Additional Protocol II: Elevating the minimum threshold of intensity?

2021 ◽  
pp. 1-28
Author(s):  
Martha M. Bradley
Keyword(s):  
Case Law ◽  
Armed Conflicts ◽  
Military Operations ◽  
Minimum Threshold ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Scope Of Application ◽  
Treaty Interpretation ◽  
Armed Violence

Abstract This paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term “sustained” in the phrase “sustained and concerted military operations” intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term “sustained” in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase “sustained” military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts.

Parties to Non-International Armed Conflicts under International Treaty Law

2018 ◽  
Author(s):  
Tilman Rodenhäuser
Keyword(s):  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Treaty ◽  
Armed Group ◽  
Applicable Law ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Treaty Law ◽  
Treaty Interpretation

Chapter 2 examines international humanitarian law treaties. Using classical treaty interpretation methods, it establishes what degree of organization is required from a non-state armed group to become ‘Party to the conflict’ under article 3 common to the four Geneva Conventions, or an ‘organized armed group’ under article 1(1) of the Additional Protocol II or under the ICC Statute. Chapter 2 also analyses the travaux préparatoires of the different treaties, subsequent practice, and engages with the main doctrinal debates surrounding these questions. By subjecting the three treaties to thorough analysis, the chapter presents concise interpretations of the relevant organizational requirements, and compares the different thresholds. It also identifies and addresses under-researched questions, such as whether the organization criterion under international humanitarian law requires the capacity to implement the entirety of the applicable law.

8 Protection of Civilians

2021 ◽  
Author(s):  
Dörmann Knut
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Internal Conflict ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Foreign Occupation ◽  
Occupied Territories ◽  
Scope Of Application ◽  
The Law ◽  
International Character

This chapter assesses the provisions of international law concerning the protection of civilians in armed conflict. The rules applicable in international armed conflict are highly developed and extensively codified. Of course, their scope of application is limited to conflicts of an international character, in particular armed clashes between states. Situations of foreign occupation are also international armed conflicts. The four Geneva Conventions, supplemented by their first 1977 Additional Protocol, constitute the heart of protections granted to civilians in international armed conflicts. Meanwhile, the law protecting civilians in non-international armed conflicts has been codified by Article 3 common to the four Geneva Conventions and the second 1999 Additional Protocol. Although these provisions are more summary in nature than the law on international armed conflicts, they contain important rules on the protection of civilians in an internal conflict. The chapter then considers the provisions concerning situations in which a party to an armed conflict comes into contact with civilians of the opposing side, especially with aliens on its own territory and with inhabitants of occupied territories.

The principle of superfluous injury or unnecessary suffering:From the Declaration of St. Petersburg of 1868 to Additional Protocol 1 of 1977

1994 ◽  
Vol 34 (299) ◽  
pp. 98-122 ◽  
Author(s):  
Henri Meyrowitz
Keyword(s):  
100Th Anniversary ◽  
Central Point ◽  
Armed Conflicts ◽  
Red Cross ◽  
International Review ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Scope Of Application ◽  
The Law ◽  
Definition Of

On the 100th anniversary of the Declaration of St. Petersburg, theInternational Review of the Red Crossdevoted to this important first document of the law of war an article examining the relation between the notion of the “legitimate object” of war as defined in the Declaration and the means of warfare used, whose lawfulness was declared to be limited by their conformance to that legitimate object and by their necessity. Since 1868 the law of international armed conflicts has been supplemented by Protocol I additional to the Geneva Conventions of 1949, which enlarged on the central point of the Preamble to the Declaration of 1868 — i.e. the concept of “maux superflus” (“superfluous injury or unnecessary suffering”); although it was not formulated as such until 1899 in Article 23e) of the Regulations respecting the Laws and Customs of War on Land, it may, as we shall demonstrate, be traced back to the Declaration's Preamble. Protocol I broadened the concept's scope of application to include methods of warfare, but it also and above all introduced a new rule of considerable import by narrowing the definition of military objectives that may lawfully be attacked.

Amnesties and international humanitarian law: Purpose and scope

2018 ◽  
Vol 101 (910) ◽  
pp. 357-363
Keyword(s):  
Armed Conflict ◽  
War Crimes ◽  
Armed Conflicts ◽  
Universal Jurisdiction ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Additional Protocol ◽  
Geneva Conventions

States party to the 1949 Geneva Conventions and Additional Protocol I of 1977 have an obligation to take measures necessary to suppress all acts contrary to their provisions. Moreover, States must investigate war crimes allegedly committed by their nationals or on their territory, and other war crimes over which they have jurisdiction, such as on the basis of universal jurisdiction, and, if appropriate, prosecute the suspects. In accordance with these obligations and the limits they impose, States may adopt certain measures during and in the aftermath of armed conflicts to promote reconciliation and peace, one of which is amnesties. International humanitarian law (IHL) contains rules pertaining to the granting and scope of amnesties. Specifically, Article 6(5) of Protocol II additional to the Geneva Conventions relating to non-international armed conflicts (NIACs) provides that, at the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict. Importantly, under customary IHL (as identified in Rule 159 of the ICRC customary IHL study), this excludes persons suspected of, accused of, or sentenced for war crimes in NIACs.

scholarly journals The Fight Against the Islamic State andJus in Bello

2016 ◽  
Vol 29 (3) ◽  
pp. 827-852 ◽  
Author(s):  
VAIOS KOUTROULIS
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Islamic State ◽  
Humanitarian Law ◽  
Applicable Law ◽  
State Actor ◽  
Scope Of Application ◽  
Geographical Scope

AbstractThis article examines several questions relating to international humanitarian law (jus in bello) with respect to the conflicts against the Islamic State. The first question explored is the classification of conflicts against the Islamic State and the relevant applicable law. The situation in Iraq is a rather classic non-international armed conflict between a state and a non-state actor with third states intervening alongside governmental forces. The situation in Syria is more controversial, especially with respect to the coalition's airstrikes against the Islamic State on Syrian territory. If the Syrian government is considered as not having consented to the coalition's operations, then, according to this author's view, the coalition is involved in two distinct armed conflicts: an international armed conflict with the Syrian government and a non-international armed conflict with the Islamic State. The second question analyzed in the article bears on the geographical scope of application of international humanitarian law. In this context, the article examines whether humanitarian law applies: in the entire territory of the state in whose territory the hostilities take place, in the territories of the intervening states, and in the territory of a third state.

scholarly journals SCOPE OF THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW (IHL) IN SITUATIONS OF NON-INTERNATIONAL ARMED CONFLICTS: EXTENDED APPLICABILITY OF COMMON ARTICLE.3

2019 ◽  
Vol 1 (2) ◽  
pp. 99-105
Author(s):  
Dr. Faiz Bakhsh ◽  
Keyword(s):  
Special Reference ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Complex Phenomenon ◽  
Humanitarian Law ◽  
Armed Groups ◽  
International Conflicts ◽  
Additional Protocol ◽  
Binding Force ◽  
Geneva Conventions

The applicability of International Humanitarian Law (IHL) in non-international conflicts is a complex phenomenon due to the undefined and unannounced nature of non-international armed conflicts. International Humanitarian Law extends its applicability to the armed conflicts of non-international nature between state and non-state armed groups or between non-state armed groups. Common article.3 to the Geneva Conventions of 1949, and 1977 Additional Protocol II to the Geneva Conventions, provide criteria for the applicability of IHL However, the states are often seen reluctant to accept international legal oversight into their internal matters and this phenomenon of violence often need to be identified and defined. This paper investigates the scope of the application of International Humanitarian Law in situations of non-international armed conflicts, mainly focussing on the extended applicability of common article.3 to the Geneva Conventions 1949, in situation of non-international armed conflicts. Various types and nature of armed conflicts, the applicability of International Humanitarian Law to non-international conflicts are discussed with special reference to the scope and applicability of Common Article.3 to the Geneva Conventions of 1949. Moreover, the binding force and territorial scope of common article.3 are discussed in a broader context as to assess the applicability of International Humanitarian Law on the changing nature of the non-international armed conflicts.

Noninternational Armed Conflict (“Civil War”)

2020 ◽  
Author(s):  
Faustin Ntoubandi
Keyword(s):  
Civil War ◽  
Armed Conflict ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Armed Conflicts ◽  
Former Yugoslavia ◽  
Jus In Bello ◽  
Additional Protocol ◽  
Internal Conflicts ◽  
Geneva Conventions

A noninternational armed conflict (NIAC) or civil war—as it used to be called in the past—is an armed conflict that occurs within the territory of a particular state, between government armed forces and organized armed groups, or between such groups fighting each other. It is also often called “internal armed conflict,” as opposed to an international armed conflict involving at least two states. NIACs constitute the oldest form of armed conflicts and have become, since the end of the Cold War, more pervasive and more lethal than international armed conflicts. Conflicts since the late 20th century in Cambodia, the former Yugoslavia, and Rwanda, as well as the ongoing ones in the Democratic Republic of the Congo, Libya, Yemen, Ukraine, and Syria, are just a few illustrations of the pervasive character of NIACs. International law has, for a long period of time, considered NIAC as a purely intrastate matter despite its external reverberations. However, this stance has evolved following the adoption of the four Geneva Conventions in 1949. The latter codify a corpus of customary rules, commonly known as jus in bello, which regulate the conduct of hostilities in the context of armed conflict by restraining the use by the warring parties of certain means and methods of warfare. Article 3 of each of the four Geneva Conventions introduces NIAC as “armed conflict not of an international character,” the victims of which must be subjected to the minimum standards of protection. In 1977 the Geneva Conventions of 1949 were supplemented by two protocols, which operate a clear distinction between international armed conflict (Additional Protocol I) and NIAC (Additional Protocol II or AP II). AP II defines humanitarian law rules that govern hostilities in internal conflicts. Such rules, together with other relevant treaty provisions and humanitarian principles, constitute the corpus of the jus in bello regulating the conduct of NIACs. A number of internal conflicts that erupted in various countries in the beginning of the 1990s have given ad hoc international tribunals, especially the 1993 International Criminal Tribunal for the Former Yugoslavia (ICTY) and the 1994 International Criminal Tribunal for Rwanda (ICTR), the opportunity not only to outline the nature and delimit the frontiers of NIACs, but also to set the conditions under which individual criminal liability may arise as a result of the crimes committed in the context of such conflicts.

Administrative Detention by Non-State Armed Groups: Legal Basis and Procedural Safeguards

2020 ◽  
Vol 53 (1) ◽  
pp. 35-70 ◽  
Author(s):  
Maria Gavrilova
Keyword(s):  
Case Law ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Basis ◽  
Armed Groups ◽  
Legal Regime ◽  
Geneva Conventions ◽  
Recent Developments ◽  
Administrative Detention

The realities of contemporary armed conflicts with a complex interweaving net of actors are rarely reminiscent of classic combat scenarios envisaged by the drafters of the Geneva Conventions. The scarcity of conventional regulation of non-international armed conflicts (NIACs), coupled with the non-state character of the majority of detaining powers, lead to lack of clarity regarding the legal regime of detention of persons captured by non-state armed groups (NSAGs). In the absence of an explicit authorisation for internment under the international humanitarian law applicable to NIACs, recent developments in case law have induced a scholarly debate on what is the legal basis for administrative detention carried out by these actors. The article analyses key arguments presented by both sides of the debate, concluding that neither side can demonstrate either the existence or the absence of the authorisation in question, while the discussion itself has limited practical value in regulating the conduct of NSAGs. At the same time, the practice of states, although still ambivalent, points to the gradual transformation of mere legality, or the so-called ‘inherent power’ to intern, into a customary provision providing a legal basis for administrative detention by NSAGs.

Precautions against the effects of attacks in urban areas

2016 ◽  
Vol 98 (901) ◽  
pp. 147-175 ◽  
Author(s):  
Eric Talbot Jensen
Keyword(s):  
Urban Areas ◽  
Criminal Responsibility ◽  
Modern Technology ◽  
Armed Conflicts ◽  
Advanced Technology ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Military Operations ◽  
Geneva Conventions ◽  
Urban Conflict

AbstractThe conduct of hostilities in urban areas is inherently difficult, particularly with respect to the protection of civilians. International humanitarian law places restraints on both attackers and defenders. While much is written about the obligations of attackers with respect to protecting civilians, much less attention has been paid to the defender's obligations. These obligations are routinely referred to as “passive precautions” or “precautions against the effects of attacks” and are codified in Article 58 of Additional Protocol I to the 1949 Geneva Conventions. Article 58 requires parties, “to the maximum extent feasible”, to remove civilians and civilian objects from the vicinity of military objectives, to avoid locating military objectives within or near densely populated areas, and to take other necessary precautions to protect civilians and civilian objects from the dangers resulting from military operations.Even though they are limited by only requiring those actions which are feasible, the obligations placed on the defender are far from trivial and, if applied in good faith, would certainly provide much needed protections to civilians in armed conflict, particularly in times of urban conflict. However, this ever-increasing urbanization is creating significant pressure on the doctrine of precautions in defence, stretching the “feasibility” standard beyond its capacity to adequately protect civilians. On the other hand, the emergence of advanced technology provides a mechanism for defenders to more easily and more fully comply with their obligations to segregate or protect the civilian population.For the customary obligation of “precautions against the effects of attacks” to maintain its effectiveness, particularly in urban areas of conflict, the understanding of feasibility and what is “practicable” in current urbanized armed conflicts will have to expand, increasing the practical responsibilities on the defender, including through the use of modern technology. Moreover, imposing criminal responsibility when appropriate and feasible precautions are not taken will rectify the perceived imbalance between the responsibilities of the attacker and those of the defender.

Twenty-five Years after the Adoption of Additional Protocol II: Breakthrough or Failure of Humanitarian Legal Protection?

2001 ◽  
Vol 4 ◽  
pp. 129-166
Author(s):  
Heike Spieker
Keyword(s):  
Legal Protection ◽  
International Community ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Civilian Population ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Internal Armed Conflicts

On 12 December 2002, the international community celebrated the twenty-fifth anniversary of the opening for signature of 1977 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. In view of today's armed hostilities around the globe, this anniversary raises the questions whether international humanitarian law provides substantive regulation protecting civilians in non-international armed conflicts; whether such legal protection is effectively countering the sufferings of the civilian population and what are now the main challenges for the international communityvis-à-visinternal armed conflicts.

Sign in / Sign up

Export Citation Format

Share Document