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International

Humanitarian Law

Alman-Najar Namla

Report and Syllabus are based on


discussions from the:
TENTH SOUTHEAST AND
NORTHEAST ASIA SESSION ON
INTERNATIONAL
HUMANITARIAN LAW

Korea University, Seoul 17-21


August 2015

Scope of the Presentation


HUMANITARIAN ASSISTANCE AND PROTECTION OF THE
MEDICAL MISSION IN ARMED CONFLICTS AND OTHER
EMERGENCIES
APPLICATION AND ENFORCEMENT OF INTERNATIONAL
HUMANITARIAN LAW
TERRORISM AND INTERNATIONAL LAW

HUMANITARIAN ASSISTANCE AND


PROTECTION OF THE MEDICAL MISSION
IN ARMED CONFLICTS AND OTHER
EMERGENCIES
The legal framework of humanitarian access in
armed conflict (Felix Schwendimann, 2011)
The legal framework applicable to insecurity and
violence aecting the delivery of health care in
armed conflicts and other
emergencies (Breitegger, 2013)
THE RESPONSIBILITIES OF HEALTH-CARE
PERSONNEL WORKING IN ARMED CONFLICTS
AND OTHER EMERGENCIES (ICRC, 2012)
PROMOTING MILITARY OPERATIONAL PRACTICE
THAT ENSURES SAFE ACCESS TO AND DELIVERY
OF HEALTH CARE (ICRC 2014)
SAFEGUARDING THE PROVISION OF HEALTH
CARE. OPERATIONAL PRACTICES AND RELEVANT
INTERNATIONAL HUMANITARIAN LAW
CONCERNING ARMED GROUPS (ICRC, 2015)
DOMESTIC NORMATIVE FRAMEWORKS FOR THE
PROTECTION OF HEALTH CARE (ICRC 2015)
They came with two guns: the consequences of
sexual violence for the mental health of women in
armed conflicts (Josse, 2010)

The legal
framework of
humanitarian access
in armed conflict
Felix Schwendimann is Diplomatic
Ocer in the Section for
International Humanitarian Law,
Directorate of International Law,
Swiss Federal Department of
Foreign Aairs.

The legal framework of humanitarian access in


armed conflict (Felix Schwendimann, 2011)

Obtaining and maintaining humanitarian access to populations in need by


humanitarian actors is a challenge.

A wide range of constraints on humanitarian access exist, including


ongoing hostilities or an otherwise insecure environment, destruction of
infrastructure, often onerous bureaucratic requirements, and attempts by
parties to armed conflict to block access intentionally.

The difficulties that these constraints present to humanitarians are


frequently compounded by a lack of familiarity on the part of states, nonstate armed groups, and humanitarian relief organizations with the legal
framework.

The main purpose of this article is to lay out the existing international legal
framework regulating humanitarian access in situations of armed conflict.

The international legal


framework: why it matters
The legal framework specifies the
obligations and rights of parties
to armed conflict, for states not
participating in the conflict, and
for humanitarian actors. It also
identifies conditions under which
humanitarian actors may or may
not gain access to people in
need of assistance.

The international legal


framework: why it matters
The international legal framework is described below,
a section at a time, in order to give answers to the
following questions:

1 Who is primarily responsible for ensuring the basic


needs of aected populations?
2 If populations remain in need, what can
humanitarian actors do?
3 To what extent must relief actions be consented to,
and what are the conditions under which relief
actions must be conducted under international
humanitarian
law?
4 What human rights obligations exist with regard to
humanitarian access?
5 What are the consequences of violations?

Who is primarily responsible for ensuring the


basic needs of affected populations?

Who is primarily responsible for


ensuring the basic needs of
affected populations?
Each State has the responsibility
first and foremost to take care of
the victims of natural disasters
and other emergencies occurring
on its territory. Hence, the
aected State has the primary
role in the initiation, organization,
coordination, and implementation
of humanitarian assistance within
its territory.

-Guiding Principles on
Humanitarian Assistance)

Who is primarily responsible for


ensuring the basic needs of
affected populations?
Each State has the responsibility
first and foremost to take care of
the victims of natural disasters
and other emergencies occurring
on its territory. Hence, the
aected State has the primary
role in the initiation, organization,
coordination, and implementation
of humanitarian assistance within
its territory.

-Guiding Principles on
Humanitarian Assistance)

If populations remain in need, what can


humanitarian actors do?

If populations remain in need,


what can humanitarian actors
do?
The answer is that they can oer
their services according to
international humanitarian law,
which contains rules on
humanitarian assistance and
access to civilian populations
aected by armed conflicts.

To what extent must relief actions be


consented to, and what are the conditions
under which relief actions must be conducted
under international humanitarian law?

The extent to which relief actions


must be consented to and the
conditions under which relief
actions must be conducted will be
outlined according to the three
situations that international
humanitarian law regulates:

A. international armed conflict


(other than occupation),

B. non-international armed
conflict, and

C. occupation.

Consent and conditions in international armed


conflict (other than occupation)

In territories other than occupied territories, humanitarian


operations are subject to the consent of the parties
concerned according to Article 70(1) of Additional
Protocol I of 1977. This precondition balances the
interests of the civilian population and the interests of the
receiving state.

Consent and conditions in international armed


conflict (other than occupation)

To what extent is a state obliged to accept relief?

As a minimum, consent cannot be refused on arbitrary


grounds.25 A refusal must be based on valid reasons.26
Whether a decision not to accept assistance is arbitrary
depends on the circumstances and should be determined on
a case-by-case basis.27 In extreme situations, where the lack
of relief would amount to starvation, no valid reasons can be
invoked to justify the refusal.28 Article 54(1) of Additional
Protocol I provides that starvation of civilians as a method of
warfare is prohibited.

Consent and conditions in non-international armed


conflict

As in international armed conflicts, where the lack of relief


would lead to starvation, no valid reason can be invoked
to justify a refusal. Article 14 of Additional Protocol II
prohibits starvation of civilians as a method of warfare.

the consent of relevant non-state armed groups


controlling or operating in the territory in question is
necessary for relief actions to be carried out.39
Nevertheless, to ask a non-state armed group for its
consent to humanitarian operations does not constitute
recognition, nor does it confer any legal status upon that
actor.

Consent and Conditions


during Occupation

Apartheid wall, Israel

Source: https://palestinediaries.wordpress.com/tag/separation-wall/

Consent and
Conditions during
Occupation
Under the law of occupation, there
is a clear obligation for the
Occupying Power to ensure that
the basic needs of the population
under its control are fulfilled.

Consent and
Conditions during
Occupation
However, if the Occupying Power is not in
a position to fulfil its duty to provide the
civilian population under its control with
essential supplies, it must agree to relief
schemes on behalf of this population.48
This obligation is unconditional.49 The
Occupying Power must either ensure that
the civilian population receives essential
supplies or agree to relief actions.

Consent and conditions during occupation

The Occupying Power has the obligation to facilitate relief actions by all the
means at its disposal.

Occupying Powers must also facilitate the rapid distribution of relief


consignments, which must be exempt from all charges, taxes, or customs
duties except if they are necessary for the economy of the occupied territory.

Relief consignments must not be diverted from the purpose for which they
are intended.

Exceptions to this rule are allowed in cases of urgent necessity only and if
this is in the interest of the occupied population and with the consent of the
Protecting Power.

The rights and duties of relief personnel also apply in times of occupation.

What human rights obligations exist with regard


to humanitarian access?

What human rights


obligations exist with
regard to humanitarian
access?
International human rights law
continues to apply, alongside
international humanitarian law, in
times of armed conflict, whether of
an international or of a noninternational character.

What are the consequences of violations?

What are the


consequences of
violations?
A state is responsible for violations
of international law regarding
humanitarian access in situations
of armed conflict where the
violations are attributable to the
state.

War crimes
The denial of humanitarian assistance
and access to civilians may under
certain conditions constitute the war
crime of starvation. International
humanitarian law prohibits the
starvation of civilians as a method of
warfare in both international and noninternational armed conflict.

The legal framework


applicable to insecurity
and violence aecting the
delivery of health care in
armed conflicts and other
emergencies
Alexander Breitegger is Legal
Adviser at the Thematic Legal
Advice Unit of the International
Committee of the Red Cross.

The legal framework applicable to insecurity and violence affecting


the delivery of health care in armed conflicts and other emergencies

Ensuring respect for, and protection of, the wounded and sick and delivery of health care to them
were at the origin of the Red Cross and Red Crescent Movement, as well as the development of
international humanitarian law (IHL).

In todays armed conflicts and other emergencies, the problem is not the lack of existing
international rules but the implementation of relevant IHL and international human rights law
(IHRL) which form a complementary framework governing this issue.

Against the backdrop of the dierent manifestations of violence observed by the ICRC in the field
and expert consultations held in the framework of the Health Care in Danger Project,

this article identifies commonalities between the two legal regimes, including with respect to
obligations to provide and facilitate impartial health care; prohibitions of attacks against wounded
and sick and health-care providers;

prohibitions to arbitrarily obstruct access to health care; prohibitions to harass health-care


personnel, in violation of medical ethics;

The article concludes by indicating certain areas where implementation of existing IHL and IHRL
is needed, including in domestic normative frameworks, military doctrine and practice, as well as
training of health- care personnel on these international legal frameworks and medical ethics.

IHL and IHRL: general


observations on the
respective scope of
application
At the workshops the importance of
incorporating pertinent IHL and IHRL
into domestic legal frameworks was
repeatedly stressed, either by
improving such frameworks where they
exist or, where necessary, by adopting
new domestic legal frameworks.

Some similarities between IHL and IHRL

While generally, both IHL and IHRL are applicable to


armed conflicts, other emergencies below the threshold
of armed conflicts are governed only by IHRL, and not
IHL.

In order to provide clarity as to which set of rules to apply


in situations of armed conflict, the principle of lex
specialis was recognised as an interpretative and conflictsolving tool by the International Court of Justice (ICJ) in
the Nuclear Weapons and Wall Advisory Opinions, as well
as by the International Law Commission

Some similarities between IHL and IHRL

Specific protection for medical personnel, units and


transport under IHL, but not under IHRL

Complementarity between IHL on the protection of the


wounded and sick, and medical activities, and IHRL on
the right to health in armed conflicts

One issue that also generally needs to be


addressed in terms of the scope of application
of IHL and IHRL is the issue of derogation.

Personal scope of application: the question of


applicability of IHRL to non-state armed groups

Another crucial difference between IHL and IHRL is that


IHL binds not only states armed forces but also nonstate organised armed groups as parties to a conflict.

International human rights treaty law that directly


addresses non-state armed groups is still scarce.

With these differences between IHL and IHRL in mind,


the next section looks at the commonalities between
these legal regimes, irrespective of whether the situation
at hand is one of armed conflict or another emergency.

Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL

All possible measures shall be


taken to provide and facilitate
essential health care on a nondiscriminatory basis to the
wounded and sick

Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL

The wounded and sick and health-care


personnel that pursue their exclusively
medical function shall not be attacked,
arbitrarily deprived of their lives or illtreated. The use of force against
health-care personnel is only justified
in exceptional circumstances

Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL

Access to health facilities, goods


and services shall not be arbitrarily
limited and denials to such access
must be avoided
as much as possible

Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
Health-care personnel shall not be hindered
in the performance of their exclusive
medical tasks. They shall not be harassed
for the simple fact of assisting the wounded
and sick, and must not be compelled to
denounce wounded and sick in their care,
subject to exceptions expressly provided
under IHL, IHRL and national law

Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL

The wounded and sick, as well as


health-care personnel and
infrastructure, must also be
protected against interferences
with health care by third persons

Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
The red cross, red crescent and red crystal
emblems shall not be employed except to identify
protected health-care personnel, facilities, medical
transport, and associated medical equipment or
medical supplies authorised to use them in armed
conflicts or to indicate that persons or objects are
linked to the Red Cross and Red Crescent
Movement. All necessary measures shall be taken
to prevent and repress misuse of the emblems

THE RESPONSIBILITIES OF HEALTHCARE PERSONNEL WORKING IN


ARMED CONFLICTS AND OTHER
EMERGENCIES

ICRC, 2012

INTRODUCTION
DEFINITIONS
international armed conflict- may be said to exist when- ever
there is resort to armed force between two or more States;
non-international armed conflicts- are protracted armed
confrontations occurring between governmental armed
forces and the forces of one or more armed groups, or
between such groups arising on the territory of a State party
to the Geneva Conventions of 1949.

SCENARIOS FOR HEALTH-CARE


PROFESSIONALS IN ARMED CONFLICTS
Armed conflicts and other emergencies give rise to many difficult
dilemmas for health-care personnel. Here are some scenarios to
consider.

For example: You are a military doctor. Ten wounded soldiers are
brought to your mobile surgical hospital following intense fighting.
Two of the wounded are enemy soldiers; one has a serous abdominal
wound. A senior officer orders you not to treat the wounded enemy
soldiers until later.

RESPONSIBILITIES
treat the wounded and sick humanely;

not abandon the wounded and sick;

not take part in any act of hostility if you want to be


protected as medical personnel under humanitarian law;6
not pose an immediate threat to the lives or the
physical integrity of others if you want to be protected
from the use of force under human rights law;
remind authorities of their obligation to search for and collect the wounded and sick and
to ensure their access to health care without discrimination
on grounds other than medical condition;
advocate and provide effective and impartial care for

the wounded and sick without any adverse distinction;

not take undue risks while discharging your duties;


respect every wounded or sick persons wishes, confidence and dignity;

RESPONSIBILITIES

not exploit the situation or the vulnerability of

the wounded and sick for personal gain;

not undertake any kind of experimentation on

the wounded and sick without their genuine and valid consent;

ensure that your practices are compatible with

humanitarian law, human rights law and health-care ethics; give special consideration to the greater vulnerability
of women, children, the elderly and people with

disabilities, and to their specific health-care needs;


give special consideration to the specific health-care

needs of victims of sexual violence;


respect the right of a family to know the fate and

whereabouts of a missing relative;


be aware that, during armed conflicts or other emergencies, health care becomes increasingly susceptible to unscrupulous
practices and the distribution

of poor quality / counterfeit materials and medicines; encourage authorities to recognize their obligations under humanitarian law
and other pertinent bodies
of international law with respect to protecting health- care personnel and infrastructure in armed conflicts and other emergencies;

do everything within your power to prevent reprisals against the wounded and sick or against health-care workers and facilities;
refuse to obey orders that are unlawful or that compel you to act contrary to health-care ethics;

SOURCES OF RESPONSIBILITIES

The two main bodies of international law that are


pertinent to you are:

international humanitarian law or humanitarian law;


and

international human rights law or human rights law.

SOURCES OF RESPONSIBILITIES

The principle of humanity

The principle of humanity is expressed in a number of


different ways. For the purposes of this guide, it means
delivering health care as an act of compassion. This
implies treating the wounded and sick humanely: it is
equivalent to saying to yourself, What would I want if my
family or I were wounded or sick? Inherent in the
principle of humanity is the imperative to preserve human
dignity.

INTERNATIONAL HUMANITARIAN LAW

International humanitarian law or humanitarian law also known as the law of


armed conflict or the laws of war

a body of international law that applies only in situations of armed conflict. It has
two major branches:

rules protecting victims of armed conflicts, i.e. military


personnel who are no longer taking part in the fighting, including military wounded
and sick, and people who are not actively involved in hostilities, i.e. civilians,
including wounded and sick civilians, or military and

civilian medical personnel;


rules regulating the way military operations are conducted by military personnel
(methods of warfare) and limiting the weapons (means of warfare) military
personnel may use.

INTERNATIONAL HUMANITARIAN LAW


Common Article 3, an important element of the 1949 Geneva
Conventions, is recognized as customary law. It states:
In the case of armed conflict not of an international char- acter (...)
1. Persons taking no active part in the hostilities, includ-
ing members of armed forces who have laid down their arms and
those placed hors de combat by sickness [or] wounds (...) shall in
all circumstances be treated humanely (...) To this end, the
following acts are and shall remain prohibited at any time and in
any place whatso- ever with respect to the above-mentioned
persons:
2. The wounded and sick shall be collected and cared for.

International human rights law

The source of all modern human rights


treaties is the Universal Declaration of
Human Rights (1948).

RIGHTS

to be respected and protected, as do the wounded

and sick you are caring for; to demand that the authorities assist you in carrying out

your work; to demand that the authorities give you access to the

wounded and sick; not to be punished for discharging your responsibilities


in accordance with accepted standards of health care; not to be compelled to act in a
manner contrary to the

law and/or health-care ethics; not to be compelled to give information about wounded
and sick people beyond what is required by domestic law

or in terms of notification of infectious diseases; if you are detained, to continue your
professional work whenever possible;24

not to be punished for disobeying an illegal or unethical order; to carry a light weapon to
defend yourself and the wounded and sick in your care.

THE EMBLEMS OF THE RED CROSS, THE RED


CRESCENT AND THE RED CRYSTAL

PROMOTING MILITARY OPERATIONAL


PRACTICE THAT ENSURES SAFE ACCESS TO
AND DELIVERY OF HEALTH CARE (ICRC 2014)

ICRC, 2014

Consultations focused on the


identification of practical measures
to mitigate the effects of military
operations in three specific areas
or instances, due to their major
impact on safe access to and
delivery of health care:
y Delays in or denials of passage of medical transports,
aecting the ground evacuation of the sick and

wounded, particularly during controls at checkpoints;


y The negative impact of military search operations in
hospitals and other health-care facilities;
y Harm to health-care personnel, transports and
facilities or their patients caused by deploying military

objectives inside or in close vicinity to health-care


facilities, or when attacking enemy military objectives
located within or in close vicinity to health-care
facilities.

SAFEGUARDING THE
PROVISION OF HEALTH CARE.
OPERATIONAL PRACTICES AND
RELEVANT INTERNATIONAL
HUMANITARIAN LAW
CONCERNING ARMED GROUPS
(ICRC, 2015)

This report is intended for


armed groups involved in
non-international armed
conflicts.

As parties to non-international armed conflicts,


armed groups have obligations under IHL to
ensure both safe access to health care for those in
need and the ability of health-care personnel to
provide health care. First, armed groups must not
engage in any action or behaviour that would
prevent the delivery of health care. Second, armed
groups must take the necessary measures to
ensure safe access to, and the safe delivery of,
health care.

This report is organized around case studies that are based


on these situations and that highlight the relevant principles:
1. Ensuring health-care personnel have access to civilians;
2. Respecting and ensuring the safety of health-care personnel;
3. Understanding and respecting the principles underlying health-care ethics;
4. Respecting health-care facilities and ensuring access to medical supplies;
5. Mapping the location of health-care facilities;
6. Taking precautions when planning and conducting military operations;
7. Respecting wounded adversaries;
8. Collecting and caring for the wounded;
9. Ensuring the safe and speedy passage of medical vehicles at checkpoints;
10. Respecting the protective emblems.

Concluding Remarks
This publication is the first step in a participative process, in which the ICRC
collected and recorded insights and practices discussed by armed groups.
The next, crucial step in this process is for armed groups to contextualize and
adopt the practical measures presented in this document in order to strengthen
their ability to respect and protect health care.
In non-international armed conflicts, armed groups do not operate in a vacuum.
Other actors, such as health-care personnel, impartial humanitarian
organizations and state authorities, also contribute to building an environment
conducive to the safe and impartial delivery of health care. Still, armed groups
have an essential role to play in promoting the principles of respect for and the
protection of health care, both within their own group and when interacting with
other armed groups.

DOMESTIC NORMATIVE
FRAMEWORKS FOR
THE PROTECTION OF
HEALTH CARE (ICRC
2015)

The Seven Fundamental Principles of the


Movement

HUMANITY

IMPARTIALITY

NEUTRALITY

INDEPENDENCE

VOLUNTARY SERVICE

UNITY

UNIVERSALITY

THIS IS A REPORT ON NORMATIVE FRAMEWORKS


BASED ON THE BRUSSELS WORKSHOP

The present report summarizes the results of the Workshop on


Domestic Normative Frameworks for the Protection of Health
Care that was held in Brussels from 29 to 31 January 2014,
together with the main findings of the background study that
was previously conducted by the ICRC Advisory Service on
International Humanitarian Law. The workshop was organized
jointly by the ICRC, the Belgian Interministerial Commission for
Humanitarian Law and the Belgian Red Cross. Participants
included civil servants, members of national IHL committees or
similar bodies, members of parliament, inde- pendent experts
and representatives of organizations with expertise in certain
issues on the agenda of the workshop.

Violence against patients and health-care


personnel, facilities, and medical transports is a
humanitarian issue with far-reaching
consequences

Health-care personnel are both witnesses to


and victims of very serious threats.

Direct attacks and violent incidents are not the


only threat to the delivery of health care.

Even in armed violence, in the middle of a war


or during a violent upheaval, it should still be
possible to ensure that the wounded and sick
get timely access to health care

Even in armed violence, in the middle of a war


or during a violent upheaval, it should still be
possible to ensure that the wounded and sick
get timely access to health care

Many actors, taking many different measures,


are needed to achieve a change.

Violence against health-care facilities and


personnel in all its forms is not only morally
ques- tionable, it is prohibited by international
law.

They came with two


guns: the consequences
of sexual violence for the
mental health of women
in armed conflicts
Evelyne Josse is a psychologist
and psychotherapist. She is
currently pedagogical co-ordinator
at the Institute of Victimology in
Belgium, and consultant in
psychology in humanitarian action.

Social consequences
Sexuality touches on a myriad of values and taboos
governing the behaviour of both individuals and society at
large. At individual level, most people are repelled by the
idea of engaging in sex outside a given context (e.g.
marriage or a loving relationship) being subjected to
forced sex is a distressing and humiliating ex- perience.

Impact on marriage
Rejection by husband and strain on marital relations
Sexual violence can result in a variety of difficulties between
husband and wife: it often has a dire effect on sexual
relations (loss of desire or disgust on the part of the victim
and/or her husband, pain during intercourse, etc.) and on
emotional bonds (trauma-induced suffering can lead to
personality disorders that affect in- terpersonal relations,
bringing about arguments or conflicts).

Impact on family relations


Rejection by and strife within the family
Sexual violence can tear a family apart. A young unmarried
woman who has been raped may be barred by her family
from returning home. If she is allowed to come home, she
may be deliberately ignored by her parents or subjected to
humiliation and taunts (insults may escalate into arguments
or outright con- flicts).

Other social consequences


1. Impaired parenting skills
2. Children of Rape
3. Community level: Rejected by the community
4. Exclusion from jobs and schools
5. Unfit for marriage
6. Trauma of Forced Marrage
7. Violence

Psychological Consequences
Sexual violence can seriously affect the victims mental
health, with dire conse- quences in the short, medium, or
long term. In the hours and days following the event, the
victim may present a wide range of physical, emotional,
cognitive and behavioural symptoms. Although they may be
unsettling or appear strange, most of these symptoms are
considered to be normal or at least expected responses to
an extreme and terrifying event. They may nonetheless be
difficult for the victim and her family or friends to cope with.

APPLICATION AND ENFORCEMENT


OF INTERNATIONAL
HUMANITARIAN LAW
Various mechanisms and approaches for
implementing international humanitarian
law and protecting and assisting war
victims (Toni Pfanner, 2009)
The International Committee of the Red
Crosss (ICRCs) confidential
approach (ICRC, 2012)
Taking armed groups seriously: Ways to
improve their compliance with international
humanitarian law (Marco Sassli, 2010)
Analysis of the punishments applicable to
international crimes (war crimes, crimes
against humanity and genocide) in
domestic law and practice (ICRC, 2008)
Where do we stand on universal
jurisdiction? Proposed points for further
reflection and debate (Anne-Marie La
Rosa and Gabriel Chavez Tafur, 2012)

Various mechanisms and approaches


for implementing international
humanitarian law and protecting and
assisting war victims (Toni Pfanner, 2009)

OVERVIEW
This article presents an overview of the various mechanisms to improve the
situation of people affected by armed conflict.
Some are anchored in international humanitarian law, but numerous actors
are increasingly contributing to its implementation outside the original
framework established for that purpose.
Human rights monitoring bodies, the diverse organs and agencies of the
United Nations and regional organizations, and governmental and nongovernmental organizations are seeking to address situations of armed
conflict.
However, humanitarian action unattached to any political agenda and
combining protection and assistance is often the only remedy for the plight
of the victims of armed conflicts.

Mechanisms originating in international humanitarian law


The obligation of parties to a conflict to respect and ensure respect for
international humanitarian law

The 1949 Geneva Conventions and 1977 Additional


Protocol I thereto stipulate that the parties to an
international armed conflict must undertake to respect and
to ensure respect for those treaties.

Punishment for breaches


Several articles of the Geneva Conventions and Protocol I25 specify
the breaches that are to be punished by the states party to those
instruments.
All other violations constitute conduct contrary to the Conventions and
Protocol and should be dealt with by means of administrative,
disciplinary and criminal measures that the contracting parties are
required to take to punish the perpetrators.
Grave breaches are expressly listed; their distinguishing feature is that
the parties to a conflict and the other contracting parties have an
obligation to prosecute or extradite the perpetrator of such a breach,
regardless of his nationality and the place of the breach, in accordance
with the principle of universal criminal justice.2

Punishment for breaches


Several articles of the Geneva Conventions and Protocol I25 specify
the breaches that are to be punished by the states party to those
instruments.
All other violations constitute conduct contrary to the Conventions and
Protocol and should be dealt with by means of administrative,
disciplinary and criminal measures that the contracting parties are
required to take to punish the perpetrators.
Grave breaches are expressly listed; their distinguishing feature is that
the parties to a conflict and the other contracting parties have an
obligation to prosecute or extradite the perpetrator of such a breach,
regardless of his nationality and the place of the breach, in accordance
with the principle of universal criminal justice.2

International Criminal Court

The credibility of the International Criminal Court and its


ability to per- form its role of punishing international
crimes depend on the adherence of as many states as
possible to it.

The fact that a number of influential states and some


states currently involved in armed conflicts have not
ratified the Rome Statute indicates a double standard in
the implementation of international criminal law.

Enquiry procedure

An enquiry procedure is provided for under the Geneva


Conventions,32 but to date has never been used since
its inception in 1929.33 Its dependence on the
belligerents consent is doubtless one of the reasons why
this mechanism has not been put to the test.

Protecting Powers

A Protecting Power is a neutral state mandated by a


belligerent state to protect its interests and those of its
nationals vis-a`-vis an enemy state.44 Its role is twofold: it
can conduct relief and protection operations in aid of
victims, and can at the same time supervise the
belligerents compliance with their legal undertakings.
The Protecting Powers tasks are huge and varied in view
of the needs of persons pro- tected for instance by the
Third or Fourth Geneva Convention.

Reparations

In an international armed conflict, the warring parties can be held


responsible for breaches of international humanitarian law.

An obligation to pay compensation for violations of international


humanitarian law is laid down in Article 91 of Protocol I, and even as
early as Article 3 of the 1907 Hague Convention.

According to the general international law of state responsibility,


compensation is to be understood more broadly as reparations and
encompasses a range of measures, including non-monetary means
of restitution (re-establishment of the situation before the wrongful
act was committed), satisfaction (acknowledgement or apology) and/
or rehabilitation (including medical or psychological claim, or legal
and social re- habilitation), and guarantees of non-repetition.

The International Committee of the Red Cross


(ICRC)

As the mentioned international mechanisms for enforcing


international humanitarian law work only very patchily, if at all,
it is worth dwelling at greater length on the role assigned to
the ICRC in the implementation of this body of law. In
practice, the ICRC plays a key role in the protection of war
victims.

The primary aim of the ICRCs operations must be to confront


the parties to an armed conflict with their responsibilities and
get them to comply with their obligations under international
humanitarian law to preserve the safety, physical integrity and
dignity of people affected by the conflict.

The International Committee of the Red Cross


(ICRC)

Co-operation with the National Red Cross or Red Crescent Society

Co-operation with National Societies is indispensable for the ICRC to


promote contingency measures for the implementation of international
humanitarian law,109 and even more so when it is preparing to conduct
operations during a conflict. Humanitarian work by National Societies is
mainly based on the Conventions themselves, and the primary
responsibility for rendering assistance to the victims of armed conflicts
rests with the respective National Society as a humanitarian auxiliary to
the public authorities.110 Article 81(2) of Protocol I,111 which is addressed mainly to public authorities and their subsidiary bodies, stipulates
that the parties to a conflict shall grant to their respective National
Societies the facilities necessary for carrying out their humanitarian
activities, in accordance with the fundamental principles of the Red Cross

International Court of Justice

The International Court of Justice, as principal judicial


organ of the United Nations, contributes to the
implementation of humanitarian law through its
jurisprudence and its advisory opinions. It may be called
upon to settle a dispute between states concerning the
application of international humanitarian law if both states
have accepted the Courts jurisdiction.

In Summary

There are obvious tensionsand even frictionsbetween protection of war victims in the midst of fighting and
judicial supervision, between consent and enforcement, between humanitarian action and denouncing
violations, and between an impartial humanitarian approach and a political approach. Improving the situation of
victims of armed conflicts means using an adequate combination of the various means, and building on their
comparative advantages.International humanitarian law and its mechanisms remain international laws modest
response during periods of armed conflict. Today, international enforcement of the law is still exceptional in the
absence of a central enforcement system. Willingness and ability to comply with the rules largely lie in the
hands of belligerents, and supervisory mechanisms are merely based on their consent and good faith.
Humanitarian law is best suited to supervision on the spot and endeavours to provide protection and
assistance directly to the victims of armed conflicts. The goal is to reach all persons affected by armed conflict,
unlike the restricted judicial approach which only takes victims of a violation of the law into account.

However, international humanitarian law needs political pressure to have a chance of succeeding.

Yet international humanitarian law would lose its raison detre if politics were to take precedence over
humanitarian considerations: the very essence of international humanitarian law is the divide it creates between
ius in bello and ius ad bellum, so that victims are protected and assisted whatever the reasons for the conflict.

The International Committee of the


Red Crosss (ICRCs) confidential
approach (ICRC, 2012)

Confidential Approach

The crucial struggle against impunity has been reinforced by the establishment
of bodies competent to prosecute crimes that are not subject to a statute of
limitations and of which the ICRC may have direct knowledge as a result of its field work.
In this context, the ICRCs position may be perceived as contra- dictory: on the one hand,
it supports and promotes such legal mechanisms as means not only of implementing
international humanitarian law, but also of preventing future violations;5 on the other, in
asserting its confidential approach, it refuses to participate in the establishment of
indictments/defence briefs by testifying or divulging information relating to its activities.

The victims demand that justice be done: the ICRCs confidential approach and
consequent refusal to testify can be perceived by the victims of violations as bolstering
the perpetrators impunity.

The demand for transparency and rapid results: the ICRC, like other players, is
increasingly subject to demands for transparency and rapid and measurable results. Its
strategy, which is predicated on the gradual establishment over time of a confidential
dialogue with the authorities, may appear not to meet expectations in this regard.

Confidential Approach

The confidential approach, which consists in persuading an authority to meet its


obligations without resorting to public pressure, is a means to an end for the
ICRC;

it is never an end in itself or an inalienable principle. It is based on a tested


method, but it has a point only if the ICRC is convinced that the authorities are
willing to cooperate with it and that confidential bilateral dialogue can result in an
objective benefit for the victims of violence.

The approach is to be understood as a dynamic process implying that progress is


made in terms of results and the commitment of the authorities concerned to put
a stop to violations.

It can never serve to justify, by silence, an unsatisfactory and static situation that
is unlikely to change for the better in any significant way. This is why the ICRC
must be in a position deliberately to breach its undertaking of confidentiality in
exceptional cases in which the approach runs counter to the interests of the
victims, in accordance with the Policy on ICRC action in the event of violations.

Why Confidential Approach?

In order to discharge its mission, the ICRC


considers that it must have direct and sustained
access to the people who are victims of situations
of violence.

Theconfidential approach is intended to make it


easier to obtain access to those people from the
authorities exercising control over them or over
access to them.

Taking armed groups seriously: Ways to


improve their compliance with
international humanitarian law (Marco
Sassli, 2010)

Summary
Most contemporary armed conflicts are not of an international character. International
Humanitarian Law (IHL) applicable to these conflicts is equally binding on non-State armed
groups as it is on States.
The legal mechanisms for its implementation are, however, still mainly geared toward States.
The author considers that the perspective of such groups and the diculties for them in
applying IHL should be taken into account in order to make the law more realistic and more
often respected. It is submitted that the law is currently often developed and interpreted
without taking into account the realities of armed groups.
This contribution explores how armed groups could be involved in the development,
interpretation and operationalization of the law. It argues that armed groups should be allowed
to accept IHL formally, to create amongst other things a certain sense of ownership. T
Their respect of the law should also be rewarded. Possible methods to encourage, monitor
and control respect of IHL by armed groups are described.
The author suggests in particular that armed groups should be allowed and encouraged to
report on their implementation of IHL to an existing or newly created institution.
Finally, in case of violations, this contribution proposes ways to apply criminal, civil and
international responsibility, including sanctions, to non-State armed groups.

Analysis of the punishments applicable


to international crimes (war crimes,
crimes against humanity and genocide) in
domestic law and practice (ICRC, 2008)

Summary
This analysis of the punishments applicable to
international crimes (war crimes, crimes against
humanity and genocide) covers 64 countries.
The sample is satisfactory in terms of geographical
distribution and covers countries with a RomanoGermanic (civil law) tradition and others with a common
law tradition.
The relevant legislation and case law of these States,
where such exists and is available, have been studied in
order to examine as accurately as possible the
punishments applied or applicable by the competent
courts.

States obligations under IHL to prosecute and


punish international crimes

A substantial number of the IHL rules are set out in the four 1949
Geneva Conventions and the 1977 Additional Protocols. States
are obliged to put an end to all the violations set out in these
texts. There are special obligations in respect of certain serious
violations referred to as grave breaches
States must perform these obligations in peacetime as well as in
time of armed conflict. To be eective, the measures set out
above must be adopted before the grave breaches have
occurred. Finally, it can be armed that, with the exception of
some minor dierences, the same obligations apply in respect of
genocide and crimes against humanity.

National legislation

Although the Geneva Conventions enjoy practically


universal adherence and ratification, the national
legislation of a great many States is not in
compliance with the above requirements of IHL. For
example, several countries have not incorporated into
their criminal law the provisions necessary for the
prosecution and punishment of international crimes,
including grave breaches, and the punishments that
apply to them.

National practice

Whereas the international criminal courts and tribunals publish copious


case law, the case law published by national courts in relation to
international crimes is much more meagre, even though the situation
tends to change in some regions which were aected by conflicts (former
Yugoslavia, Rwanda). It is therefore more dicult to identify trends.
Furthermore, some decisions have been handed down in highly politicized
contexts and should accordingly be interpreted with some caution.
Others that might be relevant eliminate all discussion about international
crimes, particularly war crimes, by refusing to acknowledge the existence
of an armed conflict and applying the law on ordinary crimes (murder,
manslaughter, assault). Finally, it should be borne in mind that national
courts apply national law, which limits or in some cases reduces to a
minimum the exercise of discretion on the part of the judiciary when it
comes to applying sentences for the most severe crimes.

Where do we stand on universal


jurisdiction? Proposed points for further
reflection and debate (Anne-Marie La
Rosa and Gabriel Chavez Tafur, 2012)

SUMMARY
Universal Jurisdiction ensures that perpetrators of
serious internationals crimes do not go unpunished.
It is considered a fight against impunity and a matter
of global concern.
Having universal jurisdiction will deter such crimes if
an eective system of justice are in place.

TERRORISM AND
INTERNATIONAL LAW
Terrorism and International
Humanitarian Law (Ben Saul, 2014)
Terrorist Acts and Groups: A Role for
International Law (Jelena Pejic, 2004)
Judicial Creativity at the Special
Tribunal for Lebanon: Is There a Crime
of Terrorism under International
Law? (Kai Ambos, 2011)
Terrorism and Changes to the Laws
of War (John B. Bellinger III, 2010)
Defining the Battlefield in
Contemporary Conflict and
Counterterrorism: Understanding the
Parameters of the Zone of
Combat (Laurie R. Blank, 2010)

Terrorism and
International Humanitarian
Law (Ben Saul, 2014)

Introduction
Terrorism has long presented challenges for both states and humanitarian
protection in armed conflict.
Debates have taken place for over a century about irregular combatant status, the
legitimacy of non-state armed groups, violence motivated by politically just
causes, terrorist means and methods of warfare, and the regulatory challenges of
asymmetrical conflict.
Many of these issues resurfaced or assumed a new complexion after 9/11, with
stark challenges to international humanitarian law (IHL) presented by a particularly
powerful victim of terrorism, the United States.
Purported gaps or inadequacies in IHL have stimulated much discussion,
whether from the perspective of state militaries, terrorists, or civilians.

Classification of Terrorism as Armed Conflict


The rhetoric and practice of the post-9/11 war on terror has focused
attention on whether violence by and against terrorists can constitute armed
conflict regulated by IHL, and if so how such conflict should be classified.
The basic issue is not new, given that earlier internal insurgencies often
exhibited terrorist characteristics, and national liberation struggles for selfdetermination during post-war decolonisation were often treated as terrorist
problems.
Some of these situations had cross-border dimensions (particularly in Africa,
but also in Asia and Latin America), so that current debates about
transnational non-international armed conflicts are also not novel, even if
there have been changes in form and scale and the actors involved.

Classification of Terrorism as Armed Conflict


A. International conflicts
In principle, terrorist groups may be involved in various
types of international and non- international armed conflicts
under IHL.
An international armed conflict may also exist where a state
deploys irregular forces against another state, as provided
under article 4(2) of the 1949 Third Geneva Convention .

Classification of Terrorism as Armed Conflict


B. Non-international conflicts

Much of the focus after 9/11 shifted to whether violence involving


terrorist groups can be classified as non-international conflict.
Historically in many states terrorism was treated primarily as
crime rather than war. This was also the dominant approach of
the United Nations and in its various transnational criminal
cooperation treaties

Classification of Terrorism as Armed Conflict


B. Non-international conflicts
A minimum threshold of
intensity is required to
distinguish non-international
armed conflicts from lesser
violence under both
common article 3 of the
four Geneva Conventions
1949 and article 1(2) of
Additional Protocol II of
1977.

Classification of Terrorism as Armed Conflict


B. Non-international conflicts
The description of the group (as guerrilla, insurgent, rebel, or
terrorist) is not decisive, particularly since after 9/11 many
armed groups acquired a dual characterisation (as terrorist
under Security Council measures and armed groups in
armed conflict).
Terrorist activity may also possess a dual legal
character as both crime and conflict; the categories
(as well as the legal approaches to combating them)
are not mutually exclusive.

Classification of Terrorism as Armed Conflict


B. Non-international conflicts
Various indicia have been recognised in the jurisprudence to
aid in determining whether the intensity and organization
criteria are met, including the scale, nature, duration and
spread of hostilities;
the number of fighters and casualties; the weapons used;
the extent of human displacement; and the capabilities of
the group (in terms of recruitment, training, financing,
command and so on).

Classification of Terrorism as Armed Conflict


B. Non-international conflicts
Conventional examples those where the terrorist groups are based in the
territory of the victim state abound.
They include, for instance, the conflicts between Sri Lanka and the LTTE;
Colombia and FARC; Peru and Shining Path; Russia and Chechen groups;
Turkey and Kurdish groups (such as the PKK); India and Naxalite or Maoist
groups; the Philippines and Islamists in Mindanao; Somalia and Al Shabaab;
Afghanistan and Al Qaeda; and Iraq and Islamist or sectarian groups.
Again, whether such groups are legally or politically designated as terrorists
is not legally determinative of the existence of an armed conflict.

(i) Transnational situations


The most controversial issue in characterising
conflicts with terrorists is where such violence has a
transnational dimension.
Common article 3 was drafted on the understanding
that non- international conflicts were chiefly
conventional civil wars by (citizen) rebels against
their government on the territory of that state.

(i) Transnational situations


The conflict between the US and Al Qaeda on the territory of
Afghanistan was accordingly determined to be a non-international
conflict.
The Court rejected the US Governments view that the war against Al
Qaeda in Afghanistan fell into a lacuna in IHL, as neither an
international conflict between two states, nor a non-international
conflict (as not a traditional civil war in the US).
The virtue of its finding is that it extended the minimum humanitarian
protections of common article 3 even to non-citizen terrorists on a
foreign battlefield.

(i) Transnational situations


The conflict between the US and Al Qaeda on the territory of
Afghanistan was accordingly determined to be a non-international
conflict.
The Court rejected the US Governments view that the war against Al
Qaeda in Afghanistan fell into a lacuna in IHL, as neither an
international conflict between two states, nor a non-international
conflict (as not a traditional civil war in the US).
The virtue of its finding is that it extended the minimum humanitarian
protections of common article 3 even to non-citizen terrorists on a
foreign battlefield.

(i) Transnational situations


It sounds instinctively strange to say that a state fighting a
non-state group abroad is non-international, given that the
attacking state must necessarily fight that group on another
states territory (but for exceptional and unlikely situations of
hostilities on the high seas or in international airspace).
In that sense the conflict seems intuitively international. State
practice is equivocal and in flux. The correct legal answer
arguably depends on how common articles 2 and 3 of the
Geneva Conventions should be interpreted in the light of one
another.

Classification of the Status of Terrorists in Armed


Conflict
In international conflict, a person is generally either a combatant or a
civilian.
Those described as terrorists may be ombatants if they meet the
conditions of irregular forces under Article 4(2) of the Third Geneva
Convention (discussed earlier), are national liberation forces under
Protocol I, or meet the more liberal conditions of guerrilla combatancy
under Article 44(3) of Protocol I (namely, by carrying their arms openly
during and preceding a hostile act).

Classification of the Status of Terrorists in Armed Conflict


Targeted killings

In brief, similar legal principles apply in


international and non-international conflict.
A person who takes a direct part in hostilities
may be targeted for the duration of such
participation; once out of combat, such person
regains their protected civilian status.

Classification of the Status of Terrorists in Armed Conflict


Detention of Terrorists in Armed Conflict
Where it is not possible to prosecute, IHL provides other security powers for
dealing with terrorist threats.
In international conflict, IHL permits states to administratively detain civilians
where absolutely necessary for security or for imperative reasons of
security.
Detention must be subject to a regular procedure and periodic independent
review (at least six monthly) and satisfy minimum conditions of humane
treatment.
There are also constraints on transferring inhabitants of occupied territory
out of such territory, although the same restrictions do not apply to nationals
of third (neutral) states.

4. Prohibitions on and Criminal Liabilities for Terrorism in Armed Conflict


A. Substantive Provisions
Most terrorist-type conduct committed in any type of armed conflict is already
criminalized as various war crimes.
In addition to IHL offences, domestic criminal (and/or military) law may apply to
certain terrorist acts in armed conflict. In international conflicts, the criminal law of
the occupied territory will still apply to civilians (including those participating in
hostilities), subject to any necessary modifications to ensure the security of the
occupying power.
In non-international conflict, the state partys domestic criminal law remains
applicable, such that non-state actors may find themselves criminalised for
terrorism, rebellion, revolution, treason, treachery, sedition, or other extant national
security offences.

4. Prohibitions on and Criminal Liabilities for Terrorism in Armed Conflict


A. Substantive Provisions

In transnational non-international conflicts, two


domestic legal systems may potentially apply: that of
the (non-belligerent) territorial state (which may not be
able to practically enforce it), as well as the state
whose forces are fighting extraterritorially. In the latter
case, the states domestic criminal law will only
lawfully apply if two conditions are met.

4. Prohibitions on and Criminal Liabilities for Terrorism in Armed Conflict


B. Trial and Prosecution of Terrorists
Some criminal trials since 9/11 have not conformed to the minimum fair trial
guarantees of IHL and/or international human rights law.
Even before 9/11, military trials of terrorists, such as by faceless tribunals in Latin
America, raised serious human rights problems.
There are extensive guarantees of a fair trial in international conflicts, consolidated in
Article 75 of Protocol I, and which approximate the human rights guarantees in
Article 14 of the ICCPR.
In non-international conflicts, common Article 3 of the Geneva Conventions provides
for a fair criminal trial by a regularly constituted court, affording all the judicial
guarantees which are recognised as indispensible by civilized peoples. While
vaguely worded, that provision should be interpreted dynamically in the light of the
explicit guarantees set out in Article 75 of Protocol I and/or Article 14 of the ICCPR.

Terrorist Acts and Groups:


A Role for International
Law (Jelena Pejic, 2004)

US Drone

Source: Google Images

Is the international legal framework adequate to


confront terrorism?
That answer is based, first, on the conclusion that the
"current phenomena of terrorism do not require a shift in
legal paradigms.
Terrorism is not a new phenomenon. While some aspects
of recent terrorist acts, including their transnational aspects,
seem to have produced a quest for new law, this quest is
not generated only, or even primarily, by the alleged
deficiencies of existing rules.

In conclusion
Finally, this view does not mean that the clarification and
development of certain aspects of the international legal
framework are unnecessary. What is argued is that good
faith attempts to apply the current legal framework must be
made, and that deficiencies in practice must be
demonstrated before new law is made to replace the old.
It is also by no means certain that new legal rules would
garner broad acceptance or that they would necessarily be
better implemented than existing ones. That, however,
deserves to be the subject of another study.

Judicial Creativity at the Special


Tribunal for Lebanon: Is There a Crime
of Terrorism under International
Law? (Kai Ambos, 2011)

Hezbollah Members in Lebanon

Source: http://www.transatlanticinstitute.org/?p=32

Overview
On 21 January 2011, the pre-trial judge of the Special Tribunal for Lebanon (hereinafter STL) posed several questions
to the Appeals Chamber (Chamber) pursuant to Rule 68(G) of the Rules of Procedure and Evidence.
Three of these questions dealt with the crime of terrorism.3
(i) Should the Tribunal take into account international notions on terrorism even though Article 2 of the Statute only refers
to the Lebanese Criminal Code (LCC)? (ii) If so, is there an international definition of terrorism and how should it be
applied?
(iii) If not, how is the Lebanese definition of terrorism to be interpreted by the Chamber?
Both the prosecution and defence submitted extensive briefs dealing, inter alia, with these questions.4 Additionally, two
amicus curiae briefs weresubmitted.5 On16February2011,theChamber issue dits(interlocutory) decision pursuant o Rule
176 bis (A).6 The Chamber argues, in a nutshell, that terrorism has become a crime under international law and that the
respective international definition influences the (applicable) Lebanese law. In the first part of this paper, I will argue that
the Chambers considerations, albeit innovative and creative, are essentially obiter, since the applicable terrorism
definition can be found, without further ado, in the Lebanese law.
There is no need to internationalize or reinterpret this law; it should be applied before the STL as understood in
Lebanese practice. As to the Chambers affirmation that there is a crime of terrorism under international law, I will argue,
in the second part of the paper, that the available sources indicate, at best, that terrorism is a particularly serious
transnational, treaty-based crime that comes close to a true international crime but has not yet reached this status.
Notwithstanding, the general elements of this crime can be inferred from the relevant sources of international law.

Terrorism and Changes to


the Laws of War (John B.
Bellinger III, 2010)

US Marines in Afghanistan, http://www.abc.net.au/pm/


content/2012/s3407002.htm

Terrorism and Changes to the Laws of War (John


B. Bellinger III, 2010)
Obama issued his famous three executive orders that made many changes
from the Bush administrations policies.
1 The three orders were: one, to close Guantanamo within one year and
review every de- tainees status in order to determine what ought to be
done with them;
2 two, to end the CIA interrogation program and to conduct a review of
what sort of interrogation program there ought to be;
3 and three, perhaps the most significant and difficult to implement, to
review all detainee laws and poli- cies to determine what the appropriate
legal framework should be.

Terrorism and Changes to the Laws of War (John


B. Bellinger III, 2010)
US still pursuing, as a legal matter, a global war on al Qaeda and, most significantly, he
is applying the laws of war for detention and for targeting.
In his famous Archives speech, he emphasized that the United States is at war with al
Qaeda,5 and under some pressure from Republicans recently, has had to repeatedly
say
We are at war. We are at war against Al Qaeda . . . .6
What that means is that he continues to rely on the laws of war as the legal basis for
our military and our CIA to kill alleged terrorists around the world.
He uses these laws to detain people indefinitely, without trial, and to assert the right to
detain people even though they have not been charged with any crime. Furthermore,
he has emphasized that it is not the criminal laws that apply, but the Law of Armed
Conflict. He has asserted a right to detain people not just in Afghanistan, where there
are active hostilities taking place, but essentially anywhere in the world.

Conclusion
In conclusion, the United States is regularly told that there are no problems
with the law or gaps in the law with respect to detention and tar- geting. The
problem is only a question of implementation, implying that if the United
States would just do a better job of applying the law, it would all be very
easy.
I think the answer is that this is not an easy area, that there are not clear
rules, and that it is quite difficult to accuse someone of violating the law with
respect to targeting and detention.
One can appropriately say that the United States has adopted a number of
bad policies, but we are go- ing to be debating for a very long time what the
applicable rules are or ought to be.

Defining the Battlefield in Contemporary


Conflict and Counterterrorism:
Understanding the Parameters of the
Zone of Combat (Laurie R. Blank, 2010)

Counter-terrorists

Source: Wikipedia

Defining the Combat Zone


The Law of Armed Conflict (LOAC) governs the conduct of both states and individuals
during armed conflict and seeks to minimize suffering in war by protecting persons not
participating in hostilities and by restricting the means and methods of warfare.
This Article demonstrates that traditional conceptions of belligerency and neutrality are not
designed to address the complex spatial and temporal nature of terrorist attacks and
states responses.
Nor can human rights law or domestic criminal law, which are both legal regimes of
general applicability, offer a useful means for defining where a state can conduct military
operations against terrorist groups.
LOAC, in contrast, provides a framework not only for when it applies, but where and for
how long. By using this framework and analogizing relevant factors and considerations to
the conflict with al Qaeda, we can identify factors that can help define the zone of combat.

First Factor
First, some terrorist attacks and activities fall closer to the
traditional conception of hostilities as understood within
LOAC.
Areas where these types of attacks occur naturally have a
stronger link to a battlefield. In addition, when such attacks
or activities occur regularly or over a defined time period, we
can more clearly define the temporal parameters of the zone
of combat as well.

Second Factor
Second, in declaring that it is "at war with terrorists," a state may
envision the whole world as a battlefield.
But the state's actual conduct in response to the threat posed offers a
more accurate lens through which to view the battlefield.
Areas where the state uses military force, particularly multiple facets of
military power, on a regular or recurring basis, should fall within the
zone of combat. In contrast, those areas where the state chooses
diplomatic or law enforcement measures, or relies on such efforts by
another state, do not demonstrate the characteristics of the battlefield.

Third Factor-Territory
The third factor-territory-requires the most creative
application.
Terrorist groups do not use or connect to territory in the
same manner as either states or non-state actors seeking
to gain power or independence.

In conclusion
Besides these factors drawn from the law of armed conflict,
we can look to judicial interpretations and policy
considerations as well. Taken as a whole, these analytical
tools form a first step in the critical task of identifying where
and when a state can conduct operations within an armed
conflict framework, a necessary companion to the ongoing
debate about whether a state can conduct operations
within such a framework.

Thank you!