The Law of Armed Conflicts
The Law of Armed Conflicts
The Law of Armed Conflicts
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Civilians............................................................................................................................................18
Combatants......................................................................................................................................18
« Everything » in between...............................................................................................................18
Combatants.......................................................................................................................18
Criteria for Combatant Status...........................................................................................................19
Combatant Review Tribunals.....................................................................................................19
Hors de Combat........................................................................................................................20
Spies and Mercenaries......................................................................................................20
V. Prisoners of War..............................................................................................21
Historical Overview....................................................................................................................21
Pow Status: a Temporal perspective.........................................................................................21
Responsibility for POWs....................................................................................................21
Requirements at the Outbreak of Hostilities.............................................................................21
The Right to POW Status...........................................................................................................22
Determination of Status..................................................................................................................22
POW Protection ...............................................................................................................22
General Protection....................................................................................................................22
Prohibited Acts or Omissions....................................................................................................23
Personal Belongings..................................................................................................................23
Specific Provisions on the Internment of POWs.......................................................................23
VI. Wounded, Sick and Dead and the Medical Services........................................25
Wounded and Sick............................................................................................................25
Definition...................................................................................................................................25
Protection..................................................................................................................................25
The Missing and the Dead.................................................................................................25
Medical Services...............................................................................................................25
Medical Personnel.....................................................................................................................25
Military Non-Combattants...............................................................................................................25
Protection.........................................................................................................................................25
Permanent Medical Personnel........................................................................................................26
Temporary Medical Personnel........................................................................................................26
Medical Units and their Protection...........................................................................................26
The Protective Emblem/Distinctive Sign...................................................................................26
Rights and Obligations of the Medical Units............................................................................26
Perfidy and Misuse....................................................................................................................26
Perfidy.............................................................................................................................................27
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Duties of the Attacking Party....................................................................................................29
Duties of the Defending Party...................................................................................................29
The Principle of Proportionality................................................................................................29
Practical Targeting Process.......................................................................................................29
Special Protection.............................................................................................................30
Civilian Property........................................................................................................................30
Medical Installations and Materiel...........................................................................................30
Medical Aircraft...............................................................................................................................30
Civil Defence.............................................................................................................................30
Cultural Property.......................................................................................................................30
1954 Hague Cultural Property Convention......................................................................................30
« General Protection ».....................................................................................................................30
« Special Protection » ......................................................................................................................30
Art. 53 of Additional Protocol 1........................................................................................................31
1999 Second Protocol to the Hague Cultural Property Convention .................................................31
Scorched Earth Policy................................................................................................................31
The Natural Environment..........................................................................................................31
Dangerous Forces......................................................................................................................31
Specially Protected Zones..........................................................................................................31
Illegal Methods of Combat................................................................................................32
Perfidy.......................................................................................................................................32
Misuse of Enemy/Neutral Symbols...........................................................................................32
Protection of Certain personnel................................................................................................32
Hostage Taking and « Human Shields »....................................................................................32
Prohibition on Certain Reprisals...............................................................................................32
VIII. Weapons (Means of Combat).......................................................................33
Historical Precedents........................................................................................................33
Two Different Approaches................................................................................................33
Application of the Principle of Humanity..................................................................................33
Specific Prohibitions..................................................................................................................33
Small Calibre Munitions...................................................................................................................33
Chemical and Biological Weapons...................................................................................................34
Non-Lethal Chemical Weapons.......................................................................................................34
Other Non-Lethal Weapons.............................................................................................................34
Nuclear Weapons?..........................................................................................................................34
1980 UN Convention on Certain Conventional Weapons (CCW).....................................................34
Landmines.......................................................................................................................................34
Incendiary Weapons (UN CCW Protocol III 1980)............................................................................35
Cluster Bombs, etc...........................................................................................................................35
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The status and treatment of protected persons GC IV (Part. 3.1)............................................38
GC. IV (Part 3, Section 2) Aliens in the Territory of a Party to the Conflict..............................38
Zones of Protection...........................................................................................................38
Art. 14: Unilateral, Hospitals and Safety Zones – to Protect;....................................................38
Art. 15: Neutralized Zones – bi-lateral.......................................................................................39
AP.I, art. 59: Non-defended localities, « Open cities ».............................................................39
AP1, art. 60: Demilitarized Zones..............................................................................................39
AP. 1 Art. 75 Minimum Protection.....................................................................................39
X. Occupied Territory..........................................................................................40
Nature of Belligerent Occupation.....................................................................................40
Beginning and End ...........................................................................................................40
Belligerency Before, During and After Occupation............................................................40
Duties of the Occupying Power.........................................................................................41
Administration...........................................................................................................................41
Civilian Population.....................................................................................................................41
Other Duties..............................................................................................................................41
Prohibited Acts..................................................................................................................41
XI. Non-international Armed Conflict..................................................................43
Definition..........................................................................................................................43
Applicable Law..................................................................................................................43
Applicable Law of Armed Conflicts...........................................................................................43
Geneva Convention Common Art. 3 (1949).....................................................................................43
Additional Protocol II.......................................................................................................................43
Operational Regulation in APII.........................................................................................................43
Specific Rules in Other Conventions................................................................................................44
Customary Law................................................................................................................................44
International Human Rights Instruments.................................................................................44
Focus Areas.....................................................................................................................................45
National Legislation...................................................................................................................45
XII. Enforcement of the Laws of Armed Conflict..................................................46
Prevention........................................................................................................................46
Alternatives......................................................................................................................46
Belligerent Reprisals.................................................................................................................46
Definition........................................................................................................................................46
Reprisal Bans...................................................................................................................................46
Prosecution......................................................................................................................46
Development............................................................................................................................46
Command Responsibility...........................................................................................................47
Superior Orders........................................................................................................................47
Universal Jurisdiction................................................................................................................47
Recent Developments...............................................................................................................47
The ICC and On-going Investigations...............................................................................................48
War Crimes...............................................................................................................................48
Groups of War Crimes.....................................................................................................................48
Crimes Against Humanity..........................................................................................................49
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Genocide...................................................................................................................................49
XIII. Maritime Warfare........................................................................................50
Historical Overview..........................................................................................................50
Key Definitions.................................................................................................................50
Areas of Naval Warfare.....................................................................................................51
Neutral Waters..................................................................................................................51
Basic Rules.........................................................................................................................51
Vessels « Hors de Combat »......................................................................................................51
Enemy Vessels Exempt from Attack..........................................................................................51
Loss of Exemption.....................................................................................................................52
Merchant Vessels......................................................................................................................52
Enemy Merchant Vessels.................................................................................................................52
Neutral Merchant Vessels................................................................................................................52
Methods and Means of Warfare at Sea.............................................................................53
Means........................................................................................................................................53
Methods....................................................................................................................................53
Blockades.........................................................................................................................................53
Zones...............................................................................................................................................53
Deception, Ruses of War and Perfidy..............................................................................................53
Measures Short of Attack.................................................................................................54
Hospital Ships...................................................................................................................54
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I. THE LEGAL REGULATION OF THE USE OF FORCE IN INTERNATIONAL
RELATIONS
The law when a conflict is not actually declared. Not matter for soldiers – political decisions. Whether or
not to wage war / legality of conflict. Points of view: Evil war vs. Just war.
● The Versailles Peace Treaty of 1920: WW1 – main event: German attack on Belgium, August 1914.
Agreements with other states to protect Belgium if it was under attack. In Treaty, want to bring
Wilhelm II for war crimes. Trial never really became war crime trial though.
● Briand-Kellog Pact of 1928: Initiative taken to renounciation of recourse to war in certain situations
(somewhat a ban on aggressive wars).
○ Nuremberg Judgment 1946: Upheld.
○ Principal findings of Nuremberg Judgment (The Nuremberg Principles), declared customary
international law.
○ In 1946, there thus existed a ban on aggressive war.
All members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations
Case Concerning the Military and Paramilitary Activities In and Against Nicaragua - 1986 (Nicaragua v.
USA), p. 48
● US violated intl law by supporting insurrection movement in another country?
● Use of force by paying, educating, supporting an irregular movement in another country? The ICJ
says it does.
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Para 228: « Force » also corvers the laying of mines in another nation's territorial waters as well as « organising or
encouraging the organisation of irregular forces or armed bands ... for incursion into the territory of another
State ».
● UN Security Council autorisation of the use of force against a (member) state in accordance with
Chapter VII or the UN Charter.
● Finding a « threath against peace » in accordance with Art. 39. (precondition for further decisions)
● Can authorise « measures not involving the use of force » (Art. 41) or « such action by air, sea, or
land forces as may be necessary » (Art. 42).
● Can also authorize « Peace-keeping missions » (in accordance with Chapter VI), provided that
involved (host) countires consent to the deployment.
● Ch. 6: possibility of mediation without Use of force (used traditionally during the Cold war). Used as
pretext to send lightly armed troops in country to mediate/assist/help parties get to an
understanding: role of UN troops is to monitor, observe and report.
Examples
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etc.).
Anticipatory Self-Defence
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● Oct. Passage was innocent.
● Clearing of mines of Nov not innocent. No consent of mine clearance organization.
● Notion of self-help rejected. Actions constituted violation of Albanian sovereignty.
There is a demand to proportionality. Self-Defence needs to be proportional. Must use degree necessary to
repel the attack.
Humanitarian Intervention
● Use of military force on foreign territory to save the intervening country's own nationals from grave
danger.
● Example: The Israeli military action in Entebbe, Uganga, 1976.
● Normally not considered self-defence, however, also normally considered non-controversial.
● Use of military force on foreign territory in order to save the targeted country's own nationals from
grave violations of international human rights law, in particual genocide, against crimes against
humanity, etc.
● Example: Kosovo 1999.
Reprisals
● Definition: countermeasure taken by a state that has been subjected to a violation of international
law, against the state having perpetrated the violation, with the specific purpose of forcing the said
state to stop violating international law or to make reparations.
● Since 1945, considered outlawed by the UN Charter.
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II. BASIC PRINCIPLES OF LAWS OF WAR
IHL, Law of Armed Conflict, they all mean the same. The law that applies during armed conflict of any
nature. Laws of War encompass all conventions that applies during an armed conflict, including rules of
neutrality, use of weapons + any other rules applicable to armed conflict.
Historical Overview
Ancient Times
Historically, traces of some ethical code between warriors fighting in battlefield (India, for example). The
reason for warrior codes was justified by « chevalry ». Also: strategic considerations, mercantile
considerations (prisoners of war were needed for exhange, ransom, etc.).
1625: Hugo Grotius: De jura belli ac pacis – the law in peace and the law in war. Tries to sum up state
practice and explain how states among themselves have to fight war.
Contemporary Context
International Humanitarian Law as a means to alleviate suffering amognst combatants and to secure a
minimum of rights for persons who do not or no longer take active part in hostilities.
● The Vattle of Solferino, on 24 June 1859, 6000 killed and 30000 wounded.
● Henri Dunant. realises there is a need for service for wounded. He did two things:
- Cofounded Commitee for Red Cross
- Started up a process that would bind states to establish a medical service within their service and
that they had international protection.
● Florence Nightinghale and the experience of the Crimean War 1854-56.
● Francis Lieber, LL.d, and General Order No. 100 (Instructions for the Government of Armies of the
USA in the Field) – The so called Lieber Code, 1863. Specific regulations re: treatment of detainees,
means of methods of warfare, etc. The Lieber Code is viewed as first manual on international
humanitarian law.
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symbol of the parliementary – negociator in a conflict.
● Rules of occupation also included. -
● Duties of Neutral countries: no use of territory for military operations. Principle of Equality...
● Convention on Maritime Mine Laying: Rules that limits states to the extent that it is not fixed to
the sead bed. Non-anchord contact mines have to self-neutralize after one hour.
Notes:
– Geneva Law: Any IHL governing treatment of persons no longer taking part in combat.
– Hague Law: means aand methods of warfare.
1949: After big conflicts, will among states to regulate war even more.
● First Geneva Convention dealing with sicked wounded.
● Second: same + shipwrecked.
● Third: Prisoners of wars.
● Fourth: civilians (not all). Universal application. Ratified by virtually all states. Has very close to
universal acceptance. Considered customary international law as well as treaty law.
○ Important 3: governs internal armed conflict (the « Mini Convention »).
Post 1949:
● Three aditionnal protocols: (1) Expands use of rules govning armed conflicts to some internal
conflicts (occupation); (2) Description of military targets, etc.
○ 1st additonal protocol: very important.
○ 2nd additional protocol: internal armed conflict.
○ 3rd protocol: came into force 2006: use of Red Crystal as a new symbol for protected status.
In the 70's, UN initiated work on limitation on use of certain weapons. In 1980, convention banning use of
weapons which could infllict unnecessary suffering or superflous injury. What this is remains to be
analyzed. The Weapons Convention had 4 protocols: banned specific types of weapons:
● Non detectable fragments.
● Laser weapons.
● Flamable/incendiary weapons were limited. Not to be used if there is risks of collateral damages.
● Limitations on use of mines, booby-traps, etc.
Customary Law
Practices by the States carried out during certain period of time + done so because they felt legally bound
to do so. Very important in IHL because internal armed conflicts remains to be regulated to the extend we
really need (90% of conflicts today are internal).
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Writings of Learned Scholars
In many fields, no other sources. In IHL, scholars play specific roles re: Maritime Warfare (San Remo Manual
1994, compiled by a number of professors). Other area: Air Warfare.
Basic Principles
Four very important principles. Basis for any rules in IHL.
Military Necessity
● St. Petersburg Declaration. Use of military force not otherwise prohibitied, required to achieve
complete or partial submission at the most minimal expenses is allowed. Very political variable –
soldier not really bound by this. It is meant to govern strategic plans.
● Arguments from commanders: « There might be a prohibition, but it is really necessary ». Art 23E of
Hague Declaration: « allowed to destroy, seize ennemy property, unless not necessary ». Hague
Cultural Property: general protection, but exception of « imperative requirement / military
necessity ».
● Definition: The use of military force, not otherwise prohibited by the LOAC, which is required to
achieve the complete or partial submission of the enemy at the earliest possible moment and with
the minimum expenditure of ressources.
● Specific consequences:
○ Strateguc principle applicable to states: force must be controlled (The hostages case)
○ The argument of Military Necessity can leas to derogation from IHL, the law itself exhaustively
takes military necessity into consideration:
■ HLW, art. 23.e: «... to destroy seize the enemy's property unless such destruction or seizure
be imperatively demanded by the necessities of war... »
■ Hague Cultural Property Convention 1954: Art. 1.2: « ... the obligations mentioned in
paragraph 1 of the present article may be waived only in cases where military necessity
imperatively requires such a waiver ».
■ Ex: Scorched Earth Policy, Ap. 1, Art. 54, para. 5: « ... where required by imperative military
necessity ».
■ Ex: Without mentioning military necessity: AP1, Art. 52.2: definition of objectives: « ...
offering a definite military advantage ».
Unlawful attack against civilians (count 3); attack upon civilian property (count 4)
180. As proposed by the Prosecution, the Trial Chamber deems that the attack must have caused deaths and/or
serious bodily injury within the civilian population or damage to civilian property. The parties to the conflict are
obliged to attempt to distinguish between military targets and civilian persons or property. Targeting civilians or
civilian property is an offence when not justified by military necessity. Civilians within the meaning of Article 3
are persons who are not, or no longer, members of the armed forces. Civilian property covers any property that
could not be legitimately considered a military objective . Such an attack must have been conducted intentionally
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in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not
through military necessity.
Humanity
● Humanity forbids the infliction of suffering, injury or destruction not actually necessary for the
accomplishment of legitimate military purposes.
● Specific Conventions banning or limiting the use of certains weaponry and munitions.
● Humanity dictates humane treatment of any person in the custody of a belligerent.
● The principle confirms the basic immunity of civilian population and civilian objects from attack
because civilians and civilian objects make no contribution to military actions.
● Does not make unlawful unavoidable accidental death resulting from legitimate attacks upon
military objectives.
● Proportionality: Damage must not be excessive in relation to the concrete and direct military
advantage anticipated.
Discrimination / Distinction
● There must be a clear distinction between the armed forces and civilians, or between combatants
and non-combatants, and between objects that might legitimately be attacked and those
protected from attack.
● Only combatants are permitted to take a direct part in the hostilities (they may be attacked).
Civilians may not take a direct part in hostilities and, for so long as they refrain from doing so, are
protected from attacks.
● Personnel: attacker has to distiguish between civilian objects and military targets. Must make
resonable effort to gather intelligence, reviews the intelligence available to him and concludes in
good faith that he is attacking a legitimate military target.
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● In planning and execution.
Proportionality
● Requires that the lossed resulting from a military action should not be excessive in relation to the
expected military advantage.
● It is a link between the principles of military necessity and humanity. Most evident in connection
with the reduction of incidental damage caused by military operations.
Proportionality in Self-Defence
● Personal defence as opposed to State self-defence as regulated in the Ius ad Bellum
● The use of force must not go beyond what is strictly necessary to stop the attack and contrain the
threat.
Proportionality in Reprisals
● A reprisal need not conform in kind to the act complained of but shall not significantly exceed the
adverse party's violation either in degree or in effect. (UK Manual, para. 16.17).
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III. THE APPLICATION OF THE LAW OF ARMED CONFLICTS
« Armed Conflict »
● No definition as such in Geneva Convention.
● ICTY Appeals Chamber in Tadic Jurisdiction, 2 October 1995.
● UK Manual Guidance (para. 3.3):
○ « any difference arising between States and leading to the intervention of members of the
armed forces in an armed conflict »
○ « an armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organised armed groups
within a State ».
Occupation
● Even more difficult to call something « occupation ». Easier to succumb to notion of new speak,
« police operations, friendly assistance ».
● LOAC applies, even if only partial and even if no armed resistance to the occupation takes place,
Geneva Conventions Common Article 2, para. 2.
● Occupation is thus a factual test, rules applies regardless of what the parties call the situation.
Human Intervention
● When there is fighting on the ground, law applies.
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Equality of Parties to the Conflict as to the Application of the Law of International
Armed Conflict
● Traditional viewpoint: At time of Hague Convention, equality implies that all states had to sign to
the Convention. « General Participation Clause »: If one party to the conflict has not ratified a
relevant convention, no one is obliged to apply the provision.
○ Example: 1907 Hague IV Convention, Article 2.
● Modern Approach:
○ High Contracting Parties remain boung in their mutual relations, but not obliged to apply the
law towards party not bound by relevant convention:
■ Example: 1977 Additional Protocol (AP) I Article 96(2).
○ Exception 1: The law in question is customary international law and thus binding on everybody
regardless of ratification.
○ Exception 2: The not-bound party declares that it will apply the law and actually does so, AP I
Article 96(2) in fine.
● Bottom line: You are only bound by LOAC when the other party is also bound by the same law.
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○ = Non international Armed Conflict.
● Coalition Intervention in support of Northern Alliance and directed against de facto Taliban
government Oct 2001-Summer 2002:
○ = International Armed Conflict
○ When fighting practically over, there was democratically new elected government recognized
by the UN.
● The Conflict between the democratically elected Karzai government in Kabul, supported by
international forces, against forces loyal to former Taliban etc. from summer 2002 onwards.
○ = Non-International Armed Conflict (including according to statement by ICRC + what the state
says).
○ If, for instance, Pakistan was providing support (see Nicaragua case), it would then become
again an international armed conflict.
Internal Disturbances
● Below the threshold of armed conflict. Consequently, LOAC does not apply, cf. AP II, Article 1, Para.
2.
● Appropriate peacetime, International Human Rights Law legislation as well as national legislation
applies instead.
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IV. THE LAW OF BELLIGERENTS
Principle of Distinction
Civilians
● Shall enjoy general protection against dangers arising from military operations, AP1, Art. 50.
● Never be object of attack, AP1, Art. 51.
Combatants
● They have the right to participate directly in hostilities, AP1, Art. 43.2.
■ As lawyer, when applying IHL, must ask: who are the parties to this the conflict and what
did they ratify?
● If they fall into the hands of the adversary, they shall have the status of POW. (AP1, art. 44.1)
« Everything » in between
○ Civilians who accompany armed forces.
■ How can civilians be part of the armed conflicts? Hague regulations, 3, both CMB and Non-
CMB can be members of armed forces. There are civilians that follow armed forces.
■ Any attack on them is unlawful, so they can use necessary force to protect themselves
against unlawful attacks. In some countries, civilians are provided with weapons.
○ Civilians who take direct part in hostilities.
○ Other personnel who do not fulfil criteria for combatant status.
■ Ex: « War correspondants ». (4(a) of GCIII)
■ Supply Contractors.
Combatants
● International armed conflicts: our focus here
● Definitions:
○ 1. Hague Regulations Art. 1-3;
○ III. Geneva Convention: Art.4.A(1)-(3) and (6).
○ AP 1, Art. 43-45
○ AP 1. Art. 50.1:
■ Basically, a civilian is anyone who is not a combatant.
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Criteria for Combatant Status
● Art 43, para 2: Members of armed forces, apart from chaplains and medical personnel are
combatants.
● No mention of uniforms, no mention of weapons as in GCIII
○ Art. 44, para 3 relates to these demands.
● Combatants are armed forces but expands term to meet anyone under command of the armed
forces of the country. No longer a requisite to respect laws of war, as long as there is a disciplinary
system to make sure the laws of war are respected.
● Must distinguish yourself at all times.
● Further: in exceptional circumstances, may even restrain yourself from distinguishing from civilians,
but when visible (includes technology) to the enemy, must distiguish oneself.
○ Note on visibility: it must adapt to new technologies: ie: night googles, satellites, etc.
● US played a big role in the preparation of AP1 & AP2 (even though they did not ratify!)
If not given combatant status, then considered to be a civilian. If must take part in hostilities, that would
be tried under the national law of the nation who has jurisdiction over civilians. However, there is a
minimum protection requirement for all the persons who are not otherwise protected by the laws of war
(art. 75). It is considered today to be customary international law.
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Distinction from Civilians – Minimum Requirements
● Art. 44: Only Relevant for combatants:
○ Para 3: Normally: A combatant shall distinguish himself from civilians while engaged in attack
or in a military operation preparatory to an attack.
○ Para 3: Exceptionally: In recognition of certain situations where a combatant can not so
distinguish himself he shall retain that status if:
■ He carry his arms openly during each military engagement.
■ And during such time as he is visible to the adversary while he is engaged in a military
deployment preceding the launching of an attack (2) in which he is to participate (3).
● Art. 44, para. 4: Even if he does not fulfil these requirements and he is tried and punished for war
crimes, he does not lose his status as combatant or POW in the process.
● If he is not even a combatant in accordance with Art. 43, but a mere criminal, he is not protected by
anything but the minimum required protection standard outlined in art. 75.
● Art. 44.7: Good practice of wearing uniform remains unaffected by these rules.
● If there is indeed no doubt as to status, there is no need for a tribunal. If prima facie, the person is
indeed a combatant, there is no need for such review tribunals to decide. There might arise
situations where there is a doubt.
● If no doubt that person is clearly a civilian, there is no need for such a tribunal either. There is a
need to do something else: to be put before a judge or internal measures.
● Internet: see absalon for link to CRT: http://www.defenselink.mil/news/Combatant_Tribunals.html
● Right to habeas corpus: to have his status tried if he is held in remand without POW status and is to
be tried by a court for offence(s) arising out of hostilities.
Hors de Combat
● Once out of combat, must not take part in hostilities and must not be attacked.
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● GC III as a specific rule describing escaping POWs. Use of weapon permitted only if absolutely
necessary. A person must thus do anything he can to stop this escape without using a weapon.
Spies
Spy: « Works under clear intentions to dupe the enemy and gather information, under false pretenses ».
Shall not have the right to POW Status, an may be treated as a spy.
Mercenaries
AP art. 47
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V. PRISONERS OF WAR
3rd Geneva Convention: most expansive catalog of rights of detainees. Main reference for POW status and
treatment. + some developments in AP1.
Historical Overview
Ancient History: Started 400 BC. Reasons at this time had nothing to do with humanitarian consideration.
More mercantile view – want to keep POWs in good condition as to be suitable for exchange.
1863: Lieber Code; « Intructions for the Government of the armies of the USA »
1929: Real Convention, within Geneva Regime.
1949: Geneva Convention III.
1977: Aditionnal protocols, I and II.
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State Party (GC III, Art. 122) and Central information bureau (GCIII, Art. 123).
d) Issue ID Cards to the armed forces (GC III Art. 4 and 17).
e) Inform opponents about rules relating to release on parole (GC III, Art. 21).
– Mandatory information to enemy: location and marking of POW camps, correspondance exchange
information, relevant legislation on wills, grave registration service.
Determination of Status
GC III art. 5
● Rule of presumption
● Only if in doubt.
● Competent « tribunal ».
AP1, Art. 45
● Objective Criteria
○ Detaines claims POW status
○ Appears to be entitled to....
○ The party on which he depends claims such status...
● Still rule on presumption
● Doubtful if Customary international law.
POW Protection
General Protection
● POW shall be evacuated as soon as possible from the battlefield (Art. 19).
● POW shall be treated humanely at all times (Art. 13).
● POW shall be protected, especially against violent acts, medical or scientific experiment,
intimidation or public curiosity (Art. 13).
● POW's person and honor shall be respected. Women shall be treated with all regard to their sex.
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○ Non discrimination (Art. 16) « Equal but separate ».
● A POW may be questioned in captivity, but there is very strict provisions, which regulate such
questioning.
● Free of charge medical protection (Art. 15).
● The POW shall inform the detaining power of his identity; ie: name, rank, date of birth, military
service number or equivalent. (Art. 17).
Personal Belongings
Article 18 defines the effects a POW shall maintain at his disposal:
● Effects and articles for personal use except:
○ Arms, horses, military documents and military equipment.
● Protective gear,
● Effects used for their clothing and feeding shall remain in their possession even if such effects
belong to their regular military equipment.
● Always with identity documents,
● Badges of rank and nationality, decorations and articles having sentimental value,
● Sums of money carried by the POW, unless an officer decides and then only upon receipt.
● Other personal objects of value taken into custody shall be returned in their initial shape...
● Military equipment (including money belonging to government may be confiscated subject to the
laws of war).
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● Officers and prisoners of equivalent status shall be treated proper regard to their rank and status.
Officers cannot be compelled to work.
● Others can be compelled to work for the detaining power under certain restrictions.
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VI. WOUNDED, SICK AND DEAD AND THE MEDICAL SERVICES
Definition
● All personnel so categorized in armed conflict, whether civilian or military, whether friend or foe.
● It is the need for medical assistance, not the cause of the need, that is important.
● It is a prerequisite for protection, that the sick or wounded refrain from engaging in hostilities. (API,
Art. 8(A).)
● Shipwrecked at sea defined in AP1, Art. 8(b).
Protection
● Must not be made the subject of attack or reprisals.
● Duty to assist with medical care on a non-discriminatory basis.
● Priority to be diven on the basis of medical need (Triage)
● « To the fullest extent practicable », AP1, art. 10; compare with UK Manual Para 7.3.2. (There is no
absolute obligation to take in civilian wounded and sick when they can be treated elsewhere.)
● Prohibition on any form of inhumane treatment, medical experiments, etc. Lex Mengele, see in
particular AP1, art. 11.
● On capture by enemy, sick or wounded military personal become prisoners of war.
● Sick, wounded and shipwrecked at sea protected primarily through Geneva Convention II.
Medical Services
Medical Personnel
Military Non-Combattants
● Medical personnel, defined, AP1, Art. 8(c)
○ « Exclusively assigned to medical purposes or to the administration of medical units ».
● Civilian medical personnel also enjoys protection.
● Chaplains and religious personnel enjoy same status and treatment as medical personnel, AP1, Art.
8(d)
Protection
● Must not be made the subject of attack.
● On capture, are technically not POWs but must be retained for the support of ennemy wounded
and sick. They enjoy, however, the same privileges as POWs). Geneva I Art. 28.
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Permanent Medical Personnel
● « Exclusively engaged », GI, Art. 24.
● Can only carry out medical duties.
● Must carry distinctive emblem and special military ID-Card, Geneva I Art. 40(2).
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○ Other misuse of the protected emblem.
● In case of violation, the offended party must, however,
○ Issue a warning and,
○ in all appropriate cases, set a reasonale limit, after which,
○ protection will only cease, when such warning has remained unheeded, GCI, art. 21, AP1, art. 13.
● The improper use of the emblem is prohibited even in peacetime, Geneva I art. 44(1).
Perfidy
● Is defined as inviting the confidence of an adversary to lead him to believe that you are entitled to
protection under the rules of international law with the intent to betray that confidence with the
purpose to kill, wound or take an adversary prisoner, AP1, Art. 37.
● Both perfidy and improper use of the distinctive emblem in armed conflict: See Art. 38 of AP1, are
war crimes!
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VII. THE CONDUCT OF HOSTILITIES
Important to read the primary sources *** Hague Regulation (qannex to 4th Hague Convention) Modern
interpretation found in AP1 of GC. Mainly, art. 48 to 67 of the Protocol.
Definition of civilians
● Aditional Protocol, Art. 50.
● The definition of civilians is by default only (who is not a combattant is a civilian).
● There is a rule of presumption: « If in doubt, an object must be considered of civilian character ».
○ How is this rule interpretation? Only in case of substantial doubt. (UK Manual, para. 5.3.4).
Military Objectives
AP1, art. 52(2)
« ... military objectives are limited to those objects which by their nature, 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 ».
Nature
« Inherently military objectives », such as military barracks, vehivles, fighter airplanes, units, etc.
Use
Use of civilian objects, building, etc. for military purposes or in support of a military effort.
Effective Contribution
Hard cases?
● The sinking of the General Belgrano, Falkland War, 1982.
○ It was absolutely and without doubt a military objective – really no LOAC issue at all –
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nevertheless, there was a controversy because of the many drowned combatants.
● The bombing of the RTS Station, Belgrade, NATO Kosovo Intervention, 1999.
○ It is debatable whether a media outlet consistutes a military objective (although see ICRC list
from 1956 (para (7)), but it was accepted under the circumstances, because it was also used for
military communication purposes.
2. Can the attack take place without violating the Principle of Proportionality?
○ Consider the risk of collateral damage, the possible timing of the attack, the choice of
weaponry available etc.
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Special Protection
Civilian Property
Civilian Property must not be used for military purposes.
Medical Aircraft
● Primary regulation in AP1, art. 24-31.
● Described in UK Manual paras 12.104, 12.128.
● In friendly territory: no agreement is necessary.
● Contact zone: agreement is necessary, but a medical aricraft must be respected if recognized.
● Areas controlled by the adversary: prior agreement is necessary to remain protected.
Civil Defence
● Civil Defence personnel, material and installations, AP1, Art. 61-67.
● In case of misuse, reaction must correspond to such action taken in case of the misuse of medical
installations, cf, AP1, Art. 65, para. 1.
Cultural Property
● Overview of LOAC Conventional Protection:
○ 1907, art. 27 of the Land Warfare Regulations and Art. 5 Hague Convention IX on Naval
Bombardment.
○ 1935 Washington Treaty (Roerich Pact) American regional treaty only.
« General Protection »
○ « Moveable of immovable property of great importance to the cultural heritage of every
people »; buildings for the storing or exhibition of such cultural property; « centres containing
monuments » (Art. 1).
■ The protection can be waived ony in cases of imperative military necessity (Art. 4, para. 2).
« Special Protection »
● « a limited number of refuges, centres containing monuments, other immovable cultural property
of very great importance » (Art. 8).
■ Max 5 sites including St Peter and Vatican Museum in Rome and a small number of refuges
in Germany, Austria and Switzerland.
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■ Protection can normally only be waived in cases of exceptional cases of unavoidable
military necessity and the decision must be taken by at least a divisional commander
(normally a Major General »). Art. 11, para. 2.
The Law of Armed Conflicts Conventions must not be confused with the 1972 UNESCO World Heritage
Convention and the sites mentionned on the World Heritage List.
Dangerous Forces
● Works and installations containing dangerous forces, AP 1, Art. 56, including;
○ Dams
○ Dikes
○ Nuclear Power Plants
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● Srebrenica, BiH, UN « Safe Zone »
○ Established by UN Security Council Resolution to protect civilian population in enclaves in BiH.
○ It did not qualify as either a non-defended locality nor a demilitarized zone in accordance with
articles 59 or 60 AP1 since enclaves were not opened to the adversary nor demilitarized (BiG
military operations continued from the zones).
○ Nevertheless, the murder of approx 6000 men and boys after the Bosnian-Serb entry into
Srebrenica is the worst war crime / crime against humanity / genocidal act in Europe since
World War II.
Perfidy
● Prohibition against pretending protected status and use the misunderstanding by an adversary to
kill, wound or capture him. AP1, art. 37. (« original perfidy »)
● Prohibition on the misuse of the Protected Emblems (eg: Red cross...), the UN Flag, etc. AP1, 38.
● Both actions consitute a grave breach of the Protocol (= war crime), jf. AP1, 85 (3).
● Ruses of war are not prohibited (camouflage, misinformation, etc.) AP1, art 37(2).
Ddsd
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VIII. WEAPONS (MEANS OF COMBAT)
Historical Precedents
Crossbows banned by the Third Lateran Council in 1179.
St-Petersburg Declaration 1868
● Expresses abstention from the employment of arms « which uselessly aggravate the sufferings of
disabled men or render their death inevitable ».
● Specifically bans explosive projectiles under 400 grams weight.
Specific Prohibitions
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do their duty most effectually, … »
Nuclear Weapons?
○ Traditionally not specifically coverd not negotiated in the context of LOAC Conventions.
○ 1996 International Court of Justice Advisory Opinion
Landmines
○ UN CCW Protocol II (1980).
○ Revised UN CCW Protocol II (1996).
○ Ottawa Convention 1997
■ Introduces total ban against all uses, etc. of anti-personel land mines.
■ Ratified by all NATO countries, except USA and Turkey
■ The Claymore Mine – is it prohibited by the Ottawa Convention?
○ Possible future Protocol on Prohibitions or Restrictions on the Use of and Transfer of Mines
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other than Anti-Personnel Mines (= anti-tank mines?).
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IX. PROTECTION OF CIVILIANS IN THE HANDS OF A PARTY TO THE CONFLICT
Definitions
Presumption
● How does that fit with the presumption of POW status in GC III, art. 5 and AP. 1, art. 45?
General Protections
Under AP 1
It supplements general protection provided to all civilians or certain groups of civilians in GC. IV (Ap. 1, art.
49.4)
● General protection from against dangers arising from military operations.(AP I, Art. 51.1) unless and
for such time as they take a direct part in the hostilities (AP1, art. 51.3).
● Not object of direct attack (AP1, Art. 51.2).
● Not object of acts or threats of violence, the primary purpose of which is to spread terror among
the civilian population. (AP.I, art. 51.2, in fine).
● Prohibition against indiscriminate attacks (AP 1, art. 51.4-5).
● Prohibition against reprisals (AP1, art. 51.6).
● Using civilians as « shields »:
○ Civilians shall not be used to render certain points or areas immune from military operations.
○ Direct movement of civilians in order to attempt to shield military objectives from attacks or to
shield military ops.
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● Precautions in attack and defence (AP1, art. 57 and 58).
Protected Persons
Art. 4:
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● Armed conflict or occupation,
● « In the hands of » a party to the conflict in which you are not a national.
● Only nationals of High Contracting Parties covered,
○ Exclusion 1: Nationals of neutral or allied states only protected if no diplomatic representation.
○ Exclusion 2: Persons protected by GC1-III.
Provisions Common entail different subjects of protection comparable to the rules found in AP1:
● Art. 27: In all circumstances and without discrimination entitled to respect to their persons, their
honour, their family rights, their religious convictions and practices, manners and customs.
● However parties may take suck measure of control and security in regard to protected persons as
may be necessary as a result of the war.
● Art. 31: Prohibition of physical or moral coercion, in particular to obtain information.
● Art. 32: Prohibitiom of any measure of brutality...
● Art. 33: Prohibition of collective punishment, pillage or terrorism.
● Art. 34: The taking of hostages is prohibited.
Zones of Protection
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○ Children under 15;
○ Expectant mothers;
○ Mothers of children under 7.
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X. OCCUPIED TERRITORY
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Duties of the Occupying Power
Administration
● The Public officials may abstain from working for the OP on grounds of conscience.
● Law enforcement officials cannot be required to act against the lawful combattants of own state!
(might act against own conscience and would be supporting the war effort of the enemy).
● If officials refuse obedience to the OP they may be dismissed (GC:IV, art. 54).
● Courts may be allowed to function, but such courts may preliminarily examine whether or not OP
legislation is in accordance with international law. They must otherwise apply and respect such law.
● Enact new legislation to allow for such administration: Commerce, currency, censorship, postal
services, requisitioning of transport and/or means of communication.
● May impose restrictions on civilian population such as:
○ Require specific ID-Cards.
○ Restrict FOM
○ Forbid changes of residence,
○ Forbid visiting particular districts,
○ In case of imperative reasons of security (Art. 78), subject to appeal and administrative boards:
■ Assigned residence.
■ Internment.
Civilian Population
● Must not be deported unless imperatively necessary for reasons of their own security;
● Own population must not be moved into occupied territory.
● Foreign nationals shall be allowed to leave occupied territory.s
Other Duties
● Collect taxes and duties to finance costs of occupation to the extent the financial capacity of the
occupied state is able to do so (Nuremberg). If it does, it must use such revenue to cover expenses.
LKR, Art. 48.
● Responsible for medical care of inhabitants – existing medical system should be allowed to
continue
○ Private medical units may only be requisitioned if needs of civilian population can be fulfilled
without.
● Food and supplies shall be made available to the fullest extent possible (GC IV, Art. 55, 69, 70)
○ If ressources are insufficient, they must be supplemented by OP and / or
○ Arrangements made for other organizations or states to provide relief schemes. (all states must
permit free passafe – subject to security measures).
○ Including: clothing, bedding, shelter and facilities for worship of religion.
● Schools: Education system must be allowed to continue as unhindered as possible (50).
● Children: special identification and registration of parentage.
○ Special part of national identification bureau to deal with children.
Prohibited Acts
● Compelling the civilian population to take part in operations against their own state (HLKR, Art.
23.h.). or any other manner compel inhabitants to assist the war effort.
● HLR, Art. 52: requisition in kind ans services only insofar as it does not involve inhabitants in the
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obligation of taking part in military operations against their own country.
● Compelling the civilian population to serve in the armed forces of the OP (GC.IV art. 51) –
Interpreters.
● Require civilians to give information to OP, which would be contrary to the interests of own state.
● Swear allegiance to occupying power.
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XI. NON-INTERNATIONAL ARMED CONFLICT
Definition
● It is defined by default as « all armed conflicts which are not international armed conflicts »
● Distinguished from « civil disturbances » by the factual finding or armed fighting.
● Example: armed fighting between a government and a national insurgent movement (traditional
« Civil War » or « Internal Armed Conflict ») but is not restricted to these types of conflicts only.
● Primary difference from the law of International Armed Conflict: There is no combattant status to
insurgents in non-international armed conflict and consequently no legal « equality » between the
parties to the conflict.
Applicable Law
Additional Protocol II
Article 1 – Material Field of Application
The Protocol... shall apply to all armed conflicts which are not covered with are not protected by (AP1, art.1) and
which take place in the territory of a High Contracting Party between 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.
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● Prohibitions on attacks against certain civilian objects, Art. 13-18.
Customary Law
● The importance of customary law: development towards the application of more and more
provisions from LOAC applicable in international armed conflicts, regardless of the fundamental
diffrenences between the two types of conflict.
○ E.g.: jurisprudence of the international Criminal Tribunal for the former Yugoslavia.
○ The ICRC Customary Law Stuyd (2005) lists 161 customary law rules considered equally
applicable in non-international armed conflict.
● * They are also relevant to soldiers in Peace Support Operations when there is no armed conflicts.
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Jurisprudence (ICJ)
In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an
arbitrary deprivation of life, however, then fails to be determined by the applicable lex specialis, namely, the law
applicable in armed conflict which is designed to regulate the conduct of hostilities. This whether a particular loss
of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary
to Art. 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not
deduced from the terms of the Covenant itself.
● Advisory opinion on the construction of a wall in the occupied Palestinian Territories (2004).
○ The 4th Geneva Convention applies, paras. 89-101.
« In order to answer the question put to it, the Court will hav to take into consideration both these branches of
international law, namely human rights law and, as lex specialis, international humanitarian law.
Focus Areas
● Use of force against civilians
○ Use of force in self-defence
○ Use of firearms/deadly force against civilians
○ Handling of civilian riots
○ Non-lethal weapons
○ Necessity of operational solutions which imit the number of dead or injured civilians
● Detaining persons
● Detention facilities
● Searching of civilians and civilians property
● Special consideration of exposed groups: women, children, handicapped persons, etc.
National Legislation
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XII. ENFORCEMENT OF THE LAWS OF ARMED CONFLICT
Prevention
Dissemination
AP1, Art. 83
undertake... to disseminate the Conventions and this Protocol as widely as possible in their respective countries.
Legal Advisors
Ap1, Art. 82
... shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate
level on the application of the Conventions and this Protocol...
Alternatives
● The Protecting Powers, AP1, Art. 5.
Belligerent Reprisals
Definition
○An otherwise illegal act under LOAC carried out.
○ In response to serious and manifestly unlawful acts commited by the enemy,
○ with the purpose of compelling the adversary to observe the LOAC,
○ in proportion to the original violation,
○ and publicized as a reprisal.
● Compare UK Manual para. 16.16 and 16.17
Reprisal Bans
● The sick and wounded, etc., G1 46, AP1 20.
● The sick, wounded and shipwrecked, GII 47, AP1 20.
● Prisoners of War, GIII 13(3).
● Civilians/the civilian population,GIV 33(3), AP1 51(6).
● Civilian Property, AP152(1)
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● Cultural Property, Hague Cultural Convention 4(4) and AP1 53(c)
● The Natural Environment, AP1 55(2)
● Works containing dangerous forces, AP1 56(4)
Prosecution
Development
● National trials: access to prosecute enemy offenders and duty to prosecute own personnel.
○ Example: The Andersonville (Henry Witz) Trial, 1865.
○ Example: The « Breaker » Morant Trial, 1901-1902.
● « Semi-international »: « Pooling of jurisdiction »
○ The Leipzig Trials after WW1
○ The Nuremberg (international military tribunal – IMT) and Tokyo (International Military
Tribunal, Far East) Trials after WW2.
● « Back to national trials » after 1946:
○ 12 « major » US War Crimes trials held for the (US) Nuremberg Military Tribunals 1947-48
■ Ministries, Justice, High Command, Hostages, Medical,RuSHA, Einsatzgruppen, Krupp,
Milch, Pohl, Flick and IG Farben Trials.
Command Responsibility
● A military commander is responsible not only for violations of IHL commited or encouraged by
himself, but also for violation committed by his subordinates, provided he knew or should have
known about the crimes and did not take action either to prevent or to afterwards punish the
perpetrators.
○ AP1, 87
○ ICC Statute, 28.
Superior Orders
● Following an unlawful order from a superior will not relieve you from responsibility unless you were
unaware that the order was unlawful.
○ ICC Statute, 33.
Universal Jurisdiction
GC I, Art. 49 (1949)
The High Contracting Parties undertake to enact legislation necessary to provide effective penal sanctions for
persons committing, or ordering to be committed, any of the grave breaches of the the present Convention
defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to
have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality,
before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand
such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has
made out a prima facie case. (…)
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● Practical example:
○ The Saric Case (Judgment of the Danish Supreme Court of 15 August 1995): Trial of Bosnian
national found guilty of grave violence and ill-treatment towards prisoners in a Bosnian-Croat
prison camp in Bosnia in 1993.
Recent Developments
● « Truly » international Prosecution:
○ The International Tribunal for the Former Yugoslavia 1993
○ The International Tribunal for Rwanda 1994
○ Hybrid and other Courts:
■ The Special Court of Sierra Leone
■ The Ad Hoc Human Rights court for East Timor
War Crimes
● They are distinct from violations of international human rights law in peace-time by the nexus with
an armed conflict (international or internal).
● They can, however, be committed both by military personnel and civilians, by government agents
and by insurgents and terrorists
● The ICC Statute defines those war crimes falling under the jurisdiction of the ICC in Art. 8 of the
Statute.
● War Crimes might be defined differently according to special national legislation applicable.
● In international armed conflict (ICC Statute, Art. 8, 2(a)+(b))
○ E.g.: Grave breaches of the Geneva Conventions, other violations of the laws or customs of war
in international armed conflict.
● In non-international armed conflict (ICC Statute, Art. 8, 2(c)+(e))
○ E.g.: violations of Common Article 3 of the Geneva Conventions
● Example: a murder of a person during armed conflict in violation of the Laws of war (for example,
snipers shooting an innocent civilian (Sarajevo) or killing of soldiers who have surrendered
(Srebrenica).
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○ Conducting indiscriminate attacks
○ Conducting attacks with the purpose of terrorising the civilian population
● Targeting of specially protected persons or property
○ Medical installations
○ Cultural property
○ Installations containing dangerous forces (dams, dykes and nuclear power plants)
○ The natural environment
○ Civil defence units or installations
○ Humanitarian relief, ICRC delegates, UN Peacekeepers, etc.
● Use of prohibited weapons
○ Poison
○ Gasses
○ Dum-dum bullets or similar ammunitition causing unnecessary suffering
○ Anti-personnel land mines (providd High Contracting Party is party to the 1997 Ottawa
Convention)
● Use of prohibited methos
○ Perfidy (treacherously inducing the enemy to believe that you are protected under
international humanitarian law in order to kill, wound or capture him).
○ Misuse of enemy flag or uniforms
○ Reprisals against POWs, other protected persons or property
○ Taking of hostages.
Genocide
● Defined in Article 6 of the 1998 Statute of the International Criminal Court (Art. II of the 1948 UN
Convention on the Prevention and Punishment of Genocide)
○ Characterized by the specific intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such.
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XIII. MARITIME WARFARE
Historical Overview
● 1856: Paris Declaration
● 1899: Hague Convention III
● 1907: Hague Conventions:
○ VI: Status of merchant ships upon outbreack of hostilities (desuetude)
○ VII: Convention of merchant ships into warships
○ VIII: The Laying of automatic submarine contact mines
○ IX: Bombardment by naval forces in time of war.
○ X: Wounded and Sick (superseded byGCII)
○ XI: Right of Capture
○ XII: International Prize Court (never into force...)
○ XIII: Neutral Powers in Naval War
● 1909: London Declaration – Blockades (signed but never ratified)
● 1913: Oxford Manual on the laws of naval war governing the relations between belligerents.
● 1930: London Naval Treaty.
● 1936: Proces Verbal
● 1949: Geneva Convention II – Shipwrecked
● 1977: AP1.
● 1982:UNCLOS (lex generalis)
● 1994: San Remo Manual
Key Definitions
● Neutral: means any state not party to the conflict (d).
● Warship is a ship; (g)
○ Belonging to the armed forces of a state
○ bearing external marks distiguishing the character ans nationality of such a ship
○ under the command of an officer duly commissioned by the government of that state and
○ whose name appears in the appropriate service list or its equivalent and,
○ manned by a crew which is under regular armed forces discipline
● Auxiliary Vessel:
○ Other ship owned by a state or
○ under the exclusive control of the armed forces of a state and
○ for the time being under government non-commercial service.
● Merchant vessel
○ Vessel other than a warship, an auxiliary vessel or a state vessel such as customs or police
vessel which is engages in commercial or private service.
● Prize
○ A technical term applicable to those vessels or goods, which may legitimately be seized and
condemned to the use of the captor because they are intended for or may be used on behalf of
the enemies war effort.
● Contraband
○ Which is ultimately destined for territory under the control of the enemy and which may be
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susceptile for the use in armed conflict (148).
Neutral Waters
● Neutral States must enforce their neutrality. No hostile acts must be tolerated in its territory.
● Corollary: No belligerent use of or sanctuary taken in neutral waters.
● German Altmark WW2 rule 22 (Warning unheeded)
● Neutral states may allow (24hrs rule):
○ Passage through its waters
○ Vessels of the belligerent states to replenish food, water and fuel enough to reach nearest own
port.
○ Repairs necessary to make to ship seaworthy (no improvementS)
○ Graff Spee Case 1939, Montevideo, scutlled itself because of the awaiting destiny. Needed 15
days to repair – was given 3 by the Uruguayans.
Basic Rules
● Humanity (means and methods of warfare not unlimited), 38, 42a.
● Rule of distinction, 39, 42 (indiscriminate attacks are forbidden).
● Lawful military targets, exactly as land warfare, 39,40,41.
○ Merchant vessels, civil aircraaft are civilian objects, unless... 41.
○ Surface ships, submarines and aircraft are bound by the same rules... 45.
● Precautions in attack as in land warfare (46).
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fishing vessels.
● Conditions for exemptions:
○ Innocently employed in their normal rôle,
○ Submit to identification and inspection when required, and
○ do not intentionally hamper the movement of combatant and obeys commands to stop or
move when required.
Loss of Exemption
● Hospital Ships:
○ Breach of conditions
○ Due warning, reasonable time limit.
● Consequence
○ Capture or other necessary measure to enforce compliance.
○ Attach, last resort if:
■ Diversion or capture is not feasible
■ No other method is available to gain military control
■ Breach of condition sufficiently grave (proportionality – 1)
■ Collateral casualties or damage will not be disproportionate to (proportionality 2)
● Loss of exemption for all other vessels: As above, but without warning.
Merchant Vessels
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Methods and Means of Warfare at Sea
Means
● Missiles and other projectiles, including over the horizon capabilities: shall be used in conformity
with the principle of target discrimination.
● Torpedoes: Must sink or become harmless when they have completed their run.
● Mines: Entire regime having to do with maritime security and freedom of movement 80-92.
○ Used only for legitimate military purposes including denying sea areas to the enemy,
○ Effective neutralisation, when no longer control.
○ Forbidden to use free floating mines (unless against military targets and self-destruction).
○ End of hostilities a state must inform other states of mines laid in their waters and sweep mines
in its own waters, Corfu Chanel and Albania's failure to sweep the Corfu Channel and inform
others of them = they were liable for the loss of two UK vessels.
Methods
Blockades
● Shall be declared and notified to all belligerents and neutral states. (commencement, duration,
location and extent).
● Blockades can only be instituted by belligerent governments.
● Effective (based on fact).
● Merchant vessels believed to breach a blockade may be captures (or attacked if prior warning
remains unheeded).
● Blockade must not bar access to neutral ports or coasts.
● A blockade must be enforced impartially to vessels of all states.
● A blockade is unlawful if:
○ Sole purpose is starvation of civilian pop or denying other objects essential for survival.
○ Damage to civilian population is or may be expected to be disproportionate.
● Medical supplies shall be allowed through.
Zones
● A belligerent may exceptionally establish « security zones » but it does not absolve him from his
duties and obligations of IHL.
● The same body of law exists inside and outside of such zones.
● Extent, location and duration of zone and the measures imposed may not exceed what is strictly
required by military necessity and proportionality.
● Extent, location and duration of zone shall be publicly declared.
● Due regard to neutral states to legitimately use the seas.
● Safe passage shall be given if affecting key areas of naval trafic.
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vessels.
○ Never conduct attack whilst carrying false flag.
● Perfidy is prohibited:
○ Attacking while betraying the confidence of the adversary e.g. By geigning protected status of
sending distress signals/sending personnel in life rafts (when not attacking, it is not prohibited
to feign merchant or neutral vessel status).
○ In 1914 the German Cruiser Emden rigged a dummy fourth smoke stack and flew the Japanese
flag to enable it to enter the port of Penang. It then replaced this flag with German Ensign and
torpedoed the Russian cruiser Zhemshug then lying at anchor there.
Hospital Ships
GCII, Art. 22.
● They must fly a large red cross or red crescent flag from the mainmast, be painted white and
display large red cross insignia on the hull and horizontal surfaces as well as display their national
flag.
● If the Hospital ship belongs to a neutral state, but is attached to one of the belligerent states, both
flags must be waibed.
● A belligerent warship is entitled to search any hospital ship and can refuse its assistance, order it to
follow a particular course or not use its radio and place a comissioner aboard to see that its orders
are followed.
● Enemy wounded and sick may be removed from a hospital ship provided they are fit to do so and
provided the warship has available sick bays.
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