1) the role of status in ihl 2) qualification of armed conflict 3) repercussions of status on 3...
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1) THE ROLE OF STATUS IN IHL
2) QUALIFICATION OF ARMED CONFLICT
3) REPERCUSSIONS OF STATUS ON 3 LEVELS :ON THE BATTLEFIELD :
1. CONDUCT OF HOSTILITIES
IN DETENTION / AT THE HANDS OF THE ADVERSARY 2. PROSECUTION3. TREATMENT
1) PRACTICAL APPROACH TO STATUS
QUALIFICATION AND CLASSIFICTION ( STATUS) in
IHLCECILIE
HELLESTVEIT 06.09.10
Status in International Humanitarian Law
« humanitarian » = euphemism ? RULES MADE FOR SITUATIONS OF HOSTILITIES STATE CANNOT PERFORM THE NORMAL FUNCTIONS AS A STATE RULES ABOUT HOW TO TREAT YOUR ENEMIES (and neutrals)
the most basic instrument in IHL to mitigate military necessity and humanity : status
status human beeings separated into categories based on their function and/or relation with a party in a conflict
status inequality of the rights and obligations of human beeings based on their function (unlike human rights )
status obligation to discriminate between these categories of human beings
WHAT IS IMPORTANT ?
CONTEXT: How is the situation in which this takes place QUALIFIED ? CONFLICT (war or peace?)
Paradigm of hostilites?
PARTIES : Type of conflict : state or non-state actors IAC or NIAC?
EPISODE 2007, close to ongoing battle
PERSONS : which STATUS do the persons involved have ? ”armed conflict” or peace
Skrimishes? Riots, disturbances?
”international or non-international”? IAC: ”Occupation”? HIVR NIAC: APII?
combatants ?
WHAT IS IMPORTANT ?
CONTEXT: How is the situation in which this takes place QUALIFIED ? CONFLICT (war or peace?)
Paradigm of hostilites? PARTIES : Type of conflict :
state or non-state actors IAC or NIAC?
EPISODE 2007, close to ongoing
battle
PERSONS : which STATUS do the persons involved have ? Combatants or civilians?
( IAC or NIAC?) Particular status ?
e.g journalist, medical evacuation, children
EPISODE Black SUV-van, male-group,
armed, vicinity of battle
International Armed Conflict(IAC)
International Armed Conflict(IAC)
Non-international Armed Conflict (NIAC)Non-international Armed Conflict (NIAC)
- International armed conflict (GCart2)
- Belligerent occupation (GCart2)- Wars of national liberation API 1(4)
The four Geneva Conventions of 1949 & the first additional protocol of 1977
FULL STATUS –REGIME :
Combatant & civilian : clear categories, coherent system
NATIONALITY : formal entity PRESUMPTION
- Non-international armed conflictbetween the state and organized group with territorial control
The second additional protocol of 1977
- Non-international armed conflict between the state and groups or between groupsCommon Article 3 to the four Geneva Conventions
Combatant & civilian : Less clear categories, less coherent system
NO FORMAL ENTITY: ‘party’ to the conflict not nation. FUNCTION
Status-’regimes’ vary with the qualification of conflict
1) applicability of IHL 1) applicability of IHL 2) type of armed conflict2) type of armed conflict
Armed conflict ?1)Are there hostilites in
an IHL sense ?2)Are there two (or
more) parties to the conflict ?
OR :Occupation ?
Are the parties states or non-state actors ? Another state acting as
proxy?
Are there any additional factors that may influence type ? API1(4) Non-state actors having
territorial control (APII)
QUALIFICATION OF CONFLICT
STATUS IMPORTANT IN 3 MAIN REGARDS :
1) On the battlefield
1) Conduct of hostilities
2)
2) In detentio/ in the hands of the adversary
Prosecution
Treatment in detention
IHL
Lawful targetsLawful targets Target immunityTarget immunity
Those who are combatants(API art 43)
+Those who do take
part in hostilities(civilians)
Civilians : non-combatants
« who do not take direct part in hostilities »
1) Status in conduct of hostilities : target immunity
Combatants Civilians
IMMUNITY OF CIVILIANS Immunity from direct
targeting API art 51(2) APII art13 [3] Derivated rules e.g: Parties to the conflict
must distinguish (API art 48)
Combatants obliged to distinguish themselves API art 44
Prohibition against indiscriminte attacks API art 51(4)
IMMUNITY OF CIVILIANS Immunity from direct
targeting API art 51(2) APII art13 [3] Derivated rules e.g: Parties to the conflict
must distinguish (API art 48)
Combatants obliged to distinguish themselves API art 44
Prohibition against indiscriminte attacks API art 51(4)
Combatants Civilians
IMMUNITY OF CIVILIANS Immunity from
direct targeting API art 51(2) Parties to the
conflict must distinguish (API art 48)
Combatants obliged to distinguish themselves API art 44
Prohibition against indistcriminte attacks API art 51(4)
IMMUNITY OF CIVILIANS Immunity from
direct targeting API art 51(2) Parties to the
conflict must distinguish (API art 48)
Combatants obliged to distinguish themselves API art 44
Prohibition against indistcriminte attacks API art 51(4)
Persons directly participating in hostilitiesDPHAPI 51(3)
Persons directly participating in hostilitiesDPHAPI 51(3)
MercenariesAPI art 47
MercenariesAPI art 47
LAWFUL TARGETS .
Conduct of hostilites : Rules for IAC and NIAC ≈ the sameIs NN a lawful target ?
Is he a combatant ?OR
Is he directly participating in hostilites ?
If ”NO” to both these questions: NN is a civilian with target immunity ( API art 51(2) and APII art 13 (3))
If YES to one of them : is NN hors de combat due to wound, illness, detention or other?
Combatant /DPHCombatant /DPH CivilianCivilian
Can be directly targeted
BUT : Subject to limitations on means and methods of warfare
Can never be directly targeted
Protected against indiscriminate attacks
BUT : * is NOT protected against attack which is expected to cause incidental loss of civilian life which would NOT be excessive in relation to the concrete and direct military advantage anticipated
(proportionality in attack)
Basic tenet : all parties must respect the principle of distinction in hostilites
COMBATANTSCOMBATANTS CIVILIANSCIVILIANS
COMBATANTSPersons who have
the right to directly participate in hostilites,(’lawful combatants’)
and cannot be prosecuted for it(’priviledge of combatancy’)
« everyone else »: Can be prosecuted
for engaging in lawful acts of war
2) Status : PROSECUTIONProsecutorial immunity
Combatant Civilian
POW- no prosecution for lawful acts of war (GCIII art 87)
A combatant becomes a POW when he falls into the power of the adversary (API art 44)
The right to be a POW : GCIII art 4
Members of the armed forces of a party to the conflict, militias and volunteer corps forming part of such forces
Other militias or volunteer corps fulfilling the 4 criteria of commander, distinctive sign, openly carrying weapons and conducting their operations in accordance with the laws of war
etc
A civilian who has directly participated in hostilities and does not have the right to be POWs, may be prosecuted for lawful acts of war (APIart 45)
(Special rules , spies etc)
CombatantCivilian
IMMUNITY OF COMBATANTS Immunity from
prosecution for lawful acts of war
IMMUNITY OF COMBATANTS Immunity from
prosecution for lawful acts of war
IMMUNITY OF CIVILIANS Immunity from
direct targeting
IMMUNITY OF CIVILIANS Immunity from
direct targeting
PARTICIPATE DIRECTLY IN HOSTILITIES
PARTICIPATE DIRECTLY IN HOSTILITIES
POW (GC III)
Combatant who has been captured while breaking the rule of distinction inAPI 44(3) and (4) – in civilian clothing, not carrying arms openly looses combatant status
Combatant who has been captured while breaking the rule of distinction inAPI 44(3) and (4) – in civilian clothing, not carrying arms openly looses combatant status
”Treated as POW””Treated as POW”Spying AP 46Spying AP 46
CombatantCivilian
IMMUNITY OF COMBATANTS Immunity from
prosecution for lawful acts of war
IMMUNITY OF COMBATANTS Immunity from
prosecution for lawful acts of war
IMMUNITY OF CIVILIANS Immunity from direct
targeting
IMMUNITY OF CIVILIANS Immunity from direct
targeting
PARTICIPATE DIRECTLY IN HOSTILITIES
PARTICIPATE DIRECTLY IN HOSTILITIES
Combatant in civilian clothing and not carrying arms opely (API 44(3) and (4) )
Combatant in civilian clothing and not carrying arms opely (API 44(3) and (4) )If a civilian endangers the principle of distinction between combatants and civlians
by participating in hostilities he looses his privilegde of immunity of civilians: he can be directly targeted ( and can be prosecuted for lawful acts of war)
If a combatant endangers the principle of distinction between combatants and civiliansby not distinguishing himself properly he looses his priviledge of immunity of combatancy:He can be prosecuted for lawful acts of war (and can be directly targeted)
IACIAC NIACNIAC
COMBATANT – clearly defined has immunity from
prosecution for lawful acts of war
CIVILIAN –negatively defined from combatant does not have the right
to participate in hostilites , and thus does not have immunity for such acts
COMBATANT : not definedMembers of State armed forces have immunity from prosecution (customary law)
EVERYONE ELSE can be prosecuted for engaging in lawful acts of war
But may be given amnesty (‘subsequent immunity’)APII art 6 (5)
COMBATANTSCOMBATANTS CIVILIANSCIVILIANS
Prisoners of War GC III (art 4)
Soldiers hors de combat Sick, wounded, surrenderedOn land : GC I (“protected persons” art 13)At sea : GC II(“protected persons” art 13)
GCIV « protected persons » (art 4) - In the hands of a
Party…of which they are not nationals »
- Not protected by GCI-III
Status : TREATMENT IN THE HANDS OF THE ADVERSARY
Combatants Civilians• IMMUNITY OF
COMBATANTSImmunity from prosecution for lawful acts of war
• IMMUNITY OF COMBATANTS
Immunity from prosecution for lawful acts of war
IMMUNITY OF CIVILIANSImmunity from direct targeting
IMMUNITY OF CIVILIANSImmunity from direct targeting
PersonsDPHPersonsDPH
Regime of Treatment in Detention
POW (GC III)-Combatant -’Non-combatants’ in army GC III art 4A no1-Accompanying personell-GC III art 4A no4
Minimum protectionAPI art 75
DPH, ( art 45(3)
DPH, ( art 45(3)
Detained civiliansGC IV (section IV), API (section III)
IAC IAC NIACNIAC
System based on States on both sides ( enemy combatants, enemy civilians, but NEUTRALIZED with regard to the conflict)
Basic rules of protection
Inequality : state versus non-state actors
Few rules in IHLInteraction /
support of International Human Rights Law for state actor
Treatment at the hands of the adversary/ in detention
STATUS IMPORTANT IN 3 MAIN REGARDS :
1) Battlefield
1) Conduct of hostilities
2)Rules of IAC ≈ NIAC
2) In detentio/ in the hands of the adversary
Prosecution
Rules of IAC : clear system
Rules of NIAC : rudimentary/one sided
Treatment in detention
Rules of IAC = fully fledged system of IHL
Rules of NIAC = very different. Rudimentary in IHL, other rules to support ( human rights etc)
IHL
Example : Example : AfghanistanAfghanistan
Two trucks loaded with fuel are highjacked by the Taleban. The Germans call in airsupport, the trucks are bombed. Approx. 90 people die. Many burned to death.
Was the attack lawful ? Must determine status
Practical approach
Status should be determined based on
1) the conflict APPLICABILITY OF IHL
2) the parties QUALIFICATION OF
CONFLICT – IAC / NIAC)
3)the link of a given person to a party to the conflict
STATUS
THUS :
1) does IHL apply ?
2) what regime of IHL applies ?
3) what status do the humans involved have in relation to this conflict ?
IF ”Combantants”/”DPH”
IF ”Combantants”/”DPH”
IF « Civilians with target immunity » IF « Civilians with target immunity »
Did they use lawful means and methods of warfare against the lawful targets?
Did they know that the were civilians with target immunity and still intentionally targeted them ? Principle of distinction
Should they have known ? Precaution in attack
If they did know, but decided to attack anyway( but without intentionally targeting them) :
Did they use a means/ method that could be directed at the military target only? Prohibition of indiscriminate attacks
Did they respect the principle of proportionality ? Was the expected loss of civilian life excessive in relation to the concrete and direct military advantage anticipated ?Principle of proportionality
SUM UP
Status is crucial, and relevant for almost every question of IHL
Status is more complex than the core division between « those who fight » versus « those who do not fight ».
The status ‘regimes’ vary with the qualification of conflict Status works differently on different levels (hostilities,
prosecution, detention). The status ‘regimes’ of IAC – NIAC are similar with regard
to hostilities, less with prosecution and least with detention.
The main reason behind the complexity of the rules of status is the desire to enhance and protect the principle of distinction ( on the battlefield)
Status should be determined based on 1) the conflict ( APPLICABILITY OF IHL) 2) the parties (QUALIFICATION OF CONFLICT – IAC / NIAC) 3)the link of a given person to a party to the conflict (STATUS)
neutralisation of combatants ( but not more destruction than what is necessary),
Distinction between combatants and civilian population (API 48)
Target immunity for civilians and civilian population ( API ar 51 (2)
Only military objectives can be directly attacked ( API art 52 (2)
protection of civilians against the dangers arising from military operations (API 51(1))
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