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Hk Humaniter #3 - Int'l & Non-Int'l Armed Conflict 

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John Lumbantobing

on 22 September 2016

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Transcript of Hk Humaniter #3 - Int'l & Non-Int'l Armed Conflict 

Int'l Humanitarian Law #3
Int'l & Non-Int'l Armed Conflict

Why distinguish?
What's the significance?
GC,
Common Article
2
Int'l Armed Conflict
betwen 2 states
Hard cases #2: "war on terror"
international?

how to distinguish?
John Lumbantobing, S.H. (Unpar), LL.M. (Cantab), ACIArb.
Member, Asian Society of International Law

"... the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. ..."
GC
Common Article
3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms ... 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:

a) violence to life and person, in particular murder of all kinds,mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity...; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees...

2) The wounded and sick shall be collected and cared for.
like a
"mini convention" :-p
3. This Protocol ... shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
AP I,
Art 1
AP II,
Art 1
1) This Protocol, which develops and supplements Article 3 common to the Geneva Conventions ... shall apply to all armed conflicts which are not covered by Article 1 of ... (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

2) This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.
Non-Int'l
Armed Conflict
including occupation of a state by another state
subject to GC and AP I
within
1 state
between a state against insurrection or other organised group
controlling part of
the state's territory
running a concerted/sustainable military operation
not including internal disturbances such as riots or sporadic violence
subject to Common Article 3 GC
and/
or
AP II
including
armed conflict
between local group against colonial power and
racist regime
"armed conflict"
definition?
From ICRC Commentary to Common Article 2 GC: "Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Art. 2."
"border skirmishes"
distinguish with
or between one group against another group
The test ... focuses on two aspects of a conflict; the intensity of the conflict and the organization of the parties to the conflict. In an armed conflict of internal character ... these closely related criteria are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law."
ICTY,
Prosecutor v. Tadic
see also ICTY,
Prosecutor v. Limaj
non-international?
Hamdan v. Rumsfeld
(US case)
trial court
: int'l armed conflict (Common Art 2 GC)
court of appeals
: int'l armed conflict (but outside the ambit of GC)
supreme court
: armed conflict under Common Art 3 GC
Hard Cases #1: Mixed conflict
what if a third state gets involved in a non-int'l armed conflict?
if taking side with a fellow state:
remains a non-int'l armed conflict
if the third state sides with the non-state entity:
depending on the level of control of the third state
ICJ test:
"
effective control
"
Nicaragua
case
Bosnian Genocide
case
ICTY test:
"
overall control
"
Prosecutor v. Tadic
what if the third state only provide funding, weapons supply or simply strategic support? etc etc
Full transcript