Deducing the Measuring Standard of Concrete and Direct Military Advantage Anticipatedd Referred to in Article 51(5)(b) of Additional Protocol I to the 1949 Geneva Conventions

2013 ◽  
Author(s):  
Nelleke H. Hoffs
Keyword(s):  
Additional Protocol ◽  
Geneva Conventions

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.

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.

Applying Additional Protocol II of the Geneva Conventions to the United Nations Forces

2017 ◽  
Vol 8 (1-2) ◽  
pp. 234-254 ◽  
Author(s):  
Artem Sergeev
Keyword(s):  
United Nations ◽  
Armed Conflict ◽  
Legal Issues ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Third ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Legal Nature ◽  
Hostile Environments

Following the widespread participation of United Nations (UN) forces in hostile environments, this article aims to expand the obligations of the UN under International Humanitarian Law. The article argues that Additional Protocol II (AP II) to the Geneva Conventions can bind UN forces, even though the UN is not formally a party thereto. The argument is built on three distinct legal issues: the first issue is whether the UN’s involvement in a conflict internationalizes a non-international armed conflict; the second issue is the legal nature of the UN’s obligations under AP II, which will be explained through two legal theories of indirect consent; and the third issue is the conformity of UN forces to the criteria of an armed group outlined in AP II. The article concludes that if UN forces meet certain conditions, as will be outlined herein, they should be bound by the provisions contained in AP II.

Specifying the Proportionality Test and the Standard of Due Precaution: Problems of Prognostic Assessment in Determining the Meaning of “May Be Expected” and “Anticipated”

2020 ◽  
pp. 343-366
Author(s):  
Stefan Oeter
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Collateral Damage ◽  
Additional Protocol ◽  
Prognostic Assessment ◽  
Geneva Conventions ◽  
Proportionality Test ◽  
Operational Issues ◽  
The Military

This chapter addresses the challenging legal and operational issues raised by the proportionality requirement to assess the legality of collateral damage. Specifically, the chapter engages closely with the relevant text of Articles 51(5)(b) and 57(2)(b) of the First Additional Protocol to the Geneva Conventions. The chapter first asks what makes an attack that unavoidably includes incidental loss of civilian lives or civilian property an “indiscriminate attack” under Article 51(5)(b). In more concrete terms, it asks how the formula for collateral damage—“excessive in relation to the concrete and direct military advantage anticipated”—may be operationalized. The chapter then moves to an analysis of the rule of precautions in Article 57(2)(b), with special emphasis on understanding how the military operator should navigate this rule in light of battlefield realities. The chapter then poses how these rules may be best understood under the regime of international criminal law.

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.

Can the incidental killing of military doctors never be excessive?

2013 ◽  
Vol 95 (889) ◽  
pp. 215-230 ◽  
Author(s):  
Laurent Gisel
Keyword(s):  
Medical Personnel ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Preparatory Work ◽  
Direct Attack ◽  
Special Protection

AbstractMilitary medical personnel and objects, as well as wounded and sick combatants, are protected against direct attack under the principle of distinction in international humanitarian law. However, some authors argue that they are not covered by the principles of proportionality and precautions. This opinion note explains that military medical objects constitute civilian objects under the rules governing the conduct of hostilities. It also demonstrates that, in view of the object and purpose of the First Additional Protocol to the Geneva Conventions, expected incidental casualties of military medical personnel and wounded and sick combatants must be included among the relevant incidental casualties under the principles of proportionality and precautions. This stems in particular from the interpretation of the obligation ‘to respect and protect’ as the overarching obligation of the special protection afforded to all medical personnel and wounded and sick. Support for this conclusion can be found in a number of military manuals and in the Additional Protocol's preparatory work and Commentaries. This conclusion also reflects customary law.

scholarly journals PEMBERIAN STATUS TERHADAP TERORIS BERDASARKAN KONVENSI JENEWA

2020 ◽  
Vol 3 (2) ◽  
pp. 133-146
Author(s):  
Grace Natalia Kusuma ◽  
Tiffany Setyo Pratiwi
Keyword(s):  
Geneva Convention ◽  
Secondary Data ◽  
Data Sources ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
The Status ◽  
Secondary Data Sources

This research analyzes about the status that given towards terrorists according to the Geneva Conventions as a source of International Humanitarian Law. This research is using descriptive qualitative methods to describe the practices carried out by terrorists and violations committed against the International Humanitarian Law. The sources for this research are from literature studies with secondary data sources such as books, articles, research journals, mass media, college notes, and internet sites. This research describing that according to the Geneva Conventions, the status given to terrorists as perpetrators of crimes against humanity is unlawful combatant. In addition, the ICRC also gives unprivileged belligerent status to those who carry out their acts of terrorist as individuals and do not have assimilation with any terrorism groups. Acts of terrorism have also been proven to violates the Geneva Conventions, including Article 33 and Article 147 of the Geneva Convention IV 1949, Articles 51 and 85 of Additional Protocol I 1977, and Article 13 of Additional Protocol II 1977.

International Humanitarian Law and Blockade

2018 ◽  
Author(s):  
Phillip Drew
Keyword(s):  
Customary Law ◽  
Soft Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Humanitarian Relief ◽  
Additional Protocol ◽  
Maritime Traffic ◽  
Geneva Conventions ◽  
Relief Operations

This chapter is a study of how blockade law relates to international humanitarian law, particularly that set out in Additional Protocol 1 to the Geneva Conventions of 1949. Noting that under the customary law of blockade all incoming and outgoing maritime traffic is prohibited, an assessment is made on whether or not the customary requirement has been displaced by the humanitarian provisions of AP1. Focusing on the wording of article 49(3), it is shown that for a number of states, the adoption of AP1 did not change the customary law, while for some others it did. As a result of this discrepancy it is posited that in spite of recent attempts to create such an obligation through soft law approaches, there is no customary law that requires humanitarian relief operations during blockade blockades.

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