Law of Armed Conflict

Law of Armed Conflict (LOAC) International Humanitarian Law Laws of War ___________________________________________ Regulate hostilities Protect the victims of armed conflict Sources and legal basis

LOAC elements: Chivalry Humanity Military Necessity

"War is merely the continuation of policy by other means." Carl von Clausewitz Sources and legal basis

Conduct of hostilities governed by: International treaties Conventions Rules Regulations Customary international law Sources and legal basis

Treaty Law: Binding agreement between 2 or more states Customary Law: State practice Repetition Wide recognition by states Seen as a legal obligation Sources and legal basis

Treaty Law: Geneva stream Protection of victims of armed conflict Hague Stream Methods and means of armed conflict United Nations UN Charter Sources and legal basis

Numerous treaties, here are the most commonly referenced: Geneva Convention GCI - Wounded and sick in the field GC II - Wounded and sick at sea GC III - Treatment of PoW GC IV – Protection of Civilians Sources and legal basis

Additional Protocol (AP) I – Protection of victims of international armed conflicts AP II - Protection of victims of non- international armed conflicts AP III – Adoption of Additional Distinctive Emblems Plus dozens of other treaties Sources and legal basis

UN Charter: Article 1 – To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace… Sources and legal basis

UN Charter: Article 2(4) – All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state… Sources and legal basis

UN Charter: Article 24(1) – Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that…the Security Council acts on their behalf. Security Council: 5 permanent members & 10 elected members Sources and legal basis

UN Charter: Chapter VI - The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Sources and legal basis

UN Charter: Chapter VII - …The Security Council may… take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Sources and legal basis

UN Charter: Article 51 - Nothing in the present Charter shall impair the inherent right of individual or collective self- defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security… Sources and legal basis

Anticipatory self-defence: The Caroline Affair Sources and legal basis

Anticipatory self-defence: The use of force must be necessary because the threat is imminent and peaceful alternatives are not an option (necessity); The response is proportionate to the threat (proportionality); Daniel Webster: "instant, overwhelming, leaving no choice of means, and no moment of deliberation". Sources and legal basis

Summary: Armed conflict authorized by: The UN Security Council (Chap VII) Article 51 Self defence Sources and legal basis

Libya, UN Security Council Resolution (paraphrased): …Acting under Chapter VII of the Charter of the United Nations,United Nations 1. Demands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians; … 3. Demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance; 4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary- General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; Sources and legal basis

Armed Conflict: International Armed Conflict Non-international Armed Conflict Internationalized Armed Conflict Neutrals (must be declared at outbreak of conflict) Sources and legal basis

International Armed Conflict: Between nations Iran-Iraq, World War 1 and World War 2 Sources and legal basis

Non-international Armed Conflict (armed conflict not of an international character) Within a state territory between government armed forces and dissident armed forces Civil war Sources and legal basis

When does a non-international armed conflict occur? a non-international armed conflict exists when there is: “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Tadic case, International Criminal Tribunal for the former Yugoslavia Sources and legal basis

Internationalized Armed Conflict Occurs when another nation supports either dissident armed force or the government armed forces in a non- international armed conflict Afghanistan, Libya Sources and legal basis

LOAC originally focused on international armed conflict, evolved to include non-international armed conflict Common article 3 deals with non-international armed conflict Sources and legal basis

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: (1) Persons taking no active part in the hostilities... shall in all circumstances be treated humanely… To this end, the following acts are and shall remain prohibited… (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. Sources and legal basis

Martens Clause - preamble to the 1899 Hague Convention II and later conventions: If LOAC treaties are silent on a specific issue, customary international law continues to govern the situation. In any armed conflict the right of parties to the conflict to choose methods or means of warfare is not unlimited. Sources and legal basis

Purpose of LOAC: Reduce unnecessary suffering Protect the victims of armed conflict, both combatants and non-combatants Facilitate the restoration of peace Sources and legal basis

LOAC Principles Military Necessity Distinction Humanity Proportionality Sources and legal basis

Military Necessity Acknowledges that violence is necessary for military purposes Attacks (acts of violence) are to be directed at military objects Military necessity prevents unrestricted violence Sources and legal basis

Distinction Combatants are obligated to differentiate between military objects and the civilians and civilian objects Land mines and sea mines Sources and legal basis

Humanity Forbids the infliction of suffering, injury or destruction not actually necessary for legitimate military purposes No superfluous injury Sources and legal basis

Collateral Damage The incidental injury or death of civilians or damage to civilian objects caused by military action Sources and legal basis

Proportionality Collateral damage must not be excessive in relation to the concrete and direct military advantage Sources and legal basis

People in the battlespace: Combatants Non-combatants Unprivileged belligerents (unlawful combatants) Combatant Status

Combatants: State actors Members of an armed force (not including medical and religious personnel) Levee en masse (civilians that take up arms upon invasion and resistance movements) Combatant Status

Combatants: Carry arms openly during military engagements Wear a distinctive mark or uniform recognizable at a distance Are part of a chain of command (command responsibility) Implement LOAC in operations Deserters are not in a chain of command, therefore are not combatants nor entitled to PoW status Combatant Status

Combatants: Must distinguish themselves from civilians while engaged in an attack or preparing for an attack Combatant Status

Taliban fighters wore US Army uniforms in attack The Taliban fighters who launched an assault on the British base where Prince Harry is serving were wearing American Army uniforms in a well-planned and rehearsed assault, the NATO coalition has disclosed. In the News

Is wearing the uniform of the adversary a permissible tactic under international humanitarian law?

It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks or in order to shield, favour, protect or impede military operations. APII, Art 39(2)

Combatants: Are entitled to engage in hostilities Are military objectives and may be attacked Entitled to PoW status if captured Are entitled to combatant immunity Are entitled to release and repatriation at end of the conflict, if captured Combatant Status

Non-Combatants: Are NOT entitled to engage in hostilities Are NOT military objectives May be treated as criminals for taking part in attacks, following a trial Combatant Status

Examples of Non-Combatants: Civilians Chaplains Medical personnel Journalists War correspondents (embedded media) Persons who accompany the forces Crews of the merchant marine and civil aircraft Combatant Status

Religious personnel: Military or civilian Assigned exclusively for religious purposes Not armed for self-defence

Medical and religious personnel: If in enemy hands, they are not to be made PoW. However, the detaining power may retain them to provide care to other PoWs.

Hors de combat A combatant is hors de combat if: The person is in the power of the adversary (PoW); Clearly expresses an intention to surrender; or Is unconscious or incapacitated by wounds or sickness and is incapable of defending themselves

Others protected from attack: PoW Parachutists from aircraft White flag Shipwrecked Civil defence personnel

Detaining power – Detains the PoW Protecting Power – Neutral state that checks on PoWs PoWs must provide: Name, rank, service number and date of birth, may be punished for failing to give this information

Unprivileged Belligerents (unlawful combatants): Take a direct part in hostilities without the legal right to do so under LOAC May be targeted while engaging in hostilities If captured are not entitled to PoW status May be tried as criminals Combatant Status

Unprivileged Belligerents (unlawful combatants): Civilians are considered to be “directly participating in hostilities” (DPH) when there is a nexus between act and harm Combatant Status

Examples of Unprivileged Belligerents (unlawful combatants): Civilians “directly participating in hostilities” Mercenaries Spies (CIA, CSIS, MI6, KGB) Terrorists Combatant Status

Status Determination In all cases of doubt as to the status of persons captured after taking part, or believed to have taken part, in hostilities, they shall be treated as a prisoner of war until a properly constituted tribunal has determined their proper status. Combatant Status

Distinction Military commanders must distinguish between combatants and non-combatants Military operations must be directed at legitimate military objectives Combatant Status

Objects in the battlespace: Military objects Civilian objects Cultural objects Protected status

Military objects: Objects which by their location, nature, purpose or use make an effective contribution to military action and whose partial destruction capture or neutralization, in the circumstances ruling at the time offer a definite military advantage.

Civilian objects: Those objects that are not military objects Assume an object is civilian (intelligence needed)

Cultural objects: Historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples Symbol is informative but not necessary

Dams, dikes and nuclear plants: shall not be made the object of attack Except if used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support Symbol is informative but not necessary

Perfidy Acts inviting the confidence of an adversary to lead him to believe that he is obliged to apply the protection under the rules of international law (a) The feigning of an intent to negotiate under a flag of truce or of a surrender; (b) The feigning of an incapacitation by wounds or sickness; (c) The feigning of civilian, non-combatant status; and (d) The feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

Command Responsibility Commanders will not held to a standard of perfection Commanders are required to take all feasible steps based on the circumstances known at the time