1. Leiden University. The university to discover. Dr. Robert Heinsch, LL.M. - Associate Professor of Public International Law Kalshoven-Gieskes Forum on International Humanitarian Law The 3rd Hague Peace Conference: “Modernizing the Geneva Conventions” Haagse Hogeschool, 2 July 2015

2. Leiden University. The university to discover. Outline I.Introduction: Do we need a revision of the GCs? II.Contemporary Challenges: IAC vs. NIAC (“Humanity for all”?) III.Contemporary Challenges: Asymmetric Conflicts: Armed Conflict vs. Law Enforcement (“War against Terror et al.”) IV.Contemporary Challenges: Modern Technologies (“Cyber War, Drones, and Killer Robots”) V.Conclusion

3. Leiden University. The university to discover. In 1859 Henry Dunant, a Swiss citizen, witnessed the aftermath of the Battle of Solferino. Horrified by the sight of thousands of wounded soldiers lying helpless and abandoned led him to suggest setting up voluntary societies who could be trained during peace time to care for the wounded in times of war. He also called for an international agreement to protect the wounded, and those who cared from them, from further attacks: This was the birth of the Int’l Red Cross Movement & Modern IHL. I. Introduction

4. Leiden University. The university to discover. The 1949 Geneva Conventions and their 1977 Additional Protocols form the core of International Humanitarian Law, which regulates the conduct of armed conflict and seeks to ameliorate its effects. They protect people not taking part in hostilities and those who are no longer doing so. THEY WERE DRAFTED 66 AND 38 YEARS AGO! I. Introduction

5. Leiden University. The university to discover. I. Introduction: past wars The evolution of armed conflict 1864 1899 1907 1945 1977

6. Leiden University. The university to discover. I. Introduction: today’s wars Armed conflict today

7. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC: dichotomy International Armed Conflict (IAC): Common Article 2 GC: “…all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance” Article 1(4) AP I of 1977: “include ACs in which peoples are fighting against colonial domination and alien occupation against racist regimes in the exercise of their right to self- determination…” Non-International Armed Conflict (NIAC): Common Article 3 GC: “in case of an armed conflict not of an international character…” ICTY Tadić §70: “protracted armed violence between governmental authorities and organised armed groups or between such groups within a State” Article 1 APII 1977: “…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 control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

8. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC “Internationalized” Armed Conflicts E.g. Between two internal factions, both backed by different States E.g. Foreign intervention in support of an insurgent group fighting against government ICJ 1986 Nicaragua case: “conflict between the US and Nicaragua to be analysed under the law of IACs, and conflict between Contras and the govt. of Nicaragua under the law of NIACs“ ICTY 1995 Tadić jurisdiction appeal decision: “conflict in the former Yugoslavia had both internal and international characteristics, determination has to be taken in each particular case whether IAC or NIAC“  ICJ Nicaragua “effective” vs. ICTY Tadić “overall” control tests?

9. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC The nature and pattern of armed conflicts has changed over time. Traditional “Territorial Wars” have become the exception rather than the Rule.

10. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC (IAC) -State A v. State B -State A v. State C -State A v. State B v. State C (NIAC) -State B v. NSA1 -NSA1 v. NSA2 “internationalized” NIAC: Intervention of armed forces of a foreign power -State C + NSA1 v. State B

11. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC: Treaties/Conventions  1907 Hague Regulations  1949 Geneva Convention (I)  1949 Geneva Convention (II)  1949 Geneva Convention (III)  1949 Geneva Convention (IV)  1977 Additional Protocol (I) to the Geneva Conventions  1980 Weapons Convention  etc. NIAC  Common Article 3, Geneva Conventions I-IV  Additional Protocol (II) to the Geneva Conventions 1977

12. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 1) Inoperability “a crazy quilt of norms that would be applicable in the same conflict” [ Theodor Meron, International Criminalization of Internal Atrocities, 89 AM Int’l L 554 (1995), 238]  Difficulty in laying down objective criteria to distinguish IAC / NIAC  The problems of parallel application of IAC / NIAC  Arbitrariness and uncertainty of dichotomy  Difficulty making the real world ‘fit’

13. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 1) Inoperability  Ukraine An “internationalized” non-international armed conflict?  Syria “The violence in the Syrian Arab Republic mutated from unrest in March 2011 into internal disturbances and the emergence of a non-international armed conflict in February 2012.” [February 5, 2015, UN Report of the Independent CoI on the Syrian Arab Republic]

14. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 2) Discriminatory “it is reasonable to surmise that if a uniform law had been in place, there would be no need to ascertain whether the duty arose in treaty or custom, whether the war was international, non-international or some hybrid, or whether the participants were privileged combatants of unlawful combatants. The prima facie approach would always be one of “does an armed conflict exist” and “have the laws of armed conflict been breached” rather than having to debate the origins, status and character of the conflicts and the participants.” [ E. Crawford, Unequal Before the Law, Leiden Journal of IL, Vol 20, 2007, 464]  IHL has the same function in IAC / NIAC, namely to humanise and regularise the hostilities in the course of an armed conflict  Inequality before the law: protections should be the same before the law, irrespective of conflict type

15. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC Towards Unified Classification Arguments in favour of a uniform body of IHL 2) Discriminatory  no definition of “combatants” for NIAC : “fighters” - “rebels”, “dissidents”, “organized armed groups”, “civilians directly participating in hostilities”…  level of “organization” required? -Common Art 3 GC elaborated in ICTY, Haradinaj, 2008 TC judgement, para. 60 -Article 1(1) AP II (if ratified)  higher threshold: 1) responsible command 2) control over part of territory/ability to conduct sustained and concreted military ops against govt armed forces 3) ability to implement the Protocol  examples of NSAs which qualify: Taliban, ISIS, Al-Qaeda  Normative gap: those falling below threshold? Human rights? -controls a certain territory; -command structure and disciplinary rules and mechanisms within the group; -headquarters; -ability to gain access to weapons, other military equipment, recruits and military training;

16. Leiden University. The university to discover. II. Contemporary Challenges : IAC vs. NIAC Central question: -“How can we achieve a common regime of IHL for both international and non-international armed conflicts?”

17. Leiden University. The university to discover. III. Asymmetric Conflicts: Armed Conflict (IHL) vs. Law Enforcement (HRL) Paradigm “New Wars”: - The rise of non-state actors -Conflict very often characterized by an inherent imbalance between the parties (David vs. Goliath) -Parties often driven by ideology, religion which leads to extreme measures again the “unfaithful” -Leads to intentional disrespect of existing legal rules governing the conflict -Consequence: extreme violence against civilians, women, children -Terrorists, armed groups, and other non-State actors have not taken part in the drafting of the respective international treaties (Acceptance? Compliance?)

18. Leiden University. The university to discover. III. Asymmetric Conflicts: Armed Conflict vs. Law Enforcement Paradigm

19. Leiden University. The university to discover. III. Contemporary Challenges : Armed Conflict vs. Law Enforcement Paradigms Starting point: Terrorism as a social phenomenon no established legal definition for “terrorism” Is IHL the right regime to deal with terrorism? Terrorism in IHL (if in armed conflict) Article 33 GC IV, Article 51(2) API, Articles 4 + 13 APII only acts aimed at terrorising the civilian population A lot of situations below the threshold of armed conflict Extra-territorial applicability of HRL? Problem: mainly regional HR-Conventions & diverging jurisprudence

20. Leiden University. The university to discover. III. Asymmetric Conflicts: Armed Conflict vs. Law Enforcement Paradigms The “Global War on Terror”: very scattered system of int’l treaties Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963 Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973 Convention against the Taking of Hostages, 1979 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 International Conventions for the Suppression of Terrorist Bombings, 1997 International Convention for the Suppression of the Financing of Terrorism, 1999 International Convention for the Suppression of Acts of Nuclear Terrorism, 2005

21. Leiden University. The university to discover. III. Contemporary Challenges : Armed Conflict vs. Law Enforcement Paradigms Rights of detainees provided by IHL & IHRL IAC: 175 provisions regulating detention NIAC: no comparable regime Customary International Law? IHL non-derogable HRL violations only invoked against the State

22. Leiden University. The university to discover. III. Contemporary Challenges : Armed Conflict vs. Law Enforcement Paradigms Problem: Scope of Application US claimed existence of a global NIAC “Terrorism” cannot be a Party to the conflict What about terrorists? Status classification creates difficulties: Are “terrorists cells” criminals, or organized armed groups? Ratione loci Does conflict have to occur “on the territory” of a High Contracting Party? what does this mean for “targeted killings” outside the US? (IHL or HRL?)

23. Leiden University. The university to discover. III. Asymmetric Conflicts: Armed Conflict vs. Law Enforcement Paradigms Central question: -Is the current IHL regime sufficient in order to deal with asymmetric warfare, or do we have to establish a new “International Security Law”, which deals with situations below the threshold of armed conflict, based on the essential considerations of human rights law?

24. Leiden University. The university to discover. The way we conduct armed conflict has changed. IV. Contemporary Challenges : Modern Technologies

25. Leiden University. The university to discover. The Geneva Conventions were drafted for “conventional” hostilities; but the battlefield has evolved. Article 36 API: “In the study, development, acquisition or adoption of a new weapon, 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.” However: applying pre-existing legal rules to a new technology raises the question of whether the rules are sufficiently clear in light of the technology’s specific characteristics. IV. Contemporary Challenges : Modern Technologies

26. Leiden University. The university to discover. DRONES an unmanned aerial vehicle (UAV) under real time human control IV. Contemporary Challenges : Modern Technologies While not unlawful in themselves, their use is subject to international law Pros: Attacks are more precise from greater distances Results in fewer causalities and less destruction Relatively inexpensive weapons Prevent “boots on the ground” combat: low risk Cons: “PlayStation” mentality: disconnection from consequences Civilian losses Limited abilities: cannot capture surrendering military personnel Risk of take over by enemy forces

27. Leiden University. The university to discover. IV. Contemporary Challenges : Modern Technologies CYBER WEAPONS  Know no geographical borders, or State lines  “Attack”, “Armed Conflict”: legal terms of art… what is a ‘cyber attack’?  “Cyber Combatancy”?  Can Cyber Weapons adhere to the fundamental principles of IHL, e.g.: -Distinction? -Proportionality? -Necessity? “the fifth domain of warfare”

28. Leiden University. The university to discover. IV. Contemporary Challenges : Modern Technologies Central question: -Are the current IHL provisions regulating the means and methods of warfare enough to limit the dangers from the use of modern technology or do we need an updated system of weapons control?

29. Leiden University. The university to discover. V. Conclusion “[The law of war] is not static, but by continual adaptation follows the need of a changing world.” [Trial of the Major War Criminals before the International Military Tribunal, 1948, Vol. 22, p. 464.]  The world has changed … so have the wars…  We are witnessing a decisive moment in international law where the importance of conflict between States is diminishing, and the dangers from conflicts with non-State actor participation is rising  This is also the chance to bring together a broad consensus for necessary changes  It is now time to act and take measures in order the prepare the International Humanitarian Law regime for the 21 st century!

30. Leiden University. The university to discover. Thank you for your attention! Dr. Robert Heinsch, LL.M. Kalshoven-Gieskes Forum on International Humanitarian Law Leiden University, Steenschuur 25, 2311 ES Leiden, The Netherlands E-Mail: r.w.heinsch@law.leidenuniv.nlr.w.heinsch@law.leidenuniv.nl Website: http://www.grotiuscentre.org/Kalshoven-GieskesForum.aspxhttp://www.grotiuscentre.org/Kalshoven-GieskesForum.aspx Facebook: https://www.facebook.com/KalshovenGieskesForumhttps://www.facebook.com/KalshovenGieskesForum