International Humanitarian Law & Human Rights, SS 2011, Alexander Breitegger

1. International Humanitarian Law & Human Rights, SS 2011,Alexander Breitegger Session 1: Scope of IHL and HRL 18/03/11, 5 pm, U13 Course materials: http://elib.at/index.php/Benutzer:Lx/IHL_2010_Uni_Wien

2. Introduction to IHL • Definition of IHL: international law establishing limits to armed violence in the specific situation of armed conflict for the purpose of protecting esp. those that do not/no longer participate in armed hostilities • 2 major objectives: • Protect human beings not/no longer fighting (Session 2) • Restrict methods (how wars are fought, e.g. prohibition to target civilians exclusively) and means (what weapons) of combat (Session 3) • also: rules to ensure application of IHL and to enforce breaches of IHL (Session 4)

3. PIL sources International conventions (treaties, covenants, protocols) CIL (state practice & opinio juris) IHL (specific sources) International conventions: 1949 Geneva Conventions, 1977 Additional Protocols CIL: actual conduct in AC, military manuals, nat. legislation & case law, diplomatic protests, government statements) IHL=part of PIL

4. History of IHL • 1859-1864: foundation of Red Cross Movement and first treaty on care for wounded • 1868-1907: From St. Petersburg to the Hague • after WWII: UN Charter; 1949 Geneva Conventions • wars of national liberation and Vietnam War: 1977 Additional Protocols, 1980 CCW • 1990s: ICTY, ICTR, ICC • War on Terror

5. Scope of Application of IHL: beginning • Common Art. 2 (1), 1949 GC I-IV: declared war or 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 • Common Art. 2 (2), 1949 GCs: partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance • Art. 1 (4), 1977 API: wars of national liberation=also IAC besides c. Art. 2 GC • Common Art. 3, 1949 GCs: armed conflict not of an international character occurring in the territory of one of the High Contracting Parties • Art. 1, 1977 APII: supplements c. Art. 3, 1949 GCs: State armed forces v. dissident armed forces or other organised armed groups

6. IAC, c. Art. 2 (1) GCs • war v. armed conflict State A v. State B • "whenever resort to armed force btn 2 states" • "no difference how long AC lasts or how much slaughter takes place" • any cross-border attack by State A on targets of State B without B's consent sufficient • 4 GCs applicable; API (for states parties)

7. IAC: occupation, c. Art. 2 (2) GCs • occupation: any (part of) territory of State A under effective control of army of State B • non-consensual • stable authority may be exercised and substitutes other authority that no longer capable of exercising governmental functions • even if no armed hostilities previously

8. IAC: API • API supplements GCs • Art. 1 (4) API: also IAC in which "peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations."

9. NIAC: c. Art. 3 GCs • "Armed conflict not of an international character": • State A v. at least 1 NSAG • NSAG(s) v. NSAG(s) • ICTY, Tadic: "protracted armed violence between governmental authorities and organised armed groups or between such groups" • Distinction btn. NIAC and internal disturbances, riots, tensions (OSV)!

10. NIAC v. OSV • 1) intensity of armed violence • Indicative factors: • number, duration and intensity of individual confrontations • number of persons and types of forces participating (police?, military?) • type of weapons used • casualties, extent of destruction • effects on civilian population (refugees, IDPs)

11. NIAC v. OSV • 2) Minimum organisation, esp. NSAG • Indicative factors: • command structure and disciplinary rules; • ability to plan, coordinate and carry out military operations; • ability to recruit, train and equip new members; • ability to speak with one voice; • territorial control

12. NIAC: APII • Art. 1 (1) APII: supplements c. Art. 3 GCs • State A v. organized armed groups which, under responsible command, exercise such control over a part of territory as to enable them to carry out sustained and concerted military operations • Art. 1 (2) APII: internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature (OSV) ≠ NIAC

13. Scope of Application of IHL • Geographical: beyond area of combat in entire territory of a party • Temporal: • general close of military operationsv. temporary cessation of hostilities (ceasefire); • until repatriation/release (detention) • special case of belligerent occupation: one year after general close of military operations; but if occupation longer as long as functions of government exercised

14. Consequences of Application of IHL • For type of force used: in armed conflicts armed force against military objectives (soldiers, military base), also certain damage to civilians tolerated • Otherwise: lethal force only if strictly required to maintain public order (HRL: right to life; law enforcement)

15. Consequences of Application of IHL • For victims: • generally, long-term security detention possible (no criminal charge) • IAC: POW status! Civilians with right to review • NIAC: much more basic protections

16. "Internationalised" NIAC • Tadic, ICTY, Appeals Chamber Judgement of 15 July 1999, „overall control“: „The control required by international law may be deemed to exist when a State […] has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group […] may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.“

17. Nicaragua v. US, ICJ • US participation, even if preponderant and decisive, in the financing, organising, training, supplying and equipping of the contras, the selection of its military/paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself ... for attributing to the US acts by the contras • „effective control“: specific instructions and direction over individual acts necessary • Confirmed by ICJ in Genocide case

18. IHL v. HRL • Common: protection of vulnerable individuals • Differences: • Historic Origins • Scope of Application (material, personal, geographic) • Judicial Enforcement

19. Relationship IHL-HRL • Wall Adv. Op., 2004 ICJ, para.: • Some rights exclusively matters of IHL (e.g. distinction of combatants in IAC) • Others exclusively matters of HRL (e.g. freedom of press in occupied territories) • Yet others matters of both branches of international law (e.g. prohibition of torture; use of lethal force; detention): lex specialis prevails

20. Rules on legality of use of force, in UN Charter Art. 2 (4) UN Charter: general prohibition 2 exceptions: Art. 39, 42: decision of SC under Chapter VII Art. 51: individual or collective self-defence IHL Jus ad bellum v. Jus in bello

21. Reasons for Distinction • Humanitarian: need for protection of individuals • Practical: often no agreement in AC who aggressor • Legal: beneficiaries of rules different