Overview of International Humanitarian Law ATHA Specialized Training on International Humanitarian Law May 31, 2010 Stockholm, Sweden

Defining IHL International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflicts. It protects persons who are not, or are no longer, participating in hostilities, and restricts the means and methods of warfare. IHL aims to balance, during situations of armed conflict, humanitarian concerns and military necessity

Respecting IHL: Different Actors  States: direct and primary responsibility  Individuals: responsible as state agents only  Non-State Armed Groups: limited responsibility  United Nations: as an intergovernmental organization

Key Principles of IHL Jus ad bellum vs. Jus in bello Key Principles  Military Necessity  Distinction  Proportionality  Humanity  Impartiality  Neutrality

 Lieber Code (1863)  Hague Conventions of 1907  Restricts means and methods of warfare  Geneva Conventions (1949)  Convention I (1864): Treatment of battlefield casualties  Convention II (1906): Extension of GC I principles to war at sea  Convention III (1929): Treatment of prisoners of war  Convention IV (1949): Treatment of civilians during wartime  Additional Protocols to Geneva Convention (1977)  AP I: Protection of victims of international armed conflicts  AP II: Protection of victims of non-international armed conflicts  Weapons Conventions (e.g. CCW 1980)  Customary International Law Instruments and Sources

4 Types of Situations: 4 Legal Regimes  International armed conflicts Sources of law: Four Geneva Conventions, Additional Protocol I, ICC Statute  Situation of occupation Sources of law: Hague Conventions, Fourth Geneva Convention, Additional Protocol I, ICC Statute  Non-international armed conflicts Sources of law: Article 3 common to four GC, Additional Protocol II, ICC Statute  Situations short of an armed conflict Sources of law: Human Rights Treaties

International Armed Conflicts  Between two or more States (no threshold of application) "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" (Common Art. 2, GC I – IV)  Includes all cases of occupation "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" (Common Art. 2, GC I – IV)  National liberation wars (only under strict circumstances) "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination" (Art. 1(4), AP I)

Non-International Armed Conflicts  Common Article 3 "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties" (Common Art. 3, GC I – IV) “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” Art. 1, AP II (where degree of violence sufficient to set apart from internal disturbances and tensions)  Under AP II "all armed conflicts…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…” (Art. 1(1), AP II) Armed forces of a State against organised armed groups…  Under responsible command  Exercise control over a part of the territory  Carry out sustained or concerted military operations  Capable of respecting Protocol II

Transnational Armed Conflicts “Substantial evidence suggests that the drafters of the provision envisioned its application only in truly internal conflicts. In addition, the full text of the provision offers some support for this reading - the Article covers only cases of ‘armed conflict not of an international character, occurring in the territory of one of the High Contracting Parties.’ Despite its textual plausibility, this reading of the provision is arguably problematic…. On this reading, the Conventions would cover international armed conflicts proper and wholly internal armed conflicts, but would not cover armed conflicts between a state and a foreign-based (or transnational) armed group or an internal armed conflict that spills over an international border into the territory of another state. There is no principled (or pragmatic) rationale for this regulatory gap. ” D. Jinks

Tadic “overall control” test  “Control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training)…it does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation.”  Overall control achieved when foreign state “has a role in organizing, co-ordinating or planning the military actions of the military group, in addition to financing, training, equipping or providing operational support to the group.”