Lecture notes, international humanitarian law PDF

Preview

Summary

INTERNATIONAL HUMANITARIAN LAW EXAMNOTES: LAWSTopic One: What is IHL and PIL?Purpose and definition of IHLStarting point: IHL has been phrased as a license to kill the enemy, therefore it has also been criticised for allowing wars to take place. IHL prevents unnecessary harm to those in the war and ...

Description

INTERNATIONAL HUMANITARIAN LAW EXAM NOTES: LAWS3318 Topic One: What is IHL and PIL? Purpose and definition of IHL Starting point: IHL has been phrased as a license to kill the enemy, therefore it has also been criticised for allowing wars to take place. IHL prevents unnecessary harm to those in the war and those not involved in the fighting. Also helps asylum seekers that are the victims of war. It is the law which governs how wars are fought. IHL is also the law of armed conflict (preferred by the army) and the law of war. IHL is based on the fundamental principle that conflict occurs: Plato “only the dead have seen the end of war”. It is a fact that societies are willing to use war against one another. IHL seeks to balance notions of military necessity with considerations of humanity. Military necessity permits the use of such force which is militarily necessary to subdue the enemy. Humanity is more difficult to define – involves limiting any unnecessary harm during armed conflict. IHL represents an attempt to regulate a situation which is extremely difficult to regulate.

Introduction to Public International Law Nature of PIL It is the law that regulates relations between independent and sovereign states. States are principle subjects of international law; individuals are somewhat objects of IL. States play a key role in the making, execution and enforcement of IL: -

Only states are members of UN Gen Assembly Only states can appear before ICJ in contentious jurisdiction.

Characteristics of IL: distinct from national legal systems -

-

No central legislature that makes laws for the entire international community. Every sovereign state ratifies the law for itself – if a state does not consent to a treaty, it will not be bound nor have rights under the treaty. USA is the only state that has not accepted the child rights convention, 190 has accepted, but it is not applicable to the US. Can change position after rejection.

No international executive enforcing the laws made by the legislature. There is no comparable judicial institutions with compulsory jurisdictions.

Sources of PIL:

Material v formal sources of law: Material sources: -

Provide evidence of existence of rules which, when established are binding. Where to look for evidence of content of the law: words of a treaty, resolutions, statements, etc. Gives exact definitions of laws – treaties, resolutions and understandings between armed countries.

Formal sources: -

Decisions of ICJ; Unanimously supported by UN resolutions Multilateral treaties codifying or developing rules of law, etc.

Yet formal sources do not always bind non-consenting states. Hence formal sources hardly exist or are controversial in IL. See Art 38(1) ICJ statute: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. International conventions… establishing rules expressly recognised by the contesting states; b. International custom, as evidence of a general practice accepted as law; c. The general principles of law recognised by civilised nations; d. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Treaties Treaties are also called covenants, charters, pacts, protocols, conventions, resolutions, declarations, etc. Can be soft laws or hard laws, definition Vienna Convention on the Law of Treaties (VCLT), 1969, Art 2(1)(a) “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. Hard laws are binding laws on the contracting parties, but sometimes states are unsure of whether to have hard laws in place, so they impose soft laws in place of hard laws – if soft laws are broken, there will be no trial before an international court. Universal Declaration of Human Rights was transformed as a soft law to a hard law as customary law. Nature of Treaties The nature of treaties is similar in the nature of a contract, i.e. does not bind non-state parties: and relies on pacta sunt servanda (my word is my bond) (i.e. privity of contracts). States are free to accept or reject a treaty partially (reservations, declarations, etc.) this excludes or modifies certain obligations. Treaties are also main, clear sources of international law and can lead to formation of customary international law.

Reservation is rejection of a whole provision. A declaration allows for some negotiation of a provision. The fact that states can enter reservations and declarations, does not mean they can do so for every provision – they can do so as long as they do not void the object and purpose of the treaty. Customary International Law Customary IL: unwritten law, a combination of state practice and acceptance of such practice as law (opinio juris)… cf comity. Dual questions: is there a general practice? Is it accepted as law? Hence custom is not equivalent of usage/comity/mutual respect: -

Usage is general practice that does not reflect a legal obligation. Examples: ceremonial salutes at sea, granting tourist visas to travellers, granting parking privileges to diplomatic vehicles, etc. Has been done as a matter of legal obligation.

Elements: 1. Duration and consistency of practice Customary IL binds irrespective of consent. State practice incorporates actions, omissions, abstentions etc. State practice – must be consistent and uniform. Asylum case (Colombia v Peru) 1950, pp. 276-277 Customary law must be ‘in accordance with a constant and uniform usage practiced by states in question.’

Persistent objectors can avoid customary law. There is no particular duration required if practice is consistent. Northern Sea Continental Shelf case (Germany/Netherlands; Germany/Denmark) 1969 ‘…the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law….’ (Paragraph 43)

2. Generality/uniformity of practice General (not absolute) consistency of practice: some dissent acceptable, e.g. possible persistent objectors. Fisheries jurisdiction (UK v Iceland) 1974, ICJ Referred to the extension of a fishery zone up to a 12nm limit, ‘which appears now to be generally accepted’ and to ‘an increasing and widespread acceptance of the concept of preferential rights for coastal states.’ (Paragraphs 23-26)

3. ‘Accepted as law’ ‘Accepted as law’ is usually expressed in Latin: opinio juris sive necessitates. Was it a matter of legal obligation? Refers to the psychological element: similar to means rea of criminal code but different from moral codes, or habits or comity or diplomatic nicety. Opinio juris refers to the conviction that a certain action or inaction was required by law. Nicaragua v US, 1986 ‘…not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by opinion juris sive necessitates.’ (Paragraphs 108-109)

Custom and Jus Cogens Entail obligations erga omnes: override contradictory norms (VCLT, Art 53). Peremptory norms of IL. If a treaty is made that clashes with jus cogens, it will be made void. They are accepted and recognised by the international community of states as a whole. No derogation allowed: pinnacle of hierarchy of sources of IL. Intransgressible principle of customary IL. Can only be modified by subsequent norm of the same character. Candidates include: prohibition of torture, genocide, slavery, apartheid etc. Relativity of custom Customary IL is generally uniform in practice. A state my exempt itself from application of new customary rule by persistent objection to the norm’s formation. Evidence of objection must be clear: otherwise rebuttable presumption of acceptance arises. Interplay between treaty and custom Treaty norms can crystallise into new principles or rules of customary international law. Progressive development of IL when treaties create new rules. Sometimes, they can include existing custom – codification of existing law, it does not turn it into treaty law, but remains custom (but treaties can be crystallised into custom). Principles or rules of customary IL override rules and principles of treaty law (not the other way) and treaties can codify custom. General Principles of Law International law can borrow principles from the national system – where there are common principles that have been accepted. It refers to the principles accepted and found in most domestic legal systems – hence domestic law is influencing international law. They can be found in statements of consensus, UN resolutions, arbitral awards and settlements, etc. Such principles that have emerged from domestic law include: acquiescence and res judicata – cannot be tried twice for the same crime; also cannot be your own judge. Subsidiary Sources

Sometimes a restatement of the core sources of IL. These can include judicial decisions: e.g. of national, regional, and international courts. ‘Teachings of the most highly qualified publicists’ can also be a subsidiary source of IL. However subsidiary sources are not strictly formal sources of law, but are regarded as evidence of the law. Charming Betsy rule – will not interpret national law in a negative light of IL (i.e. in opposition to IL obligations).

Introduction to International Humanitarian Law Nature of IHL IHL limits effects of armed conflict by: (a) protecting those who are not or are no longer participating directly in hostilities; and (b) limiting the means and methods of warfare. (a) Includes unarmed civilians, wounded, prisoners of war, relief organisations, NGOs, peacekeepers, naval officers on land or shipwrecked. (b) Dictates what can or cannot be a target, what weapons may be used, e.g. excludes poisons. Civilians enjoy general protection against military operations – never lawful to direct an attack against a purely civilian target. Attacks are allowed only against military objectives. It is prohibited to cause unnecessary loss or excessive suffering (principle of proportionality). There must be protection of the sick and wounded without discrimination. Prisoners captured by the enemy must be respected. IHL is not concerned with whether a particular conflict is lawful (jus ad bellum – UN Charter, lawful to go to war in cases of self-defence or approved by Security Council Art 2(4)). We are concerned with jus in bello (law in war). IHL is not the same as human rights law. HR law is a younger body of law than the laws of war. Historical features of IHL IHL and Jean Pictet takes the ancient nature of war as a foundation. By creating objective legal limits, the objective standards of law will have acceptable means and levels of violence. Just War – governed relationships between early Christian states, is a means for a war and it needs to be properly declared. If there was a just cause, then you are permitted to do things in war that other states may not be. Problem is that everyone thinks their own war is just, scholars started realising this – now assume all are just but need a level playing field. IHL regulates armed conflict through customary international law and treaty. The idea that the conflict of war is governed by rules has existed for centuries as a custom. It is becoming more extensive and better codified. Customs of war are one of the oldest forms of IL. Chivalry used to prevail among Christian knights, respect one another during armed conflict – had to be open about conflict, could not be treacherous or concealing, cross-bow was considered un-Christian as it could have been used at a long distance and did not expose

victim to the risk. Agreements based on strict reciprocity. Character of rules in bilateral agreements started being recorded in 16th and 17th centuries (now replaced by conventions). Later war began to change, ceased to be about chivalrous knights and started to be a more national pursuit. National standing armies were created and ideas in Europe emerged of nationalities etc. First attempt to codify laws of war were codified by Francis Lieber at the request of Lincoln – propagated as national law, binding on union army and based on what Lieber regarded as generally accepted laws of the day (customary law). It protected unarmed civilians, prohibited rape, robbery and violence. It did not represent IL because it was not a treaty, but was accepted as national law and accepted by the US. Modern IHL Two streams: ‘Geneva Law’: protected persons who were not or were no longer participating in the hostilities (hors de combat – those who were outside of combat). ‘Hague law’: restricted the means and methods of warfare. A Memory of Solferino 1859 Henry Dunant in the Battle of Solferino described brutality of war and its aftermath. He improvised hospitals through the town and neighbouring towns, he organised volunteers to assist wounded and set them up in churches and houses. He and the volunteers made no distinction to the nationality of the wounded. His book proposed a relief society and an international convention – lead to Red Cross – independent Swiss organisation offering assistance to wounded people in armed conflict. His book gave rise to the first Geneva Convention – at the request of the Swiss Government, 16 officials created the Convention in the 1800s. It was the first multilateral treaty in the world, and included armed conflict and treatment of soldiers/civilians. Arts 1 and 2 of Geneva Convention required ambulances etc. were neutral, Art 6 specified that wounded must be collected and respected, Art 7 Red Cross is inverse of Swiss Flag – adopted to protect – don’t shoot. Now have Red Crescent and Red Diamond. Basic essence: based on principles of neutrality, impartiality and humanity (same as Red Cross).

Hague law – Lieber code – consistent with accepted practice and similar codes were accepted by other nations. The only legitimate object of warfare is to weaken the military strength of the enemy. Military operations are only to be directed at military targets, also prohibited rape, civilians and civilian property. St Petersburg Declaration 1868 ‘…the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’.

Topic Two: Codification of the laws of war Hague Conventions 1899 and revised 1907 The first and second Hague Conventions of 1899 The Hague Convention of 1899, applied in international wars involving two or more nations; and it represented first codification of the law of war. While comprehensive, draft was recognised that it could not cover every situation in armed conflict. Pre-amble: to Hague Convention 1899 (II), included clause provided by Russian delegate, intended to apply also in situations that were not specified in the document – Martens Clause; until a more complete code is issued, the parties…will abide by the laws of humanity and public conscience – stresses continuance of customary laws where treaties are silent. Martens Clause – preamble to the 1899 Hague Convention (II) Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of the public conscience.

Customary law would have continued to apply anywhere – but placed humanitarian spin – continued to be governed by principles of humanity and public conscience. This means that it is general and loose language, but principles of humanity prevent principles of war that are not definite of military advantage (opposite of military necessity). Quote – pain should be as endurable as possible: that is defines humanity. However the Convention will not apply if one of the belligerents was not a party to the treaty – Martens clause even more important and continues to be relevant as customary IL still applies even if a state is not a party to the treaty. The Hague Convention contained detailed conventions on combatants and prisoners of war – combatants were lawfully permitted to enter armed conflicts – they were not criminals of national or international law. Once captured were not a threat and were to be treated humanely, sent back to home country at end of hostility (also a war prisoner). The right of belligerents to harm the enemy are not limited. St Petersberg – weaken military forces of the enemy. Also customary ban on poisons and unnecessary suffering. Undefended towns are not to be attacked, and set up detailed rules for occupying parties – placed under control of enemy power – must take provisions to reinstate public order and safety and respect (unless absolutely impossible) the laws of the nation in place. The third and fourth Hague Conventions of 1907 The third conference was prevented by WWI; but most provisions now reflect customary international law regardless of whether the state is a party.

Israeli Wall case (ICJ advisory opinion to the UN General Assembly) 2004 The UN General Assembly asked the ICJ to assess the legality of the wall built by Israel on Palestinian territory. The ICJ held that although Israel is not a party to the fourth Hague Convention, it considered the provision of the Hague reservations as party of customary international law. It was also considered that the rules governing occupation were also relevant following the definition in Article 42 of the 1907 Convention: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. This now exists as customary IL.

The Geneva Conventions and Protocols Geneva conventions enjoy universal ratification – all states have signed the Geneva conventions. Most recent state to join was South-Sudan in 2013 and Palestine earlier this year. GCs contain comprehensive commentaries; majority of GCs represent customary international law – e.g. Nuclear Advisory Opinion decision of ICJ. 429 conventions in GC. First Geneva Convention of 1864 – Convention for the Amelioration of the Condition of the Wounded in Armies in the Field 22 August 1864 GC1 deals with the wounded and sick and reflects Art 1-3 Hague Conventions – wounded and sick, AF; militia or volunteer core, to other militia and other core so long as they fit certain conditions… carries on idea of chivalry. Need to carry arms openly, and distinguish by some sign. Also people that accompany armed forces but are not armed themselves. Also protects ambulances and hospitals – necessary for caring for the sick. After the successful termination of the Geneva Conference of 1863, the Swiss Federal Council, on the initiative of the Geneva Committee, invited the governments of all European and several American states to a diplomatic conference for the purpose of adopting a convention for the amelioration of the condition of the wounded in war. The conference, at which 16 states were represented, lasted from 8-22 August 1864. The draft convention submitted to the conference, which was prepared by the Geneva Committee, was adopted by the Conference without major alterations. The main principles laid down in the Convention and maintained by the later Geneva Conventions are: - Relief to the wounded without any distinction as to nationality (particularly Article 6); - Neutrality (inviolability) of medical personnel and medical establishments and units; - The distinctive sign of the red cross on a white ground. A second diplomatic conference was convened at Geneva in October 1868 in order to clarify some provisions of the Convention of 1864 and, particularly, to adapt the principles of the Convention to sea warfare. The Additional Articles, which were adopted on 20 October 1868 were, however, not ratified, and did n...