Basic Principles of IHL Dr. Hilly Moodrick-Even Khen, Alma course 2011

Basic principles of IHL- general normative framework  a compromise between military and humanitarian requirements.  guiding principles for the interpretation of the rights and duties of belligerents  Necessity- recognized to permit "only that degree and kind of force, that is required in order to achieve complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources”  Humanity- forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Necessity  The prohibition on the infliction of unnecessary suffering  Distinction  Proportionality Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Adding an additional level of restraint  The belligerent may apply only that amount and kind of force necessary to defeat the enemy.  The right of belligerents to adopt means of injuring the enemy is not unlimited. (Hague Reg. Art. 22) Dr. Hilly Moodrick-Even Khen, Alma course 2011

 St. Petersburg Declaration prohibiting the use of projectiles weighing less than 400 grams and declaring that a belligerent may only use such degree of force aimed at weakening the adversary. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 The requirement that the belligerents distinguish between:  1. combatants + military objectives  2. civilian population+ civilian objects. Dr. Hilly Moodrick-Even Khen, Alma course 2011

Civilian objectives /Military objectives  API, Art. 52  Military objectives are those objects which by their nature, location, purpose or use make an effective contribution to military action and  Whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Combatants are defined in the Third Geneva Convention (Art. 4a)and in API Art. 43.  Combatants are ‘fighters’ that are entitled to POW status. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Combatants are eligible to POW status when they are:  members of the armed forces or  belonging to militias or other forces such as resistance groups and answering the following demands:  Being commanded by a person responsible for his subordinates  Having a fixed distinctive sign recognizable at a distance  Carrying their arms openly  Conducting their operations in accordance with the laws and customs of war Dr. Hilly Moodrick-Even Khen, Alma course 2011

Armed Forces- API Art. 43  All organized armed forces, groups and units which are  Under a command responsible to a party to a conflict for the conduct of its subordinates…  They shall be subject to an internal disciplinary system which…shall enforce compliance with the rules of international law applicable in armed conflict. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Carrying their arms openly during the military engagement and during the deployment preceding the launching of an attack in which they are to participate. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Any person who does not belong to one of the categories of persons referred to in Art. 4 A (1) (2) (3) and (6) GC III and in Art. 43 API  Presumption of civilian protection- In case of doubt that person shall be considered a civilian Dr. Hilly Moodrick-Even Khen, Alma course 2011

CiviliansCombatants ProtectedLicense to killPrivileges POW status Not entitled to POW status Being a legitimate target Risks Dr. Hilly Moodrick-Even Khen, Alma course 2011

 API Art. 51(3); APII, Art. 13(3)  Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 The following types of attacks are to be considered indiscriminate…  An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Blurring and abusing the principle of distinction  Unprivileged combatants:  U.S Army’s Operational Law Handbook; British Manual of Military Law Dr. Hilly Moodrick-Even Khen, Alma course 2011

US/Israel and Terrorism  US- Military order of November  Targeted Killings case in Israel ( HCJ 769/02 The Public Committee against Torture v. the Government of Israel ):  Demanding the killings to be a last resort  Demanding an investigation after the fact Dr. Hilly Moodrick-Even Khen, Alma course 2011

 DPH=Direct Participation in Hostilities  Defines direct participation in hostilities.  Distinguishes between three categories of persons in the battlefield Dr. Hilly Moodrick-Even Khen, Alma course 2011

 A specific act must meet the following cumulative criteria:  Threshold of harm  Direct causation  Belligerent nexus Dr. Hilly Moodrick-Even Khen, Alma course 2011

 :  Continuous combat function  Direct participation in hostilities  Civilians assuming support functions Dr. Hilly Moodrick-Even Khen, Alma course 2011

StatusActivityTitle May be targeted during the whole period of the conflict Lasting integration into an organized armed group acting as the armed forces of a non- state party to an armed conflict Continuous combat function May be targeted only in the blazing offence Civilians who directly participate in hostilities on a merely spontaneous, sporadic or unorganized basis DPH Can never be targeted; can only be prosecuted for breaching the law. Assuming support functions to the armed group but not integrated within it Civilians not directly participating in hostilities Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Attacks should be restrained by:  1) the applicable provisions of customary and treaty IHL governing the conduct of hostilities: principles of distinction, precaution, infliction of unnecessary suffering and proportionality, the prohibitions of denial of quarter and perfidy; the restriction or prohibition of selected weapons  2) the general framework of necessity and humanity considerations.  No’ 2 Applies mostly to non international armed conflicts; occupied territories and operations against selected individuals in situations comparable to peacetime policing. Dr. Hilly Moodrick-Even Khen, Alma course 2011

Exemplifying case scenarios  An unarmed civilian transmitting tactical intelligence from a restaurant.  An insurgent military commander of an organized armed group visiting relatives inside government controlled territory.  Large numbers of unarmed civilians deliberately gathering on a bridge to prevent the passage of ground forces. Dr. Hilly Moodrick-Even Khen, Alma course 2011

The Gaza Flotilla  IHH- Turkish Foundation for Human Rights and Freedoms and Humanitarian Relief  IHH members on the Mavi Marmara- Direct participants in hostilities?  Threshold of harm  Direct causation  Belligerent nexus Dr. Hilly Moodrick-Even Khen, Alma course 2011

 Kuperskic case: Proportionality is assessed on the basis of cumulative attacks (within the “grey area” of proportionality) that form an operation.  The Israeli Supreme Court- spectrum of activities. Dr. Hilly Moodrick-Even Khen, Alma course 2011

Issues of Controversy  Voluntary human shields  Risking soldiers on the battlefield Dr. Hilly Moodrick-Even Khen, Alma course 2011

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