Law Outlines International Humanitarian Law Outlines
This outline delineates international statutory and case law for times of conflict. Subjects include: customary international law, enforcement and implementation, international armed conflict & noninternational armed conflict, gender issues, Guantanamo Bay, responsibility to protect, occupation, and individual status. There is also an outline on the sources of IHL (Hague Convention, Geneva Conventions, Additional Protocols, UN Charter, Rome Statute, and ICJ rules), as well as a description of rel...
The following is a more accessible plain text extract of the PDF sample above, taken from our International Humanitarian Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Abbreviations
IAC = International Armed Conflict
NIAC = Non International Armed Conflict
Elements of IAC
CA2
Opposing states
Intervention of armed forces (armed attack + response in kind)
Armed attack tests
Use of weapons
effect
Regardless of declaration of war, or whether the states recognize the conflict as a war
API
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
Mixes jus ad bellum and in bello
To have this take effect, the national liberation forces must make a declaration of article 6 of API
There is no instance where the national liberation forces have made that declaration and been a party to API
Tadic (ICTY)
an armed conflict exists whenever there is a resort to armed force between States, of some degree of intensity and duration
IAC by proxy: state A has overall control of the group attacking State B. Threshold of control. Both tests lead to IAC.
Overall control model: financing, training, equipping, organizational support, coordinating, planning
Effective control model: providing arms, providing training, financing (Nicaragua case)
Elements of NIAC
CA3
“armed conflicts not of an international character occurring in the territory of one of the High Contracting parties.”
Hostilities may occur b/w governmental armed forces and non-governmental armed groups or between such groups only
Note: since all 4 GCs have been ratified, any AC will occur “in the territory of one of the High Contracting Parties”
Must reach certain threshold of confrontation (intensity, organization) (SEE CIL)
Hostilities must reach minimum level of intensity
This might happen when, for example
Hostilities are of a collective character
Or when govt. is obliged to use military force against insurgents, instead of just police force
Non-governmental groups involved in the conflict must be considered as “parties to the conflict.” Must possess organized armed forces.
Command structure
Capacity to sustain military operations
APII
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)
Only applies to ACs between State armed forces & dissident armed forces/other organized armed groups. Contrary to CA3.
BUT REMEMBER
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.
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
Art. 1(2) – excludes internal disturbances and tensions from the definition of NIAC
Tadic (ICTY):
Protracted armed violence
Organized groups (including all non-state groups)
Must reach minimum level of intensity
Common International Law
Intensity factors
Frequency, gravity, duration
Number and type of forces involved (police vs. military)
Type of weapons/equipment
Number of victims, scope of destruction
Impact on civilian populations
Organization factors
Structure/hierarchy of the group
Whether the group has a chain of command/ability to give orders
Capacity to recruit and train new members
Capacity to train and carry out coordinated operations
Capacity to procure weapons and logistics
Existence of code of conduct within the group
Control of territory* (just in APII)
Commentators
M. Sassoli
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?
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.
NIAC classification opens the door to the ICC
Differences in rules?
IAC and NIAC are bridged in terms of
Conduct of hostilities
Means and methods
Targeting = same proportionality test
Treatment of those in power over a party to the conflict
IAC and NIAC do not overlap in:
Occupation rules
POW/combatant status rules
Captured fighters in NIAC = no POW status. They are breaking domestic law by taking up arms against the government
Jurisdiction
All states treaty bound to IAC in CA2 and with the NIAC rules in CA3, but APs are not universally ratified
Surrounding states to NIAC get asked by SC to protect civilians
Libya
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)
Examples:
No overhead flights
Freezing of assets
Annexing individuals (prohibiting flights and freezing assets)
To have this take effect, the national liberation forces must make a declaration of article 6 of API
There is no instance where the national liberation forces have made that declaration and been a party to API
Examples
“Global War on Terror” = 2006 Hamdan
Found: anything that’s not an IAC is a NIAC (concerning conflict with Alqaida in Afghanistan)
Syria (one of the few times the ICRC has stated a classification of conflict)
Maybe Mexico
30,000 fatalities in the last four years
degree of organization: under command
territorial control
protracted violence
military must step in because the police can’t handle it
Treaties to...
Buy the full version of these notes or essay plans and more in our International Humanitarian Law Outlines.
This outline delineates international statutory and case law for times of conflict. Subjects include: customary international law, enforcement and implementation, international armed conflict & noninternational armed conflict, gender issues, Guantanamo Bay, responsibility to protect, occupation, and individual status. There is also an outline on the sources of IHL (Hague Convention, Geneva Conventions, Additional Protocols, UN Charter, Rome Statute, and ICJ rules), as well as a description of rel...
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started