Week 3 Classification and Triggers Classification amp Triggers IAC Common Article 2 IAC Trigger The entire body of the law of war is triggered based not on labels but on whether the instrumentality of armed force is used ID: 221062
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Slide1
Law of Armed Conflict
Week 3: Classification and TriggersSlide2
Classification & Triggers – IAC
Common Article 2 = IAC TriggerThe entire body of the law of war is triggered based not on labels but on whether the instrumentality of armed force is used Armed conflict = de facto standardDecline of reciprocity; “Principles respected for their own sake”ReviewSlide3Slide4
Classification & Triggers – IAC
Common Article 2 = IAC TriggerThe entire body of the law of war is triggered based not on labels but on whether the instrumentality of armed force is used Armed conflict = de facto standardDecline of reciprocity; “Principles respected for their own sake”Additional Protocol IRepresents a controversial expansion of the LOW to cover wars of national liberation in pursuit of the right of self-determination (CARs)But… CARs provision never usedCodifies customary int’l lawRatified by most of the world (169 parties)
Probably unlikely that the U.S. will ever ratify
ReviewSlide5Slide6
LOAC
G I-IV, GP I
LOAC
Art.3
DDHH
IHRL
National
law
internal
international
PEACE
CONFLICT
Art.3
GP II
NIAC
IAC
Classification & Triggers – NIAC Slide7
Classification & Triggers – NIAC
ReviewOpponentClassificationApplicable Law
State
military
IAC
Entire Body of LOW
Non-state armed
group fighting war of national liberation
IAC*
Entire Body of LOW
(per AP I)
Non-state armed
group that
controls territory
engaging in armed conflict
NIAC
AP II and CA 3
Non-state armed
group that doesn’t control territory engaging in armed conflict
NIAC
CA 3
Criminal group engaged
in riots, internal disturbances, banditry
Domestic incident
Domestic LawSlide8
Pictet FactorsSlide9
Page 155
Overall control testSending by or on behalf of testSlide10
Terrorist Attacks + Cross-Border Attacks
Pg. 157 Slide11
OsirakSlide12
OsirakSlide13
MumbaiSlide14Slide15
HamdanSlide16
TadicPg 175Slide17
Common Article 3“Convention in Miniature”Slide18
Classification & Triggers – NIAC
“Convention in miniature”It has the merit of being simple and clear. It at least ensures the application of the rules of humanity which are recognized as essential by civilized nations . . . The text in question has the additional advantage of being applicable automatically, without any condition of reciprocity.” ~ CommentaryCommon Article 3Slide19
“What is meant by "armed conflict not of an international character“?That was the burning question which arose again and again at the Diplomatic Conference. The expression was so general, so vague, that
many of the delegations feared that it might be taken to cover any act committed by force of arms -- any form of anarchy, rebellion, or even plain banditry.” ~ CommentaryClassification & Triggers – NIAC “Armed Conflict not of an International Character”Slide20
Classification & Triggers – NIAC “Pictet Factors” = guidance, not criteria
Organized military forceAct under organized authorityAct within determinate territoryRespect / comply with the LOWGovernment responds with regular forcesRecognized as belligerentsGoal: maximize protection! Pictet FactorsSlide21
Classification & Triggers – NIAC
(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.Common Article 3Slide22
“The value of the provision is not limited to the field dealt with in Article 3. Representing, as it does, the minimum which must be applied in the least determinate of conflicts, its terms must a fortiori be respected in the case of international conflicts proper when all the provisions of the Convention are applicable. For "
the greater obligation includes the lesser", as one might say.” ~ Commentary (1949)Classification & Triggers – NIAC Scope of Substantive ProtectionSlide23
“Article 3 … defines certain rules to be applied in [NIAC]. There is no doubt that, in the event of international armed conflicts,
these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to IAC; and they are rules which in the Court’s opinion, reflect … ‘elementary considerations of humanity.’” ~ ICJ in Nicaragua Case (1986)Classification & Triggers – NIAC Scope of Substantive ProtectionSlide24
“CA3’s text provides substantial reason to think that it refers specifically to a condition of civil war, or a large-scale conflict between a State and an armed movement within its own territory. . . .
It does not sweep in all armed conflicts, nor does it address a gap left by CA2 for IACs that involve non-state entities (such as [al-Qaeda]) as parties to the conflict.” ~ Bybee Memo (OLC) (2002)Classification & Triggers – NIAC Scope of Substantive ProtectionSlide25
“The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan
because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.” ~ Hamdan (2006)Classification & Triggers – NIAC Scope of Substantive ProtectionSlide26
Classification & Triggers – NIAC It is DOD Policy that:
4.2. All persons subject to this Directive shall observe the requirements of the law of war, and shall apply, without regard to a detainee’s legal status, at a minimum the standards articulated in Common Article 3 to the Geneva Conventions of 1949 . . . DODD 2310.01E, 5 Sep 06Slide27
Classification & Triggers – NIAC
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.Common Article 3Slide28
Additional Protocol IIControversial “Shrinkage”Slide29
Classification & Triggers – NIAC
Recalling that the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August 1949, constitute the foundation of respect for the human person in cases of armed conflict not of an international character,Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person . . .Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates or the public conscience . . .
Additional Protocol II, PreambleSlide30
Classification & Triggers – NIAC
1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or 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) 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.Additional Protocol II, Article 1Slide31
Classification & Triggers – NIAC
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.Additional Protocol II, Article 1Slide32
Classification & Triggers – NIAC
Non-Intervention 1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.Additional Protocol II, Article 3Slide33
Classification & Triggers – NIAC Substantive Provisions
Part II – Humane TreatmentArticles 4-6Part III – Wounded, Sick, and ShipwreckedArticles 7-12Part IV – Civilian PopulationArticles 13-18Additional Protocol IISlide34
LOAC
G I-IV, GP I
LOAC
Art.3
DDHH
IHRL
National
law
internal
international
PEACE
CONFLICT
Art.3
GP II
NIAC
IAC
Classification & Triggers – NIAC Slide35
Classification & Triggers – NIAC
ReviewOpponentClassificationApplicable Law
State
military
IAC
Entire Body of LOW
Non-state armed
group fighting war of national liberation
IAC*
Entire Body of LOW
(per AP I)
Non-state armed
group that
controls territory
engaging in armed conflict
NIAC
AP II and CA 3
Non-state armed
group that doesn’t control territory engaging in armed conflict
NIAC
CA 3
Criminal group engaged
in riots, internal disturbances, banditry
Domestic incident
Domestic LawSlide36
NOT FOR CLASS – For Student Review at a later date if they chooseSlide37
Classification & Triggers – NIAC
Final Thoughts: TensionsHuman rights vs. sovereigntyConcerns about legitimacy Lack of reciprocity“Who decides?”Substance“Necessity of analogy” / CIL “catch-all”No combatant statusEnforcement / Accountability Weak, but seems to be getting stronger (see Tadic and Rome Statute) Common Article 3Slide38
“In fact, during the entire period 1997–2006 only three conflicts were fought between states: Eritrea–Ethiopia (1998–2000); India–Pakistan (1997–2003); and Iraq versus the USA and its allies (2003). The remaining 31 major armed conflicts recorded for this period were fought within states and concerned either governmental power (21) or territory (10).”
~ Patterns of major armed conflicts, 1997–2006, SIPRI.orgClassification & Triggers – NIAC State of Conflict TodaySlide39
IACs (Intl. armed conflicts)
5-10% of all ”massive organized violence” 1990-2008
Entire body of IHL treaty law and IHL customary law applicable
”
…
declared war or
…any other armed conflict which may arise
between
two or more of the High Contracting Parties”
GC Common art. 2
NIACs
(non-Int.
armed conflicts
)
90-95 % of all ”massive organized violence” 1990-2008
only a limited part of IHL treaty law and IHL customary law applicable
”..armed conflict not of an international character occurring in the
territory
of one of the High Contracting Parties”
GC Common art. 3
(lowest threshold)
Slide40
IAC versus NIAC
IAC : State parties at ’both sides’
State party on one side, the non-state party consisting of (peoples) ”
…
fighting against colonial domination and alien occupation and against racist regimes”
API art 1(4
)
NIAC
S
tate party(ies) at only one side
2) No state party at any side Slide41
Ad bellum / in bello
IAC : Jus ad bellum : why you fight does not affect
your rights and duties
in fighing ( jus in bello)
NIAC
W
hy you fight,
can
influence which rules are applicable.
API art 1(4)
”fighting against colonial domination and alien occupation and against racist regimes
…
”
’converts’ NIAC to IACSlide42
Structure , default regime
IACReciprocityEquality of belligerentsAbsence of IHL : very little protectionIHL gives more protection than default regime (’no rules’)
NIAC
A
symmetry
No
equality of belligerents
Absence of IHL : IHRL is default regime
IHL provides ’less protection’ than default regime (human rights regime)Slide43
The making of treaty law in NIAC ( cont.)
CONVENTIONAL LAW OF NIACsGeneva Conventions Common art. 3 (1949)Humane treatmentCare for sick and woundedCultural Property Co
nvention art. 19
(1954)
R
espect for cultural property
Additional Protocol II to the Geneva Conventions
(1977)
28 articles – approx. 10 of which have substantive content (protection)
Treaties expanded to NIACs
Blinding Weapons Protocol (1995)
Mines Protocol (1996)
Protocol 2. to the Cultural Property Convention (1999)
Weapons Convention (2001)
Treaties applicable to NIACs from first entry
Chemical Weapons Convention ( 1993)
Landmine Convention (1997)
ICC art 8 (2) (1998)
Clusterbomb Convention (2008)Slide44
Classification & Triggers – NIAC Common Article 3
Additional Protocol IIContemporary NIAC RegulationConflict Classification / ExerciseAgendaSlide45
Classification & Triggers – NIAC
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:Common Article 3Slide46
Classification & Triggers – NIAC
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, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:Slide47
Contemporary NIAC RegulationTadic and the Rome StatuteSlide48
Classification & Triggers – NIAC Tadic Case
Procedural JurisdictionSubject-Matter JurisdictionTadic Case (1995)
Dusko TadicSlide49
Classification & Triggers – NIAC Para 97: “international legal rules have increasingly emerged or have been agreed upon to regulate internal armed conflict.”
… A state sovereignty-oriented approach has been gradually supplanted by a human being-oriented approach … it follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned.” Tadic Case (1995)Slide50
Classification & Triggers – NIAC “to maintain a legal distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the differences in the nature of conflicts would ignore the very purpose of the Geneva Conventions…” ~
Delalić,, para. 172.Celebici Case (2001)Slide51
Classification & Triggers – NIAC Rome Statute
Article 8(e)Non-inclusive list of 12 “war crimes” based on “laws and customs applicable in NIAC”Rome Statute (1998)Slide52
Conflict Classification Wrapup & ExerciseSlide53
Classification & Triggers
OpponentClassificationApplicable Law
State
military
IAC
Entire Body of LOW
Non-state armed
group fighting war of national liberation
IAC*
Entire Body of LOW
(per AP I)
Non-state armed
group that
controls territory
engaging in armed conflict
NIAC
AP II and CA 3
Non-state armed
group that doesn’t control territory engaging in armed conflict
NIAC
CA 3
Criminal group engaged
in riots, internal disturbances, banditry
Domestic incident
Domestic LawSlide54
Classification & Triggers – NIAC Issues
“Transformers”“Internationalized Non-International Armed Conflict”Dual Status conflictsState Support – how much state support of a non-state armed group turns a NIAC into an IAC? Conflict Classification Wrap-upSlide55
Classification & Triggers
OpponentClassificationApplicable Law
State
military
IAC
Entire Body of LOW
Non-state armed
group fighting war of national liberation
IAC*
Entire Body of LOW
(per AP I)
Non-state armed
group that
controls territory
engaging in armed conflict
NIAC
AP II and CA 3
Non-state armed
group that doesn’t control territory engaging in armed conflict
NIAC
CA 3
Criminal group engaged
in riots, internal disturbances, banditry
Domestic incident
Domestic Law
Q: What is the appropriate classification / body of applicable law?
Iraq v. AQI
Afghanistan (or Pakistan) v. Taliban
Yemen v. Houthi rebels
Somalia v. Al-ShahaabSlide56
Classification & Triggers – NIAC
Common Article 3“Convention in miniature” for NIAC represented a significant step forward for protecting humanity in armed conflictCA 3 seldom acknowledged by states as applicable de jure due to legitimacy concerns (but may be followed de facto) Humane treatment baseline seen as the minimum floor of protections applicable in all armed conflictAdditional Protocol IIProvides more robust protections in NIAC to include regulation of means and methods Effectively neutered by its implementing arrangement (requiring
territorial control etc
.) = controversial shrinkage
Contemporary NIAC Regulation
Tadic
case (and
Celebici
) demonstrated tendency to blur lines between law regulating IAC and NIAC based on customary international law
“
State-sovereignty-oriented approach supplanted by human being-oriented approach”
Rome statute criminalizes war crimes in NIAC based on same logic
Conflict Classification Wrap-up
Armed conflicts may be transformed from NIAC to IAC or vice versa or be both at once
Need to look at who the parties are (states?) and to what degree non-state armed groups are supported by states (effective control standard?)
Concluding Observations