Lecture 3_IHL in Theory_24-25 PDF

LECTURE 2 KEY PRINCIPLES OF IHL Isabel Düsterhöft, LL.M., M.A. Email: [email protected]  OUTLINE o Repetition o Basic Principles o Special Protection o Direct Participation o Compliance & Enforcement o ICRC LEGAL NATURE OF IHL (1) ...

LECTURE 2 KEY PRINCIPLES OF IHL Isabel Düsterhöft, LL.M., M.A. Email: [email protected]  OUTLINE o Repetition o Basic Principles o Special Protection o Direct Participation o Compliance & Enforcement o ICRC LEGAL NATURE OF IHL (1)  LEGAL NATURE OF IHL (2) A set of rules that Applies in IACs limits the effects and to a lesser of armed conflict extent in NIACs Sources: GCs + APs + customary law  LEVEL OF INTENSITY – IAC V NIAC The four GCs and AP I apply in international conflicts. AP II applies in NIACs, but the An IAC occurs when one or conflict must be fairly intensive more States have recourse to including having organized armed force regardless of the armed groups on both sides -> reasons or the intensity of this minimum level of organization! confrontation. Common Article 3 to the four GCs applies in NIACs, but the requirements for level of intensity and organization are not as strict as in AP II. IAC/NIAC OR ’SOMETHING ELSE’ ? Internal Disturbances Belligerent Occupation  KEY PRINCIPLES OF IHL Distinction Military necessity vs. Humanity Precaution Proportion ality  DISTINCTION E.g.Art. 48 AP I: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives [...].”  DISTINCTION…CONTINUED Do not attack civilians … unless and for such time as they take a direct part in hostilities Do not attack civilian objects … unless they are military objectives Indiscriminate attacks are prohibited DISTINCTION…SOME QUESTIONS https://www.youtube.com/watch?v=5rXPrfn U3G0  PROPORTIONALITY E.g., Art. 51(5)(b) and Art. 57(2)(a)(iii) AP I: “An attack is prohibited if it is expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated.”  PROPORTIONALITY…CONTINUED ICTY, Report on NATO bombing (2000), para. 48: “The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. […] It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values.”  CASE May the hospital have been attacked lawfully if … it was used to store drones and missiles? there were only rebels/military personnel present? there was one civilian present? If there were more rebels/military personnel than civilians present? https://www.youtube.com/watch?v=gekdt0 QwFQw  PRECAUTIONS E.g., Art. 57(1) AP I “All feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life injury to civilians and damage to civilian objects.”  CASE If you give a bomb the same colour as a foodpackage and drop them in the same area within a short timeframe is that allowed under IHL? A.Yes, because… B. No, because… C. I don’t know, because… MILITARY TARGETS: FIGHTERS AND PLATFORMS  DEFINITION MILITARY OBJECTIVE Art. 52(2) AP I: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Question: what to do in case of doubt??? SLEEPING SOLDIERS : SHOOT OR NO SHOOT? CHILD SOLDIERS : SHOOT OR NO SHOOT ? SO HOW ABOUT?  WHO IS PROTECTED BY IHL? Civilians (everyone who is not a member of armed forces!) Wounded, sick & shipwrecked PoWs Religious personnel Medical personnel Red Cross personnel Peacekeeping forces  WHAT IS PROTECTED BY IHL? Civilian objects Hospital and safety zones, demilitarized zones Neutralized zones Cultural property Objects indispensable for the survival of the civilian population Works and installations containing dangerous forces Natural environment  HOW ABOUT CHILDREN & WOMEN? Children are granted special protection, see GC IV Prohibition of recruitment of child soldiers and participation in hostilities Child combatants are entitled to privileged treatment, see AP I (Art. 77) Women are granted special protection (+ expectant mothers and mothers of small children) Attack on honour, rape, enforced prostitution and assault are forbidden, see GC IV and AP I Special consideration while in detention & no death penalty, see GC III, GC IV and AP I PROTECTIVE EMBLEMS  CULTURAL PROPERTY War = worst threat for art, culture, monuments and cultural heritage Cultural property can help in the reconstruction of destroyed communities & facilitate a return to peace Cultural property is a reflection of identity, of culture and its heritage 1945 Hague Convention for the Protection of Cultural Property in Armed Conflict Protocol I of 1954 Convention – situations of occupation 1977 APs 1999 Protocol II of 1954 Convention CIL  WHAT IS ‘DIRECT PARTICIPATION’? Direct participation in hostilities consists of specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict.  WHAT IS ‘DIRECT PARTICIPATION’? Constitutive elements of direction participation in hostilities: In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria: 1. the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).  IHL COMPLIANCE Obligation to respect and to ensure respect Dissemination and implementation in national legal order Bring IHL ‘home’ Ratifying/acceding to the treaties Integrate in domestic law Integrate in military training, planning and decision-making States investigating own forces Military lawyers & penal law Fact-finding International criminal liability Public opinion ICRC, UN, NGOs, States, civilians  HOW IS IHL ENFORCED? Enforcement? Teach rules to armed forces and general public Prevent violations and punish them Enact laws to punish war crimes Tribunals? DO YOU REMEMBER WHAT THE ICRC DOES? (ART. 5 GCS)  THE ROLE OF THE ICRC Founded in 1863 to examine the proposals made by Henry Dunant (Battle of Solferino) = principle of humanity! Declare army medical services neutral and give them a distinctive emblem Form voluntary relief societies to act as auxiliaries to army medical services ICRC = neutral, impartial and independent humanitarian organization formally mandated by States party to the Geneva Conventions to ensure, among other activities, assistance to, and protection of, victims of armed conflict or other situations of violence It is the guardian of IHL Art.5 GCs = “to undertake the tasks incumbent upon it under the GC, to work for the faithful application of IHL and to take cognizance of complaints based on alleged breaches of that law” + “to work for the understanding and dissemination of knowledge of IHL and to prepare any development thereof”  THE ICRC AT WORK So what does the ICRC really do? Monitoring function – constant reappraisal of IHL to ensure that this field of law reflects the reality of conflict -> adapt where necessary Catalyst function – stimulate discussion of problems Promotion function – advocacy in favour of IHL – disseminate & teach Guardian angel function – defending IHL against legal developments that may counter it Direct action function – contributing to the application of IHL Watchdog function – raising the alarm bell when serious violations occur THE ICRC & ITS ‘PARTNERS’ WHAT ELSE DOES THE ICRC DO?  CONCLUSION The basic idea of IHL is simple: Do not attack civilians, only military objectives The choice of means and methods is not unlimited, do not add unnessary suffering Protect the victims, treat persons in your power humanely But at the same time, IHL can be very complex in practice. NEXT WEEK THANK YOU!  WHAT DO WE EXPECT? As a preparation for this seminar you will work in groups of 3-4 and will be given a particular IHL challenge. At home, you are asked to prepare a short 5 minutes presentation on the topic assigned to your group. You are to answer three key questions: 1) what are the current IHL provisions with regard to your topic? 2) what are some of the key developments in this field? 3) why is this considered to be a challenge to IHL? The presentations will be followed by a lively discussion. If we cannot get through all topics in this seminar, we will use the first half of next week to round off. SUBMIT VIA BS and before the DEADLINE!!  GROUPS Group 1 Group 3 Group 5 Group 7 Maria CN Chiara Daniela Maria BV Margarida Rowynn Martijn Laura Lea Austin Marty Nina Paula Nathan Kathleen Zuzana Group 2 Group 4 Group 6 Group 8 David Ellinor Adel Alex Dzheylyan Luis Senanur Maciek Cathelijne Leonora Amula Arkana Veneta Andreina Kader Jonathan Madeleine  GROUPS Group 1: Urbanisation of warfare Group 2: Cyber operations Group 3: Artificial intelligence in armed conflict Group 4: Nuclear weapons Group 5: Terrorism Group 6: Climate and armed conflict Group 7: Journalists in armed conflict Group 8: IDPs  Group work assignment for next week Friday! 5 minutes per group Not everyone has to speak but everyone has to participate! Bring any questions about IHL to class