Law of Armed Conflict Sources and legal basis

Law of Armed Conflict

Sources and legal basis Law of Armed Conflict (LOAC) International Humanitarian Laws of War ______________________ Regulate hostilities Protect the victims of armed conflict

LOAC elements: • Chivalry • Humanity • Military Necessity

Sources and legal basis "War is merely the continuation of policy by other means. " Carl von Clausewitz

Sources and legal basis Conduct of hostilities governed by: • • • International treaties Conventions Rules Regulations Customary international law

Sources and legal basis Treaty Law: • Binding agreement between 2 or more states Customary Law: • State practice • Repetition • Wide recognition by states • Seen as a legal obligation

Sources and legal basis Treaty Law: • Geneva stream • Protection of victims of armed conflict • Hague Stream • Methods and means of armed conflict • United Nations • UN Charter

Sources and legal basis Numerous treaties, here are the most commonly referenced: • Geneva Convention GCI - Wounded and sick in the field • GC II - Wounded and sick at sea • GC III - Treatment of Po. W • GC IV – Protection of Civilians

Sources and legal basis • Additional Protocol (AP) I – Protection of victims of international armed conflicts • AP II - Protection of victims of noninternational armed conflicts • AP III – Adoption of Additional Distinctive Emblems • Plus dozens of other treaties

Sources and legal basis UN Charter: Article 1 – To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace…

Sources and legal basis UN Charter: Article 2(4) – All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…

Sources and legal basis UN Charter: Article 24(1) – Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that…the Security Council acts on their behalf. Security Council: • 5 permanent members & 10 elected members

Sources and legal basis UN Charter: Chapter VI - The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Sources and legal basis UN Charter: Chapter VII - …The Security Council may… take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Sources and legal basis UN Charter: Article 51 - Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…

Sources and legal basis Anticipatory self-defence: The Caroline Affair

Sources and legal basis Anticipatory self-defence: The use of force must be necessary because threat is imminent and peaceful alternatives are not an option (necessity); The response is proportionate to the threat (proportionality); Daniel Webster: "instant, overwhelming, leaving no choice of means, and no moment of deliberation".

Sources and legal basis Summary: Armed conflict authorized by: • The UN Security Council (Chap VII) • Article 51 Self defence

Sources and legal basis Libya, UN Security Council Resolution (paraphrased): …Acting under Chapter VII of the Charter of the United Nations, 1. Demands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians; … 3. Demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance; 4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary. General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;

Sources and legal basis Armed Conflict: • International Armed Conflict • Non-international Armed Conflict • Internationalized Armed Conflict • Neutrals (must be declared at outbreak of conflict)

Sources and legal basis International Armed Conflict: • Between nations • Iran-Iraq, World War 1 and World War 2

Sources and legal basis Non-international Armed Conflict (armed conflict not of an international character) • Within a state territory between government armed forces and dissident armed forces • Civil war

Sources and legal basis When does a non-international armed conflict occur? a non-international armed conflict exists when there is: “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. ” Tadic case, International Criminal Tribunal for the former Yugoslavia

Sources and legal basis Internationalized Armed Conflict • Occurs when another nation supports either dissident armed force or the government armed forces in a noninternational armed conflict • Afghanistan, Libya

Sources and legal basis • LOAC originally focused on international armed conflict, evolved to include non-international armed conflict • Common article 3 deals with non-international armed conflict

Sources and legal basis Common Article 3 In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities. . . shall in all circumstances be treated humanely… To this end, the following acts are and shall remain prohibited… (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for.

Sources and legal basis Martens Clause - preamble to the 1899 Hague Convention II and later conventions: • If LOAC treaties are silent on a specific issue, customary international law continues to govern the situation. • In any armed conflict the right of parties to the conflict to choose methods or means of warfare is not unlimited.

Sources and legal basis Purpose of LOAC: • Reduce unnecessary suffering • Protect the victims of armed conflict, both combatants and non-combatants • Facilitate the restoration of peace

Sources and legal basis LOAC Principles • Military Necessity • Distinction • Humanity • Proportionality

Sources and legal basis Military Necessity • Acknowledges that violence is necessary for military purposes • Attacks (acts of violence) are to be directed at military objects • Military necessity prevents unrestricted violence

Sources and legal basis Distinction Combatants are obligated to differentiate between military objects and the civilians and civilian objects • Land mines and sea mines

Sources and legal basis Humanity • Forbids the infliction of suffering, injury or destruction not actually necessary for legitimate military purposes • No superfluous injury

Sources and legal basis Collateral Damage The incidental injury or death of civilians or damage to civilian objects caused by military action

Sources and legal basis Proportionality Collateral damage must not be excessive in relation to the concrete and direct military advantage

Combatant Status People in the battlespace: • Combatants • Non-combatants • Unprivileged belligerents (unlawful combatants)

Combatant Status Combatants: • State actors • Members of an armed force (not including medical and religious personnel) • Levee en masse (civilians that take up arms upon invasion and resistance movements)

Combatant Status Combatants: • Carry arms openly during military engagements • Wear a distinctive mark or uniform recognizable at a distance • Are part of a chain of command (command responsibility) • Implement LOAC in operations • Deserters are not in a chain of command, therefore are not combatants nor entitled to Po. W status

Combatant Status Combatants: • Must distinguish themselves from civilians while engaged in an attack or preparing for an attack

In the News Taliban fighters wore US Army uniforms in attack The Taliban fighters who launched an assault on the British base where Prince Harry is serving were wearing American Army uniforms in a well-planned and rehearsed assault, the NATO coalition has disclosed.

Is wearing the uniform of the adversary a permissible tactic under international humanitarian law?

It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks or in order to shield, favour, protect or impede military operations. APII, Art 39(2)

Combatant Status Combatants: • Are entitled to engage in hostilities • Are military objectives and may be attacked • Entitled to Po. W status if captured • Are entitled to combatant immunity • Are entitled to release and repatriation at end of the conflict, if captured

Combatant Status Non-Combatants: • Are NOT entitled to engage in hostilities • Are NOT military objectives • May be treated as criminals for taking part in attacks, following a trial

Examples of Non-Combatants: Combatant Status • Civilians • Chaplains • Medical personnel • Journalists • War correspondents (embedded media) • Persons who accompany the forces • Crews of the merchant marine and civil aircraft

Religious personnel: • Military or civilian • Assigned exclusively for religious purposes • Not armed for self-defence

Medical and religious personnel: If in enemy hands, they are not to be made Po. W. However, the detaining power may retain them to provide care to other Po. Ws.

Hors de combat A combatant is hors de combat if: • The person is in the power of the adversary (Po. W); • Clearly expresses an intention to surrender; or • Is unconscious or incapacitated by wounds or sickness and is incapable of defending themselves

Others protected from attack: • Po. W • Parachutists from aircraft • White flag • Shipwrecked • Civil defence personnel

Detaining power – Detains the Po. W Protecting Power – Neutral state that checks on Po. Ws must provide: Name, rank, service number and date of birth, may be punished for failing to give this information

Combatant Status Unprivileged Belligerents (unlawful combatants): • Take a direct part in hostilities without the legal right to do so under LOAC • May be targeted while engaging in hostilities • If captured are not entitled to Po. W status • May be tried as criminals

Combatant Status Unprivileged Belligerents (unlawful combatants): Civilians are considered to be “directly participating in hostilities” (DPH) when there is a nexus between act and harm

Combatant Status Examples of Unprivileged Belligerents (unlawful combatants): • Civilians “directly participating in hostilities” • Mercenaries • Spies (CIA, CSIS, MI 6, KGB) • Terrorists

Combatant Status Determination In all cases of doubt as to the status of persons captured after taking part, or believed to have taken part, in hostilities, they shall be treated as a prisoner of war until a properly constituted tribunal has determined their proper status.

Combatant Status Distinction • Military commanders must distinguish between combatants and non-combatants • Military operations must be directed at legitimate military objectives

Objects in the battlespace: • Military objects • Civilian objects • Cultural objects • Protected status

Military objects: Objects which by their location, nature, purpose or use make an effective contribution to military action and whose partial destruction capture or neutralization, in the circumstances ruling at the time offer a definite military advantage.

Civilian objects: • Those objects that are not military objects • Assume an object is civilian (intelligence needed)

Cultural objects: • Historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples • Symbol is informative but not necessary

Dams, dikes and nuclear plants: • shall not be made the object of attack • Except if used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support • Symbol is informative but not necessary

Perfidy Acts inviting the confidence of an adversary to lead him to believe that he is obliged to apply the protection under the rules of international law (a) The feigning of an intent to negotiate under a flag of truce or of a surrender; (b) The feigning of an incapacitation by wounds or sickness; (c) The feigning of civilian, non-combatant status; and (d) The feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

Command Responsibility • Commanders will not held to a standard of perfection • Commanders are required to take all feasible steps based on the circumstances known at the time