#11460 - Attack Outline - International Humanitarian Law

What is the goal of IHL? TO PROTECT CIVILIANS

What is the doctrine of Just War? TO PRESERVE OR RESTORE PEACE

1. Justified force?

   1. Prohibition of force: Art 2.4

      1. Exceptions

         1. Security Council Authorization: Ch 7, Art. 42

            1. Happens when…

               1. Heavy civilian casualties

               2. Human rights violations

               3. Crimes against humanities (sometimes)

               4. Plight of refugees and foreign workers

               5. Use of mercenaries

            2. R2P requires SC authorization

               1. If state doesn’t wait, and is wrong, then they are in danger of being found by SC/ICC as committing act of aggression, and leaders are in danger of being prosecuted for crime of aggression

               2. Only applies in 4 mass atroticity crimes

                  1. Ethnic cleansing (no IL definition)

                  2. Crimes Against Humanity (Rome Statute)

                  3. Genocide (1948 Genocide Convention)

                  4. War Crimes (Rome Statute, Geneva Convention)

               3. 5 criteria before piller 3 (triggers)

         2. Inherent right of self defense: Ch 7, Art. 51, CIL

            1. Must be in response to Armed Attack (Or imminent AA)

               1. Must be a grave form of use of force. Act committed by armed bands where such acts occur on a significant scale

                  1. Nicaragua v. US, citing Art. 3(g) of Definition of Aggression annexed to GA resolution 3314 (XXIX)

                  2. 2 Tests

                     1. use of weapons

                     2. effect test

               2. Less grave forms (still violate UN Charter, but don’t allow for self defense)

                  1. Training, financing, providing arms, logistical assistance, etc.

               3. If collective self defense, the victim state must form and declare the view that it has been attacked. There is no rule in CIL permitting another state to exercise the right of collective self defense on the basis of its own assessment of the situation.

                  1. Nicaragua v. US

                  1. But consider: R2P

            2. Must be for the right purpose

               1. Objectivity standard

               2. Ex: oil platforms case. Court questioned whether this use of force could reasonably have had a self defense purpose

                  1. Terrorist attacks do not lead to right purpose, because it is most likely a one-time attack

            3. Must be against responsible party

               1. Problem: cyber network attacks

               2. Ex: 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. Wall case: if no state is responsible, no right to SD

                     1. Terrorist attacks only applicable when terrorists are tied to HCP

            4. Necessity and Proportionality

               1. Necessity: imminence, armed force the only option (diplomatic means have failed)

                  1. Caroline, 1841

                     1. Threat is instant

                     2. Overwhelming

                     3. No choice of means

                     4. Or time for deliberation

                     5. Limited by necessity

                  2. US model (Pre-Emptire)

                     1. Inherent ambiguity with “imminence”

                     2. Do not need to wait for traditional threats

                     3. Ex: Osirak

                        1. SC applies Caroline test, finds Israel violated IL

               2. Proportionality: only what is necessary to protect self

            5. Must report to SC (Art. 51 duty)

1. Armed Conflict

   1. GC CA1 – regardless of aggressor, all parties to the conflict are bound by Geneva law

   2. Elements

      1. Armed attack + Attack in kind (“exchange of hostilities”)

         1. Osirak – not an armed conflict, no response from Iraq

         2. Existence of AC determined objectively, no declaration of war is required (CA2)

2. IAC

   1. Armed force between states, of some degree of intensity and duration (Tadic)

   2. Opposing states, AA + response in kind, objective (CA2)

   3. Fights against colonial domination (AP1, 1.4)

   4. Occupation (Hague laws, GCIV)

   5. By proxy (ICRC)

3. NIAC

   1. Protracted violence against states, with minimum level of duration, intensity, and organization (Tadic)

   2. Within territory of HCP, b/w govt or just non govt. groups, reaching threshold of confrontation (CA3)

   3. Threshold determined by minimum level of intensity and organization (CIL)

      1. Intensity

         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

         1. Structure/hierarchy of group

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

         3. Capacity to recruit/train new members

         4. Capacity to train/carry out coordinated operations

         5. Capacity to procure weapons and logistics

         6. Existence of code of conduct within group

         7. Control of territory (just APII)

4. Principle of IHL (APs, CIL)

   1. Distinction (API: 48) (between civilian populations and combatants, and between civilian objects and military objectives)

      1. Military objectives

         1. Limited to those that by nature, location, purpose, use make effective contribution to military action and whose total or partial destruction offer a definite military advantage (API:52)

      2. GCIII:4 – regular army & criteria for others

      3. US – unlawful combatant

      4. GCIV:4 – civilians

      5. API: 51(3) – DPH

         1. Targetted killings (Means and methods)

            1. ICRC Primary Acts Test (Interpretive Guidance, 2009)

            2. Membership Model (Totality of Circumstances)

               1. Ex: targeted killing case in Israeli Supreme Court

               2. US Model

                  1. Imminent threat

                  2. Capture not feasible

                  3. Consistent with IHL (distinction, necessity, limitation, proportionality)

                     1. Ex: JAG Bunker Case – not proportional

   1. Military Necessity: 1907 Hague Regulation IV, Article 23(g) (see KJ’s doc)

      1. Use force only against military targets for legitimate military purposes.

      2. Justifies measures not forbidden by IL which are indispensible (high bar) for securing the complete submission of enemy as soon as possible (US military manual)

   2. Limitation: API:35

      1. Methods/means limitations

      2. No superfluous injury or unnecessary suffering

   3. Proportionality: API:51

      1. Cannot inflict harm to civilians if that harm is excessive in relation to the concrete and direct military advantage anticipated. Balance importance of target to enemy against potential collateral damage.

      2. Ex: Israeli SC ruling in Wall case (necessary, but not proportionate)

1. ICC

   1. Rome Statute art. 8 (4 crimes)

      1. War Crime (art. 8)

         1. Existence of AC (Tadic)

         2. Individual responsibility (not state)

         3. Nexus to AC

      2. Genocide (art. 6)

         1. Deliberate

         2. Systematic

         3. Destruction

         4. Of Ethnic/religious/racial group

         5. Don’t need AC

      3. Crimes against Humanity (art. 7)

         1. Widespread

         2. Systematic practice

         3. Large scale

         4. Don’t need AC

      4. Aggression (since 2010, goes in effect in 5 years)

         1. State must be found to have committed an act of aggression. State will probably argue R2P.

         2. Armed Attack

1. Who may be detained?

   1. POW: categories of GPIII:4

   2. Civilian Internees: GCIV: 78, imperative threats to security

   3. Unlawful combatants (In re Quirin), now called “unprivileged belligerents” (ICRC)

2. Where does the authority to detain come from?

   1. The nature of the law of war

   2. Hamdi (derived from authority to wage war)

   3. Bush Administration

      1. Emphasis on presidential power

      2. But AUMF limits to only “necessary and appropriate force”

   4. Obama Admin

      1. AUMF

   5. Habeas cases

3. Domestic/HR standards

   1. Prolonged arbitrary detention

   2. Hamdi through Boumedienne

      1. Administrative due process

      2. Habeas application

      3. Sliding scale

   3. 2012 NDAA, sec. 1024: requires the Secretary of Defense, within 90 days of enactment, to submit a report to congressional defense and intelligence committees explaining the procedures for determining the status of persons detained under the AUMF. Requires that

      1. military judge

      2. counsel provided to detainee

   4. Law enforcement interrogation (voluntariness)

   5. Treatment standards consistent with Bureau of Prisons

4. Fair Trial Rights

   1. IAC Standards (GCIII/IV)

   2. Art. 75 of API

      1. Right to evidence & to be informed of reason for detention & to examine witnesses against him

      2. Representation

      3. Convictions can only occur on the basis of individual penal responsibility

      4. Can only be accused/convicted of criminal offense on account of national/IL he was subject to at the time of commission

      5. Innocent until proven guilty

      6. Right to be tried in presence

      7. Right to not incriminate self/confess guilt

      8. Can’t be prosecuted for offense that he has already been acquitted of

      9. Right to have judgement...