 NIAC--
The definition of an NIAC in Additional Protocol II is narrower
than the notion of NIAC under common Article 3 in two
aspects.
1) It introduces a requirement of territorial control, by
providing that organized non-State armed groups must
exercise such territorial control “as to enable them to carry
out sustained and concerted military operations and to
implement this Protocol.”
2) Additional Protocol II expressly applies only to armed
conflicts between State armed forces and dissident armed
forces or other organized armed groups.
Unlike common Article 3, Additional Protocol II does not
apply to armed conflicts between organized non-State armed
groups.
 NIAC…
• In short for any hostility to be considered as NIAC these
elements should exist:
– An organized military force
– An authority responsible for it (commandship)
– Acting within a determinate territory
– With an intention to respect IHL
• Internal disturbances and tensions (such as riots and isolated
and sporadic acts of violence) are characterized by acts that
disrupt public order without amounting to armed conflict; they
cannot be regarded as armed conflicts because the level of
violence is not sufficiently high or because the persons resorting
to violence are not organized as an armed group.
• IHL does not apply to situations of violence that do not amount
to armed conflict. Cases of this type are governed by the
provisions of human rights law and domestic legislation.
 Simultaneous existence of IAC and NIAC

• In certain situations, several armed conflicts

may be taking place at the same time and
within the same territory.
• In such instances, the classification of the
armed conflict and, consequently, the
applicable law will depend on the
relationships between the belligerents.
 Simultaneous..
Consider this hypothetical example.
• State A is involved in an NIAC with an organized
non-State armed group. State B directly intervenes
on the side of the organized non-State armed
group. State A and State B would then be involved
in an IAC, but the armed conflict between State A
and the organized armed group would remain non-
international in character.
• If State B were to intervene on the side of State A,
both State A and the organized non-State armed
group and State B and the organized non-State
armed group would be involved in an NIAC.
 Main Applicable Laws
• Rules applicable in international armed
conflict(IAC)
– Four Geneva Conventions
– Additional Protocol I
– Customary IHL for IAC
• Rules applicable in Non-international armed
conflict (NIAC)
– Common Article 3
– Additional Protocol II
– Customary IHL for NIAC
 The Rules
• The rules for NIACs remain less detailed than those for
IACs. For instance, there is no combatant or prisoner-of-
war status in the rules governing NIACs . That is because
States have not been willing to grant members of
organized non-State armed groups immunity from
prosecution under domestic law for taking up arms.
• Given the principle of State sovereignty and States’
reluctance to subject internal matters to international
codification, it has proven difficult to strengthen the
system of protection in NIACs.
• It should be noted however that the important gap
between treaty rules applying in IACs and those applying
in NIACs is gradually being filled by customary law rules,
which are often the same for all types of armed conflict.
Two and only two forms of armed conflict

• It is clear that IHL recognizes these two forms of

armed conflict – IAC and NIAC- and no other
• That means that if there is or were to be any new
form of armed conflict that cannot be considered
as an IAC or a NIAC, I would not be covered by
IHL to the extent that it did not coincide with an
actual armed conflict that is coincide by the law.
• The law would have to be amended to deal with
any new forms of armed conflict that are not
already covered.
 New Forms of Armed Conflicts
• Since September 11, it has been alleged that a
new form armed conflicts has emerged.
• According to the supporters of this theory, the
conflict was initiated with the September 11
attacks of Al Qaeda on the world trade center
and the pentagon.
• It is indeed true that Osama Bin Laden has
declared war against the US and western states
• The war has certain clear political goals.
 New Forms….

• In response president George bush declared global

war on terror renamed the “long war”.
• According to the US this long war is neither an
international armed conflict nor NIAC but a new
Paradigm of war.
• But it seems difficult to characterize either the
September 11 attacks per se or Bin Laden’s
declaration of war as instigating an IAC or NIAC.
• An IAC is only one between two states and Al Qaeda
is not a state. The attacks cannot therefore be seen
as instigating an international armed conflict.
 New Forms…
• The definition of NIAC excludes isolated acts of violence
• The applicability of the law depends on the existence of
armed groups fighting each other. Al Qaeda does not seem
to have the level of organization required to be considered
an armed group, nor have its ‘members’ evinced any
intention to comply with the law, another requirement for
it to be considered as an organized armed group.
• The fact that Bin Laden considers himself at war with the
west is irrelevant, it is the factual situation, not the
intention of the parties, that is determinative.
• So what kinds of war are they? How could they be
regulated?
 Occupation
• Article 42 of the 1907 Hague Regulations (HR) states that a " territory is
considered occupied when it is actually placed under the authority of
the hostile army.
• The legality of any particular occupation is regulated by the UN Charter
and the law known as jus ad bellum. Once a situation exists which
factually amounts to an occupation the law of occupation applies –
whether or not the occupation is considered lawful.
• Therefore, for the applicability of the law of occupation, it makes no
difference whether an occupation has received Security Council
approval, what its aim is, or indeed whether it is called an “invasion”,
“liberation”, “administration” or “occupation”.
• The law on occupation applies to all cases of partial or total occupation,
even if such occupation does not encounter armed resistance.
• The essential ingredient for applicability of the law of occupation is
therefore the actual control exercised by the occupying forces.
 Laws applicable to occupation
• The duties of the occupying power are spelled out
primarily in the 1907 Hague Regulations (arts 42-56)
and the Fourth Geneva Convention (GC IV, art. 27-34
and 47-78), as well as in certain provisions of
Additional Protocol I and customary international
humanitarian law. 
• Agreements concluded between the occupying power
and the local authorities cannot deprive the
population of occupied territory of the protection
afforded by international humanitarian law (GC IV,
art. 47) and protected persons themselves can in no
circumstances renounce their rights (GC IV, art. 8).
Temporal scope of application
(how long IHL remain in force)
 Introduction

•In this section we will find an answer for

the question: How long does IHL apply
for? In other words, what is the
temporal scope of application of IHL?
•We will examine the temporal scope of
IHL with respect to international armed
conflicts, non-international armed
conflicts and occupation
 General principles

•Determining the duration of time that IHL

remain applicable is not an easy task. The rules
are not clear in this regard. The are different for
different forms of conflicts.
•Generally, when the situation (armed conflict
stopped or occupation ceases), IHL will also
cease to apply irrespective of any verbal or
written declarations and agreements.
•What is crucial is that the armed conflict or the
situation of occupation has ended.
 General principles

• Firstly, IHL, and law in general, must have a degree of

resilience in the face of rapid changes.
• Armed conflicts may disappear and quickly resume.
The application of IHL must therefore be
characterized by some degree of stability in order to
provide legal predictability and security to all of its
addressees.
• Once the existence of an armed conflict has been
established, the armed conflict can only be
considered to have ended if the conflict has ceased
with a sufficient degree of permanence.
 Principles…

• Secondly, certain IHL norms continue to apply even after the

end of the armed conflict.
• There are first a small number of norms that apply
continuously, even in times of peace.
• These include, for example, the obligation to disseminate IHL
or to search for and prosecute war criminals. There are also
IHL norms which apply in times of armed conflict but which do
not cease to apply when the armed conflict ends. These are
the norms protecting the persons who have been detained.
• Such protection is applicable until those persons have been
released, and in case of IACs, repatriated to their country of
origin or re-established in another country.
 Principles…..
• Thirdly, more generally, as a matter of
international law, certain IHL norms may also
cease to apply in the event that the state in
question withdraws from IHL treaties.
• This has never occurred and if a State were to
withdraw from IHL treaties during an armed
conflict, it will still be bound by those treaties
during that conflict and will remain bound by
all IHL customary norms.
 International armed conflict

• The point at which IHL ceases to apply to IAC is the “general close of
military operations”.
• Article 6 of GC IV states that “[i]n the territory of Parties to the
conflict, the application of the present Convention shall cease on the
general close of military operations”;
• while, Article 3 of API provides more generally that, “the application of
the [Geneva] Conventions and of this Protocol shall cease, in the
territory of Parties to the conflict, on the general close of military
operations”.
• The GC III (Art. 5) and GC IV (Art. 6) as well as the API (Arts. 3 and 75,
6) make clear that such end of application of IHL does not affect the
norms protecting the persons detained, which continue to apply until
the final release, repatriation or re-establishment of those persons.
 General close of military operations

• the “general close of military operations” is the key

moment at which IHL must cease to apply with respect
to international armed conflicts.
• general close of military operations” must
be understood as broadly as possible in order to ensure
IHL is maintained until there is no real likelihood that
hostilities will resume in the near future
• It is the end of military movements of a bellicose nature,
including those that reform, reorganize, or reconstitute.
 Non-international armed conflict

• in contrast to IACs, there is no rule of IHL that governs the cessation

of the application of IHL with respect to NIACs in general terms.
• “At the end of the armed conflict, all the persons who have been
deprived of their liberty or whose liberty
has been restricted for reasons related to such conflict, as well as
those deprived of their liberty or whose
liberty is restricted after the conflict for the same reasons, shall enjoy
the protection of Articles 5 [providing guarantees for detention] and
6 [providing guarantees for criminal prosecution] until the end of
such deprivation or restriction of liberty”. Art. 2 of APII
 Two positions
• The first position holds that the relevant threshold for the
end of a non-international armed conflict is the same as for
international armed conflicts: the general close of military
operations between the belligerents.
• Second, it is possible that a non-international armed conflict
has ended, even if there are still minor or sporadic acts of
violence.
• a non international armed conflict could end even if there is
no general close of the hostilities, provided that the intensity
of the hostilities or the organization of the non-State actor
factually eroded to such extent that the requirements for the
existence of a non-international armed conflict are no longer
met.
 Belligerent occupation

• The situation with respect to belligerent occupation

is more complex.
• Depending on which treaties states are party to, they
may be subject to two different rules: one stating that
the law of occupation ceases a year after the
conclusion of hostilities and a second stating that the
law of occupation ceases when the occupation itself
comes to an end.
• However, it may be that states that are subject to the
first rule through conventional law are, in fact, bound
by the second according to custom.
 End of Occupation

• Yet, according to Art. 42 of the 1907

Hague Regulations, occupation normally exists when a State effectively controls the
territory of another State
without that State’s consent.
• Any loss of control should therefore mean that the law of occupation ceases to
apply.
• This position has been restored under Additional Protocol I, which dropped the one-year
limit from the
fourth Geneva Convention.
• Art. 3, b) of Additional Protocol I indeed provides that “the application of the
Conventions and of this Protocol shall cease […] in the case of occupied territories, on
the termination of the
occupation […]” … of course except regarding the protection afforded to persons
detained in relation to the
conflict, which remains applicable until release, repatriation or re-establishment of those
persons.
 End of…
• There are several ways through which states may lose
effective control over the territory of another state:
unilateral withdrawal; defeat of the occupying power by
the military forces of the occupied state; resumption of
hostilities in the occupied territories et cetera.
• In any case, such a loss of control must be general – it
must concern the greater part of the occupied territory
and not merely isolated areas - and it must meet some
degree of permanence, which means, be uninterrupted
for a time and not just sporadic incidents.
 Geographical Scope
(How big an area does IHL apply to? )
 General Remarks…
• IHL does not contain any general rule providing for its
geographical scope.
• The most widely held view is that IHL applies to the entirety
of the states involved in the conflict. This view may be named
as the territorial approach.
• In 1995, the ICTY asserted in that sense that “international
humanitarian law [applies] in the whole territory of the
warring States or, in the case of internal conflicts, the whole
territory under the control of a party”.
• However, this territorial approach does not mean that IHL is
applicable to any incident occurring in the territory of the
State concerned.
 General….
• At an abstract level, IHL may apply in any part of the
territory in question; in the concrete case, IHL only
applies to acts linked to the armed conflict.
• In other words, a nexus must be established
between the act and the conduct of hostilities,
otherwise the act will not be regulated by IHL.
• IHL obviously applies to the “actual hostilities” or the
“theatre of war” or the “battlefield areas”, although
there is no specific definition of those expressions
under IHL.
 The application of IHL to spillover non-international armed conflicts

• cross-border(spillover) conflicts are non-international

armed conflicts that originate in the territory of one State
but spill on to the territory of neighboring States.
• States fighting against an armed group in their own
territory might carry out acts of hostilities against members
of that armed groups in the territory of neighboring states,
where those fighters took refuge and from which they
might launch or prepare attacks.
• IHL applies if the second state joins the war either in the
side of the armed group or state. But it refuses, the issue
remains unsettled.
 Chapter Four
Protected Categories of persons and the
regimes of Protections (Geneva Law)
 The protection of POWs

• Armed forces involved in IACs can benefit

from the POW status offered by Geneva
Convention III when they fall into the hands of
the enemy.
• We call it Combatant immunity and it is an
immunity from prosecution of all acts of war
that do no violate IHL.
 Who is entitled to POW status?

• POW status is given to combatants unlike

civilians.