General IHL Overview - IAC - Revised

7/28/2019 General IHL Overview - IAC - Revised

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INTERNATIONAL HUMANITARIAN LAW

(AN INTRODUCTION)


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INTRODUCTION

(Why International Humanitarian Law?)


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SEPTEMBER 11th, 2001


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MADRID TRAIN BOMBING

(What Law Applies?)


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AFGHANISTAN

(Targeting / Military Objects)


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STATUS OF DETAINEES

(Al Qaeda & Taliban Fighters)


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IRAQ ABU GHRAIB

(Treatment of Detainees)


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ISRAELI BARRIER

OCCUPIED TERRITORIES


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ENFORCEMENT & ACCOUNTABILITY


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(THE LEGAL FRAMEWORK)


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WHAT IS INTERNATIONAL LAW?

International Law is a system of rules andprinciples that govern the internationalrelations between sovereign states:

Rules of International Law are primarily created bystates for states

Sovereignty is the golden thread of InternationalLaw and the fundamental principle of the UN Charter(UN Charter Article 2(1)the Organisation is based on

the principle of sovereign equality of all its members)


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INTERNATIONAL LAW

AND THE USE OF FORCE

J us ad bellum

Rules governing

legality of the

use of force

J us in bello

Rules governing

the conduct of

armed hostilities (IHL)

Ex. United Nations Charter

(Arts 2(4), 51 & 42)

Ex. Geneva Conventions

& Additional Protocols


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SOURCES OF INTERNATIONAL LAW

CONVENTIONS:Agreements between Statessetting forth new rules of international law

CUSTOM: General practice followed by states(State Practice) accepted as law (Opinio Juris)

COURTS / TRIBUNALS: Decisions frominternational and domestic courts / tribunals

(IMT, ICTY, ICC, Finta, Eichmann, Pinochet)

ARTICLES & PUBLICATIONS: Writings andteachings of distinguished academics, scholars, etc.

ICJ Statute

Article 38


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(What is it & Where does it Come From?)


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WHAT ? IHL is a branch of international law that applies tosituations of armed conflicts. It is a set of rules which seeks, for

humanitarian reasons, to limit the effects of armed conflict. IHL isalso known as the 'Law of War' or'Law of Armed Conflict'.

PURPOSE ? Its threefold purpose is to (1) REDUCEunnecessary suffering, loss & damage; (2) SAFEGUARD fundamental

human rights of persons; (3) FACILITATE the restoration of peace.

HOW ? IHL protects by protecting defenceless victims of armedconflicts (Geneva Law) and by regulating the conduct (means and

methods) of warfare (Hague Law).


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IHL STRIKES A BALANCE:

BETWEEN:

MILTARY NECESSITY HUMANITYUse of armed force to attainlegitimate military objectivesis lawful:

It is forbidden to inflictsuffering, injury ordestruction not actuallynecessary to accomplish a

legitimate military purpose

PROPORTIONALITY:The collateral damage arising frommilitary operations must not be excessive in relation to the directand concrete military advantage anticipated from such

operations.


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WHEN DOES IHL APPLY?

During Situations of International Armed Conflict

During Internal Armed Conflicts

IHL does not apply in situations of riots, internaltensions or disturbances


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ORIGINS & KEY LEGAL INSTRUMENTS

(From 1859 to the Present)


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40'000 wounded and dead

1859

One battle: Solferino

One man: Henry Dunant

One vision

1863

5 Member Commission was set up in SwitzerlandFirst Geneva Convention of 1864

First relief societies (national societies)


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KEY LEGAL INSTRUMENTS 1864 GENEVA CONVENTION

1868 ST. PETERSBURG DECLARATION

1925 GENEVA GAS PROTOCOL

1899 & 1907 HAGUE CONVENTIONS

1929 GENEVA CONVENTIONS

1949 GENEVA CONVENTIONS 1949 GCI: Wounded and Sick

GCII: Wounded, Sick and Shipwrecked

GCIII: Treatment of POWs

GCIV: Protection of Civilian Persons

1977 ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS API: International Armed Conflict

APII: Non-International Armed Conflict

TREATIES PROHIBITING / LIMITING THE USE OF WEAPONS

1998 INTERNATIONAL CRIMINAL COURT (ROME) STATUTE


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FUNDAMENTAL RULES OF IHL

(Developed from this History)


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THREE FUNDAMENTAL RULES

1. In any armed conflict, the right to choose

methods ormeans of warfare is not unlimited(AP I Art. 35)

2. It is prohibited to deliberately attack the civilian

population(AP I Art. 52)

3. Distinction must be made at all times betweencombatants and civilians attacks are to be

directed only against Military Objectives (AP I Art. 48)

(Embodied in the 1977 Additional Protocols to the 1949 GenevaConventions)


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RESTRICTED / PROHIBITED

METHODS & MEANS OF WARFARE

(APPLICABLE IN INTERNATIONAL ARMED CONFLICTS)


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INTERNATIONAL ARMED CONFLICTS

One State uses armed force against another

Cases of total/partial military occupation (even

if no armed resistance)

Formal declaration of war is not required

Views of the Parties irrelevant

Where a State declares war but no hostilities

Includes fights against Colonial/Racist regimes(exercising self-determination)

Then the whole body of IHL applies (i.e.GC & AP)


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TO WHOM DOES IHL APPLY?

IHL recognises 2 x categories of persons in

Armed Conflicts:

Combatants - Can be Attacked.

(Combatants have the right to participate directly in hostilities)

Civilians - Are Protected.

(Civilians have the general right to protection against the effects

of hostilities, but cannot participate in hostilities)


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DISTINGUISHING CAN BE DIFFICULT


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WHAT IS THEIR STATUS?

(AP I Art. 77)


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WHAT ABOUT THESE GROUPS?

Spies (AP I Art. 46)

Mercenaries (AP I Art. 47)

Airborne Troops (AP I Art. 42)

Parachuting in Distress (AP I Art. 42)

Journalists (AP I Art. 79)

War Correspondents (GC III Art. 4)


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PRISONERS OF WAR ARE PROTECTED

MEDICAL & RELIGIOUS PERSONNEL ARE


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MEDICAL & RELIGIOUS PERSONNEL ARE

PROTECTED

Perfidy (Treachery) is prohibited

Misuse of Protected Emblems is prohibited


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PROTECTED A WHITE FLAG

A person who has

been authorized by

one of the parties

to the conflict to

enter into

communication

with the other, willshow the intention

to enter into dialog

by the bearing of a

white flag.

NB: The white flag

indicates a desire

to negotiate not

surrender.

Additional Protocol l

Articles 32 to 34


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PROTECTED RELIEF OPERATIONS

Each party to the conflict will

allow the rapid and unimpededpassage of medical and hospital

stores, even to the civilians of

the other party to the conflict.

It will likewise allow the

transportation of essentialfoodstuffs and clothing

intended for children under 15,

expectant mothers and

maternity cases.

Only in cases of imperativemilitary necessity may such

relief activities be restricted.Fourth Geneva Convention

Articles 23, 59-61 & 110-111


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MILITARY OBJECTS CAN BE

ATTACKED

Military objects are those objects which make an

effective contribution to military action, and whose

destruction, capture or neutralisation, in thecircumstances ruling at the time, offer a definite

military advantage.

(AP I Art 52(2))


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A MILITARY OBJECT?

(AP I Art 52(2))


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PROTECTED CULTURAL OBJECTS

Cultural Property

This includes places of cultural value, historical of

religious significance, monuments, archives and

works of art.

Normal

Protection

Special

Protection

The Hague

Convention of 14

May 1954 for theProtection of

Cultural Property in

the event of Armed

Conflict


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PROTECTED DANGEROUS FORCES

Protection of works and Installations containing dangerous

forces

These include dams, dykes and nuclear generating stations.

Source


of 1977 Article 56


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PROTECTED CIVIL DEFENCE

Civil Defence means thosehumanitarian tasks intended to

protect the civilian population

against the dangers of

hostilities and to help recover

from the immediate effects ofhostilities or disasters, and to

provide the necessary

conditions for survival.

Source


Articles 61 to 67

INDISCRIMINATE ATTACKS ARE


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INDISCRIMINATE ATTACKS ARE

PROHIBITED

(AP I Art 52(2))


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TARGETING - PRECAUTIONS IN ATTACK


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METHODS of WAREFARE


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PROHIBITED & RESTICTED WEAPONS

(MEANS OF WARFARE)


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Prohibition on weapons which cause superfluous

injury or unnecessary suffering (Hague Law)

Weapons incapable of distinguishing betweenmilitary and civilian objects (indiscriminate) willbe prohibited (Geneva Law)

IHL General Weapons Principles


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Explosive and Flammable Ammunition is prohibited(1868)

Expanding Bullets & Poisonous Weapons prohibited(1899)


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Gas and Chemical Weapons are Prohibited

Poison and Poison-tipped Weapons are Prohibited

Bacteriological (Biological) Weapons are Prohibited

(1925 /1972 / 1993)

Chemical & Biological Weapons

Conventional Weapons Convention (1980)


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"Convention on Prohibitions or Restrictions on the Use of Certain

Conventional Weapons which may be deemed to be Excessively Injuriousor to have Indiscriminate Effects"

Protocol Ion Non-Detectable Fragments(10 October 1980)

Protocol IIon Prohibitions or Restrictions on the Use of Mines,Booby-Traps and Other Devices (10 October 1980)

Protocol IIIon Prohibitions or Restrictions on the Use of IncendiaryWeapons(10 October 1980)

Protocol IVon Blinding Laser Weapons (13 October 1995)

Protocol Von Explosive Remnants of War (ERW)(November 2003)

Conventional Weapons Convention (1980)


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It is prohibited to use incendiary weapons against:

the civilian population and individual civilians, or

civilian objects.

It is prohibited to use air-delivered incendiaryweapons to attack military objectives within a

concentration of civilians.

Incendiary Weapons


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MEANS OF WARFARE (Cluster Bombs)

NEW WEAPONS


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NEW WEAPONS

Additional Protocol I, Article 36

"In the study, development, acquisition or adoption of a newweapon, means or method of warfare, a High Contracting Party

is under an obligation to determine whether its employment

would, in some or all circumstances, be prohibited by this

Protocol or by any other rule of international law applicable to

the High Contracting Party."



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Ensure humane treatment of persons not taking part inhostilities

Do not kill or injure protected persons

Collect and care for the wounded and sick

Respect the lives & dignity of captured combatants andcivilians

Respect fundamental judicial guarantees during trials &

proceedings

The choice of means & methods of warfare is not unlimited

Distinguish between combatants and civilians at all timesAttack only military objectives


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THANK YOU FOR YOUR

ATTENTION

ANY QUESTIONS?


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IHL CASE STUDY GRDELICA BRIDGE

(MEANS & METHODS OF WARFARE)


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GRDELICA RAILROAD BRIDGE

(KOSOVO 1999)


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From 24 Mar to 10 Jun 1999 NATO conducted an air bombing

campaign against the Federal Republic of Yugoslavia (FRY). NATOintervention in response to human rights atrocities being carried out by

Serb military forces against the ethnic Albanian population in the FRY

province of Kosovo.

NATO conducted over 30,000 combat air sorties (incuding 10,484

attack sorties) against targets in Kosovo, Vojvodina, Serbia proper and

Montenegro. An estimated 400 to 600 civilians died as a result.

NATO did not employ ground forces as part of its action in Kosovo. In

addition, NATO directed its pilots to operate at high altitudes (above

15,000 feet) to avoid attack by FRY air defences and reduce the risk of

NATO casualties.

BACKGROUND FACTS


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One of the NATO targets during the bombing campaign was the

Grdelica railroad bridge in southern Serbia. At 1200 hrs on 12 April aF-15E NATO aircraft attacked the bridge. The pilot, whose mission

was to destroy the bridge, launched a laser-guided bomb several miles

away from the bridge. After the bomb was launched the pilot saw on

his cockpit screen that a train was approaching the bridge. At thatpoint it was too late to abort the mission because the bomb was locked

onto the target. The bomb struck the train, killing several civilians.

THE FACTS (CONTINUED)


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How do we characterise the NATO action?

What parts of IHL are applicable here?

What IHL principles are relevant?

Which IHL issues are raised (Methods & Means)?

Were any War Crimes committed?

DISCUSSION POINTS

SOME ADDITIONAL FACTS


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After the first bomb struck the train the pilot returned to drop another

bomb on the bridge, striking the train again. He had put his aiming

point on the other end of the bridge. The train had slid forward afterthe impact of the first strike and was struck again. The pilot said he

could not see this, as the bridge was obscured by smoke and some

cloud. An estimated 20 civilians died in the attack. In defence of the

attack, General Wesley Clark said that the pilot believed that he stillhad to accomplish the mission and that is why he circled around and

launched the second bomb. He stated that the pilot did not intend to

hit the train with either bomb it was just an unfortunate incident

(an 'uncanny accident').

SOME ADDITIONAL FACTS


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WAS A WAR CRIME COMMITTED?

General IHL Overview - IAC - Revised

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