Introduction to IHL Application and Basic Principles Kate

Introduction to IHL: Application and Basic Principles Kate Jastram, Berkeley Law University of California 3 January 2012

Overview • I. Jus in bello vs jus ad bellum • II. Sources of the law • III. Fundamental principles • IV. When does IHL apply? • V. Jus ad bellum

I. Jus in bello vs jus ad bellum • Jus ad bellum – resort to force, when to go to war • Jus in bello – application of force, conduct of hostilities, how war should be fought

II. Sources Note on Terminology • Jus in bello = • International Humanitarian Law (IHL) = • Law of War (Lo. W) = • Law of Armed Conflict (LOAC)

II. Sources Statute of the International Court of Justice, Art. 38(1): (a) Treaties (b) Customary international law (c ) General principles of law recognized by civilized nations (d) Judicial decisions and scholarly opinion, as subsidiary means

Key IHL Treaties 1949 Geneva Conventions I-IV – I: Wounded and Sick in Field – II: Wounded, Sick, Shipwrecked at Sea – III: POWs – IV: Civilians Treatment of those hors de combat

Key IHL Treaties 1977 Additional Protocols I: International Armed Conflict (IAC) II: Non-international Armed Conflict (NIAC) Supplement, not replace GCs.

Customary Int’l Law • ICJ Statute Art. 38: “general and consistent practice of states followed from a sense of legal obligation. ” • Important because – CIL binds non-state as well as state actors – most IHL treaty law addresses IAC, not NIAC

Jurisprudence • Domestic civil courts • Military tribunals • International Court of Justice • Ad hoc tribunals • International Criminal Court

III. Fundamental Principles Note on Origins • American Civil War – (Francis) Lieber Code 1863: first codification of Lo. W, done at request of President Lincoln. – Clara Barton: leader in bringing humanitarian aid to soldiers, founded American Red Cross 1881, instrumental in obtaining US accession to 1 st GC in 1882.

III. Fundamental Principles • 1. Distinction API: 48 • 2. Military Necessity • 3. Unnecessary Suffering API: 35 • 4. Proportionality API: 51(5)(b)

IV. When does IHL apply? a) Armed conflict defined Tadic, ICTY 1995 Resort to armed force between States OR protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.

IV. When does IHL apply? b) IAC = Common Article 2 of GCs: all cases of declared war or of any other armed conflict between 2 or more of the High Contracting Parties Same in AP 1: 1(3) plus (4) armed conflicts against colonial domination, alien occupation, and racist regimes

IV. When does IHL apply? (c ) NIAC – Common Article 3 of GCs: armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. If NIAC, only CA 3 and CIL apply, possibly APII

APII: 1(1) Narrows definition of NIAC, by adding requirement of territorial control. – 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.

None of the above? d) What if situation does not rise to level of NIAC? APII: 1 (2) Not situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. What law applies? – Domestic law and human rights law

V. Jus ad bellum Sources • Main treaty – UN Charter, which outlaws war • ICJ decisions, and Security Council resolutions

UN Charter a) Art. 2(4) prohibits threat or use of force b) Exceptions – Art 42 SC authorization – Art 51 Self-defense ---- 5 elements • • • Purpose of self-defense Response to armed attack Against responsible party Necessity and proportionality Report to Security Council

Responsibility to Protect (R 2 P) 2005 UN World Summit Outcome Document • Genocide • Ethnic cleansing • War crimes • Crimes v humanity Still need Security Council authorization

Use of Force c) Armed attack, and less grave forms Nicaragua v US, ICJ 1986

Nicaragua case • Armed attack = Most grave form of use of force = Action by regular armed forces across int’l border, plus irregulars if of sufficient scale. • Response? Right of self-defense under art. 51: “Inherent right of individual or collective selfdefense if an armed attack occurs, until Security Council acts. ”

“Less grave forms” Assistance to rebels, providing weapons or other support. • Organizing irregulars for incursion into another state; instigating acts of civil strife or terrorist acts in another state or acquiescing in the organization of such activities within territory. • Economic, political, or other coercive measures. • Computer network attacks. •

Response Less grave forms of use of force do not give rise to right of self-defense.

The End Questions? Thank you!