International Humanitarian Law & Human Rights, SS 2010, Alexander Breitegger

1. International Humanitarian Law & Human Rights, SS 2010,Alexander Breitegger Session 2: Protection of Persons, IHL and HRL 25/03/11, 5 pm, U13 Course materials: http://elib.at/index.php/Benutzer:Lx/IHL_2010_Uni_Wien

2. Protection of Persons in Armed Conflict • Fundamental protection to persons irrespective of status under IHL: • common Art. 3, GCs; • Art. 75, API; • Arts. 4, 6, APII • Commonalities with HRL

3. Fundamental Guarantees • Common Art. 3: „minimum yardstick“ also for IAC (Nicaragua) • 1) Overarching principle: humane treatment without distinction • a-d) Acts prohibited: • a-c) Against life, physical and mental integrity (esp. Murder, torture and cruel, humiliating and degrading treatment) • d) Minimum due process standards if criminal prosecutions • HRL: Arts. 3, 5, 10 UDHR; Arts. 6, 7, 14 ICCPR; CAT

4. Fundamental Guarantees • Art. 75 (1) API: humane treatment without adverse distinction, minimum protection • Art. 75 (2) API: certain prohibited acts, including murder, torture, taking of hostages, collective punishments • Art. 75 (3) API: minimum standards against arbitrary detention → no explicit right of review; HRL: Art. 9 ICCPR • Art. 75 (4) API: minimum standards of due process, criminal prosecutions → HRL: Art. 14 ICCPR

5. Humane Treatment in NIAC • c. Art. 3 GCs: nothing on review of detention • Art. 4 (1) APII: humane treatment without distinction • Art. 4 (2) APII: certain prohibited treatment • Art. 5 APII: preventive security detention possible but no right to review specified • Art. 6 APII: minimum due process standards if prosecution

6. A) Combatants (GC III, API) Right of combatant: No prosecution for merely fighting legitimate military objective, i.e. may be lawfully targeted B) Civilians (GC IV, API) Can be prosecuted if they fight No legitimate target unless direct participation in hostilities (specific act likely to cause military harm to adversary or civilian harm, linked to specific military operation, linked with AC) Categories of Persons in IAC: special rules of IHL

7. NIAC • No combatant status because states will not forfeit their right to prosecute those rebelling against the state! • Protections for those not or no longer directly/actively participating in hostilities: humane treatment (c. Art. 3, APII) and no legitimate target

8. Combatants, POWs • Combatants: member of armed forces • Def. Armed Forces: • Art. 4A (1), GC III: de jure armed forces • Art. 4A (2), GC III: other militias de facto belonging to State • Art. 43 (1) API: “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party.“ • Members of armed forces = combatant under Art. 43(2) API • POW: captured combatant (Art. 4A GCIII, Art. 44, API)

9. Combatants • Art. 4A (1), GCIII: regular combatants • Art. 4A (2), GCIII: irregular combatants, additional criteria: • (a) command by a person responsible for its subordinates; • (b) fixed distinctive sign recognizable at a distance; • (c) carrying arms openly; • (d) conduct of operations in accordance with laws and customs of war. • Art. 4A (3), GCIII: also valid for members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power

10. Art. 4A(2) GCIII: (a) command by a person responsible for its subordinates; (b) fixed distinctive sign recognizable at a distance; (c) carrying arms openly; (d) conduct of operations in accordance with laws and customs of war. Arts. 43 (1), 44 (2) (3) API: Requirements also for „regular combatants“ Also command responsible for subordinates and internal disciplinary system; Distinction: only in attack or preparatory military operation; Carrying arms openly only alternatively if distinction not possible; All combatants obligation to comply with IHL Combatants in IAC

11. Doubt whether POW • Art. 5 (2) GCIII: protection as POW until status determination by competent tribunal • Art. 45 API: presumption of POW status if person claims to have status or if he/she appears to be entitled to such status

12. Civilians in IAC • negative definitions: • Art. 4(4) GCIV: GCIV does not cover anyone protected by GCI-III • Arts. 4 (3), 13-26 GCIV: general protection to certain groups of civilians irrespective of their nationality • Art. 4 (1)(2) GCIV: scope of „protected persons“, protection of civilians dependenton nationality!

13. Protected Civilians under GCIV • Art. 4 (1) GCIV: „Persons protected by the Convention are those who […] find themselves, in case of conflict or occcupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.“ • Protected in principle: • nationals of party to AC state A in territory under control of belligerent state B; • nationals of state A in territory of their own state occupied by state B.

14. Protected Civilians under GCIV: Exceptions

15. POWs, GC III: Captivity • POW: presumption that ongoing security risk to adversary; no habeas corpus • End of captivity: • release and repatriation without delay after the cessation of active hostilities (Art. 118, GCIII) • In case of criminal proceedings: until end of proceedings, if necessary, completion of punishment (Art. 119 (5), GCIII)

16. POWs: Due Process • Arts. 84 (2), 105, GCIII: must be tried by a court which offers essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which affords the accused the rights and means of defence provided for in Article 105.“ (similar to c. Art. 3, 75 API, 4 APII, 14 ICCPR) • Art. 102, GCIII: valid sentence only if pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power. • Art. 103, GCIII: confinement awaiting trial not > 3 months • Art. 106, GCIII: same rights of appeal or petition as the armed forces of the Detaining Power

17. Detention of Protected Civilians • In contrast to POWs: only if absolutely necessary for security of detaining power / necessaryfor imperative securityreasons (Arts. 42, 78 GCIV) • right to appeal against initial internment decision (court or admin. body: Arts. 43, 78 GCIV) • right to periodic review (Arts. 43, 78 GCIV) • Absolute end: Art. 133 as equivalent to Arts. 118, 119 (5) GCIII)

18. Due Process of Protected Persons • Arts. 71-76, 126 GCIV: especially defence rights similar to POWs (Art. 72 GCIV equivalent to Art. 105 GCIII).

19. Derogation under GCIV? • Art. 5 GC IV: where protected person definitely suspected of or engaged in activities hostile to the security of a State, State party may derogate from such rights as prejudicial to State security • Primarily rights of correspondence • But Art. 5 (3) GC IV: humane treatment and due process standards non-derogable!

20. Challenges by „War on Terror“ • US Military Commission Act 2009: still endorses sweeping application of IHL to „War on Terror“ • Purposeful and material supporting hostilities; membership in al Qaeda; conspiracy sufficient for prosecution • Composition and Convening authority by SoD • Certain improvements: review procedures; MCs in MCA 2009 • Controversy over extraterritorial application of HRL; relevant for possibility to review detention