#11455 - Armed Conflict - International Humanitarian Law

Abbreviations

1. IAC = International Armed Conflict

2. NIAC = Non International Armed Conflict

Elements of IAC

1. CA2

   1. Opposing states

   2. Intervention of armed forces (armed attack + response in kind)

      1. Armed attack tests

         1. Use of weapons

         2. effect

   3. Regardless of declaration of war, or whether the states recognize the conflict as a war

2. API

   1. Extends definition to include AC in which peoples are fighting against colonial domination, alien occupation, or racist regimes in the exercise of their right to self-determination (wars of national liberation). Art. 1.4

   2. Mixes jus ad bellum and in bello

   3. To have this take effect, the national liberation forces must make a declaration of article 6 of API

      1. There is no instance where the national liberation forces have made that declaration and been a party to API

3. Tadic (ICTY)

   1. an armed conflict exists whenever there is a resort to armed force between States, of some degree of intensity and duration

4. IAC by proxy: state A has overall control of the group attacking State B. Threshold of control. Both tests lead to IAC.

   1. Overall control model: financing, training, equipping, organizational support, coordinating, planning

   2. Effective control model: providing arms, providing training, financing (Nicaragua case)

Elements of NIAC

1. CA3

   1. “armed conflicts not of an international character occurring in the territory of one of the High Contracting parties.”

      1. Hostilities may occur b/w governmental armed forces and non-governmental armed groups or between such groups only

      2. Note: since all 4 GCs have been ratified, any AC will occur “in the territory of one of the High Contracting Parties”

   2. Must reach certain threshold of confrontation (intensity, organization) (SEE CIL)

      1. Hostilities must reach minimum level of intensity

         1. This might happen when, for example

            1. Hostilities are of a collective character

            2. Or when govt. is obliged to use military force against insurgents, instead of just police force

         2. Non-governmental groups involved in the conflict must be considered as “parties to the conflict.” Must possess organized armed forces.

            1. Command structure

            2. Capacity to sustain military operations

2. APII

   1. Applies to ACs “which take place in the territory of a HCP b/w 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.” (narrower than CA3)

      1. Only applies to ACs between State armed forces & dissident armed forces/other organized armed groups. Contrary to CA3.

         1. BUT REMEMBER

            1. APII “develops and supplements” CA3 “without modifying its existing conditions of application.” So the restrictive definition is relevant for the application of APII only, but does not extend to the law of NIAC in general.

            2. The Statute of the ICC, art. 8, para. 2(f) confirms the existence of a definition of a NIAC not fulfilling the criteria of APII

   2. Art. 1(2) – excludes internal disturbances and tensions from the definition of NIAC

3. Tadic (ICTY):

   1. Protracted armed violence

   2. Organized groups (including all non-state groups)

   3. Must reach minimum level of intensity

4. Common International Law

   1. Intensity factors

      1. Frequency, gravity, duration

      2. Number and type of forces involved (police vs. military)

      3. Type of weapons/equipment

      4. Number of victims, scope of destruction

      5. Impact on civilian populations

   2. Organization factors

      1. Structure/hierarchy of the group

      2. Whether the group has a chain of command/ability to give orders

      3. Capacity to recruit and train new members

      4. Capacity to train and carry out coordinated operations

      5. Capacity to procure weapons and logistics

      6. Existence of code of conduct within the group

      7. Control of territory* (just in APII)

5. Commentators

   1. M. Sassoli

      1. Articles 1 and 7 of the Statute of the ICTR extend the jurisdiction of NIAC to neighboring countries. Even a conflict spreading across borders remains a NIAC. Internal conflicts are distinguished from IAC by the parties involved rather than by the territorial scope of the conflict.

Why would we want to classifiy a civil war as a NIAC?

1. In IHL, governments have the right to use more force than under HRL, because the right to life of each citizen is under a higher attack.

2. NIAC classification opens the door to the ICC

Differences in rules?

1. IAC and NIAC are bridged in terms of

   1. Conduct of hostilities

   2. Means and methods

      1. Targeting = same proportionality test

   3. Treatment of those in power over a party to the conflict

2. IAC and NIAC do not overlap in:

   1. Occupation rules

   2. POW/combatant status rules

      1. Captured fighters in NIAC = no POW status. They are breaking domestic law by taking up arms against the government

3. Jurisdiction

   1. All states treaty bound to IAC in CA2 and with the NIAC rules in CA3, but APs are not universally ratified

   2. Surrounding states to NIAC get asked by SC to protect civilians

      1. Libya

         1. SC authorizes all surrounding states (NATO) to apply “all necessary measures” to make sure that the rules are followed by Libya and its rebels. All necessary means to protect civilians. (R2P)

         2. Examples:

            1. No overhead flights

            2. Freezing of assets

            3. Annexing individuals (prohibiting flights and freezing assets)

               1. To have this take effect, the national liberation forces must make a declaration of article 6 of API

                  1. There is no instance where the national liberation forces have made that declaration and been a party to API

Examples

1. “Global War on Terror” = 2006 Hamdan

   1. Found: anything that’s not an IAC is a NIAC (concerning conflict with Alqaida in Afghanistan)

2. Syria (one of the few times the ICRC has stated a classification of conflict)

3. Maybe Mexico

   1. 30,000 fatalities in the last four years

   2. degree of organization: under command

   3. territorial control

   4. protracted violence

   5. military must step in because the police can’t handle it

Treaties to look at

1. UN Charter 2.4 (no threat or use of force)

   1. Art. 42 = SC authorization

   2. Art. 51 = self defense

2. Vienna Convention on Diplomatic Relations

Elements, from Tadic

1. Armed force between states (IAC) or

2. Protracted violence against states (NIAC)

   1. Must have

      1. Duration

      2. Intensity

      3. Organization

3. Note

   1. De facto determination/Objective standard. No need for “declaration of war.” (See: CA2)

   2. Problem: most conflict does not happen between 2 states, and NIAC is a little trickier. Lines are blurred.

Examples

1. Murder of US Ambassador in Libya

   1. Attack on US Rep could be seen as attack on US. Occurred on US Embassy property = US ground. But who committed the attack? They would have to be organized, and attached to the state of Libya. Was the violence intense? Protracted?

      1. Doesn’t qualify. APII states that NIAC isn’t just internal disturbance/isolated/sporadic violence.

2. Syria

   1. Security Council term “armed violence” instead of “armed conflict” (as opposed to the Libya resolution)

      1. This isn’t GC language, but presumably it’s intended to be at a lower threshold, not yet at NIAC level. Perhaps because the government had agreed to a cease fire.

   2. Result: SC Res 2043 from 24 April 2012

      1. UN Supervision mission to Syria, no Chapter 7 action. Unarmed military observers. (mission has since ended, as members withdrew)

      2. Why not a chapter 7?

         1. Russia thinks non-chapter 7 outcomes are perfectly acceptable

         2. US doesn’t have a lot of influence over Russia (except through bargaining/bribes)

         3. Russia and China generally fight using chapter 7 enforcement

Elements (Article 51 + CIL)

1. Right purpose

   1. History: From Just War Theory

      1. St. Augustine, circa 323 – war waged to restore justice/peace (not for power or revenge)

      2. Thomas Aquinas (1225-1274) – 1) authoritative declaration; 2) just cause; 3) right intention

   2. Modern

      1. We look at this objectively. Example = oil platforms case. Could this use of force reasonably have had a self defense purpose

      2. Terrorist attack

         1. Doesn’t give rise to SD assuming it is a one-time attack

2. In response to an armed attack

   1. UN Charter Art. 51: Self Defense is an inherent right if an armed attack occurs

   2. Lesser forms of force (Example – Nicaragua vs. USA)

      1. Giving money/logistical support to rebles = less grave forms of use of force.

      2. Violates UN Charter (Article 2.4), but the victim does not get to respond with use of force: must go to the ICJ

3. Against a responsible party

   1. Comes up often in computer network attacks (cyber terrorism) because perpetrators are not traceable. There is an argument that this standard should be lowered in instances of cyber warfare.

   2. Example: Oil Platforms Case

      1. US failed to meet burden of proof to show that Iran was responsible party for the attack on its flagged ship

      2. Terrorist attacks do not give rise to Self Defense unless terrorists are tied to an HCP

   3. Example: Wall case says if no State is responsible, no right to SD

4. Necessity and Proportionality

5. Must report action to the SC

Most courts apply the Caroline Test (See: Osirak case)

1. Caroline, 1841. Original case.

   1. Threat is instant

   2. Overwhelming

   3. There is no choice of means

   4. Or time for deliberation

   5. must be limited by necessity (usually means that diplomatic means have failed).

      1. (most countries, including the UK, stick with this definition).

US applies Pre-Emptire

1. US 2002 National Security Defense Strategy: broad permission to act even where we don’t see traditional threats.

   1. Problems

      1. Inherent ambiguity with “imminent” – do you have to wait until the armed attack occurs? Or is our “inherent right” to...