[NEW] Fundamentals of IHL | ihl – POLLICELEE

ihl: คุณกำลังดูกระทู้

 

Table of Contents

specific bibliography

Suggested reading:

  • ABI-SAAB Georges, “The Specificities of Humanitarian Law”, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague, ICRC/M. Nijhoff, 1984, pp. 265-280.

 I. International Humanitarian Law: at the vanishing point of international law

Introductory text

Public international law can be described as composed of two layers: a traditional layer consisting of the law regulating coordination and cooperation between members of the international society – essentially the States and the organizations created by States – and a new layer consisting of the constitutional and administrative law of the international community of 6.5 billion human beings. While this second layer tries to overcome the law’s typical traditional relativity, international law still retains a structure that is fundamentally different from that of any internal legal order, essentially because the society to which it applies and which has created it is, despite all modern tendencies, infinitely less structured and formally organized than any nation-State.

To understand IHL, one must start with the concepts and inherent features of the traditional layer: IHL was conceived as a body of law regulating belligerent inter-State relations. It is to a large extent irrelevant, however, to contemporary humanitarian problems unless understood within the second layer. Indeed, inter-State armed conflicts tend to have disappeared, except in the form of armed conflicts between the members of organized international society or, on the one hand, those who (claim to) represent it and, on the other hand, States outlawed by it – a phenomenon of the second layer.

From the perspective of both layers, IHL is perched at the vanishing point of international law, but is simultaneously a crucial test for international law. From the perspective of the first layer, it is astonishing but essential for our understanding of the nature and reality of international law to see that law governs inter-State relations even when they are belligerent, even when the very existence of a State is at stake, and even when the most important rule of the first layer – the prohibition of the use of force – has been violated or when a government has been unable to impose its monopoly of violence within the territory of the State. In the latter case, which is tantamount to a non-international armed conflict, what is most striking is not so much the fact that international law regulates a situation that transcends the axioms of the first layer, but the fact that its international rules apply not only to the use of force by the government but also directly to all violent human behaviour in the situation. From the perspective of the second layer, it is perhaps even more difficult to conceive – but essential to understand – that international law governs human behaviour, even when violence is used, and even when essential features of the organized structure of the international and national community have fallen apart. No national legal system contains similar rules on how those who violate its primary rules have to behave while violating them.

IHL exemplifies all the weakness and at the same time the specificity of international law. If the end of all law is the human being, it is critical for our understanding of international law to see how it can protect him or her even, and precisely, in the most inhumane situation, armed conflict.

Some have suggested – albeit more implicitly than explicitly – that IHL is different from the rest of international law, either because they wanted to protect international law against detractors claiming to have an obvious prima facie case proving its inexistence, or because they wanted to protect IHL from the basic political, conceptual or ideological controversies inevitably arising between States and between human beings holding diverging opinions on the basic notions of international law and its ever changing rules. This suggestion, however, cannot be accepted, as it fails to recognize the inherent inter-relation between IHL and other branches of international law. IHL, distinct from humanitarian morality or the simple dictates of public conscience, cannot exist except as a branch of international law, and international law must contain rules concerning armed conflict, as an unfortunately traditional form of inter-State relations. Indeed, law has to provide answers to reality, it has to rule over reality; it cannot limit itself to reflecting reality. The latter, the necessarily normative character of law, the inevitable distance between law, on the one hand, and politics and history, on the other, is even more evident for IHL, given the bleak reality of armed conflicts, which cannot possibly be called humanitarian.

Quotation 1

 [I]n the matter of those parts of the law of war which are not covered or which are not wholly covered by the Geneva Conventions, diverse problems will require clarification. These include such questions as to implications of the principle, which has been gaining general recognition, that the law of war is binding not only upon states but also upon individuals i.e. both upon members of the armed forces and upon civilians; the changed character of the duties of the Occupant who is now bound, in addition to ministering to his own interests and those of his armed forces, to assume an active responsibility for the welfare of the population under his control; the consequences, with regard to appropriation of public property of the enemy, of the fact that property hitherto regarded as private and primarily devoted to serving the needs of private persons, is subjected in some countries to complete control by the state; the resulting necessity for changes in the law relating to booty; the emergence of motorized warfare with its resulting effects upon the factual requirements of occupation and the concomitant duties of the inhabitants; the advent of new weapons such as flame-throwers and napalm when used against human beings a problem which may be postponed, but not solved, in manuals of land warfare by the suggestion that it raises a question primarily in the sphere of aerial warfare; the problems raised by the use of aircraft to carry spies and so-called commando troops; the limits, if any, of the subjection of airborne and other commando forces to the rules of warfare, for instance, in relation to the treatment of prisoners of war; the reconciliation of the obviously contradictory principles relating to espionage said to constitute a war crime on the part of spies and a legal right on the part of the belligerent to employ them; the humanization of the law relating to the punishment of spies and of so-called war treason; the prohibition of assassination in relation to so-called unarmed combat; authoritative clarification of the law relating to the punishment of war crimes, in particular with regard to the plea of superior orders and the responsibility of commanders for the war crimes of their subordinates; the regulation, in this connexion, of the question of international criminal jurisdiction; the elucidation of the law, at present obscure and partly contradictory, relating to ruses and stratagems, especially with regard to the wearing of the uniform of the enemy; the effect of the prohibition or limitation of the right of war on the application of rules of war, in particular in hostilities waged collectively for the enforcement of international obligations; and many others. In all these matters the lawyer must do his duty regardless of dialectical doubts – though with a feeling of humility springing from the knowledge that if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law. He must continue to expound and to elucidate the various aspects of the law of war for the use of armed forces, of governments, and of others. He must do so with determination though without complacency and perhaps not always very hopefully – the only firm hope being that a world may arise in which no such calls will claim his zeal.

[Source: LAUTERPACHT Hersch, “The Problem of the Revision of the Law of War”, in BYIL, Vol. 29, 1952-53, pp. 381-382]

Quotation 2

 [I]t is in particular with regard to the law of war that the charge of a mischievous propensity to unreality has been levelled against the science of international law. The very idea of a legal regulation of a condition of mere force has appeared to many incongruous to the point of absurdity. This view, which is entitled to respect, is controversial – at least so long as the law permitted or even authorized resort of war. And it may be argued that even if war were to be unconditionally renounced and prohibited – which is not as yet the case – juridical logic would have to stop short of the refusal to provide a measure of legal regulation, for obvious considerations of humanity, of hostilities which have broken out in disregard of the fundamental prohibition or recourse to war. The same applies to hostilities and measures of force taking place in the course of collective enforcement of international law or in the course of civil wars.

[Source: LAUTERPACHT Elihu (ed.), LAUTERPACHT Hersch, International Law, Collected Papers: The Law of Peace, Cambridge, Cambridge University Press, Part. 2, 1975, pp. 37-38]

Specific bibliography

Suggested reading:

  • LAUTERPACHT Hersch, “The Problems of the Revision of the Law of War”, in BYIL, Vol. 29, 1952, pp. 360-382.
  • LAUTERPACHT Hersch, “The Limits of the Operation of the Law of War”, in BYIL, Vol. 30, 1953, pp. 206-243.

 1.   Is international law “law”?

Quotation 1

As “force” made giant strides, so “law” tried to keep abreast. Single laws have tried to turn aside the sword. Not only has a new world organisation been set up, the United Nations, which its founders hoped would prevent a repetition of the “Great New Fact” (expression Churchill coined in speaking of the atomic bomb). But legal rules have also been devised to help curb the new violence. However, pressure from conflicting economic and military interests and the clash of antagonistic ideologies has prevented this “new” law from shaping the actions of states. Today, “classic” or traditional law, which was realistic (because it faithfully reflected the balance of power among subjects of the international community), has been overlaid by “idealistic” law: a set of rules and institutions that, to a large extent, reflect the need to transform relations as they now stand and proclaim a duty to do more than merely consecrate things as they are. […]

[I]t would be a great mistake to refuse to examine the relations that exist between these two poles […] on the premise that states, those “cold monsters”, without souls, never listen to the voice of “law” since they are moved only by motivations of “power” and “force”. In my opinion, this premise is false. On closer examination, it is not true that, when their essential military, economic and political interests are at stake, states trifle with the Tables of the Law […]. Their strategy is more subtle than simply transgressing the legal “commandments”. It consists in preventing their legal crystallisation, or – if the pressure of public opinion makes this impossible – in wording them in terms as ambiguous as possible. By so doing, they can then interpret these legal standards as best they please, adapting them to requirements of the moment and bending them to their contingent interests. If we thumb through the records of the last forty or fifty years, we can easily see that no state, great or small, has ever admitted to breaking the commonly accepted legal canons. (Take, for example, the ban on chemical warfare, or on weapons that cause unnecessary suffering; the ban on indiscriminate attacks on undefended towns, or, on a larger scale, on acts of genocide, and so on.) Whenever they are accused of violating these and other no less important international rules, states immediately make denials, or else they point to the exceptional circumstances which they feel legitimize their course of action; or they say that the international rules prohibit not their own but other forms of behaviour.

[…]

The role of public opinion has grown over the years. Thus in 1931 the eminent English jurist J.L. Brierly noted that within the state a breach of law can go unnoticed and, in any case, when it is noticed the transgressor is often indifferent to “social stigma”; on the other hand, in the international community it is almost impossible for states to perpetrate grave violations of hallowed standards of conduct and escape public disapproval, and besides, states are necessarily very sensitive to public censure. Today, the growing power of the press and of the mass media generally has greatly increased the importance of public opinion especially in democratic countries. But even states in which the media is manipulated by government authorities cannot ignore the repercussions of their political, military and economic action on the opinion of foreign governments, promptly alerted by the various (often western) channels of information.

By relying on these forces, as well as on many non-governmental organizations which are more and more committed and pugnacious, there is hope that something may as yet be achieved. By acting on the “twilight” area in which violations prevail and law seems to dissolve into air, jurists, and all those who are involved in the conduct of state affairs, can be of some use to the voices of dissent and above all, to those who have been, or may in future be, the victims of violence.

[Source: CASSESE Antonio, Violence and Law in the Modern Age, Princeton, Princeton University Press, 1988, p. 4-7]

Quotation 2

The Limitations of International Law. […] To many an observer, governments seem largely free to decide whether to agree to new law, whether to accept another nation’s view of existing law, whether to comply with agreed law. International law, then is voluntary and only hortatory. It must always yield to national interest. Surely, no nation will submit to law any questions involving its security or independence, even its power, prestige, influence. Inevitably, a diplomat holding these views will be reluctant to build policy on law he deems ineffective. He will think it unrealistic and dangerous to enact laws which will not be used, to base his government’s policy on the expectation that other governments will observe law and agreement. Since other nations do not attend to law except when it is in their interest, the diplomat might not see why his government should do so at the sacrifice of important interests. He might be impatient with his lawyers who tell him that the government may not do what he would like to see done.

These depreciations of international law challenge much of what the international lawyer does. Indeed, some lawyers seem to despair for international law until there is world government or at least effective international organization. But most international lawyers are not dismayed. Unable to deny the limitations of international law, they insist that these are not critical, and they deny many of the alleged implications of these limitations, if they must admit that the cup of law is half-empty, they stress that it is half-full. They point to similar deficiencies in many domestic legal systems. They reject definitions (commonly associated with the legal philosopher John Austin) that deny the title of law to any but the command of a sovereign, enforceable and enforced as such. They insist that despite inadequacies in legislative method, international law has grown and developed and changed. If international law is difficult to make, yet it is made; if its growth is slow, yet it grows. If there is no judiciary as effective as in some developed national systems, there is an International Court of Justice whose judgements and opinions, while few, are respected. The inadequacies of the judicial system are in some measure supplied by other bodies: international disputes are resolved and law is developed through a network of arbitrations by continuing or ad hoc tribunals. National courts help importantly to determine, clarify, develop international law. Political bodies like the Security Council and the General Assembly of the United Nations also apply law, their actions and resolutions interpret and develop the law, their judgements help to deter violations in some measure. If there is no international executive to enforce international law, the United Nations has some enforcement powers and there is “horizontal enforcement” in the reactions of other nations. The gaps in substantive law are real and many and require continuing effort to fill them, but they do not vitiate the force and effect of the law that exists, in the international society that is.

Above all, the lawyer will insist, critics of international law ask and answer the wrong questions. What matters is not whether the international system has legislative, judicial or executive branches, corresponding to those we have become accustomed to seek in a domestic society; what matters is whether international law is reflected in the policies of nations and in relations between nations. The question is not whether there is an effective legislature; it is whether there is law that responds and corresponds to the changing needs of a changing society. The question is not whether there is an effective judiciary, but whether disputes are resolved in an orderly fashion in accordance with international law. Most important, the question is not whether law is enforceable or even effectively enforced; rather, whether law is observed, whether it governs or influences behavior, whether international behavior reflects stability and order. The fact is, lawyers insist, that nations have accepted important limitations on their sovereignty, that they have observed these norms and undertakings, that the result has been substantial order in international relations.

Is it Law or Politics?

The reasons why nations observe international law, in particular the emphasis I have put on cost and advantage, may only increase skepticism about the reality of the law and its influence in national policy. […] Nations decide whether to obey law or agreements as they decide questions of national policy not involving legal obligation – whether to recognize a new regime, or to give aid to country X – on the basis of cost and advantage to the national interest. That nations generally decide to act in accordance with law does not change the voluntary character of these decisions. Nations act in conformity with law not from any concern for law but because they consider it in their interest to do so and fear unpleasant consequences if they do not observe it. In fact, law may be largely irrelevant. Nations would probably behave about the same way if there were no law. The victim would respond to actions that adversely affect its interests and the threat of such reaction would be an effective deterrent, even if no law were involved.

This skepticism is sometimes supported by contrasting international law with domestic law in a developed, orderly society. Domestic law, it is argued, is binding and domestic society compels compliance with it. No one has a choice whether to obey or violate law, even if one were satisfied that observance was not in one’s interest. In international society, the critics insist, nations decide whether or not they will abide by law. Violations are not punished by representatives of the legal order acting in the name of the society. Any undesirable consequences of violation are political, not legal; they are the actions of other nations vindicating their own interests, akin to extra-legal consequences in domestic society, like “social stigma.” The violator may even be able to prevent or minimize adverse consequences. In any event, he will continue to be a full member of international society, not an outlaw.

The arguments I have strung together command consideration. Some of them are mistaken. Others do indeed reflect differences between international and domestic law, the significance of which must be explored.

Much of international law resembles the civil law of domestic society (torts, contracts, property); some of it is analogous to “white collar crimes” (violations of antitrust or other regulatory laws, tax evasion) sometimes committed by “respectable” elements. Like such domestic law, international law, too, has authority recognized by all. No nation considers international law as “voluntary.” If the system is ultimately based on consensus, neither the system nor any particular norm or obligation rests on the present agreement of any nation; a nation cannot decide that it will not be subject to international law; it cannot decide that it will not be subject to a particular norm, although it may choose to risk an attempt to have the norm modified; surely, it cannot decide to reject the norm that its international undertakings must be carried out. Like individuals, nations do not claim a right to disregard the law or their obligations, even though – like individuals – they may sometimes exercise the power to do so. International society does not recognize any right to violate the law, although it may not have the power (or desire) to prevent violation from happening, or generally to impose effective communal sanction for the violation after it happens. […]

Much is made of the fact that, in international society, there is no one to compel nations to obey the law. But physical coercion is not the sole or even principal force ensuring compliance with law. Important law is observed by the most powerful, even in domestic societies, although there is no one to compel them. In the United States, the President, Congress, and the mighty armed forces obey orders of a Supreme Court whose single marshal is unarmed.

Too much is made of the fact that nations act not out of “respect for law” but from fear of the consequences of breaking it. And too much is made for the fact that the consequences are not “punishment” by “superior,” legally constituted authority, but are the response of the victim and his friends and the unhappy results for friendly relations, prestige, credit, international stability, and other interests which in domestic society would be considered “extra-legal.” The fact is that, in domestic society, individuals observe law principally from fear of consequences, and there are “extra-legal” consequences that are often enough to deter violation, even where official punishment is lacking. (Where law enforcement is deficient, such consequences may be particularly material.) In the mainstreams of domestic society an illegal action tends to bring social opprobrium and other extra-legal “costs” of violation. This merely emphasizes that law often coincides so clearly with the interests of the society that its members react to antisocial behavior in ways additional to those prescribed by law. In international society, law observance must depend more heavily on these extra-legal sanctions, which means that law observance will depend more closely on the law’s current acceptability and on the community’s – especially the victim’s – current interest in vindicating it. It does not mean that law is not law, or that its observance is less law observance.

There are several mistakes in the related impression that nations do pursuant to law only what they would do anyhow. In part, the criticism misconceives the purpose of law. Law is generally not designed to keep individuals from doing what they are eager to do. Much of law, and the most successful part, is a codification of existing mores, of how people behave and feel they ought to behave. To that extent law reflects, rather than imposes, existing order. If there were no law against homicide, most individuals in contemporary societies would still refrain from murder. Were that not so, the law could hardly survive and be effective. To say that nations act pursuant to law only as they would act anyhow may indicate not that the law is irrelevant, but rather that it is sound and viable, reflecting the true interests and attitudes of nations, and that it is likely to be maintained. At the same time much law (particularly tort law and “white collar crimes”) is observed because it is law and because its violation would have undesirable consequences. The effective legal system, it should be clear, is not the one which punishes the most violators, but rather that which has few violations to punish because the law deters potential violators. He who does violate is punished principally, to reaffirm the standard of behavior and to deter others. This suggests that the law does not address itself principally to “criminal elements” on the one hand or to “saints” on the other. The “criminal elements” are difficult to deter; the “saint” is not commonly tempted to commit violations, and it is not law or fear of punishment that deters him. The law is aimed principally at the mass in between – at those who, while generally law-abiding, may yet be tempted to some violations by immediate self-interest. In international society, too, law is not effective against the Hitlers, and is not needed for that nation which is content with its lot and has few temptations. International law aims at nations which are in principle law-abiding but which might be tempted to commit a violation if there were no threat of undesirable consequences. In international society, too, the reactions to a violation – as in Korea in 1950 or at Suez in 1956 – reaffirm the law and strengthen its deterrent effect for the future.

In many respects, the suggestion that nations would act the same way if there were no law is a superficial impression. The deterrent influence of law is there, though it is not always apparent, even to the actor himself. The criticism overlooks also the educative roles of law, which causes persons and nations to feel that what is unlawful is wrong and should not be done. The government which does not even consider certain actions because they are “not done” or because they are not its “style” may be reflecting attitudes acquired because law has forbidden these actions.

In large part, however, the argument that nations do pursuant to law only what they would do anyhow is plain error. The fact that particular behavior is required by law brings into play those ultimate advantages in law observance that suppress temptations and override the apparent immediate advantages from acting otherwise. In many areas, the law at least achieves a common standard or rule and clarity as to what is agreed. The law of the territorial sea established a standard and made it universal. In the absence of law, a foreign vessel would not have thought of observing precisely a twelve-mile territorial sea (assuming that to be the rule), nor would it have respected the territorial sea of weaker nations which had no shore batteries. In regard to treaties, surely, it is not the case that nations act pursuant to agreement as they would have acted if there were none, or if it were not established that agreements shall be observed. Nations do not give tariff concessions, or extradite persons, or give relief from double taxation, except for some quid pro quo pursuant to an agreement which they expect to be kept. Nations may do some things on the basis of tacit understanding or on a conditional, reciprocal basis: If you admit my goods, I will admit yours. But that too is a kind of agreement, and usually nations insist on the confidence and stability that come with an express undertaking. […]

The most common deprecation of international law, finally, insists that no government will observe international law “in the crunch, when it really hurts.” If the implication is that nations observe law only when it does not matter, it is grossly mistaken. Indeed, one might as well urge the very opposite: violations in “small matters” sometimes occur because the actor knows that the victim’s response will be slight; serious violations are avoided because they might bring serious reactions. The most serious violation – the resort to war – generally does not occur, although it is only when their interests are at stake that nations would even be tempted to this violation. On the other hand, if the suggestion is that when it costs too much to observe international law nations will violate it, the charge is no doubt true. But the implications are less devastating than might appear, since a nation’s perception of “when it really hurts” to observe law must take into account its interests in law and in its observance, and the costs of violation. The criticism might as well be levered at domestic law where persons generally law-abiding will violate laws, commit even crimes of violence, when it “really hurts” not to do so. Neither the domestic violations nor the international ones challenge the basic validity of the law or the basic effectiveness of the system.

The deficiencies of international law and the respects in which it differs from domestic law do not justify the conclusion that international law is not law, that it is voluntary, that its observance is “only policy.” They may be relevant in judging claims for the law’s success in achieving an orderly society. In many domestic societies, too, the influence of law is not always, everywhere, and in all respects certain and predominant; the special qualities of international society, different perhaps only in degree, may be especially conducive to disorder. Violations of international law, though infrequent, may have significance beyond their numbers: international society is a society of states, and states have power to commit violations that can be seriously disruptive; also, the fact that the units of international society are few may increase the relative significance of each violation. Still, violations of international law are not common enough to destroy the sense of law, of obligation to comply, of the right to ask for compliance and to react to violation. Rarely is even a single norm so widely violated as to lose its quality as law. Agreements are not violated with such frequency that nations cease to enter into them, or to expect performance or redress for violation. Colonialism apart, even political arrangements continue to thrive and to serve their purposes, although they may not run their intended course. Over-all, nations maintain their multivaried relations with rare interruptions. There is, without doubt, order in small, important things.

Whether, in the total, there is an effective “international order” is a question of perspective and definition. Order is not measurable, and no purpose is served by attempts to “grade” it in a rough impressionistic way. How much of that order is attributable to law is a question that cannot be answered in theory or in general, only in time and context. Law is one force – an important one among the forces that govern international relations at any time; the deficiencies of international society make law more dependent on other forces to render the advantages of observance high, the costs of violation prohibitive. In our times the influence of law must be seen in the light of the forces that have shaped international relations since the Second World War.

The Law’s Supporters and its Critics

International law is an assumption, a foundation, a framework of all relations between nations. Concepts of statehood, national territory, nationality of individuals and associations, ownership of property, rights and duties between nations, responsibility for wrong done and damage inflicted, the fact and the terms of international transactions – all reflect legal principles generally accepted and generally observed. The law provides institutions, machinery, and procedures for maintaining relations, for carrying on trade and other intercourse, for resolving disputes, and for promoting common enterprise. All international relations and all foreign policies depend in particular on a legal instrument – the international agreement – and on a legal principle – that agreements must be carried out. Through peace treaties and their political settlements, that principle has also helped to establish and legitimize existing political order as well as its modifications – the identity, territory, security, and independence of states, the creation or termination of dependent relationships. Military alliances and organizations for collective defense also owe their efficacy to the expectation that the undertakings will be carried out. International law supports the numerous contemporary arrangements for cooperation in the promotion of welfare, their institutions and constitutions. Finally, there is the crux of international order in law prohibiting war and other uses of force between nations. The law works. Although there is no one to determine and adjudge the law with authoritative infallibility, there is wide agreement on the content and meaning of law and agreements, even in a world variously divided. Although there is little that is comparable to executive law enforcement in a domestic society, there are effective forces, internal and external, to induce general compliance. Nations recognize that the observance of law is in their interest and that every violation may also bring particular undesirable consequences. It is the unusual case in which policy-makers believe that the advantages of violation outweigh those of law observance, or where domestic pressures compel a government to violation even against the perceived national interest. The important violations are of political law and agreements, where basic interests of national security or independence are involved, engaging passions, prides, and prejudices, and where rational calculation of cost and advantage is less likely to occur and difficult to make. Yet, as we have seen, the most important principle of law today is commonly observed: nations have not been going to war, unilateral uses of force have been only occasional, brief, limited. Even the uncertain law against intervention, seriously breached in several instances, has undoubtedly deterred intervention in many other instances. Where political law has not deterred action it has often postponed or limited action or determined a choice among alternative actions.

None of this argument is intended to suggest that attention to law is the paramount or determinant motivation in national behavior, or even that it is always a dominant factor. A norm or obligation brings no guarantee of performance; it does add an important increment of interest in performing the obligation. Because of the requirements of law or of some prior agreement, nations modify their conduct in significant respects and in substantial degrees. It takes an extraordinary and substantially more important interest to persuade a nation to violate its obligations. Foreign policy, we know, is far from free; even the most powerful nations have learned that there are forces within their society and, even more, in the society of nations that limit their freedom of choice. When a contemplated action would violate international law or a treaty, there is additional, substantial limitation on the freedom to act. […]

[Source: HENKIN Louis, How Nations Behave: Law and Foreign Policy, New-York, Columbia University Press, 2nd ed., 1979, pp. 25-26; 89-90; 92-95, and 320-321; footnotes omitted.]

Quotation 3

 [A] third idea of rules or norms may be emphasized: that of prescriptive statements which exert, in varying amounts, a psychological “pressure” upon national decision-makers to comply with their substantive content. For example, the norms relating to “freedom of the seas” probably exert an effective pressure against all nation-state officials not to attempt to expropriate to their own use the Atlantic Ocean, and not to interfere with numerous foreign shipping or fishing activities on the high seas. The idea of a rule of law as an indicator of a psychological pressure upon the person to whom it is addressed might be illustrated by a hypothetical example of one of the simplest of all possible rules of law – a “stop” sign on a street or highway. Imagine that one of these traffic signs exists in a community where every driver habitually does not bring his motor vehicle to a full “stop” at the particular sign, but rather shifts into low gear or otherwise slows down his motor vehicle when approaching the sign and then passes it. Has the traffic ordinance represented by the sign been violated? Yes, from a technical, as well as a legal, point of view. A policeman could, if he so desired, arrest any or all of the drivers in that community for failing to observe the “stop” sign. But does the violation of the “stop” sign mean that the sign is of no value in that particular community? Here the answer would have to be in the negative, for the sign functions as a kind of “pressure” upon drivers to slow down. If its purpose was to help to prevent traffic accidents, it may have succeeded admirably by getting motor vehicles to slow down and proceed with caution. […] [O]ne might very well interpret many international rules relating to rights of neutrals, prisoners of war, and so forth, as “pressures” that have some influence in shaping the conduct of war, no matter how many outright violations of those rules occur. […]

[Source: D’AMATO Anthony, The Concept of Custom in International Law, Ithaca, Cornell University Press, 1971, pp. 31-32]

 2.   International Humanitarian Law: the crucial test of international law

 3.   International Humanitarian Law in an evolving international environment

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • BELLINGER John [et al.], “War Bound by Law: Non-State Actors and the Law of Armed Conflict in the Twenty-First Century”, in Duke Journal of Comparative and International Law, Vol. 20, No. 3, 2010, pp. 331-471.
  • BREAU Susan & JACHEC-NEALE Agnieszka (eds), Testing the Boundaries of International Humanitarian Law, London, The British Institute of International and Comparative Law, 2006, 343 pp.
  • BUGNION François, “Le droit international humanitaire à l’épreuve des conflits de notre temps”, in IRRC, No. 835, September 1999, 487-498 pp.
  • CLAPHAM Andrew, “Non-State Actors”, in CHETAIL Vincent (ed.), Post-conflict Peacebuilding: a Lexicon, Oxford, OUP, 2009, pp. 200-213.
  • DAILLIER Patrick, “Les opérations multinationales consécutives à des conflits armés en vue du rétablissement de la paix”, in Recueil des cours [de l’] Académie de droit international, T. 314, 2005 pp. 424-431.
  • DARCY Shane, MAGLIVERAS Konstantinos D. & HANKEL Gerd, “Reforming the Laws of War”, in QUENIVET Noëlle & SHAH-DAVIS Shilan (eds), International Law and Armed Conflict: Challenges in the 21st Century, The Hague, T.M.C. Asser Press, 2010, pp. 317-360.
  • FLECK Dieter, “Contemporary Challenges of International Humanitarian Law”, in Russian Yearbook of International Law 2008, 2009, pp. 65-79. Hague Academy of International Law: Centre for Studies and Research in International Law and International Relations, Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts, Leiden, Boston, M. Nijhoff, 2008, 227 pp.
  • HEINTSCHEL VON HEINEGG Wolff & EPPING Volker (eds), International Humanitarian Law Facing New Challenges: Symposium in Honour of Knut Ipsen, Berlin, Heidelberg, Springer, 2007, 280 pp.
  • HERRMAN Irène & PALMIERI Daniel, “Les nouveaux conflits: une modernité archaïque ?”, in IRRC, No. 849, March 2003, pp. 23-44.
  • LAVOYER Jean-Philippe, “Should International Humanitarian Law be Reaffirmed, Clarified or Developed?”, in IYHR, Vol. 34, 2004, pp. 35-58.
  • MULINEN Frédéric de, “La nécessité de comprendre le droit des conflits armés au 21ème siècle”, in RDMDG, Vol. 38-1/4, 1999, pp. 313-327.
  • MURPHY Ray, “Contemporary Challenges to the Implementation of International Humanitarian Law”, in The Quarterly Journal, Vol. 3/3, 2004, pp. 99-113. “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Excerpt of the Report Prepared by the International Committee of the Red Cross for the 28th International Conference of the Red Cross and Red Crescent, Geneva, December 2003-March 2004”, in IRRC, No. 853, March 2004, pp. 213-244.
  • NOONE Gregory P. [et al.], “Prisoners of War in the 21st Century: Issues in Modern Warfare”, in Naval Law Review, Vol. 50, 2004, pp. 1-69.
  • OSWALD Bruce, “The Law on Military Occupation: Answering the Challenges of Detention During Contemporary Peace Operations?”, in Melbourne Journal of International Law, Vol. 8, No. 2, 2007, 16 pp.
  • PERRIGO Sarah, WITHMAN Jim, The Geneva Conventions under Assault, London, New York, Pluto, 2010, 252 pp.
  • PFANNER Toni, “Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action”, in IRRC, No. 857, March 2005, pp. 149-174.
  • QUENIVET Noëlle & SHAH-DAVIS Shilan (eds), International Law and Armed Conflict: Challenges in the 21st Century, The Hague, T.M.C. Asser Press, 2010, 434 pp.
  • RATNER Steven R., “Geneva Conventions”, in Foreign Policy, March/April 2008, pp. 26-32.
  • REISMAN William Michael, “Assessing Claims to Revise the Laws of War”, in AJIL, Vol. 97/1, 2003, pp. 82-90.
  • SANDOZ Yves, “Prospects for Future Developments in International Humanitarian Law”, in LIJNZAAD Liesbeth, VAN SAMBEEK Johanna & TAHZIB-LIE Bahia (eds), Making the Voice of Humanity Heard, Leiden/Boston, M. Nijhoff, 2004, pp. 339-355.
  • SANDOZ Yves, “International Humanitarian Law in the Twenty-First Century”, in YIHL, Vol. 6 (2003), 2006, pp. 3-40.
  • SCHMITT Michael N., War, Technology, and International Humanitarian Law, Cambridge, Program on Humanitarian Policy and Conflict Research, 2005, 62 pp.
  • SCHMITT Michael N., “21st Century Conflict: Can the Law Survive?”, in Melbourne Journal of International Law, Vol. 8, No. 2, 2007, pp. 443-476.
  • SKERKER Michael, “Just War Criteria and the New Face of War: Human Shields, Manufactured Martyrs, and Little Boys with Stones”, in Journal of Military Ethics, Vol. 3/2, 2004, pp. 27-39.
  • WATKIN Kenneth, “21st Century Conflict and International Humanitarian Law: Status Quo or Change?”, in SCHMITT Michael & PEJIC Jelena (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, M. Nijhoff, Leiden/Boston, 2007, pp. 265-297.
  • WIPPMAN David & EVANGELISTA Matthew (eds), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, New York, Transnational Publishers, 2005, 303 pp.
  1. increasing number of non-international armed conflicts
  2. peace operations

CASES AND DOCUMENTS

  1. non-State armed groups not even aspiring to become States
  2. criminalization of armed conflict and of violations of IHL

 4.   Application of International Humanitarian Law by and in failed States

CASES AND DOCUMENTS

specific bibliography

Suggested reading:

  • CAIN Kenneth L., “The Rape of Dinah: Human Rights, Civil War in Liberia, and Evil Triumphant”, in Human Rights Quarterly, Vol. 21/2, 1999, pp. 265-307.
  • GEISS Robin, “Failed States: Legal Aspects and Security Implications”, in German Yearbook of International Law, Vol. 47, 2004, pp. 457-501.
  • GEISS Robin, “Armed Violence in Fragile States: Low-Intensity Conflicts, Spillover Conflicts, and Sporadic Law Enforcement Operations by Third Parties”, in IRRC, Vol. 91, no. 873, March 2009, pp. 127-142.
  • KRITSIOTIS Dino, “International Humanitarian Law and the Disintegration of States”, in IYHR, Vol. 30, 2000, pp. 17-35.
  • SMITH Stephen, Somalie. La guerre perdue de l’humanitaire, Paris, Calmann-Lévy, 1993, 243 pp.
  • THUERER Daniel, “The ‘Failed State’ and International Law”, in IRRC, No. 836, December 1999, pp. 731-761.
  • THUERER Daniel, “Der Wegfall effektiver Staatsgewalt: Der ‘failed State’”, in Berichte der Deutschen Gesellschaft für Völkerrecht, Vol. 34, Heidelberg, 1995, pp. 9-47.
  • VAN CREVELD Martin, The Transformation of War, New York, Free Press, 1991, 254 pp. Armed Conflicts and Disintegration of States: Humanitarian Challenge: 21st Round Table on Current Problems of International Humanitarian Law, 25 Sepitember 1996, San Remo, International Institute of Humanitarian Law, 1996, 107 pp.

Further reading:

  • COLLMER Sabine, “Child Soldiers: an Integral Element in New, Irregular Wars?”, in The Quarterly Journal, Vol. 3/3, September 2004, pp. 1-11.
  • TAUXE Jean-Daniel, “Liberia, Humanitarian Logistics in Question”, in IRRC, No. 312, June 1996, pp. 352-354. “Les défis actuels de l’action et du droit humanitaires. Journée d’étude du CICR à Paris et forum de Wolfsberg”, in Journal du Centre de Recherches en Droit International, Vol. 27/4, 1997. “Now Back in Liberia, ICRC Calls for Fundamental Reappraisal. ICRC Press Release No. 96/15, 22 April 1996”, in IRRC, No. 312, June 1996, p. 351.

 5.   International Humanitarian Law in asymmetric conflicts

Both sides consider that they cannot “win” without violating (or “reinterpreting”) IHL. [See supra, Concept and Purpose of International Humanitarian Law, Can warfare be regulated by law? Quotation: Thucydides on might and right]

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • BENVENISTI Eyal, “Rethinking the Divide Between Jus ad Bellum and Jus in Bello in Warfare against Non-State Actors”, Yale Journal of International Law, Vol. 34, No. 2, 2009, pp. 541-548.
  • BENVENISTI Eyal, “The Legal Battle to Define the Law on Transnational Asymmetric Warfare”, in Duke Journal of Comparative and International Law, Vol. 20, No. 3, 2010, pp. 339-359.
  • COURMONT Barthélémy & RIBNIKAR Darko, Les guerres asymétriques: conflits d’hier et d’aujourd’hui, terrorisme et nouvelles menaces, Paris, Dalloz, 2nd ed., 2009, 427 pp.
  • GEISS Robin, “Asymmetric Conflict Structures”, in IRRC, Vol. 88, No. 864, December 2006, pp. 757-777.
  • MÜNKLER Herfried, “The Wars of the 21st Century”, in IRRC, No. 849, March 2003, pp. 7-22.
  • OULD MOHAMEDOU Mohammad-Mahmoud, “Non-Linearity of Engagement: Transnational Armed Groups, International Law, and the Conflict between Al Qaeda and the United States”, Harvard Program on Humanitarian Policy and Conflict Research, http://www.hpcr.org.
  • PAULUS Andreas & VASHAKMADZE Mindia, “Asymmetrical War and the Notion of Armed Conflict: a Tentative of Conceptualization”, in IRRC, Vol. 91, No. 873, March 2009, pp. 95-125.
  • PFANNER Toni, “Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action”, in IRRC, No. 857, March 2005, pp. 149-174.
  • ROGERS Anthony P. V., “Unequal Combat and the Law of War”, in YIHL, Vol. 7 (2004), 2006, pp. 3-34.
  • SCHMITT Michael N., “Asymmetrical Warfare and International Humanitarian Law”, in The Air Force Law Review, Vol. 62, 2008, pp. 1-42.
  • VALASEK Tomas, “New Threats, New Rules”, in World Policy Journal, Vol. 20/1, Spring 2003, pp. 17-24.

Further reading:

  • GROSS Michael L., “Asymmetric War, Symmetrical Intentions: Killing Civilians in Modern Armed Conflict”, in Global Crime, Vol. 10, No. 4, November 2009, pp. 320-336.
  • HEINTZE Hans-Joachim, “Terrorism and Asymmetrical Conflicts: a Role for the Martens Clause?”, in GIEGERICH Thomas (ed.), A Wiser Century?: Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years After the Second Hague Peace Conference, Berlin, Duncker and Humblot, 2009, pp. 429-434.
  • KNOOPS Geert-Jan Alexander, “The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities”, in International Criminal Law Review, Vol. 9, No. 3, 2009, pp. 501-529. 
  • LAVOY Peter, Asymmetric Warfare in South Asia: the Causes and Consequences of the Kargil Conflict, Cambridge, CUP, 2009, 407 pp.
  • SCHRÖFL Josef, COX Sean Michael & PANKRATZ Thomas (eds), Winning the Asymmetric War: Political, Social and Military Responses, Frankfurt am Main, P. Lang, 2009, 366 pp.
  • VAN BAARDA Ted, VERWEIJ Désiree, The Moral Dimension of Asymmetrical Warfare: Counter-Terrorism, Democratic Values and Military Ethics, Leiden, Boston, M. Nijhoff, 2009, 529 pp.

 II. Fundamental distinction between jus ad bellum (on the legality of the use of force) and jus in bello (on the humanitarian rules to be respected in warfare)

Introductory text

IHL developed at a time when the use of force was a lawful form of international relations, when States were not prohibited from waging war, when they had the right to make war (i.e., when they had jus ad bellum). It did not appear illogical for international law to oblige them to respect certain rules of behaviour in war (jus in bello) if they resorted to hostilities. Today, the use of force between States is prohibited by a peremptory rule of international law[12] (jus ad bellum has changed into jus contra bellum). Exceptions are admitted in the case of individual and collective self-defence,[13] based upon Security Council resolutions[14] and, arguably, the right of peoples to self-determination[15] (national liberation wars).

Logically, at least one side of an international armed conflict is therefore violating international law by the sole fact of using force, however respectful it is of IHL. By the same token, all municipal laws anywhere in the world prohibit the use of force against (governmental) law enforcement agencies.

Although armed conflicts are prohibited, they happen, and it is today recognized that international law has to address this reality of international life not only by combating the phenomenon, but also by regulating it to ensure a minimum of humanity in this inhumane and illegal situation. For practical, policy and humanitarian reasons, however, IHL has to be the same for both belligerents: the one resorting lawfully to force and the one resorting unlawfully to force. From a practical point of view, respect for IHL could otherwise not be obtained, as, at least between the belligerents, which party is resorting to force in conformity with jus ad bellum and which is violating jus contra bellum is always a matter of controversy. In addition, from the humanitarian point of view, the victims of the conflict on both sides need and deserve the same protection, and they are not necessarily responsible for the violation of jus ad bellum committed by “their” party.

IHL must therefore be respected independently of any argument of, and be completely distinguished from, jus ad bellum. Any past, present and future theory of just war only concerns jus ad bellum and cannot justify (but is in fact frequently used to imply) that those fighting a just war have more rights or fewer obligations under IHL than those fighting an unjust war.

The two Latin terms were coined only in the last century, but Emmanuel Kant already distinguished the two ideas. Earlier, when the doctrine of just war prevailed, Grotius’ temperamenta belli (restraints to the waging of war) only addressed those fighting a just war. Later, when war became a simple fact of international relations, there was no need to distinguish between jus ad bellum and jus in bello. It is only with the prohibition of the use of force that the separation between the two became essential. It has since been recognized in the preamble to Protocol I:

“The High Contracting Parties,

Proclaiming their earnest wish to see peace prevail among peoples,

Recalling that every State has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations,

Believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application,

Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations,

Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict. […]”

This complete separation between jus ad bellum and jus in bello implies that IHL applies whenever there is de facto an armed conflict, no matter how that conflict is qualified under jus ad bellum, and that no jus ad bellum arguments may be used to interpret it; it also implies, however, that the rules of IHL are not to be drafted so as to render jus ad bellum impossible to implement, e.g., render efficient self-defence impossible.

Some consider that the growing institutionalization of international relations through the United Nations, concentrating the legal monopoly of the use of force in its hands or a hegemonic international order, will return IHL to a state of temperamenta belli addressing those who fight for international legality. This would fundamentally modify the philosophy of existing IHL.

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • BOUVIER Antoine, “Assessing the Relationship Between Ius in Bello and Ius ad Bellum: An “Orthodox” View”, in Proceedings of the 100th Annual Meeting, American Society of International Law, 2006, pp. 109-112
  • BUGNION François, “Just War, War of Aggression and International Humanitarian Law”, in IRRC, No. 847, September 2002, pp. 523-546.
  • BUGNION François, “Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts”, YIHL, Vol. 6 (2003), 2007, pp. 167-198.
  • GREENWOOD Christopher, “The Relationship Between Ius ad bellum and Ius in bello”, in Review of International Studies, Vol. 9, 1983, pp. 221-234.
  • KOLB Robert, “Origin of the Twin Terms Ius ad bellum – Ius in bello”, in IRRC, No. 320, October 1997, pp. 553-562.
  • KOOIJMANS Peter, “Is there a Change in the Ius ad bellum and, if so, What Does it Mean for the Ius in bello ?”, in LIJNZAAD Liesbeth, VAN SAMBEEK Johanna & TAHZIB-LIE Bahia (eds), Making the Voice of Humanity Heard, Leiden/Boston, M. Nijhoff, 2004, pp. 225-237.
  • MEYROWITZ Henri, Le principe de l’égalité des belligérants devant le droit de la guerre, Paris, Pedone, 1970, 418 pp.
  • MOUSSA Jasmine, “Can Jus ad Bellum Override Jus in Bello ?: Reaffirming the Separation of the Two Bodies of Law”, in IRRC, Vol. 90, No. 872, December 2008, pp. 963-990.
  • ROBERTS Adam, “The Equal Application of the Laws of War: a Principle under Pressure”, in IRRC, Vol. 90, No. 872, December 2008, pp. 931-962. 
  • SASSÒLI Marco, “Ius ad bellum and Ius in Bello – The Separation between the Legality of the Use of Force and Humanitarian Rules to be Respected in Warfare: Crucial or Outdated?”, in SCHMITT Michael & PEJIC Jelena (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, M. Nijhoff, Leiden/Boston, 2007, pp. 242-264.

Further reading:

  • BELLAMY Alex J., Just Wars: from Cicero to Iraq, Cambridge, Malden, Polity, 2006, 280 pp.
  • BOTTOMS Jennifer, “When Close Doesn’t Count: an Analysis of Israel’s Jus ad Bellum and Jus in Bello in the 2006 Israel-Lebanon War”, in The Army Lawyer, April 2009, pp. 23-54.
  • BROWNLIE Ian, International Law and the Use of Force by States, Oxford, Clarendon Press, 1963, 532 pp.
  • DINSTEIN Yoram, War, Aggression and Self-defence, Cambridge, CUP, 2001, 300 pp.
  • GILL Terry, “The Nuclear Weapons Advisory Opinion of the International Court of Justice and the Fundamental Distinction between the Ius ad bellum and the Ius in bello”, in Leiden Journal of International Law, Vol. 12/3, 1999, 613-624 pp.
  • GREENWOOD Christopher, “Self-Defence and the Conduct of International Armed Conflict”, in DINSTEIN Yoram (ed.), International Law at a Time of Perplexity, Dordrecht, M. Nijhoff, 1988, pp. 273-288.
  • HENSEL Howard M. (ed.), The Legitimate Use of Military Force: the Just War Tradition and the Customary Law of Armed Conflict, Hampshire, Ashgate, 2008, 300 pp.
  • LAUTERPACHT Hersch, “Rules of Warfare in An Unlawful War”, in LIPSKY George A. (ed.), Law and Politics in the World Community, Berkeley, University of California Press, 1953, pp. 89-113.
  • MACDONAGH Melanie, “Can there be such a Thing as a Just War?”, in International Journal of Human Rights, Vol. 4/3-4, 2000, pp. 289-294.
  • McDONALD Avril, “Declaration of War and Belligerent Parties: International Law Governing Hostilities Between States and Transnational Terrorist Networks”, in Netherlands International Law Review, Vol. 54, No. 2, 2007, pp. 279-314.
  • MÜLLERSON Rein, “On the Relationship Between Ius ad bellum and Ius in bello in the General Assembly Advisory Opinion”, in BOISSON DE CHAZOURNES Laurence (ed.), International Law, the International Court of Justice and Nuclear Weapons, Cambridge, CUP, 1999, pp. 267-274.
  • ORAKHELASHVILI Alexander, “Overlap and Convergence: the Interaction between Jus ad Bellum and Jus in Bello”, in Journal of Conflict and Security Law, Vol. 12, No. 2, 2007, pp. 157-196.
  • SCELLE Georges, “Quelques réflexions sur l’abolition de la compétence de la guerre”, in RGDIP, 1954, pp. 5-22.
  • SHEARER Yvan, “A Revival of the Just War Theory?”, in SCHMITT Michael & PEJIC Jelena (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, Leiden/Boston, M. Nijhoff, 2007, pp. 1-20.
  • STAHN Carsten, “Jus ad bellum”, “Jus in Bello”… “Jus Post Bellum”?: Rethinking the Conception of the Law of Armed Force”, in EJIL, Vol. 17, No. 5, November 2006, pp. 921-943.
  • WALZER Michael, Just and Unjust Wars, A Moral Argument with Historical Illustrations, 3rd ed., New York, Basic Books, 2000, 361 pp.
  • WRIGHT Quincy, “The Outlawry of War and the Law of War”, in AJIL, Vol. 47/3, 1953, pp. 365-376.

 1. The prohibition of the use of force and its exceptions

CASES AND DOCUMENTS

specific bibliography

Suggested reading:

  • BACOT Guillaume, La doctrine de la guerre juste, Paris, Economica, 1989, 86 pp.
  • BUTLER William E. (ed.), The Non-use of Force in International Law, Dordrecht, M. Nijhoff, 1989, 250 pp.
  • CASSESE Antonio (ed.), The Current Legal Regulation of the Use of Force, Dordrecht, M. Nijhoff, 1986, 536 pp.
  • CASSESE Antonio, “Article 51”, in COT Jean-Pierre & PELLET Alain (ed.), La Charte des Nations Unies, 2nd edition, Brussels/Paris, Bruylant/Economica, 1991, pp. 769-794.
  • CASSESE Antonio, Self-Determination of Peoples: a Legal Reappraisal, Cambridge, CUP, 1995, 393 pp.
  • CHESTERMAN Simon, Just War or Just Peace: Humanitarian Intervention and International Law, Oxford, OUP, 2001, 295 pp.
  • DINSTEIN Yoram, War, Aggression and Self-defence, 3rd edition, Cambridge, CUP, 2001, 318 pp.
  • GARDAM Judith, Necessity, Proportionality and the Use of Force by States, Cambridge, CUP, 2004, 259 pp.
  • GRAY Christine, International Law and the Use of Force, 3rd ed., Oxford, OUP, 2008, 455 pp.
  • SASSÒLI Marco, “The Concept of Security in International Law Relating to Armed Conflicts”, in BAILLIET Cécilia M., Security: a Multidisciplinary Normative Approach, Leiden, Boston, M. Nijhoff, 2009, pp. 7-23.
  • VERHOVEN Sten, “A Missed Opportunity to Clarify the Modern Ius ad Bellum: Case Concerning Armed Activity on the Territory of the Congo”, in Revue de droit militaire et de droit de la guerre, Vol. 3-4, No 45, 2006, pp. 355-368.

 2.   The complete separation between jus ad bellum and jus in bello

P I, Preamble, para. 5

Quotation

PUBLIC LAW II – International Law

Paragraph 53:

[…] The public Right of States […] in their relations to one another, is what we have to consider under the designation of the Right of Nations. Wherever a State, viewed as a Moral Person, acts in relation to another existing in the condition of natural freedom, and consequently in a state of continual war, such Right takes its rise.

The Right of Nations in relation to the State of War may be divided into: 1. The Right of going to War; 2. Right during War; and 3. Right after War, the object of which is to constrain the nations mutually to pass from this state of war, and to found a common Constitution establishing Perpetual Peace. […] Paragraph 57:

The determination of what constitutes Right in War is the most difficult problem of the Right of Nations and International Law. It is difficult even to form a conception of such a Right, or to think of any Law in this lawless state without falling into a contradiction. Inter arma silent leges. It must then be just the right to carry on War according to such principles as render it always still possible to pass out of that natural condition of states in their external relations to each other, and to enter into a condition of Right.

[Source: Kant, I., The Philosophy of Law. An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right. Translated from the German by W. Hastie BD, Edinburgh, 1887, paras 53 & 57]

CASES AND DOCUMENTS

  1.  Historical development

aa) temperamenta belli only for those fighting a bellum justum (just war)

bb) war as a fact of international life – jus durante bello (law during war)

cc) the prohibition of the use of force

Quotation 

Laws of War. 18. The Commission considered whether the laws of war should be selected as a topic for codification. It was suggested that, war having been outlawed, the regulation of its conduct had ceased to be relevant. On the other hand, the opinion was expressed that, although the term “laws of war” ought to be discarded, a study of the rules governing the use of armed force – legitimate or illegitimate – might be useful. The punishment of war crimes, in accordance with the principles of the Charter and Judgment of the Nürnberg Tribunal, would necessitate a clear definition of those crimes and, consequently, the establishment of rules which would provide for the case where armed force was used in a criminal manner. The majority of the Commission declared itself opposed to the study of the problem at the present stage. It was considered that if the Commission, at the very beginning of its work, were to undertake this study, public opinion might interpret its action as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace.

 [Source: Yearbook of the International Law Commission, New York, UN, 1949, p. 281] dd) peace operations and international police operations: return of temperamenta belli?

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • DAILLIER Patrick, “Les opérations multinationales consécutives à des conflits armés en vue du rétablissement de la paix”, in Recueil des cours [de l’] Académie de droit international, T. 314, 2005 pp. 424-431.
  • FLECK Dieter, “Law Enforcement and the Conduct of Hostilities: Two Supplementing or Mutually Excluding Legal Paradigms?”, in Frieden in Freiheit = Peace in Liberty = Paix en liberté: Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos; Zürich, Dike, 2008, pp. 391-407.
  • ZWANENBURG Martin, “Pieces of the Puzzle: Peace Operations, Occupation and the Use of Force”, in The Military Law and the Law of War Review, Vol. 1-2, No. 45, 2006, pp. 239-248.
  1.  Reasons

CASES AND DOCUMENTS

aa) Logical reasons: once the primary rules prohibiting the use of force (i.e. jus ad bellum) have been violated, the subsidiary rules of jus in bello must apply, as they are foreseen specifically for situations in which the primary rules have been violated.

bb) Humanitarian reasons: war victims are not responsible for the fact that “their” State has violated international law (i.e. jus ad bellum) and need the same protection, whether they are on the “right” or on the “wrong” side.

cc) Practical reasons: during a conflict, belligerents never agree on which among them has violated jus ad bellum, i.e. who is the aggressor; IHL has to apply during the conflict. It will only be respected if both sides have to apply the same rules.

  1.  Consequences of the distinction

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • MEYROWITZ Henri, Le principe de l’égalité des belligérants devant le droit de la guerre, Paris, Pedone, 1970, 418 pp.
  • ROBERTS Adam, “The Equal Application of the Laws of War: A Principle under Pressure”, in IRRC, Vol. 90, No. 872, December 2008, pp. 931-962.

bb) IHL applies independently of the qualification of the conflict under jus ad bellum

CASES AND DOCUMENTS

cc) Arguments under jus ad bellum may not be used to interpret IHL

CASES AND DOCUMENTS

dd) Jus ad bellum may not render application of IHL impossible

ee) IHL may not render the application of jus ad bellum, e.g. self-defence, impossible

  1.  Contemporary threats to the distinction

CASES AND DOCUMENTS

aa) New concepts of “just” (or even “humanitarian”) war

bb) “International police action”: international armed conflicts turn into law enforcement operations directed by the international community, those who represent it (or claim to represent it) against “outlaw States”.

cc) In many asymmetric conflicts, the means available to the parties are materially so different, and those they actually use morally so distinct, that it appears increasingly unrealistic to subject them to the same rules.

Specific bibliography

Suggested reading:

  • BURKE Anthony, “Just War or Ethical Peace?: Moral Discourses of Strategic Violence after 9/11”, in International Affairs, Vol. 80/2, March 2004, pp. 329-353.
  • SKERKER Michael, “Just War Criteria and the Face of War: Human Shields, Manufactured Martyrs, and Little Boys with Stones”, in Journal of Military Ethics, Vol. 3/1, 2004, pp. 27-39.
  • SUBEDI Surya, “The Concept in Hinduism of ‘Just War’”, in Journal of Conflict and Security Law, Vol. 8/2, October 2003, pp. 339-361.

 3.   The distinction in non-international armed conflicts

CASES AND DOCUMENTS

  1.  International law does not prohibit non-international armed conflicts; domestic law does.
  2.  IHL treats parties to a non-international armed conflict equally, but cannot oblige domestic laws to do so.

Specific bibliography

Suggested reading:

  • BUGNION François, “Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts”, in YIHL, Vol. 6 (2003), 2007, pp. 167-198.

 III. International Humanitarian Law: a branch of international law governing the conduct of States and individuals

 1. Situations of application

Introductory text

IHL applies in two very different types of situations: international armed conflicts and non-international armed conflicts. Technically, the latter are called “armed conflicts not of an international character”. It has been held, but is not entirely uncontested, that every armed conflict which “does not involve a clash between nations” is not of an international character, and that the latter phrase “bears its literal meaning”.[16] All armed conflicts are therefore either international or non-international, and the two categories have to be distinguished according to the parties involved rather than by the territorial scope of the conflict.

  1.  International armed conflict

The IHL relating to international armed conflicts applies “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.”[17]

The notion of “armed conflict” has, from 1949 onwards, replaced the traditional notion of “war”. According to the Commentary,[18] ”[t]he substitution of this much more general expression (‘armed conflict’) for the word ‘war’ was deliberate. One may argue almost endlessly about the legal definition of ‘war’. A State can always pretend, when it commits a hostile act against another State, that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression ‘armed conflict’ makes such arguments less easy. Any difference arising between two States and leading to the intervention of armed forces is an armed conflict […] even if one of the Parties denies the existence of a state of war […].” The ICTY confirmed in the Tadic case that “an armed conflict exists whenever there is a resort to armed force between States […]”.[19] This definition has since been used several times by the ICTY’s Chambers and by other international bodies.[20] When the armed forces of two States are involved, suffice it for one shot to be fired or one person captured (in conformity with government instructions) for IHL to apply, while in other cases (e.g. a summary execution by a secret agent sent by his government abroad), a higher level of violence is necessary.

The same set of provisions also applies “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no resistance […].”[21] In application of a standard rule of the law of State responsibility on the attribution of unlawful acts, a conflict between governmental forces and rebel forces within a single country becomes of international character if the rebel forces are de facto agents of a third State. In this event, the latter’s conduct is attributable to the third State[22] and governed by the IHL of international armed conflicts.

According to the traditional doctrine, the notion of international armed conflict was thus limited to armed contests between States. During the Diplomatic Conference of 1974-1977, which lead to the adoption of the two Additional Protocols of 1977, this conception was challenged and it was finally recognized that “wars of national liberation”[23] should also be considered as international armed conflicts.

  1.  Non-international armed conflict

Traditionally, non-international armed conflicts (or, to use an outdated term, “civil wars”) were considered as purely internal matters for States, in which no international law provisions applied.

This view was radically modified with the adoption of Article 3 common to the four Geneva Conventions of 1949. For the first time the society of States agreed on a set of minimal guarantees to be respected during non-international armed conflicts.

Unlike violence between the armed forces of States, not every act of violence within a State (even if directed at security forces) constitutes an armed conflict. The threshold of violence needed for the IHL of non-international armed conflicts to apply is therefore higher than for international armed conflicts. In spite of the extreme importance of defining this lower threshold below which IHL does not apply at all, Article 3 does not offer a clear definition of the notion of non-international armed conflict.[24]

During the Diplomatic Conference, the need for a comprehensive definition of the notion of non-international armed conflict was reaffirmed and dealt with accordingly in Article 1 of Additional Protocol II.

According to that provision, it was agreed that Protocol II “[s]hall apply to all armed conflicts not covered by Article 1 […] of 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 […]”.

It should be noted that this fairly restrictive definition applies only to Protocol II. It does not apply to Article 3 common to the four Geneva Conventions.[25] Practically, there are thus situations of non-international armed conflict in which only common Article 3 will apply, because the level of organization of the dissident groups is insufficient for Protocol II to apply, or the fighting is between non-State armed groups. Conversely, common Article 3 will apply to all situations where Protocol II is applicable.

Moreover, the ICC Statute provides an intermediary threshold of application. It does not require that the conflict be between governmental forces and rebel forces, that the latter control part of the territory, or that there be a responsible command.[26] The conflict must, however, be protracted and the armed groups must be organized. The jurisprudence of the ICTY has, in our view correctly, replaced the conflict’s protracted character by a requirement of intensity. It requires a high degree of organization and violence for any situation to be classified as an armed conflict not of an international character.[27]

Today, there is a general tendency to reduce the difference between IHL applicable in international and in non-international armed conflicts. The jurisprudence of international criminal tribunals, the influence of human rights and even some treaty rules adopted by States have moved the law of non-international armed conflicts closer to the law of international armed conflicts, and it has even been suggested in some quarters that the difference be eliminated altogether. In the many fields where the treaty rules still differ, this convergence has been rationalized by claiming that under customary international law the differences between the two categories of conflict have gradually disappeared. The ICRC study on customary International Humanitarian Law [28] comes, after ten years of research, to the conclusion that 136 (and arguably even 141) out of 161 rules of customary humanitarian law, many of which are based on rules of Protocol I applicable as a treaty to international armed conflicts, apply equally to non-international armed conflicts.

Cases and documents

  1.  Other situations

IHL is not applicable in situations of internal violence and tension which do not meet the threshold of non-international armed conflicts. This point has been clearly made in Article 1(2) of Additional Protocol II, which states: “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 […].”[IHL does not necessarily mean lesser protection for the persons concerned. In such cases, human rights rules and peacetime domestic law would apply; they are more restrictive, for instance, regarding the use of force and detention of enemies, while IHL gives States greater latitude on these two aspects.

is not applicable in situations of internal violence and tension which do not meet the threshold of non-international armed conflicts. This point has been clearly made in Article 1(2) of Additional, which states: “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 […].”[ 29 ] The non-applicability ofdoes not necessarily mean lesser protection for the persons concerned. In such cases, human rights rules and peacetime domestic law would apply; they are more restrictive, for instance, regarding the use of force and detention of enemies, whilegives States greater latitude on these two aspects.

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • BARTELS Rogier, “Timelines, Borderlines and Conflicts: the Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts”, in IRRC, Vol. 91, No. 873, March 2009, pp. 35-67.
  • CARSWELL Andrew J., “Classifying the Conflict: a Soldier’s Dilemma”, in IRRC, Vol. 91, No. 873, March 2009, pp. 143-161.
  • DAHL Arne Willy & SANDBU Magnus, “The Threshold of Armed Conflict”, in Revue de droit militaire et de droit de la guerre, Vol. 3-4, No. 45, 2006, pp. 369-388.
  • GREENWOOD Christopher, “Scope of Application of Humanitarian Law”, in FLECK Dieter (ed.), Handbook of Humanitarian Law, Oxford, OUP, 2nd ed., 2008, pp. 201-263.
  • KWAKWA Edward K., The International Law of Armed Conflict: Personal and Material Fields of Application, Dordrecht, Kluwer, 1992, 208 pp.
  • O’CONNELL Mary Ellen, Defining Armed Conflict”, in Journal of Conflict & Security Law, Vol. 13, No. 3, 2008, pp. 393-400.
  • SASSÒLI Marco, “The Legal Qualification of the Conflicts in the former Yugoslavia: Double Standards or New Horizons for International Humanitarian Law?”, in WANG Tieya & YEE Sienho (eds), International Law in the Post-Cold War World: Essays in Memory of Li Haopei, Routledge, London, 2001, pp. 307-333.
  • SCHINDLER Dietrich, “The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols”, in Collected Courses, Vol. 163, 1979, pp. 119-163.
  • SIOTIS Jean, Le droit de la guerre et les conflits armés d’un caractère non international, Paris, LGDJ, 1958, 248 pp.
  • SIVAKUMARAN Sandesh, “Identifying an Armed Conflict not of an International Character”, in STAHN Carsten & SLUITER Göran (eds), The Emerging Practice of the International Criminal Court, Leiden, Boston, M. Nijhoff, 2009, pp. 363-380.
  • THAHZIB-LIE Bahia & SWAAK-GOLDMAN Olivia, “Determining the Threshold for the Application of International Humanitarian Law”, in LIJNZAAD Liesbeth, VAN SAMBEEK Johanna & TAHZIB-LIE Bahia (eds), Making the Voice of Humanity Heard, Leiden/Boston, M. Nijhoff, 2004, pp. 239-253.
  • VITE Sylvain, “Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations”, in IRRC, Vol. 91, No. 873, March 2009, pp. 69-94.

Further reading:

  • BALENDRA Natasha, “Defining Armed Conflict”, in Cardozo Law Review, Vol. 29, No. 6, 2008, pp. 2461-2516.
  • BYRON Christine, “Armed Conflicts: International or Non-International?”, in Journal of Conflict and Security Law, Vol. 6, No. 1, June 2011, pp. 63-90.
  • CRAWFORD Emily, “Blurring the Lines Between International and Non-International Armed Conflicts: The Evolution of Customary International Law Applicable in Internal Armed Conflicts”, in Australian International Law Journal, Vol. 15, 2008, pp. 29-54.
  • GAVSHON Daniela, “The Applicability of IHL in Mixed Situations of Disaster and Conflict”, in Journal of Conflict and Security Law, Vol. 14, No. 2, 2010, pp. 243-263.
  • KÜEFNER Stefanie, “The Threshold of Non-International Armed Conflict: the Tadic Formula and its First Criterion Intensity”, in Militair-Rechtelijk Tijdschrift, Vol. 102, Issue 6, 2009, pp. 301-311.
  • LA HAYE Eve, War Crimes in Internal Armed Conflicts, Cambridge, CUP, 2008, 424 pp.
  • STEWART James G., “Towards a Single Definition of Armed Conflict in International Humanitarian Law: a Critique of Internationalized Armed Conflict”, in IRRC, No. 850, June 2003, pp. 313-349.
  • VERHOEVEN Sten, “International and Non-International Armed Conflicts”, in Institute for International Law K.U. Leuven, Working Paper No. 107, 2007, 22 pp.
  1.  qualification not left to the parties to the conflict

CASES AND DOCUMENTS

  1.  international armed conflicts

GC IIV, Art. 2

CASES AND DOCUMENTS

aa) inter-State conflicts

CASES AND DOCUMENTS

  • old concept of war abandoned

CASES AND DOCUMENTS

    • necessary level of violence?

CASES AND DOCUMENTS

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • ABI-SAAB Georges, “Wars of National Liberation in the Geneva Conventions and Protocols”, in Collected Courses, Vol. 165, 1979, pp. 353-445.
  • KOENIG Christian, Wars of National Liberation and Modern International Humanitarian Law. A Consideration of the Scope of Application of Article I, para. 4 of Additional Protocol I to the 1949 Geneva Conventions, Frankfurt, Peter Lang, Europäische Hochschulschriften, Vol. 752, 1988, 209 pp.

Further reading:

  • DE SAINT MAURICE Thomas, “Sahara occidental 2001: prélude d’un fiasco annoncé”, in Actualité et Droit International, February 2002, http://www.ridi.org/adi, 10 pp.
  • DRAPER Gerald I.A.D. “Wars of National Liberation and War Criminality”, in HOWARD Michael, Restraints on War, Oxford, OUP, 1979, pp. 135-162.
  • DUNBAR Charles, “Sahara Stasis: Status and Future Prospects of the Western Sahara Conflict”, in The Middle East Journal, Vol. 54/4, 2000, pp. 522-545.
  • HIGGINS Noelle, “The Regulation of Armed Non-State Actors: Promoting the Application of the Laws of War to Conflicts Involving National Liberation Movements”, in Human Rights Brief, Vol. 17, Issue 1, 2009, pp. 12-18.
  • HIGGINS Noelle, Regulating the Use of Force in Wars of National Liberation: the Need for a New Regime: a Study of the South Moluccas and Aceh, Leiden, Boston, M. Nijhoff, 2010, 266 pp.
  • WERNER Walter G., “Self-determination and Civil War”, in Journal of Conflict and Security Law, Vol. 6/2, 2001, 171-190 pp.
  • WILSON Heather A., International Law and the Use of Force by National Liberation Movements, Oxford, Clarendon Press, 1988, 209 pp.
  1.  non-international armed conflicts

CASES AND DOCUMENTS

  1.  Acts of terrorism?

Introductory text

IHL only applies to armed conflicts and therefore covers terrorist acts only when they are committed within the framework or as part of an armed conflict. Acts of terrorism committed in situations of internal violence or in time of peace are not covered by IHL. However, acts of terrorism are also prohibited by internal and international criminal law.[30] Violence does not constitute an armed conflict simply because it is committed with terrorist means. As shown above, international armed conflicts are characterized by the fact that two States use violence against each other, while non-international armed conflicts are characterized by the degree of violence and organization of the parties. In both cases it does not matter whether lawful or unlawful means are used. Terrorist acts may therefore constitute (and trigger) an international armed conflict (when committed by a State – or its de jure or de facto agents – against another State) or a non-international armed conflict (when committed by an organized armed group fighting a State and its governmental authorities).

In both cases (or when terrorist acts are committed during a pre-existing armed conflict), IHL prohibits the most common and typical acts of terrorism, even if committed for the most legitimate cause: attacks against civilians,[31] indiscriminate attacks,[32] acts or threats whose main aim is to spread terror among the civilian population[33] and acts of “terrorism” aimed against civilians in the power of the enemy.[34] In most cases, such acts are considered war crimes that must be universally prosecuted.[35]

There is, however, no universally recognized definition of an act of terrorism. The two main controversies preventing States from reaching a consensus on this point are related to armed conflicts. On the one hand, some States want to exclude acts committed in national liberation wars and in resistance to foreign occupation from the definition (which conflates, from an IHL perspective, jus ad bellum and jus in bello). On the other hand, it is suggested that the definition should cover not only attacks against civilians and indiscriminate acts, but also attacks on government agents and property the purpose of which is to compel the government to do or to abstain from doing something. As this is the essence of any warfare, this would label as “terrorist” and criminalize acts which are not prohibited in armed conflicts by IHL (and would therefore not encourage compliance by armed groups). 

IHL applies equally to those who commit acts of terrorism (regular armed forces, national liberation movements, resistance movements, dissident armed forces engaged in an internal armed conflict or groups who, as their main action consists of terrorist acts, can be considered as terrorist groups) and to their opponents. Recourse to armed force against groups considered as terrorist is therefore subject to the same rules as in any other armed conflict.

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • FERNANDO-SANCHEZ Pablo Antonio (ed.), International Legal Dimension of Terrorism (See in particular Part IV, ‘Terrorism and Armed Conflicts”), Leiden, M. Nijhoff, 2009, 512 pp.
  • GASSER Hans-Peter, “Acts of ‘Terrorism’ and International Humanitarian Law”, in IRRC, No. 897, September 2002, pp. 547-570.
  • GASSER Hans-Peter, “Prohibition of Terrorist Acts in International Humanitarian Law”, in IRRC, No. 253, August 1986, pp. 200-212.
  • GASSER Hans-Peter, “International Humanitarian Law, the Prohibition of Terrorist Acts and the Fight against Terrorism”, in YIHL, Vol. 4, 2001, pp. 329-347.
  • GILBERT Paul, New Terror, New Wars, Edinburgh, Edinburgh Press University, 2004, 208 pp.
  • HOFFMAN Michael H., “State Practice, the Customary Law of War and Terrorism: Adapting Old Rules to Meet New Threats”, in IYHR, Vol. 34, 2004, pp. 231-249.
  • JODOIN Sébastien, “Terrorism as a War Crime”, in International Criminal Law Review, Vol. 7, No. 1, 2007, pp. 77-115.
  • KLABBERS Jan, “Rebel with a Cause? Terrorists and Humanitarian Law”, in EJIL, Vol. 14/2, April 2003, pp. 299-312.
  • LAVOYER Jean-Philippe, “International Humanitarian Law and Terrorism”, in LIJNZAAD Liesbeth, VAN SAMBEEK Johanna & TAHZIB-LIE Bahia (eds), Making the Voice of Humanity Heard, Leiden/Boston, M. Nijhoff, 2004, pp. 255-270.
  • LOBEL Jules, “The Use of Force to Respond to Terrorist Attacks: the Bombing of Sudan and Afghanistan”, in The Yale Journal of International Law, Vol. 24/2, 1999, pp. 537-557.
  • NEUMAN Gerald L. “Humanitarian Law and Counterterrorist Force”, in EJIL, Vol. 14/2, April 2003, pp. 283-298.
  • POWELL C.H. & ABRAHAM Garth, “Terrorism and International Humanitarian Law”, in African Yearbook on International Humanitarian Law, 2006, pp. 118-147.
  • QUENIVET Noëlle, “The Applicability of International Humanitarian Law to Situations of a (Counter-)Terrorist Nature”, in ARNOLD Roberta & HILDBRAND Pierre-Antoine (eds), International Humanitarian Law and the 21st Century’s Conflicts, Lausanne, Edis, 2005, pp. 25-59.
  • ROBERTS Adam, “Counter Terrorism, Armed Force and the Laws of War”, in Survival, Vol. 44/1, 2002, pp. 7-32.
  • RUBIN Alfred P., “Applying the Geneva Conventions: Military Commissions, Armed Conflict, and Al-Qaeda”, in The Fletcher Forum of World Affairs, Vol. 26/1, 2002, pp. 79-81.
  • SANDOZ Yves, “Lutte contre le terrorisme et droit international: risques et opportunités”, in Revue Suisse de Droit International et de Droit Européen, Vol. 3, 2002, pp. 319-354.
  • SASSÒLI Marco, “Terrorism and War”, in Journal of International Criminal Justice, Vol. 4, Issue 5, 2006, pp. 969-981.
  • SASSÒLI Marco, “La définition du terrorisme et le droit international humanitaire”, in Revue québécoise de droit international, Vol. 19, hors-série, 2007, pp. 29-48.
  • SAUL Ben, Defining Terrorism in International Law, Oxford, OUP, 2006, 373 pp.
  • SVARC Dominika, “The Use of Military Force in the Fight Against Terrorism: International Legal Framework”, in ISIL Yearbook of International Humanitarian and Refugee Law, Vol. 6, 2006, pp. 142-168.
  • TRAVALIO Gregory M., “Terrorism, International Law, and the Use of Military Force”, in Wisconsin International Law Journal, Vol. 18/1, 2000, pp. 145-191.
  • VAREILLES Thierry, Encyclopédie du Terrorisme International, Paris, L’Harmattan, 2001, 549 pp.
  • WAXMAN Matthew C., “The Structure of Terrorism Threats and the Laws of War”, in Duke Journal of Comparative and International Law, Vol. 20, No. 3, 2010, pp. 429-455. 
  • WEDGWOOD Ruth, “Responding to Terrorism: the Strikes Against Bin Laden”, in The Yale Journal of International Law, Vol. 24/2, 1999, pp. 559-576.
  • Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser. L/V/II.116 Doc. 5 rev. 1 corr., 22 October 2002, http://www.cidh.oas.org/Terrorism/Eng/toc.htm.
  1.  The global war on terror?

Following the attacks of 11 September 2001 against New York and Washington D.C., perpetrated by members of the terrorist group al-Qaeda, the administration of President George W. Bush declared that the United States was engaged in a global “war on terror”,[36] an international armed conflict against a non-State actor (al-Qaeda) and its associates. That “war” comprised not only a military campaign against Afghanistan (which harboured al-Qaeda leaders), but also attacks directed at and arrests of suspected members of al-Qaeda or other “terrorists” elsewhere in the world. While the United States claimed in this conflict all the prerogatives that IHL confers upon a party to an international armed conflict, in particular to attack “unlawful enemy combatants” without necessarily trying to arrest them, and to detain them without benefit of a court decision, it denied these detainees protection by most of IHL, arguing that their detention was governed neither by the rules applying to combatants nor by those applicable to civilians.[37

In 2006, the US Supreme Court held that every armed conflict which “does not involve a clash between nations” is not of an international character, and that the latter phrase “bears its literal meaning”.[38

Under President Barack Obama, the United States has abandoned the terms “war on terror” and “unlawful combatants”. While its position was still under review in 2010, it continued to argue that an armed conflict exists (and that IHL applies) between the United States, on the one hand, and al-Qaeda, the Taliban and “associated” forces, on the other. While not explicitly classifying this “novel type of armed conflict” as international or non-international, it holds that, at least by analogy, the IHL of international armed conflicts applies, and that those who provide “substantial support” to the enemy may be attacked and detained under “the laws of war”, just as enemy combatants could under the law of international armed conflicts.[39]

Critics object that a conflict between a State or a group of States, on the one hand, and a non-State group such as al-Qaeda, on the other, could at best be a non-international armed conflict, if the requirements of intensity of violence and of organization of the non-State armed group are fulfilled.[40] The IHL of non-international armed conflicts, they argue, does not have a worldwide geographical field of application. Non-international armed conflicts with al-Qaeda may exist in Afghanistan and in Pakistan, but not elsewhere. Even if and where the IHL of non-international armed conflicts applies, its rules on the admissibility of the detention of, and attacks against, enemy fighters are not the same as those applicable in international armed conflicts to enemy combatants.

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • BOGAR Thomas, “Unlawful Combatant or Innocent Civilian? A Call to Change the Current Means for Determining Status of Prisoners in the Global War on Terror”, in Florida Journal of International Law, Vol. 21, No. 1, April 2009, pp. 29-91.
  • BYERS Michael, “Terrorism, the Use of Force and International Law after 11 September”, in ICLQ, Vol. 51/2, 2002, pp. 401-414.
  • CASSESE Antonio, “Terrorism is also Disrupting Crucial Legal Categories of International Law”, in EJIL, Vol. 12/5, 2001, pp. 993-1001.
  • CONDORELLI Luigi & NAQVI Yasmin, “The War against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date?”, in BIANCHI Andrea (ed.), Enforcing International Law Norms against Terrorism, Oxford, Hart, 2004, pp. 25-37.
  • EMANUELLI Claude, “Faut-il parler d’une “guerre” contre le terrorisme?”, in Canadian Yearbook of International Law, Vol. 46, 2008, pp. 415-430.
  • GRAHAM DAVID E., “The Law of Armed Conflict and the War on Terrorism”, in JACQUES Richard B. (ed.), Issues in International Law and Military Operations, in International Law Studies, Vol. 80, 2006, pp. 331-337. 
  • GREENWOOD Christopher, “International Law and the ‘War against Terrorism’”, in International Affairs, Vol. 78/2, 2002, pp. 301-317.
  • KRESS Klaus, “Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts”, in Journal of Conflict & Security Law, Vol. 15, Issue 2, 2010, pp. 245-274.
  • LEWIS Michael W., The War on Terror and the Laws of War: a Military Perspective, New York, OUP, 2009, 248 pp. 
  • O’CONNELL Mary Ellen, International Law and the “Global War on Terror”, Paris, Pedone, 2007, 93 pp.
  • SASSÒLI Marco, “La ‘guerre contre le terrorisme’, le droit international humanitaire et le statut de prisonnier de guerre”, in CYIL, Vol. 39, 2001, pp. 211-252.
  • SASSÒLI Marco, “Use and Abuse of the Laws of War in the ‘War Against Terrorism’”, in Law and Inequality: A Journal of Theory and Practice, Vol. 22, 2004, pp. 195-221.

Further reading:

  • BELLAMY Alex J., “No Pain, No Gain?  Torture and Ethics in the War on Terror”, in International Affairs, Vol. 82, No. 1, January 2006, pp. 121-146. 
  • CORN Geoffrey S. & JENSEN Eric Talbot, “Transnational Armed Conflict: A ‘Principled’ Approach to the Regulation of Counter-Terror Combat Operations”, in Israel Law Review, Vol. 42, 2009, p. 46.
  • EVANGELISTA Matthew, Law, Ethics, and the War on Terror, Cambridge, Malden, Polity, 2008, 202 pp.
  • FISCHER Miles P., “Legal Issues Surrounding Guantánamo Bay: Essay: Applicability of the Geneva Conventions to “Armed Conflict” in the War on Terror”, in Fordham International Law Journal, Vol. 30, No. 3, February 2007, pp. 509-534.
  • FORSYTHE David P., “United States Policy Toward Enemy Detainees in the “War on Terrorism””, in Human Rights Quarterly, Vol. 28, No. 2, May 2006, pp. 465-491.
  • GOLDSTONE Richard J., “Symposium: from Nuremberg to Abu Ghraib: the Relevance of International Criminal Law to the Global War on Terror”, in Michigan State Journal of International Law, Vol. 14, No. 1, 2006, pp. 1-138.
  • KING Faiza Patel & SWAAK-GOLDMAN Olivia, “The Applicability of International Humanitarian Law to the ‘War against Terrorism’”, in Hague Yearbook of International Law, Vol. 15, 2002, pp. 39-49.
  • McDONALD Neil & SULLIVAN Scott, “Rational Interpretation in Irrational Times: The Third Geneva Convention and War on Terror”, in Harvard International Law Journal, Vol. 44/1, 2003, pp. 301-316.
  • McDONALD Avril, “Declaration of War and Belligerent Parties: International Law Governing Hostilities Between States and Transnational Terrorist Networks”, in Netherlands International Law Review, Vol. 54, No. 2 , 2007, pp. 279-314.
  • MILANOVIC Marko, “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case”, in IRRC,  Vol. 89, No. 866, June 2007, pp. 373-393.
  • PETIT Françoise Camille, “Terrorisme et droit international humanitaire: quelles leçons tirer du statut controversé des prisonniers de Guantánamo ?”, in Droit et Défense, 2002/3, July-September 2002, pp. 25-32.
  • RONA Gabor, ‘‘Interesting Times for International Humanitarian Law: Challenges from the War on Terror’’, in The Fletcher Forum of World Affairs, Vol. 27, 2003. pp. 55-74.
  • RONA Gabor, “A Bull in a China Shop: The War on Terror and International Law in the United States”, in California Western International Law Journal, Vol. 39, Issue 1, 2008, pp. 135-159.
  • SHANY Yuval, “Human Rights and Humanitarian Law as Competing Legal Paradigms for Fighting Terror”, in Hebrew University International Law Research Paper, No. 23-09, 2009, 27 pp.
  • TIGROUDJA Hélène, “Quel(s) droit(s) applicable(s) à la ‘guerre au terrorisme’ ?”, in AFDI, Vol. 48, 2002, pp. 81-102.
  • TURNS David, “The Treatment of Detainees and the “Global War on Terror”: Selected Legal Issues”, in IYHR, Vol. 38, 2008, pp. 145-167.
  • VEUTHEY Michel, “Le droit international humanitaire face à la guerre contre le terrorisme”, in DOUCET Ghislaine (ed.), Terrorisme, victimes et responsabilité pénale internationale, Paris, Calmann-Lévy, 2003, pp. 516-529.
  • VIERUCCI Luisa, “Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantánamo Bay Detainees are Entitled”, in Journal of International Criminal Justice, Vol. 1/2, 2003, pp. 284-314.
  • ZWITTER Andrej, “Humanitarian Action on the Battlefields of Global War on Terror”, in The Journal of Humanitarian Assistance, October 2008, pp. 1-23.
  1.  Other situations

P II, Art. 1(2)

 2.   Personal scope of application

Introductory text

As IHL developed as the law of international armed conflicts covering, in conformity with the traditional function of international law, inter-State relations, it aimed essentially to protect “enemies” in the sense of enemy nationals. IHL therefore defines a category of “protected persons,” consisting basically of enemy nationals, who enjoy its full protection.[41] Nevertheless, the victims of armed conflicts who are not “protected persons” do not completely lack protection. In conformity with and under the influence of international human rights law, they benefit from a growing number of protective rules, which, however, never offer to those who are in the power of the enemy the full protection foreseen for “protected persons”. As far back as 1864, the initial Geneva Convention prescribed that “[w]ounded or sick combatants, to whatever nation they may belong, shall be collected and cared for”.[42] The rules on the conduct of hostilities apply equally to all hostilities in international armed conflicts, and all victims benefit equally from them.[43] The law of non-international armed conflicts by definition protects persons against their fellow citizens, i.e., it applies equally to all persons equally affected by such a conflict. Finally, a growing number of IHL rules provide basic, human rights-like guarantees to all those not benefiting from more favourable treatment under IHL.[44] A 1999 ICTY judgement suggested adjusting the concept of “protected persons”, beyond the text of Convention IV, to the reality of contemporary conflicts, where allegiance could be determined more by ethnicity than by nationality. The ICTY renounced using the latter as a decisive criteria and replaced it with the criteria of allegiance to the enemy.[45] It remains to be seen if this criteria can be applied in actual conflicts, not only a posteriori by a tribunal, but also by the parties to a conflict, by the victims and by the humanitarian actors on the ground.

CASES AND DOCUMENTS

  1.  passive personal scope of application: who is protected?

CASES AND DOCUMENTS

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • SASSÒLI Marco & OLSON Laura M., “The Decision of the ICTY Appeals Chamber in the Tadic Case: New Horizons for International Humanitarian and Criminal Law?”, in IRRC, No. 839, September 2000, pp. 733-769.

bb) growing importance of rules deviating from the concept: persons protected by IHL not having “protected person” status

CASES AND DOCUMENTS

  1.  active personal scope of application: who is bound? (See infra, III. International Humanitarian Law: a branch of international law governing the conduct of States and individuals, 5.Relations governed by International Humanitarian Law, c) individual – individual. and Internal Armed Conflict, VIII. Who is bound by the law of non-international armed conflicts?, 2) All those belonging to one party)

CASES AND DOCUMENTS

 3. Temporal scope of application

GC I, Art. 5; GC III, Art. 5; GC IV, Art. 6; P I, Art. 3; P II, Art. 2(2)

Introductory text

With the exception of the rules already applicable in peacetime,[46] IHL starts to apply as soon as an armed conflict arises, e.g., in international armed conflicts as soon as the first (protected) person is affected by the conflict, the first segment of territory occupied, the first attack launched, and for non-international armed conflicts as soon as the necessary level of violence and of organization of the parties is reached.

When those rules of IHL cease to apply is much more difficult to define. One difficulty arises in practice, as in an international society where the use of force is outlawed, armed conflicts seldom end with the debellatio (total defeat) of one side or a genuine peace. Most frequently, contemporary armed conflicts result in unstable cease-fires, continue at a lower intensity, or are frozen by an armed intervention by outside forces or by the international community. Hostilities, or at least acts of violence with serious humanitarian consequences, often break out again later. It is difficult for humanitarian actors to plead with parties that have made declarations ending the conflict that the fighting in reality continues.

Another difficulty results from the texts, as they use vague terms to define the end of their application, e.g., “general close of military operations”[47] for international armed conflicts and “end of the armed conflict”[48] for non-international armed conflicts.
For the latter, the ICTY has held that once the necessary level of violence and of organization of the parties is such that the IHL of non-international armed conflicts is applicable, that law continues to apply until the end of the conflict, even when those levels are no longer met.[49] As for occupied territories, Protocol I has extended the applicability of IHL until the termination of the occupation,[50] while under Convention IV it ends one year after the general close of military operations, except for important provisions applicable as long as the occupying power “exercises the functions of government”[51]. What limits the inconveniences resulting from such vagueness and the grey areas appearing in practice (e.g. when a new government agrees with the continued presence of the (former) occupying power or the UN Security Council authorizes the continued military presence of the (former) occupying power) – and is therefore very important in practice – is that IHL continues to protect persons whose liberty is restricted[52] until they are released, repatriated or, in particular if they are refugees, resettled.[53] This does not resolve, however, the regime applying to those who refuse to be repatriated. Furthermore, in the law of international armed conflicts, this extension concerns only persons who were arrested during the conflict, while only the law of non-international armed conflict applies the same to the quite frequent cases of persons arrested after the end of the conflict – but even here only if their arrest is related to the conflict and not if it is related to the post-conflict tension.[54]

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • ARY Vaughn A., “Concluding Hostilities: Humanitarian Provisions in Cease-Fire Agreements”, in Military Law Review, Vol. 148, 1995, pp. 186-273.
  • CAMPBELL Colm, “Peace and the Laws of War: the Role of International Humanitarian Law in the Post-conflict Environment”, in IRRC, No. 839, September 2000, pp. 627-652.
  • DINSTEIN Yoram, “The Initiation, Suspension and Termination of War”, in SCHMITT Michael N. (ed.), International Law Across the Spectrum of Conflict, Newport, R.I., 2000, pp. 131-159.
  • KOUTROULIS Vaios, Le début et la fin du droit de l’occupation, Paris, Pedone, 2010, 334 pp.
  1.  beginning of application

CASES AND DOCUMENTS

  1.  end of application

CASES AND DOCUMENTS

 4.   Geographical scope of application

CASES AND DOCUMENTS

 5.   Relations governed by International Humanitarian Law

Introductory text

International Humanitarian Law (IHL) protects individuals against the (traditionally enemy) State or other belligerent authorities. IHL of international armed conflicts, however, also corresponds to the traditional structure of international law in that it governs (often by the very same provisions) relations between States. Its treaty rules are therefore regulated, with some exceptions, by the ordinary rules of the law of treaties. In addition, it prescribes rules of behaviour for individuals (who must be punished if they violate them) for the benefit of other individuals.

CASES AND DOCUMENTS

  1.  Individual – State
    • including his or her own State in international armed conflicts?

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • CLAPHAM Andrew, “Non-State Actors”, in CHETAIL Vincent (ed.), Post-conflict Peacebuilding: a Lexicon, Oxford, OUP, 2009, pp. 200-213
  1.  State – State: International Humanitarian Law in the law of treaties
    • applicability of treaties based on reciprocity, but no reciprocity in respect for treaties (See infra,State responsibility, 2.Consequences of violations, c. applicability of the general rules on State responsibility, dd) but no reciprocity)

CASES AND DOCUMENTS

CASES AND DOCUMENTS

  • declarations of intention

CASES AND DOCUMENTS

  • interpretation

CASES AND DOCUMENTS

  • reservations

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • GAUDREAU Julie, “Les réserves aux Protocoles additionnels aux Conventions de Genève pour la protection des victimes de la guerre”, in IRRC, No. 849, March 2003, pp. 143-184.
  • PILLOUD Claude, “Reservations to the Geneva Conventions of 1949”, in IRRC, No. 180, April 1976, pp. 107-124; No. 181, June 1976, pp. 163-187

CASES AND DOCUMENTS

CASES AND DOCUMENTS

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • SASSÒLI Marco, “La Suisse et le droit international humanitaire une relation privilégiée?”, in ASDI, Vol. XLV, 1989, pp. 47-71.
  1.  Individual – individual

aa) uncontroversial for criminalized rules

bb) controversial for other rules

CASES AND DOCUMENTS

Specific bibliography

Suggested reading:

  • ALDRICH George H., “Individuals as Subjects of International Humanitarian Law”, in MAKARCZYK Jerzy (ed.), Theory of International Law at the Threshold of the 21st Century, The Hague, Kluwer Law International, 1996, pp. 851-858.

Footnotes

[Update] International Humanitarian Law | ihl – POLLICELEE

OVERVIEW

International humanitarian law (IHL), also known as the laws of war or the law of armed conflict, is the legal framework applicable to situations of armed conflict and occupation. As a set of rules and principles it aims, for humanitarian reasons, to limit the effects of armed conflict.

Fundamental to IHL are the following two principles:

  1. Persons who are not, or are no longer, participating in hostilities must be protected; and
  2. The right of parties to an armed conflict to choose methods and means of warfare is not unlimited.

IHL is a part of public international law.  Public international law is a broad set of treaties, customary law, principles and norms.  The framework traditionally regulated relationships only between States. It has evolved, however, to cover a broad range of actors. IHL is notable in this regard, as it recognizes obligations for both States and non-State armed groups that are parties to an armed conflict.

IHL regulates activity during armed conflict and situations of occupation. It is distinct from, and applies irrespective of, the body of law that regulates the recourse to armed force. This framework is known as the jus ad bellum, and is enshrined in the UN Charter. It regulates the conditions under which force may be used, namely in self-defense and pursuant to UN Security Council authorization. Once there is an armed conflict IHL applies to all the parties, whether or not a party was legally justified in using force under jus ad bellum principles.

At its core IHL represents a balance between military necessity and humanitarian considerations in the context of conflict.  Humanity, as a cornerstone of IHL, represents the imperative during conflict to alleviate suffering and save lives, and to treat humanely and respectfully each individual. Military necessity is the justification of measures necessary to achieve a military goal, provided these measures comply with international humanitarian law.

The balancing of humanity and military necessity is seen in the foundational IHL norms of distinction and proportionality. Parties to an armed conflict are required to distinguish, at all times, between civilians and combatants and between civilian objects and military objects. Additionally, an attack may not be launched if it is anticipated to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive in relation to the direct military advantage anticipated. Additional IHL principles include the duty to take precautions to spare the civilian population before and during an attack, the prohibition against infliction of unnecessary suffering or superfluous injury, and the prohibition of indiscriminate attacks.

Classification of Armed Conflict

IHL classifies armed conflicts as either international armed conflict (IAC) or non-international armed conflict (NIAC). The proper categorization of an armed conflict is necessary to determine which set of rules apply to the conflict: those for an IAC (found mainly in the four Geneva Conventions and Additional Protocol I) or those for a NIAC (found mainly in Article Three common to the four Geneva Conventions and Additional Protocol II). Situations of occupation are regulated by IHL, namely the Fourth Geneva Convention and Additional Protocol I.

Whether or not an armed conflict is an IAC or a NIAC has significant implications. For instance, prisoner of war (POW) status, as well as combatant status, is found only in the rules applicable to IACs. The rules regulating the conduct of hostilities, as well as humanitarian access and assistance, are more detailed for IACs. All together the treaty rules applicable to IACs total close to 600; those applicable to NIACs number less than 30. This dearth of guidance can pose a challenge because the majority of contemporary conflicts are NIACs. To address this, one can look to customary international law, which includes a number of rules that have evolved to address both IAC and NIAC situations.

The definition of an IAC is found in Article Two common to the four Geneva Conventions. It states that the rules of IAC 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 . . . .“ Thus, an IAC can only be between two or more States.

In Article Three common to the four Geneva Conventions a NIAC is defined in the negative, as “an armed conflict not of an international character.” Thus, if a non-State armed group is a party to the armed conflict, it will be categorized as a NIAC. This could be the case if, for instance, a State is fighting an armed group, or if two non-State armed groups are fighting each other. Common Article Three and customary international law would regulate both scenarios. For Additional Protocol II to apply, certain requirements must be satisfied. In the armed conflict, a State must be on one side, fighting against an armed group. That State must have signed Additional Protocol II for it to apply. Additionally, the non-State armed group must be organized, under a responsible command, and exercising control over part of the territory in such a manner that the group is able to carry out military operations.

The use of the phrase “global war on terror” resulted in some misunderstanding regarding the application of IHL to certain situations. The “global war on terror” is a political phrase, not a legal term of art. Thus, the “global war on terror” is not an armed conflict. The appropriate way to analyze conflicts that fall under this umbrella is to look at the conflict locations – Iraq, Afghanistan, Somalia, Yemen, etc. – and assess each one in terms of whether or not it is an IAC or a NIAC, regulated by the relevant framework.

There is some academic debate regarding cross-border NIACs, as well as at what point a NIAC might become an IAC, or an IAC might become a NIAC. These analyses are context and fact-dependent. Despite the theoretical debate, practitioners can often work around them by relying on customary international law to argue for protections owed to civilians.

KEY INTERNATIONAL HUMANITARIAN LAW INSTRUMENTS

Treaties and customary international law are the two main sources of IHL rules and regulations. Treaties are agreements between States, and those States that ratify a treaty are bound by its terms. Though a non-State armed group cannot sign a treaty, IHL treaty rules like Common Article Three and Additional Protocol II nonetheless apply to these actors.

Many IHL rules are now considered to reflect customary international law as well. Customary international law consists of rules derived from the consistent practice of States based on a belief that the law requires them to act in that way. Such rules are binding on both states and non-State armed groups. The International Committee of the Red Cross published a study and created a database on customary international humanitarian law.

The key IHL treaties include the 1907 Hague Regulations, the four Geneva Conventions, and their Additional Protocols.

ADDITIONAL RESOURCES

The International Committee of the Red Cross has an International Humanitarian Law page that provides a number of introductory IHL resources.

The Geneva Academy of International Humanitarian Law and Human Rights hosts the Rule of Law in Armed Conflicts Project that provides a database of relevant legal instruments and overviews of current IHL issues.

The International Committee of the Red Cross hosts an IHL treaty database on its website.


International humanitarian law: a universal code | The Laws Of War


Are the laws of war, international humanitarian law, up to the job of protecting the people affected by modernday armed conflicts? This film looks in turns at the poor security conditions frequently confronting the civilians, the fact that people often have to flee their homes, hostagetaking, the dangers posed by cluster munitions, and the work of preventing and punishing war crimes.
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International humanitarian law: a universal code | The Laws Of War

IHL 2021/22 Seniori – KHL Zagreb vs SKHL Crvena Zvezda


IHL International Hockey League 2021/22 Seniori
KHL Zagreb vs SKHL Crvena Zvezda
Klizalište Velesajam, Zagreb
Nedjelja 14.11.2021 15.45h
Timeline:
0:29:47 1/3
0:43:37 GOAL ZAG (1:0) 77 KALEB Ivo, 10 KEGALJ Bruno
0:46:42 GOAL CZV (1:1) 9 NOVAKOVIĆ Uglješa, 24 DRAGOVIĆ Marko, 11 LEŠTARIC Lazar
1:12:09 2/3
1:32:02 GOAL CZV (1:2) 24 DRAGOVIĆ Marko, 22 SABADOŠ Robert
1:55:50 3/3
2:01:22 GOAL CZV (1:3) 9 NOVAKOVIĆ Uglješa, 11 LEŠTARIC Lazar, 24 DRAGOVIĆ Marko
2:07:30 GOAL ZAG (2:3) 14 STANČIĆ Tibor, 15 NOVOTNY Jan
2:09:42 GOAL CZV (2:4) 24 DRAGOVIĆ Marko, 11 LEŠTARIC Lazar
2:15:30 GOAL CZV (2:5) 11 LEŠTARIC Lazar, 24 DRAGOVIĆ Marko
2:21:25 GOAL ZAG (3:5) 3 GUIMONT Joe, 77 KALEB Ivo, 14 STANČIĆ Tibor
2:23:10 GOAL CZV (3:6) 11 LEŠTARIC Lazar, 10 ŠPANJEVIĆ Andrija
2:24:40 GOAL CZV (3:7) 9 NOVAKOVIĆ Uglješa

IHL 2021/22 Seniori - KHL Zagreb vs SKHL Crvena Zvezda

Is War Over? — A Paradox Explained


We live in the most peaceful time in human history. Wait, what? Seriously? That can’t be right, there are more wars than ever! Well, no and they’re killing fewer and fewer people, even though the world population is at an alltime high…and the numbers prove it! We explain how we came to this conclusion, and why war might… go away.

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Sources used for this video:
http://www.ppu.org.uk/learn/infodocs/st_war_peace.html
http://thinkprogress.org/security/2013/12/11/3036671/2013certainlyyearhumanhistory/
Steven Pinker: The Better Angels of Our Nature: Why Violence Has Declined (book)
http://en.wikipedia.org/wiki/List_of_ongoing_armed_conflicts
http://thinkprogress.org/security/2013/12/11/3036671/2013certainlyyearhumanhistory/pinker
http://www.pcr.uu.se/research/ucdp/datasets/generate_your_own_datasets/dynamic_datasets/
http://www.pcr.uu.se/research/UCDP/
http://www.warsintheworld.com/?page=static1258254223
http://www.historyofwar.org/
www.cornellpress.cornell.edu/book/?GCOI=80140100312400
http://stevenpinker.com/publications/betterangelsournature
http://www.smithsonianmag.com/smartnews/globallydeathswarandmurderaredecline180950237/?noist
http://www.hsrgroup.org/docs/Publications/HSR2013/HSRP_Report_2013_140226_Web.pdf
http://www.fastcoexist.com/3027220/despitewhatseemslikealotofviolencetheworldisactuallygettingsafereveryday
http://www.hiik.de/en/index.html
http://www.economist.com/news/briefing/21589431bringingendconflictswithinstatesvexatioushistoryprovidesguide
http://www.google.de/imgres?imgurl=http%3A%2F%2Fexploringafrica.matrix.msu.edu%2Fimages%2Fcolonialism1914.jpg\u0026imgrefurl=http%3A%2F%2Fexploringafrica.matrix.msu.edu%2Fteachers%2Fcurriculum%2Fm10%2Factivity3.php\u0026h=595\u0026w=572\u0026tbnid=2zMBfrH3kFb67M%3A\u0026zoom=1\u0026docid=JNfrQDGwU2CsRM\u0026ei=In8cVPzWBeTiywOHsYGgDQ\u0026tbm=isch\u0026client=firefoxa\u0026iact=rc\u0026uact=3\u0026dur=279\u0026page=1\u0026start=0\u0026ndsp=30\u0026ved=0CDIQrQMwAw
http://www.economist.com/content/innerturmoil

Is War Over? — A Paradox Explained

Ames Moot Court Competition 2019


The case, United States Department of Interior v. Bryce Caldwell, was argued on Nov. 12, at the Ames Moot Court Competition. The presiding judges were Merrick Garland ’77, of the United States Court of Appeals District of Columbia Circuit; Michelle Friedland of the United States Court of Appeals for the Ninth Circuit, and Amul Thapar, of the United States Court of Appeals for the Sixth Circuit.
Patricia Roberts Harris Memorial Team (Respondents):
Charlotte Butash
Kelsey Fraser (oralist)
Hilary Hurd
Melanie Fontes (oralist)
Kate Peiffer
Alicia Alvero Koski

Janet Wood Reno Memorial Team (Petitioners):
Kevin Chen
Mikaela GilbertLurie (oralist)
Caroline Li
Al Kelly (oralist)
KC Jaski
Eliza Green
The Ames Competition, held in the historic Ames Courtroom of Harvard Law School, is one of the most prestigious competitions for appellate brief writing and advocacy in the country. The students participating in the Final Round started the competition in fall of their 2L year. Two teams progressed to the Final Round through their strong research abilities and excellent written and oral advocacy.

Ames Moot Court Competition 2019

An Introduction to International Humanitarian Law


The Canadian Red Cross and Royal Roads University invite you to An Introduction to International Humanitarian Law (IHL).

Also known as the law of armed conflict, International Humanitarian Law is the body of wartime rules that protect people who are not or are no longer participating in hostilities. Its central purpose is to limit and prevent human suffering in times of armed conflict.

The program will examine IHL in the context of current events including attacks on healthcare providers and sexual violence in conflict. It will also provide an overview of the Red Cross and Red Crescent Movement and its role in the development of IHL.

An Introduction to International Humanitarian Law

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