IHL Material for Mock Test 2 (11.10) PDF

[Armed conflicts] What is an armed conflict? Is there a unified notion of armed conflict? Some social sciences use data, quantifiable criteria, to characterize an armed conflict (such as the number of killed). However, IHL doesn't. With the codification of IHL and the influence of human rights, the...

[Armed conflicts] What is an armed conflict? Is there a unified notion of armed conflict? Some social sciences use data, quantifiable criteria, to characterize an armed conflict (such as the number of killed). However, IHL doesn't. With the codification of IHL and the influence of human rights, the term now is "armed conflict", not "war". IHL doesn't have a unitary concept of armed conflict. Treaty law also doesn't offer a clear concept. The interpretation and clarification have been largely left to State practice, international case-law and legal scholars.  Tadic ruling (Criminal Tribunal for the former Yugoslavia): "resort to armed force between States or protracted armed violence between governmental authorities and organized groups or between such groups within a State". Minimum level or organization within the groups. This definition includes national and international armed conflicts. Sporadic use of violence would not amount to an armed conflict. Other situations of violence v. Armed conflicts: Internal disturbance and tensions are situations of violence and are governed by Human Rights Law and national legislation. International and non-international armed conflicts are armed conflicts, and therefore are governed by IHL and Human Rights Law. [Distinction between IACs and NIACs] International Law as a whole was concerned only with relations between States and avoided regulation of matters considered to be within the domestic jurisdiction of States. It was possible for the laws of war to apply to civil wars but only in cases where there was recognition, either by the State involved in the civil war or by a third State of the belligerency of the insurgent party. The extension of international regulation to internal armed conflicts changed decisively after the Second World War:  - The Spanish Civil War (1936--1939): there was an emerging view that international law applied to the conduct of hostilities during a civil war. - Geneva Conventions of 1949: The incorporation of the concept of non-international armed conflict in Common Article 3 constituted a landmark in the development of IHL. - Organized armed groups were considered "parties" to an armed conflict with their own obligations under international law, irrespective of any formal recognition of belligerency by the opposing State. - 1977: Additional Protocol I and II (AP I à IACs; AP II à NIACs). The most important difference concerns the threshold of violence required for a situation to be deemed an armed conflict. The threshold or level of violence required to trigger a non-international armed conflict classification and, thereby, the applicability of IHL is significantly higher than for an international armed conflict. [International Armed Conflict] Over the course of the 20th century, formal declarations of war became increasingly uncommon (in the past they would be what triggered the use of laws of war under IHL), and the political concept of "war" was largely replaced by the factual concept of "armed conflict." Today, an international armed conflict is presumed to exist as soon as a State uses armed force against another State, regardless of the reasons for or intensity of the confrontation (indicative factors to assess the intensity of violence), and irrespective of whether a political state of war has been formally declared or recognized. → Special case: national liberation movements Article 1(4) Additional Protocol I extends the scope of application of the Geneva Conventions to include armed conflicts in which people are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right of self-determination. The scope of the provision is very limited: the situation regarding Israel's occupation of Palestine, the struggle against the Apartheid regimes in South Africa and Zimbabwe (then Rhodesia), and the colonial struggles. Article 1(4) does not cover armed conflicts fought against repressive regimes other than colonial or racist regimes or alien occupation. Consequently, it does not apply to secessionist armed conflicts. These are therefore *not regulated by IHL*, but by general international law (rules on Statehood and Montevideo conventions on being able to enter into Treaties). [Non-international Armed Conflict] "Not every situation of armed violence within a state amounts to a non-international armed conflict". The assessment of whether a situation amounts to a NIAC is based on the factual situation (not on the characterization given by states involved or by the international community). In fact. Common Article 3 to the Geneva Conventions refers to a 'conflict not of an international character' but does not provide a definition. In practice, there are 2 core elements: 1. Protracted armed violence, meaning a certain intensity of the armed violence. 1. The actors taking part in it must exhibit a certain degree of organization. The indicative factors to assess the intensity of violence include: - The number, duration, and intensity of individual confrontations. - The type of military equipment and weapons used. - The number of persons and types of forces partaking in the fighting. - The number of casualties and the extent of material destruction caused. - The frequency of fighting over time and the spreading over territory. - The reaction by the government. - The reaction and involvement of the international community. For armed groups, international jurisprudence has developed a series of indicative factors to assess their organization. The indicative factors of the level of organization of the parties involved include: - The presence of some kind of command structure. - The operational capacity of the group. - The logistical capacity of the group. - The ability to speak with one voice and to participate in the negotiation of agreements. - The existence of some kind of internal disciplinary mechanism. [The End of an Armed Conflict] IACs end with peace treaties (rare) or a similar agreement, or even a unilateral declaration or other unambiguous act expressing the termination of belligerent intent. It can also be considered that they end with a slow and progressive decrease in intensity (common today). For NIACs, various forms of 'settlement' are conceivable, such as formal peace agreements, declarations of surrender, military defeat of either party... Even after the end of an AC, IHL may still apply, namely in regard to the persons deprived of their liberty, protected by IHL provisions. This is referred to as the war -- peace continuum. [Consequences of the Distinction between IAC and NIAC] While IACs are governed by the entirety of the Geneva Conventions of 1949, the Hague Conventions, and Additional Protocol I of 1977, NIACs are only covered by Common Article 3 of the 1949 Geneva Conventions, Additional Protocol II of 1977 and certain treaties on weapons. Common Article 3 has been defined as a mini-convention or a convention in miniature. It offers an international minimum protection to persons taking no active part in hostilities, including members of armed forces in certain situations specifically stated in the article. Humane and non-discriminatory treatment are also two important protections offered under this provision. Application of the combatance principle. Who is considered a combatant (called "fighter" in NIAC context). It is rule 1 of customary IHL: "Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians". Is this distinction still valid nowadays? It is harder to classify these conflicts today, so the relevance of the distinction has decreased. However, there are still reasons to keep it. The main reason for the persistence of the distinction is the view by some States that equating NIACs, and IACs would undermine State sovereignty (national unity and security). There is concern on the part of States that abolishing the distinction and treating NIACs in the same way as IACs would give international status to non-state groups and might even encourage international intervention in internal conflicts. [Military or Belligerent Occupations] IHL governing international armed conflicts also applies "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". This means that these occupations are considered armed conflicts under the four Geneva Conventions. Now would they be IAC or NIAC? IHL governing IAC applies to them, so it seems they would be considered international armed conflicts. Although the Geneva Conventions do not define occupation itself, the elements of an occupation can be found in Article 42 of the 1907 Hague Regulations, which affirms that: "a territory is considered occupied when it is actually placed under the authority of the hostile army". To determine whether a territory is under the 'authority' of a hostile army, the notion of effective control is used. The **effective control** *test* consists of three *cumulative* elements: - Armed forces of a foreign state are physically present without the consent of the effective local government in place at the time of the invasion; - The local sovereign authprity is unable to exercise its authority due to the presence of foreign forces; - The occupying forces impose their own authority over the territory. [Armed conflicts involving foreign intervention] (Internationalization of Armed Conflict: a state or a coallition of states intervening in an otherwise NIAC) When one or more foreign states fight alongside the armed forces of the territorial state against one or more armed groups, there is a non-international armed conflict. However, when one or more foreign states fight on the side of the armed group, there are two possibilities (the fragmentation theory): 1. If there is fighting between the intervening state's and the territorial state's forces, it is an international armed conflict; 1. If the fighting remais between the territorial state's forces and the armed group, there is a non-international armed conflict (provided that the requisite criteria of intensity and organization are fulfilled). This form of categorising the conflicts is the one followed by the ICRC and the RULAC project. [Control over Proxy Forces] A state may support local armed groups acting on another's territory. Such a conflict may look like a NIAC between the territorial state and the armed group. However, this could amount to an IAC if the other state exercised **overall control** over the local armed group - because the latter would be considered to be acting by proxy, on behalf of the other state. Such overall control exists where 'a State has a role in organizing, coordinating, or planning the military actions of the organized armed groups and that State finances, trains, equips or provides operational support to that group'. Effective control v. overall control. Effective control requires that the state controls each military action (e.g. Nicaragua ICJ case, 2007 - used this criteria to determine state responsibility). IHL, on the other hand, uses overall control criteria (Tadic ruling).