internal armed conflict and the law

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Internal Armed Conflictand the Law

Somalia

Kosovo

Colombia

Afghanistan

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Introduction • Internal Armed Conflict Defined:

– citizens organized in group(s)– violence more than sporadic acts– purpose to overthrow government

• Role of the Military– assist in law enforcement– attack citizens taking an active part in hostilities

Sources of Law• Domestic Law of State• International Law– Human Rights Law– Law of Armed Conflict– Question When Conflicting

Rules Apply

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Need for Protections• Greater Civilian Casualties

in Internal Armed Conflict• Centuries of Restrictions on

Combatants– cultural & religious– modern codification in law

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International Law ofHuman Rights Law

• International Agreements– UN & Other Agreements having global application – Regional Agreements

• Customary International Law

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Common Article 3 to 1949 Geneva• Applies in All Internal Armed

Conflicts• Applies Regardless of Compliance

By Armed Opposition Groups• Question of Application to Armed

Opposition Groups

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Common Article 3 of 1949 Geneva • Who it protects?

– persons NOT taking an active part in hostilities:• combatants who have laid down their arms • wounded or sick combatants• detained persons• the civilian population• medical and religious personnel

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Common Article 3 of 1949 Geneva• Protections:

– treated humanely– no violence to life and person– no taking of hostages– no humiliating or degrading treatment– trial only by regular court w/ judicial

guarantees– all wounded and sick shall be cared for

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Common Article 3of 1949 Geneva

• Optional Assistance of Impartial Humanitarian Body

• Application of Common Art. 3 Does Not Affect Legal Status of Opposing Group– citizens caught violating domestic law may

be tried by regular court and punished

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Additional Protocol II• Binds Only States Party to It• Applies to Internal Armed Conflicts Which:

– do not involve war of national liberation– involve opposing groups under responsible

command able to maintain discipline– involve opposing groups in control of national

territory sufficient to carry out sustained and concerted military operations

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Additional Protocol II Prohibits• Violence to Life, Health, Well-Being• Collective Punishment• Taking of Hostages• Acts of Terrorism• Outrages Upon Personal Dignity• Pillage• Threats to Commit Prohibited Acts

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Additional Protocol II Requires• Detained Persons:

– provided food and drinking water– provided health & hygiene safeguards– allowed to receive relief– allowed to practice their religion– equivalent work conditions & safeguards– provided specified rights in criminal court

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Additional Protocol II Requires• All Wounded, Sick or Shipwrecked

– all possible measures to search & collect– receive medical care to fully extent practical– care provided based only on medical need

• Medical Personnel, Units, Transport– respected and protected– not punished for providing care– special rule when misused by enemy

Additional Protocol II Prohibits Attack on:• the civilian population as a whole• individual civilians

– unless and for such time as they take a direct part in hostilities

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ICRC ViewMembers of Organized Armed Groups

– are not civilians taking a direct part in hostilities– only those having a continuous combat function

are members• and therefore may be directly attacked at any time

– people having a continuous support function are not members• And therefore may not be directly attacked at any time

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ICRC View• Civilians Who Directly Participate in Hostilities

– only acts likely to do actual harm to enemy personnel or equipment

– the act must:• be likely to harm military operations or capacity• be no more than one causal step from the harm• be designed to directly cause the harm

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ICRC ViewIndividual civilians shall not be the object of attack unless and for such time as they take a direct part in hostilities• ICRC View:

– preparing to carry out– moving to conduct– carrying out– returning from

an act likely to cause adversely affect enemy military operations or capacity

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ICRC View• When in doubt as to whether or not a person:

– is a member of an organized armed group– or is directly participating in hostilities

It must be presumed that the person is not

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Additional Protocol II Also Prohibits• Displacing Civilian Population Without Provisions• Starvation of Civilian Population• Attack Releasing Dangerous Forces• Attack on or Military Use of Historic Monuments, Art

Works, or Places of WorshipProtocol II Does Not Affect Status of Fighters

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Additional Protocol I• "Wars of National Liberation":

–Armed conflicts in which peoples are fighting against:

• colonial domination• alien occupation, or• racist regimes

In the exercise of their right of self-determination enshrined:

• the UN Charter and• Declaration on Principles of International Law

Concerning Friendly Relations

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Additional Protocol I• Applies in Internal Armed Conflict in States

That Are Party to It• Questions Regarding When an Internal Armed

Conflict is a War of National Liberation • Question If It Applies to Fighters• Provides Combatant Immunity To Fighters

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Other Applicable Law of Armed Conflict Agreements

• 1954 Hague Cultural Property Convention• 1980 Conventional Weapons Convention• 1993 Chemical Weapons Convention• 1997 Ottawa Anti-Personnel Landmines

Convention• 1998 Rome Statute on International Criminal

Court

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Customary Law of Armed Conflict

• Does It Apply? What Is It?• 2005 Study by International Committee of the Red

Cross• International Tribunals for former Yugoslavia and

Rwanda• Rome Statute (International Criminal Court)

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Rome Statute Internal Armed Conflict War Crimes

Related to Targeting:• intentional attacks on civilians• intentional attacks on medical persons &

property• intentional attacks on civilian persons & property

involved in humanitarian & peace missions• intentional attacks on religious, education, art,

science, charity, historic buildings• killing or wounding treacherously• failure to accept surrender

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Rome Statute Internal Armed Conflict War Crimes

Related to Civilians & Detainees:• pillaging;• rape, sexual slavery, enforced prostitution, forced

pregnancy, other sexual violence a serious violation of Common Article 3

• conscription or enlistment of children under 15 or their use in hostilities

• unnecessary displacement of civilian population• subjective captive to mutilation or scientific

experimentRelated to Enemy Property:• unnecessary destruction or seizure of enemy

property

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Enforcement Against Violations• State Enforcement

– hostilities against the government– government personnel violating the law– amnesty

• International Enforcement– Tribunal Created by UN Security Council– International Criminal Court

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National Law of the State• Constitution & National Laws of the

State Concerned• Consistent With Relevant

International Law of Armed Conflict & International Human Rights Law

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