Riassunti esame diritto umanitario internazionale (in inglese), libro consigliato The law of armed conflicts, Gary. D. Solis

Riassunti di diritto umanitario internazionale (in inglese)

Libro consigliato The law of armed conflicts, Gary D. Solis.

1.2 Why regulate battlefield conduct?

Humanitarian concern should limit battlefield conduct  the idea of war as indiscriminate violence suggests violence as an end itself,  but war is goal-oriented.

Hostilities must be limited to the means considered necessary, therefore  violence considered superfluous to obtaining military objective may be proscribed.

Rules of warfare are intended to prevent unnecessary suffering that bring  little or no military advantage.

1.3 Sources of the law of armed conflict

Custom: is one of the two primary bases of the LOAC.

Consistent and recurring - The formation of customary law requires action by recognition and acceptance states, coupled by a general that such action is required by international law.

• Legal foundation: art. 38 of the Statute of ICJ.
• Custom remains the basis of much of the LOAC.

Treaties: is one of the two primary bases of the LOAC.

CVDT says that: treaty is an “international agreement concluded between States in written form and governed by international law”.

If a treaty has not yet been ratified, it still imposes obligations on the party not to defeat the object and purpose of the treaty.

Legislation and domestic law: e.g. the USA ratified the CAT, and subsequently it passed a federal legislation prohibiting torture. Domestically, this legislation becomes a source of human rights and a LOAC guideline.

Publicists: (dottrina, decisioni giudiziarie) – they are another, weaker, LOAC source. Their views sometimes form the basis of State practice. State practice may become custom.

1.4 International humanitarian law / Human rights law

What is the difference between?

Humanitarian law = international rules that attempt to mitigate human  suffering caused by war. It’s a set of laws that aim to humanize war that, taken together, form the  International humanitarian law = the body of international legislation that  applies in situations of armed conflict. It refers to the body of treaty-based and customary international law aimed at protecting the individual in time of international or non-international conflict. It aims at limiting the violence by protecting those not taking part in hostilities, at protecting property non considered military objectives, at restricting the combatants’ right to use any methods of warfare they choose.

Human rights law = it applies during peace and war as well, the ICJ has  stated.

International human rights law = it begins with the Charter of the UN, it  seeks to guarantee fundamental rights of persons vis a vis their own governments and to protect them against actors in the international community that might violate those rights.

HRL and LOAC, differences

• HRL = is premised on the principle that citizens hold individual rights that their State is bound to respect.
• LOAC = imposes obligations on the individual.
• HRL = consists of general principles, LOAC = is a series of specific provisions.
• HRL = enunciates State responsibilities, LOAC = specifies State as well as individual responsibilities.
• HRL = rights are given to all, LOAC = links many of its protections to nationality or specific statuses (e.g.: combatants).
• HRL = allows for State derogation, LOAC = it does not.

Chapter 2: Codes, conventions, declarations, regulations

2.1 Basic rules of warfare

Most basic rule of warfare → “the right of belligerents to adopt means of injuring the enemy is not unlimited”. The means of injuring and killing the enemy are not unlimited, and this is part of the customary law of war.

2.2 Lieber code

Francis Lieber was born in 1800. He wrote the Lieber Code, one of the principal documents on the law of war.

He was a “just war” traditionalist. With the publication of his Code, by 1863 all armies had acknowledged some limitations on the battlefield conduct. The welfare of civilians and prisoners had long been recognized.

He was the first to promulgate a codification of the law of war for soldiers.

Its value was recognized far beyond the Union army (to which it was addressed).

It became the basis of similar Codes issued by several States → a code written for a civil war became a code for international armed conflicts.

“The most important early codification of the customs and usages of war was the Lieber Code” → he expanded the concept of military necessity.

→ Much of the LOAC that has followed (Hague regulations of 1899 and 1907, Geneva conventions) owe substantial debts to the Lieber Code.

2.3 The combatant's privilege

Lieber recorded the privilege in art. 57 of his Code: “So soon as a man is armed by a government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses”.

→ The combatant's privilege is a license to kill or wound enemy combatants and destroy other military objectives. They are privileged in the law of war to kill and wound without penalty.

2.5 The first Geneva Convention, 1864

Following to the Battle of Solferino, Henry Dunant created the International Committee of the Red Cross.

The ICRC invited 16 European States to sign a Convention, regarding the guidelines for protecting wounded soldiers. It aimed at saving lives, healing wounded soldiers no matter what their nationality was, protecting civilians that helped healing wounded soldiers.

2.6 The St. Petersburg Declaration, 1868

Czar Alexander II invited states to attend an international military commission to St. Petersburg to discuss the ban of a certain type of bullet.

→ The states that ratified the St. Petersburg Declaration renouncing the Use in War of Certain Explosive Projectiles agreed not to use explosive bullets weighing less than 400 grammes.

→ For the 1^st time, the concept of unnecessary suffering was embodied in an international agreement.

→ The preamble enunciates the core concept of military necessity. If the object of military action is other than to weaken opposing military forces, it is illegitimate. The concept of military necessity is emphasized in this Declaration.

2.7 The 1^st Hague peace conference, 1899

→ It was an effort to move beyond the ad hoc international arbitration to advance towards a permanent international court for the settlement of disputes between states.

→ It was proposed by Czar Nicola II.

→ A court of arbitration was created: in reality it was a phantom, only a secretariat was established.

→ There were some states, such as Germany, that did not want to be bound by a universal arbitration, because there are some controversies (honour, independence, vital interests) that cannot be regulated with arbitration.

→ Hague Convention: was adopted, it contained 4 main sections and 3 additional declarations.

→ A success of the Conference: Declaration IV (one of the 4 sections) concerning Asphyxiating Gases (inspired by St. Petersburg Declaration, the parties agreed to abstain from the use of asphyxiating or deleterious gases).

→ It specifies the criteria for entitlement to combatant and prisoner of war status.

Parsing 1899 Hague Declaration III

→ It concerns Expanding Bullets, “bullets which expand or flatten easily in the human body”.

→ “The contracting parties agree to abstain from the use of bullets which expand or flatten easily in the human body”.

→ The prohibition of the use of dum-dums, became customary long ago and it therefore binds all States.

2.7.3 The 2^nd Hague peace conference, 1907

Main concern → establishment of a permanent international court of arbitration.

They adopted 10 new conventions on 1 new declaration.

Parsing 1907 Hague Regulation IV

→ There is a penalty clause in art. 3 of the Hague Regulation IV: “a belligerent party which violates the provisions of the said Regulations shall be liable to pay compensation”.

→ For the first time, rules of war become laws of war. If a conduct is unlawful, the Regulation assesses a penalty for such violation.

→ It's been an initial effort to fix responsibility and levy a penalty for battlefield misconduct.

→ It specifies the criteria for entitlement to combatant and prisoner of war status.

→ It addresses the status of spy.

Peace conferences → held in the Hague represent an important moment for the LOAC.

→ International tribunal for former Yugoslavia cited Hague Convention IV as a binding law.

→ The work of the two conferences was the basis for the 1949 Geneva Conventions, for the creation of the Permanent Court of international justice (the League of nations judicatory body).

Chapter 3: Two world wars and their law of armed conflict

3.8 The 1949 Geneva Conventions

• The four 1949 Geneva Conventions are the cornerstone of the LOAC (the most ratified treaties in the history of the world).
• Many articles of the Geneva Conventions enjoy customary law status.
• The purpose of the Geneva Conventions has been to protect: victims of ACs, the sick and wounded, POWs, civilians.
• The means of waging wars (lawfulness of weapons, legitimacy of tactics, protecting cultural objects) are issues protected by the “Hague law”. There is a kind of distinction between the Hague law and the Geneva law, but this distinction faded with the adoption of the two 1977 Protocols additional to the 1949 Geneva Conventions.
• 1^st Convention: Geneva Convention for the Amelioration of the Condition of the wounded and sick in Armed forces in the Field.
• 2^nd Convention: Geneva Convention for the Amelioration of the Condition of wounded, sick and shipwrecked members of the armed forces at sea.
• 3^rd Convention: Geneva Convention relative to the treatment of prisoners of war.
• 4^th Convention: Geneva Convention relative to the protections of civilian persons in time of war.

There are some “common articles” in the four conventions, and they are about significant matters that merit emphasis.

Article 1, 2, 3 are the same in all four conventions. There are other articles that have the same content, even though they are written differently.

3.8.4 Notion of “grave breaches”

The GCs raise an important element in LOAC, the term “grave breaches”. They are the most serious breaches of the law of war.

 Grave breaches are a closed category: if the offense is not specified in common Article 50/51/130/147, it is not a grave breach. Other grave offenses not specified in those articles, are left to military commissions or courts-martial, or to the domestic criminal codes of the states involved, to be tried as simple war crimes.

• Torture or inhuman treatment.
• Wilfully causing great suffering or serious injury.

3.8.5 Genocide, crimes against humanity, crimes against peace

Genocide, crimes against humanity and crimes against peace are NOT grave breaches or war crimes  they are under international criminal law.

3.8.6 Common Article 3

• The most significant innovation of the 1949 GCs.
• Art. 3 is the sole Article in all the GCs that deals with internal armed conflicts.
• It contains a range of basic humanitarian norms.
• “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, at a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely”.
• It requires humane treatment, but the actual meaning of this expression is not spelled out. Generally the rules found in international humanitarian law and human rights law give expression to the meaning of “humane treatment”.
• Put it briefly: art. 3 requires that, in non-international armed conflicts, basic humanitarian norms be afforded those who are hors de combat.
• When common article 3 applies, no other portion of the GCs apply.
• Who decides when Common article 3 applies? Often, the ruling government announces that the insurgents are merely bandits. In a civil war the government tends to regard them as common criminals. The insurgents do not have, or rarely have, a public voice to rally international recognition for their cause. So, the application of common art. 3 is infrequent.
• The ICRC suggests four nonbinding conditions that should make Art. 3 applicable, but these conditions are rarely met.

Chapter 4: Protocols and politics

4.2 The 1977 Additional Protocols

 In 1971 and 1972, experts from more than 100 governments conferred to Geneva to review draft protocols modernizing 1949 GCs.

4.2.1 1977 Additional Protocol I

• It deals with International armed conflicts: internal and non-international armed conflicts are dealt with Additional Protocol II.
• It adds new grave breaches to the Convention.
• The concepts of distinction, unnecessary suffering, proportionality, were found only in customary law. Now, they are codified in the Additional Protocol I.
• Failure of the Protocol: it doesn’t provide restrictions on the use of either conventional or nuclear weapons.
• It has had many objections by the states, (e.g.: CARs, Colonial domination, Alien occupation, Racist regime, art. 1.4 expands the definition of international armed conflict, including CARs).
• Several objections come from the modification of POW qualifications: the Protocol alters the customary law formulation, broadening it. It now includes “unprivileged belligerents”, who are “persons who are not entitled to treatment either as peaceful civilians or as POW by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by art. 4 of the Geneva Prisoners of War Convention of 1949”.

4.3 1977 Additional Protocol II

• It does not amend or replace any part of the GCs, it just supplements them.
• Many of its provisions are customary law.
• It recapitulates noncombatant protections already in customary law, or contained in common art. 3.
• It develops and supplements common art. 3 and applies in non-international armed conflicts. Sometimes it overlaps with common art. 3.
• Today, common art. 3 is more applied, rather than Additional protocol II.
• It does not apply when there are just “sporadic acts of violence, internal disturbances and tensions”.
• The ICTR offers a guidance in applying Protocol II: an armed conflict may be distinguished from an internal disturbance by the intensity of the fighting and the degree of organization of the parties involved.
• It develops the humanitarian protections of common art. 3.
• It includes provisions for the protection of civilians from attack, it adds protection for objects indispensable to the survival of the civilian population.
• It is unlikely to be applied, since legitimate