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Intro to IHL and ICL

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Cassandra Steer

on 27 March 2016

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Transcript of Intro to IHL and ICL

Use of Force
IHL
Use of Force,
Law of Armed Conflict &
International Criminal Law

– State responsibility
Jus ad bellum

– State and individual responsibility
Jus in bello

– individual responsibility
1. Use of force
2. Law of armed conflict
3. International Criminal Law
ICL
Exceptions to art 2(4)
ICJ Advisory Opinon on the Legality of Nuclear Weapons
USE OF FORCE
90. When he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.
91. Let him not strike one who (in flight) has climbed on an eminence, nor a eunuch, nor one who joins the palms of his hands (in supplication), nor one who (flees) with flying hair, nor one who sits down, nor one who says 'I am thine;'
92. Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight, nor one who is fighting with another (foe);
93. Nor one whose weapons are broken, nor one afflicted (with sorrow), nor one who has been grievously wounded, nor one who is in fear, nor one who has turned to flight; (but in all these cases let him) remember the duty (of honourable warriors).
Laws of Manu, Ch VII (India, 1500 BC)
Growth of humanitarian ideas
Positivism - - Codification
Technological developments: invention of revolver (1835), needle gun (1836), torpedo (1866), dynamite (1867), machine gun (1883)
Florence Nightingale – The Crimean War (1853-56): foundation of protection of wounded soldiers
19th Century
"Those most responsible..."
Notwithstanding State Responsibility (use of force)
No immunity based on official capacity:
e.g. heads of state, ministers?
Goering, Pinochet, Al Bashir, Gaddafi, Zorregueta, Bush? Cheney?
Law cannot eradicate war nor prevent atrocities, but we can hold those to account who are most responsible and hope to affect social norms over time
Aims of International Criminal Justice
Reparation to victims
Retribution
Transitional justice
(TRC's)
"No peace without justice"
Historical accounts - posterity
Normative function
Narrative function
(4) National courts:
e.g. Germany - prosecution for crimes against humanity in Uzbekistan
UK - conviction of corp. David Payne for inhumane treatment of detainees in Iraq
Genocide Convention (1948)
Hague Convention for Protection of Cultural Property (1954)
Cold War: Convention on the Prohibition of Development, Stockpiling of Biological and Toxic Weapons (1972)
AP I and AP II (internal conflicts) (1977)
Convention on Prohibitions and Restrictions on Conventional Weapons (1980)
Convention on the Prohibitionn of Chemical Weapons (1993)
Cluster Bombs (2009)
Currently more than 60 relevant treaties
Resolution 678 (1990)
RESOLUTION 678 (1990)Adopted by the Security Council at its 2963rd meeting on 29 November 1990
The Security Council,
[…]
Noting that, despite all efforts by the United Nations, Iraq refuses to comply with its obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant resolutions, in flagrant contempt of the Security Council,

Mindful of its duties and responsibilities under the Charter of the United Nations for the maintenance and preservation of international peace and security,
Determined to secure full compliance with its decisions,

Acting under Chapter VII of the Charter,

1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwil, to do so;
2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;
3. Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution;
4. Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution;
Rebel groups?
Was Osama Bin laden a legitimate military target? What about State sovereignty of Pakistan?
Dutch District Court found that the Netherlands is responsible for deaths inside the safe compound in Srebrenica
Problem of enforcement
1. People:
-Military/civilian
-Combatant/Non-combatant
-IDPC
-No such thing as "illegal combatant"

2. Things:
Military character/objective
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