Scope and Applicability of IHL

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Lecture 3

• Scope and Applicability of IHL

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Scope of application

• PERSONAL scope of application (To which subjects
  does IHL apply?)
• MATERIAL scope of application (In which
  situations do IHL apply?)

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Personal scope of application

• To which subjects do IHL apply?
• States (parties to the conflict and to IHL
  instruments)
• Non-state armed groups (parties to the conflict)
• Individuals (belonging to parties to the
  conflict)
• Civilians and other protected persons (soldiers
  hors de combat) (have rights and obligations)
• Combatants (have rights and obligations)

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Material scope of application

• 1) International armed conflict and occupation
• 2) Non-international armed conflicts
• 2.1) Wars of national liberation
• 2.2) Civil war
• 2.3) Other non-international armed conflicts
• 3) Internal disturbances
• 4) Peace

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1. International conflicts and occupation

• IHL applies in international armed conflict or
  during occupation
• What is an international armed conflict?
• When the armed forces of one state uses armed
  force against another state
• What is occupation?
• When the armed forces of one state occupies
  territory outside its own territory

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Common Article 2, GC

• In addition to the provisions which shall be
  implemented in peacetime, the present Convention
  shall apply to 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.

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Common Art.2, para 3, GC

• Although one of the Powers in conflict may not be
  a party to the present Convention, the Powers who
  are parties thereto shall remain bound by it in
  their mutual relations. They shall furthermore be
  bound by the Convention in relation to the said
  Power, if the latter accepts and applies the
  provisions thereof.

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Application of IHL is not dependent on mutual
State Party recognition

• Article 13, GCI The present Convention shall
  apply to the wounded and sick belonging to the
  following categories.
• (3) Members of regular armed forces who
  profess allegiance to a Government or an
  authority not recognized by the Detaining Power.

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2. Non-international armed conflict

• IHL applies, to a certain extent, in
  non-international armed conflicts
• When there is a situation in a state that amounts
  to an armed conflict, IHL applies
• What is a non-international armed conflict?

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The Martens Clause

• Hague Convention IV Convention (IV) respecting
  the Laws and Customs of War on Land and its
  annex Regulations concerning the Laws and
  Customs of War on Land. The Hague, 18 October
  1907.
• (Compendium page 293)

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The Martens Clause

• Until a more complete code of the laws of war
  has been issued, the High Contracting Parties
  deem it expedient to declare that, in cases not
  included in the Regulations adopted by them, the
  inhabitants and the belligerents remain under the
  protection and the rule of the principles of the
  law of nations, as they result from the usages
  established among civilized peoples, from the
  laws of humanity, and the dictates of the public
  conscience.

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Non-International Armed Conflicts (NIAC)

• 2.1 Wars of national liberation etc.
• 2.2 Civil war
• 2.3 Other non-international armed conflicts

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2.1. Wars of national liberation

• Additional Protocol 1 to the Geneva Conventions
  makes IHL applicable to certain non-international
  armed conflicts
• Wars against colonial domination, racist
  regimes etc.

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• Article 1, AP I
• 2. In cases not covered by this Protocol or
  by other international agreements, civilians and
  combatants remain under the protection and
  authority of the principles of international law
  derived from established custom, from the
  principles of humanity and from the dictates of
  public conscience.3. This Protocol, which
  supplements the Geneva Conventions of 12 August
  1949 for the protection of war victims, shall
  apply in the situations referred to in Article 2
  common to those Conventions.

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Article 1(4) , AP I

• 4. The situations referred to in the preceding
  paragraph include 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, 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.

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• Art. 96 (3), AP I The authority representing a
  people engaged against a High Contracting Party
  in an armed conflict of the type referred to in
  Article 1, paragraph 4, may undertake to apply
  the Conventions and this Protocol in relation to
  that conflict by means of a unilateral
  declaration addressed to the depositary. Such
  declaration shall, upon its receipt by the
  depositary, have in relation to that conflict the
  following effects(a) the Conventions and this
  Protocol are brought into force for the said
  authority as a Party to the conflict with
  immediate effect(b) the said authority assumes
  the same rights and obligations as those which
  have been assumed by a High Contracting Party to
  the Conventions and this Protocol

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2.2. Civil war

• Civil war is a war between the state authorities
  of a state and an organized armed group with
  control over parts of the state territory
• Civil war is a non-international armed conflict

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Article 1, AP II

• 1. This Protocol, which develops and supplements
  Article 3 common to the Geneva Conventions of 12
  August 1949 without modifying its existing
  conditions of application, shall apply to all
  armed conflicts which are not covered by Article
  1 of the Protocol Additional to the Geneva
  Conventions of 12 August 1949, and relating to
  the Protection of Victims of International Armed
  Conflicts (Protocol I)..

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• ..and 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.

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2.3. Other non-international armed conflicts

• Non-international armed conflict which do not
  reach the threshold of
• AP I, Article 1 (4) peoples fighting colonial
  domination etc.
• AP II, Article 1 civil war between state
  military forces and organised armed forces in the
  territory of the state

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Common Article 3, GC

• In the case of armed conflict not of an
  international character occurring in the
  territory of one of the High Contracting Parties,
  each Party to the conflict shall be bound to
  apply, as a minimum, the following provisions

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Common Article 3, GC

• (1) Persons taking no active part in the
  hostilities, including members of armed forces
  who have laid down their arms and those placed '
  hors de combat ' by sickness, wounds, detention,
  or any other cause, shall in all circumstances be
  treated humanely, without any adverse distinction
  founded on race, colour, religion or faith, sex,
  birth or wealth, or any other similar criteria.

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Common Article 3, GC

• To this end, the following acts are and shall
  remain prohibited at any time and in any place
  whatsoever with respect to the above-mentioned
  persons(a) violence to life and person, in
  particular murder of all kinds, mutilation, cruel
  treatment and torture(b) taking of
  hostages(c) outrages upon personal dignity, in
  particular humiliating and degrading
  treatment(d) the passing of sentences and the
  carrying out of executions without previous
  judgment pronounced by a regularly constituted
  court, affording all the judicial guarantees
  which are recognized as indispensable by
  civilized peoples.(2) The wounded and sick
  shall be collected and cared for.

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3. Internal disturbances

• IHL does not apply
• Article 1, AP II
• 2. This Protocol 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.

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4. Peace

• IHL does not apply
• (with certain exceptions regarding the use of the
  Red Cross/Red Crescent emblem, placement of
  military buildings etc.)

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(No Transcript)
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Qualification of situations

• Never assume that any substantive IHL rule
  applies before having made the determination of
  what kind of situation you are dealing with.
• If in doubt about how to categorize the
  situation, always assume that the regime giving
  the most protection is applicable, (and explain
  why you do this).

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Article 8 of the ICC statute

• War crimes violations of IHL
• Lists the different situations
• Art.8 (2) (a) and (b) IAC
• Art.8 (2) (c) and (e) (f) NIAC

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Qualify the following situations

• The invasion of in Iraq 1991
• The situation in Bosnia 1992-1995
• The situation in Kosovo spring/summer 1999
• The situation in Iraq 2003
• The situation in Iraq 2007