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

CHAPTER 6: INDIVIDUAL BATTLEFIELD STATUS

There are several individual statuses in battlefield.

6.2 Lawful Combatants / Prisoners of War

 Combatants: “members of the armed forces of a party to a conflict are combatants, they have the

right to participate directly in hostilities” (art. 43.2 Additional Protocol I)

 Combatant: is a person who fights, who is authorized by international law to fight in accordance

with international law applicable in international armed conflict.

 a Combatant remains a legitimate target even though he/she’s not fighting.

 a Combatant doesn’t remain a combatant forever. They can retire and turn into civilians, or they

can become hors de combat (if you lay down arms and surrender, if you’re wounded etc). A

combatant who’s hors de combat and gets captured, enjoys the status of POW.

6.2.1 Retainees

 upon capture they are not POW, but they receive the same treatment (art. 28 of GC I)

 they could be surgeons, doctors, chaplains, they are non combatants, but if they are in military

objectives, the opposing party must not take precautionary measures.

6.3 Others whose status upon capture is POW

The POW status arises only in common Art. 2. International armed conflicts, where the GCs apply

in toto.

Although lawful combatants (a combatant is the member of armed forces wearing a uniform or

other distinguishing sign) make up the greater number of POWs, other groups are entitled to that

protection.

1) Member of other militias and members of other volunteer groups:

2) Regular armed forces professing allegiance to an unrecognized authority (unlikely to be encountered

today)

3) Persons who accompany the armed forces without being Members Thereof

4) Merchant Marine and Civilian Aircraft crews

5) Levée en Masse

6) Demobilized Military personnel and military internees in neutral countries

6.4 Direct participation in hostilities

 art. 51(3) “civilians shall enjoy the protection afforded by this Section, unless and for such time

as they take direct part in hostilities”.

 the concept applies only to civilians

 ICRC report issued to clarify the meaning of this concept. It set out some criteria that in IAC

must be respected in order for direct participation in hostilities to be constituted.

- The civilian’s acts must be likely to adversely affect the military operations of a party …no harm is

required, the likelihood of the harm and destruction is enough

- There must be a causal link between the act and the harm likely to result

- The act must be designed to directly cause the required threshold of harm in support of a party to the

conflict and to the detriment of the other.

6.4.2 Organized armed groups

An organized armed group is the armed force of a non-state party to the

conflict. The defining criterion for such individuals is that they have a

continuous combat function (CCF).

CCF is a new term in LOAC.

it starts from the premise that membership in organized armed groups is not



evidenced by uniform or ID, but by function.

members of an organized armed group who cover a CCF do not regain



immunity.

6.5 Unlawful combatants/unprivileged belligerants

these terms do not appear in the GCs

 term used in IAC

 they are not entitled to POW status

 ICRC: “persons taking DPH without being entitled to do so and who cannot



be classified as POWs

they do not necessarily cover a CCF





6.6.1 Out of uniform, out of status?

GC relative to POWs specifies that POW status is gained if 4 conditions

The

are met: a responsible individual in charge, a fixed distinctive sign, carry arms

openly, observe the laws of war.

an international armed conflict, if a lawful combatant engages in combat

in

without a uniform or a distinctive sign he becomes an unlawful combatant

and is not entitled to the POW status.

6.7 Detainee, Enemy combatant and Unlawful Enemy Combatant

terms do not appear in the Hague regulations or in the GCs, but they

these

are used in the war on terrorism

“any person captured or otherwise detained by an armed force”.

Detainee:

Any individual captured on the battlefield, the circumstances of whose do not

immediately indicate a status, is a detainee.

Combatant: there are several definitions. The ICRC says that an enemy

Enemy

combatant is a person who, either lawfully or unlawfully, engages in hostilities

for the opposing side in an international armed conflict. / others say that this

term refers to legitimate combatants who are entitles to prisoners of war

status.

6.9 Civilians

a civilian is anyone not a member of the armed forces. If there is a doubt, a



person should be considered as being civilian (art. 50.1 Additional Protocol I).

6.10 Protected persons

a protected person enjoys the benefits of GC IV.

 status possible only in an international armed conflict, common art. 2.

 “persons protected by the convention are those who, at a

art. 4 of GC IV



given moment and in any manner whatsoever, find themselves, in case of a

conflict or occupation, in the hands of a Party to the conflict or Occupying

Power of which they are not nationals”.

it is a non combatant of finds himself in the hands of the other side.



CHAPTER 7 – LAW OF ARMED CONFLICT’S FOUR CORE PRINCIPLES

7.1 Distinction (ART. 48 API)

it’s the most significant concept a combatant must observe in battlefield

 the parties must distinguish between civilians and combatants. Attacks



must be directed exclusively to combatants.

it’s also related to objects: only military objectives can be attacked.

 so, distinction has two aspects: one related to individuals, one related to



objects.

an early principle of Distinction can be seen in the preamble of the 1868 St.



Peterbourgh Declaration.

it’s customary law, however, the principle of distinction was unmentioned



until 1977, when it was explicitly stated in Additional Protocol I, art. 48.

In order to ensure respect and protection of the civilian

art. 48 AP I:



population and civilian objects, the parties to the conflict shall at all times

distinguish between the civilian population and combatants and between

civilian objects and military objectives and accordingly shall direct their

operations only against military objectives”.

7.2 Military necessity (NOT CODIFIED)

Francis Lieber’s definition: “consists in the necessity of those measures



which are indispensable for securing the ends of the war, and which are lawful

according to the modern law of war”.

Military necessity not codified in the 1949 GCs, nor in Additional Protocol I.



However, the International Law Commission states its customary status.

US’s definition “principle that justifies those measures not forbidden by



international law which are indispensable for securing the complete submission

of the enemy as soon as possible”.

Military necessity justifies the infliction of as much suffering as it is



necessary to bring about the submission of the enemy.

it allows states to carry out acts that cause suffering as much as it



is necessary to reach military objectives.

obligations to protect cultural property may be waived in cases of imperative



military necessity

7.3 Unnecessary suffering (art. 35.2 API) “it is prohibited to employ

principle codified in art. 35.2 Additional Protocol I:



weapons, projectiles and material and methods of warfare of a nature to cause

superfluous injury or unnecessary suffering”.

Military necessity justifies the infliction of as much suffering as it is



necessary to bring about the submission of the enemy. Through this threshold,

it is considered unnecessary suffering.

It is difficult to establish what pain in necessary and what pain is



superfluous, though.

Some weapons are banned; they just produce suffering without increasing



military advantage.

It’s a tricky topic, because there is not an objective threshold of suffering



beyond which one cannot go.

7.4 Proportionality (ART. 51.5.b API – art. 57.2 API) “an

defined in two articles in Additional Protocol I: art. 51.5 (b) that says



attack which may be expected to cause incidental loss of civilian life, injury to

civilians, damage to civilian objects, or a combination thereof, which would be

excessive in relation to the concrete and direct military advantage anticipated”

should be cancelled it generally relates to the protection of civilians

 “an attack shall be cancelled or suspended if it becomes

art. 57.2 (b) that says:

apparent that the objective is not a military one or that the attack may be

expected to cause incidental loss of human life, injury to civilians, damage to

civilian objects, or a combination thereof, which would be excessive in relation

to the concrete and direct military advantage anticipated” it generally



relates to precautions necessary in the attack of a military objective.

it refers only to civilians

 no reference of proportionality in Additional Protocol II, relative to non-



international armed conflicts. However, ICRC argues that proportionality in

inherent in the concept of humanity, which is applicable in AP II.

several national courts argue that proportionality is part of the customary



law (e.g ICTY)

however, problems regarding what exactly proportionality is remain.

 API: if an attack disrespects the principle of proportionality, it is an



indiscriminate attack

CHAPTER 8 – WHAT IS A WAR CRIME?

8.1 Defining war crimes

there must be an armed conflict, no matter if international or internal

 the UN war crimes commission says that: a war crime is a “serious violation



of the laws or customs of war which entails individual criminal responsibility

under international law”.

The statute of the ICC lists four categories of war crimes: grave breaches,



other serious violations of the laws and customs applicable in int armed

conflict, serious violations of common art. 3, other serious violations of the laws

and customs applicable in armed conflicts not of an international character.

the ICRC says: serious violations of international humanitarian law constitute



war crimes.

8.3 Grave breaches and universal jurisdiction

grave breaches defined in the 1949 GCs and the 1977 Additional Protocols.

 universal jurisdiction is an aspect of grave breaches.

 the Convention lays the foundation of the system adopted for suppressing



grave breaches of the Conventions.

the system laid out is based on three obligations: the obligation to enact



special legislation / to search for any per