17. Legal Restraints on Violence in Armed Conflict

2020 ◽  
pp. 366-403
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Armed Conflict ◽  
Historical Development ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
The Status ◽  
The Hague ◽  
War Victims

This chapter examines the historical development and contemporary operation of the international law of armed conflict. It begins with a discussion of the historical development of this body of law, from the Hague Conventions to the Geneva Conventions and the two 1977 Additional Protocols, to the contemporary relation between international humanitarian law and human rights law, particularly in the field of targeting and detention of members in non-international armed conflicts. It then analyses the status of lawful combatants in international armed conflicts and the question of membership of non-State armed groups, as well as the notion of direct participation in hostilities and ‘unlawful combatants’. It then turns to the restrictions on the use of force based on the principles of distinction and proportionality, the choice of weapons, the protection of war victims, and some compliance mechanisms.

Universal acceptance of international humanitarian law — Promotional activities of the ICRC

1994 ◽  
Vol 34 (302) ◽  
pp. 450-457 ◽  
Author(s):  
Hans-Peter Gasser
Keyword(s):  
Armed Conflict ◽  
Cultural Property ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Conference ◽  
Geneva Conventions ◽  
Conventional Weapons ◽  
War Victims

In its Final Declaration of 1 September 1993, the International Conference for the Protection of War Victims inter alia urged all States to make every effort to:“Consider or reconsider, in order to enhance the universal character of international humanitarian law, becoming party or confirming their succession, where appropriate, to the relevant treaties concluded since the adoption of the 1949 Geneva Conventions, in particular:—the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (Protocol I);—the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II);—the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons and its three Protocols;—The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict”.

The prohibition of reprisals in Protocol I: Greater protection for war victims

1997 ◽  
Vol 37 (320) ◽  
pp. 524-527
Author(s):  
Konstantin Obradovic
Keyword(s):  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Leading Role ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
The World ◽  
The Law ◽  
Yugoslav Wars ◽  
War Victims

It is not without reservations that I am responding to the invitation from the Review for ‘veterans’ of the Diplomatic Conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts (hereafter the Diplomatic Conference) to commemorate the signing 20 years ago of the Protocols additional to the Geneva Conventions. On 8 June 1977, all of us who contributed in one way or another to the drafting of those texts felt a sense of relief at having finally achieved our task. We also felt a kind of exhilaration at the thought that we had successfully completed an important undertaking that would benefit war victims. The two Protocols represented a major leap forward in the law of armed conflict. It should not be forgotten that practically two-thirds of the international community have now ratified these instruments. Yet compliance with them regrettably remains far from satisfactory. I need hardly recite the tragic litany of conflicts over the past 20 years that bear out this deficiency. The case best known to me is that of the “Yugoslav wars” (1991–1995). They constitute the clearest example of the yawning gap between the law itself and the degree to which it is implemented. What is even more worrying is that all of this is taking place in a world where the demise of “totalitarianism” has left the world with what is, for all practical purposes, a single centre of power. This centre comprises those States which, since the International Peace Conference held in 1899 in The Hague, have been inspired by their democratic traditions and their attachment to human rights and the rule of law to play a leading role in developing, affirming and reaffirming what today constitutes international humanitarian law applicable in armed conflicts. I therefore believe that this divergence between the letter of the law and the conduct of those responsible for implementing it results from a lack of determination on the part of governments to “ensure respect” for that law throughout the world. I am in no doubt whatsoever that they have sufficiently efficacious means at their disposal to do so. What is missing, unfortunately, is the political will.

San Remo Manual on International Law Applicable to Armed Conflicts at Sea

1995 ◽  
Vol 35 (309) ◽  
pp. 595-637 ◽  
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Geneva Convention ◽  
Armed Conflicts ◽  
International Institute ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Naval Operations

The San Remo Manual was prepared during the period 1988–1994 by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened by the International Institute of Humanitarian Law. The purpose of the Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea. The Manual includes a few provisions which might be considered progressive developments in the law but most of its provisions are considered to state the law which is currently applicable. The Manual is viewed by the participants of the Round Tables as being in many respects a modern equivalent to the Oxford Manual on the Laws of Naval War Governing the Relations Between Belligerents adopted by the Institute of International Law in 1913. A contemporary manual was considered necessary because of developments in the law since 1913 which for the most part have not been incorporated into recent treaty law, the Second Geneva Convention of 1949 being essentially limited to the protection of the wounded, sick and shipwrecked at sea. In particular, there has not been a development for the law of armed conflict at sea similar to that for the law of armed conflict on land with the conclusion of Protocol I of 1977 additional to the Geneva Conventions of 1949. Although some of the provisions of Additional Protocol I affect naval operations, in particular those supplementing the protection given to medical vessels and aircraft in the Second Geneva Convention of 1949, Part IV of the Protocol, which protects civilians against the effects of hostilities, is applicable only to naval operations which affect civilians and civilian objects on land.

International Humanitarian Law and Non-State Practice in Armed Conflict: Combatant’s Privilege and Kurdish Fighters in Syria

2019 ◽  
Vol 24 (2) ◽  
pp. 271-296
Author(s):  
Ilana Rothkopf
Keyword(s):  
Armed Conflict ◽  
International Community ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Prisoner Of War ◽  
Geneva Conventions ◽  
State Practice ◽  
The Status

Abstract Do fighters associated with non-state armed groups have the combatant’s privilege in armed conflict? Non-state armed groups are commonplace in contemporary armed conflicts. However, international humanitarian law (IHL), particularly the law that pertains to combatant’s privilege and prisoner of war status, was designed with state actors in mind. This article assesses the conditions under which the members of non-state armed groups have combatant’s privilege. Throughout, it uses the case of Kurdish fighters in Syria as an example of the timeliness of this question and its ramifications for conflict actors. This article notes, with support from the Geneva Conventions, Additional Protocols, and other sources of IHL, that IHL does not foresee a combatant’s privilege for armed groups in a non-international armed conflict. It contends, however, that the international community should agree to a generalisable rule for the treatment of fighters as combatants regardless of conflict type, if these fighters demonstrate the capability and willingness to adhere to IHL. Such a rule would reduce the need to assess both conflict type and the status of individual fighters should they be captured, and more importantly, it would incentivise continued compliance with IHL.

Who Guards the Guardians: Third Parties and the Law of Armed Conflict

1976 ◽  
Vol 70 (1) ◽  
pp. 41-61 ◽  
Author(s):  
David P. Forsythe
Keyword(s):  
Armed Conflict ◽  
International Committee ◽  
Armed Conflicts ◽  
Red Cross ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
Medical Transport ◽  
Definition Of

The Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law in Armed Conflicts continues its attempts to supplement the 1949 Geneva Conventions, and in so doing to make the bulk of jus in bello consonant with factual reality. The first session of the Conference in 1974 provisionally adopted one highly important article out of 137 presented to the Conference by the International Committee of the Red Cross (ICRC). The second session in 1975 provisionally adopted 77 articles pertaining to such important subjects as the definition of a noninternational armed conflict, the protection of civilians and civilian goods, medical transport, environmental protection, and protection of journalists.

United States: Message From the President Transmitting Protocol II Additional to the 1949 Geneva Conventions, Relating to the Protection of Victims of Noninternational Armed Conflicts

1987 ◽  
Vol 26 (2) ◽  
pp. 561-572
Keyword(s):  
United States ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Geneva Conventions ◽  
The Status ◽  
The U.S

The four 1949 Geneva Conventions and two 1977 Additional Protocols are major efforts to codify the international rules of humanitarian law in armed conflict. The status of these agreements, indicating which countries have signed and/or ratified them, appears above at I.L.M. page 553. In this message to the U.S. Senate, Protocol I is rejected. Protocol II is recommended, subject to certain understandings and reservations.

Commentary: The Yugoslavia Tribunal and the Common Core of Humanitarian Law Applicable to all Armed Conflicts

2000 ◽  
Vol 13 (3) ◽  
pp. 619-653 ◽  
Author(s):  
Sonja Boelaert-Suominen
Keyword(s):  
Common Core ◽  
Armed Conflict ◽  
The Body ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Internal Armed Conflict ◽  
Geneva Conventions ◽  
The Common ◽  
The Hague

This article discusses the contribution made by the jurisprudence of the Yugoslavia Tribunal to the articulation of the body of international humanitarian law that applies to all armed conflicts, regardless of whether they are international or internal. The Tadić Jurisdiction Decision rendered by the Appeals Chamber in 1995 set the stage for a substantial “rapprochement” of the regulatory content of war crimes committed in international and internal armed conflict, using Common Article 3 of the Geneva Conventions as the main vehicle. The first judgements have contributed greatly to the expansion of the body of “Geneva law” applicable to all armed conflicts. More recently, the Tribunal has started to examine cases of armed conflicts per se, in which perpetrators have been charged with violation of the “Hague law”, i.e., the law relating to the conduct of hostilities. The end result of this development will be elaboration of a common core of Geneva law and Hague law applicable to all armed conflicts that have reached the threshold of Common Article 3 of the Geneva Conventions.

Internal (Non-International) Armed Conflict

2014 ◽  
Author(s):  
Eric David
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Internal Armed Conflicts

The law of armed conflict previously applied only to international armed conflicts. Today, internal armed conflicts are regulated by Article 3 common to the four Geneva Conventions of 1949, along with an increasing number of provisions. The second Additional Protocol of 1977 (AP II) to the 1949 GC contains 18 substantive provisions devoted entirely to non-international armed conflicts (NIACs). This chapter discusses the variety and complexity of international humanitarian law rules applicable to NIACs and the criteria used for identifying the existence of a NIAC. It considers how the nature of hostilities and the quality of the actors are used as defining criteria to distinguish an armed conflict from banditry, terrorism, and short rebellions.

scholarly journals The redirection of attacks by defending forces

2021 ◽  
pp. 1-18
Author(s):  
Tsvetelina van Benthem
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Prima Facie ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Definition Of ◽  
The Relationship

Abstract This article examines the redirection of incoming missiles when employed by defending forces to whom obligations to take precautions against the effects of attacks apply. The analysis proceeds in four steps. In the first step, the possibility of redirection is examined from an empirical standpoint. Step two defines the contours of the obligation to take precautions against the effects of attacks. Step three considers one variant of redirection, where a missile is redirected back towards the adversary. It is argued that such acts of redirection would fulfil the definition of attack under the law of armed conflict, and that prima facie conflicts of obligations could be avoided through interpretation of the feasibility standard embedded in the obligation to take precautions against the effects of attacks. Finally, step four analyzes acts of redirection against persons under the control of the redirecting State. Analyzing this scenario calls for an inquiry into the relationship between the relevant obligations under international humanitarian law and human rights law.

scholarly journals EVOLUTION OF THE CONCEPT OF «ARMED CONFLICT»: HISTORICAL, LEGAL AND THEORETICAL AND METHODOLOGICAL ASPECTS

2021 ◽  
Vol 74 (1) ◽  
pp. 20-26
Author(s):  
Oleksandra Severinova ◽  
Keyword(s):  
Armed Conflict ◽  
Armed Conflicts ◽  
Modern World ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Law Of Armed Conflict ◽  
The World ◽  
History Of ◽  
Political Economic ◽  
Methodological Aspects

The article analyzes the theoretical and methodological aspects of the formation and development of doctrinal ideas about the meaning of the concept of «armed conflict» in the history of world political and legal thought. The question of the name of the branch of law that regulates armed conflict, by analyzing its historical names such as «law of war», «laws and customs of war», «law of armed conflict», «international humanitarian law» and «international humanitarian law, used in armed conflicts». As a result of this analysis, it can be concluded that it would be most appropriate to use the terms «international humanitarian law» only in a narrow sense or «international humanitarian law applicable in armed conflicts», which is more cumbersome but most accurately describes the field. It is emphasized that due to the availability of new powerful weapons (economic, political, informational, cultural and weapons of mass destruction), which are dangerous both for the aggressor and for the whole world; the aggressor's desire to downplay its role in resolving conflicts in order to avoid sanctions from other countries and international organizations, as well as to prevent the loss of its authority and position on the world stage; the attempts of the aggressor countries to establish their control over the objects of aggression (including integrating them into their political, economic and security systems) without excessive damage to them is the transformation of methods and means of warfare. It is determined that the long history of the formation of the law of armed conflict has led to the adoption at the level of international law of the provision prohibiting any armed aggression in the world, which is reflected in such a principle as non-use of force or threat of force. At the same time, the UN Charter became the first international act in the history of mankind, which completely prohibited armed aggression and enshrined this principle at the international level, which is binding on all states of the modern world.

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