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...
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Combatants
Definition
GCIII:4
Regular army (“members of the armed forces of a party to the conflict, as well as members of militia or volunteer corp making up those armed forces”)
Others meeting the following criteria
Responsible command
Fixed distinctive sign/insignia that is recognizable at a distance
Carries arms openly
Follows IHL
Benefits of being a combatant
Can participate in hostilities with immunity
Entitled to POW status (related to idea of immunity)
Downsides
Can be targeted (military objective)
May be detained for duration of conflict
Note: civilian internees may also be detained in occupied territory if they pose threat to security (GCIII: 78)
Lawful Beligerants
Term of art used by the ICRC
Analogous with combatant
Unlawful Combatants
US post-911 phrase
Not found in treaty law or literature
ICRC would call these people “unprivileged beligerants.”
In re Quirin (1940s)
Deals with spies without uniform, whose purpose was sabotage. Violated the law of war and were therefore “unlawful enemy combatants.”
Result: sent to military commission. No right to jury trial.
Civilians
Definition
GCIV:4
“the people not protected by the first 3GCs” (non-POWs)
Civilian Directly Participating in Hostilities
API: 51(3) – “civilians shall enjoy the protection afforded by this section unless and for such time as they take a direct part in hostilities.”
But API still entitltes them to POW status.
But on KJ’s exam she says it is false that civilians who DPH should be treated as POWs if captured. Why?
Unlawful combatants
Unprivileged belligerents
Non-State terrorist group
Criminal organization
Principle of distinction is becoming more difficult to apply as war becomes more confusing.
Possible actors:
Security contractors/ private companies
Initially – if they directly participate, they lose protection
2008 Montreaux Document – reaffirms that states have to ensure the compliance of their contractors with IHL.
Civilian employees of the state (CIA, etc)
Others
2 different approaches to question DPH
ICRC Primary Acts Test (Interpretive Guidance, 2009)
Higher requirement for legitimate targeting.
3 elements: (pg 46)
Threshold of harm: Act must be likely to adversely effect military operation, or alternatively to inflict death/destruction on persons. Attempt is enough.
Direct causal link: between act and harm likely to result, either from that act or from coordinated military operation of which that act constitutes a necessary part
Belligerent nexus: act must be specifically designed to directly cause the required threshold of harm (you can’t just be in a war mugging someone)
Result: less chance of killing civilian by mistake, less chance of successfully targeting civilian that’s actively participating
Membership Model (Totality of Circumstances)
ICRC calls this the “continuous combat function.”
Allows for targeting for the duration...
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...
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