LANNOY Coline

International Humanitarian Law

06/02/20

There is a Mooc. He wants us to prepare each week (LDROP2162)

We don’t have to follow the Mooc but well the “In-depth: Introduction to international
humanitarian law”. We need to enrol and create an account because it is on another platform
called edge. The questions in the exam will be in English. There is a code in French. There
will only be 7 sessions.

At three sessions, there will be a multiple choice questions with 6 questions. It will be for one
point and if we succeed, we already have 3 points before the exams. We have a point if we
have a correct answer at three questions.

20/02/2020

Chapitre 1: Introduction

1. Nom(s)

IHL is a mix between the principle of military necessity and humanity. Belligerant want to
win to war but they also need to protect the people in order he win the war. The name
emphasises on humanity. That was the result of an evolution.

We will first talk of IHL in the strict sense.

We can also talk about the Law of Armed Conflict. It is a neutral expression. It is the law
regulating armed conflicts. There is also ius in bello. If we translate it from Latin, we talk
about the Law in War but war now is outdated. Before the Second World War, there was a
need for a declaration of war to be in war. Now it depends of an armed conflict and not of a
war anymore because the declaration was a bit subjective of the will of the states. We can
distinguish ius in bello from ius ad bellum. Ius ad bellum are the rules that regulate the ways
to arrive to the conflict. The first rule is the prohibition of the use of force. Of course, there
are some exceptions:

- If the use of force is used in self-defence because of an armed attack

- If the use of force was authorized by the UN Security Council
- When there is a consent given by the State where force is used.

The Law of war is also outdated because War meant armed conflicts between states. There are
now also states fighting against armed groups which does not fall within the concept of wars.

Those expressions refer to the law that regulates armed conflicts which is different from the
broad sense because in a broad sense, it is the law that protect the human person.

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2. Paradoxes

Is IHL useful? What are the paradoxes?

First paradox : Unfortunately, war occurs even today so there is a need to regulate that. It is
not because we regulate that situation that means that war would be legal. Some say that IHL
because it regulates war is a problem since the outlawry of war.

Second paradox: It is complicated to put constraint on belligerent while war seems irrational.
There is an objective to win the war and not to make war just to make war. There is a
possibility to limit because of this objective. States want to limit their use of force in armed
conflict because it is to their own interest that its opponent also respect the rules. That’s the
reciprocal interest of the state. Decisions are taken not always on the battlefield but far away
from it by legal advisers. It is not always in the context of the violence.

3. Du droit ?

Some people consider that it’s not law because it is often violated and there are no sanctions.

 Often violated: When you breach IHL, the consequences may be enormous for
people. Technically, it is not more breach than another rule of international law or
domestic law. The consequences are really serious but when it is not breached,
civilians are not killed and people are not torture. That’s the interest of IHL even if it
is breached. A rule of law necessarily implies a certain degree of violations because if
the rule is always respected, there is no usefulness to have this rule.

 No sanctions: Jurisdiction of the Courts only apply to war crimes which are serious
violations of some IHL norms. There are rules on prisoners of war and there is a
specific regulation for them in war camp like how many hours they must spend
outside. Those violations are not war crime. War crimes concerns limited numbers of
IHL rules. International Tribunals are more than nothing but it is still limited.

What about the UN Security Council? It depends of the political willingness because
Security Council is a political body (right of veto). It is not automatic. It depends also
because of the task of the Security Council which is about the international peace and
security and not to sanction violations of international law and IHL.

Why IHL is law? It is law because it is accepted by the primary actors on international law
which are the states. States will say that they did not do what the other state think they do.
They will deny the facts or attribute them to the other side. They will say it is not prohibited
or that is an exception to the prohibition. They will however never say that there is no
prohibition. So IHL is effectively law.

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4. Historique (1 à 4)

We can relate that to Lieber who wrote the famous Lieber Code. It is not binding but it is a
first codification and it influenced development of IHL. There is another event which always
is invoked where IHL really emerged. We can talk about Henry Dunant. He had some
business in the North America but that was administrated by France. He could not obtain the
authorization. He went to see Napoleon the third and the rest is history. He got in the middle
of the battlefield in Solferino between France and Austria. That’s in 1864 with the Convention
for the Amelioration of the Condition of the Wounded in Armies in the Field from the
Convention of Geneva that is the beginning of IHL. That’s quite an old branch of
international law.

That Convention is not into force so it has just an historical importance. What are the
Conventions today?

- The Hague Conferences (1899 and 1907): there are many conventions adopted during
these conferences. The Hague Convention of 1907 which is entitled the Laws and
Customs of was is still in force today and is really important. It says who cannot be
targeted: combatants who fall in the part of the enemy, cultural objects, civilians, ...
Perfidy cannot be used. That is about the conduct of hostilities. That is what we call
the Hague Law.

The Hague Convention in 1907 only applies to international armed conflict so

between two states.

- The rules considering prisoners of war have been revised by Geneva Convention so
that is what we call the Geneva Law which concerns the treatment of persons. There is
conventions about prisoners of war, shipwreck, .... When they are detained or trialed,
there is a protection, etc.

Then there is the second group of important conventions: the Geneva Conventions (4)
which only deals with person in the hands of the enemy. It works for international
armed conflicts but also for non-international armed conflict (where one of the party at
least is an armed group).

To which conflict do those Conventions apply? All the provisions regulate

international armed conflict and there is only article 3 which is really rudimentary with
the fundamental guarantees for the non-international armed conflicts. It looks a lot like
Human rights but we are in 1949 so Human Rights would emerge after.

- Then there are Additional Protocols. The Second Protocol concerns both the Geneva
Law and the Hague Law. Which conflicts does it regulate? It applies to armed and
non-armed conflicts. There was a need for a better protection than art 3 of the Geneva
Conventions. There were many more provisions in the draft (50) than in the protocol
(18). Why? When you regulate non-international armed conflict, it means that there is
a need to reciprocity. Doing so would give legitimacy to armed groups which states
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did not want to do. Because new states emerged, they were scared that armed groups
would attack them and so did not want to give them legitimacy.

What about Additional Protocol 1? It contains both the Hague Law (prohibits attacks
against environment) but also Geneva Law (protection of refugees). It is a particular
provision concerning special war. In the 1970ies, when there was the decolonization,
there were colonial fights between the colonial powers and the people of colonies.
How to qualify internal wars? Is it a civil war? Then there would be no application of
the protection of the prisoners of war. The ambiguity is that the people have the right
to be independent and the colonial state is a foreign power. That is a fight between two
states and that would mean it is an armed conflict. In PA1, there is a provision in that
protocol according to which that kind of conflict is an international armed conflict.
The conditions are that:
1) the colonial power had to ratify this protocol and
2) The people had to make a declaration in that sense. The people would make this
declaration because doing so mean that it is considered as a state. So the people
made that declaration but the depository of the Geneva Convention did not accept
it because no colonial powers ratified Additional Protocol 1.

There is one case when that was admitted: in the case of Western Sahara. In
1974, it was occupied by Spain and then Spain withdrew. It was then occupied
by Morocco and by Mauritania. Then finally Morocco occupied everything and
is still occupying today. Western Sahara was a former colony so they have a
right to become independent. Therefore, their war was falling as an
international armed conflict (Front Polisario). They made a declaration and it
was accepted because Morocco ratified the Additional Protocol 1. If Morocco
withdraws, it would apply until the end of the armed conflict.

5. Jus in bello/Jus ad bellum

Was there an influence of Jus ad bellum on IHL? There is a parallel evolution of the term war.
Jus ad bellum prohibited war. Jus ad bellum became the prohibition of the use of force and
not to war. It is broader now. It does not depend of a declaration now.

There was also a negative impact. We are in the Second World War with the Allies that
finally put out Germany from France and so on. They invade and attack Germany on its
territory. Germany was an aggressor state that violated the prohibition on the use of force. But
USA and Belgium acted in self-defence and did not violate the jus ad bellum. They were
fighting in conformity of ius ad bellum. They wanted to make an asymmetrical application of
IHL which means that they would not have to respect it but that Germany would have to
respect all the provisions of ius in bello.

There could be a tendency to privilege the lawful belligerents. That tendency existed when
there was a kind of limitation on the use of force because of the “Just War Theory” of
Aristotle. It is really bad because if so, the country that does have to respect jus in bello would

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not because there is no reciprocity. The second problem is to know who the lawful belligerent
is and who the unlawful belligerent is. Most of the time, states say that they are the lawful
belligerents, whatever they do.

Ex: Syria’s bombardment, Iraq invading Koweït, ...

Just before the First World War, there was no rule on the prohibition of the use of war. The
“theory of Just War” was abandoned during that period. There was no possibility to
distinguish the lawful and unlawful belligerent because there was no regulation. It is in that
period of time that IHL emerged.

Is it still the case today? Today, both parties have to respect the rules whether they are the
lawful or unlawful belligerent. It was written in the preamble of the Additional Protocol 1 that
Jus in bello and Jus ad bellum would be two separated branches. That’s the principle of the
equality of application of the IHL: it applies to all parties if their use of force is legal or not.
Also in article 1 of the Geneva Convention (it is a common article), this article provides that
states must respect and ensure respect in all circumstances of those rules so whether it is a
lawful or unlawful belligerents.

There is with the principle of equality, the principle of separation. If there is a violation of the
ius ad bellum, therefore there is an international armed conflict.

 The application of Jus ad bellum does not imply a violation of ius in bello

Ex: Belgian attacks against ISIS: it is an armed group. The argument was self-
defence: to protect Iraq from attacks of ISIS, established in Syria. Is there an
international armed conflict between Belgium and Syria? No because it is an
armed conflict where one of the parties is an armed group so this is a non-
international armed conflict.

 The violations of jus in bello does not imply violations of jus ad bellum

 The respect of jus in bello cannot make legal military operations at the level of the ius
ad bellum.

 Violations of ius in bello does not justify the use of force in regard to jus ad bellum. At
this time, humanitarian intervention, even it is invoked by states like the UK after the
chemicals attacks, is not accepted as an excuse to invoke ius ad bello because there is
a risk that state would attack too early on the basis of an humanitarian crisis. There is
also a responsibility to protect (R2P).

There are 3 pillars of R2P:

1) According to the first pillar, states have the responsibility to protect their
population from genocide, ethnic cleansing, crimes against humanity and war
crimes.

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2) If they are not able to do it, the second pillar obliges them to ask and accept help
from anybody else.

3) If it is still not enough, the international Community can offer its help to face that
humanitarian crisis. The third pillar is that if the state is unable to protect its
population, then there the obligation for the international community to take
measures, including the use of force. Therefore some experts say that it is a
humanitarian intervention. But there is a need for a Resolution of the Security
Council to be able to intervene and use force in this case.

6. DIH/DIDH

There are 2 levels for the Human Rights: a worldwide level and a regional level (European,
African and American instruments). Human Rights is a way to limit the power of the State
vis-à-vis of its citizens. Normally Human Rights were conceived to apply in times of peace
and IHL would apply in times of war. It is only in the 1960ies that state agreed that Human
Rights could be applied in times of peace and in times of war.

In a situation of armed conflicts, do the Human Rights apply all the time? The crucial test for
the applicability of Human rights is the control, the jurisdiction of the state. The control needs
to be done by the State itself or its agents.

Ex: The Bankovic case: NATO bombed former Yugoslavia. The people said that they
had a right to life. The Court said that it was a bombing, that the person was not under
the jurisdiction of the state so that Human Rights did not apply.

There is another limitation: there is a possibility to derogate.

What are the common features?

They protect people/human beings from torture and so on. The content is sometimes very
close: in art. 75 of AP1, it is a copy-paste of art. 27-34 of the PG. The provisions may be
really similar.

What are the differences?

The armed group are not bound by Human Rights but they are bound by IHL otherwise they
committed a war crime. There is a big difference between the 2 branches.

In Human Law, we try to protect the nationals against the power of the state while in IHL, it is
to protect the nationals of the enemy. This can be problematic. Human rights law will apply to
anybody while IHL applies to non-nationals. There is no category under Human rights law,
everyone is protected while in IHL, there are categories.

There is also a difference in the geographical scope of application (territorial jurisdiction or

not) and in the material scope of application because there is no derogation possible under
IHL but it is possible in Human Rights.

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There are also no tribunal to sanction the violations of IHL. There is no specific body devoted
to safeguarding IHL. It is really different from Human Rights Law: Human Rights
Committee, European Court of Human Rights, ...

How do these two branches interact? Are there conflicts?

There are two aspects: humanitarization and humanization.

 Humanitarization

The first idea is that Human Rights apply in armed conflict. When they were created, the idea
was not to regulate armed conflict so they could not be appropriated to regulate them since
normally they only regulate situations that occurred in peace times. During an armed conflict,
for security reasons, you need to lock people while in human rights, the point is to put the
person in front of the Court. The first purpose of IHL is to regulate armed conflict. The right
to life is not just a right in armed conflict, it must be interpreted in light of IHL and in IHL
you can kill someone. Therefore, it is in that sense that IHL was qualified as lex specialis
which is a rule specialized to a situation. That rule will serve to interpret. That is a mean of
interpretation. Human Rights are applicable but they must be interpreted in light of the IHL.

There is a big difference with the European Court of Human Right: Hassan vs. UK. He was in
a UK prison in Iraq. He was detained in Iraq and suspected to be part of the regime of
Saddam-Hussein. After that, this guy was released and was found dead. The case was brought
before the European Court of Human Right. There was a violation of his right to liberty.
Under the Convention, there are some grounds for the detention. He was only detained for
security reasons. Art. 5 does not provide any grounds of detention for security reasons so it
was not possible to interpret article 5 to include the detention for security reason in light of th
IHL. The Court used the principle of systemic integration (art. 31, c of the Charter of the UN)
and not the principle lex specialis. Even in real case of armed conflict, there is a possibility to
adapt Human Rights Law because of IHL.

Another adaptation that was made is the right to habeas corpus which is the right for the
suspect to be sent to a judge and be imprisoned only by an order of the tribunal. In Human
Rights, the body must be a court while in IHL, it can be an administrative body.

 Humanization with some adaptations

The other aspect is the humanization of IHL. In some IHL, there is a copy-paste of the
Covenant of Human Rights Treaties.

Ex: The prohibition against torture. There was no definition of torture in IHL so they
took the definition of the Human Rights. The problem is that the 2 do not apply on the
same person: armed group or not. So there was a need to adapt the rules because those
are two different branches.

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Use of Letal Force

In the Human Rights Law, it is not the same law enforcement paradigm as in IHL. There is a
need for an absolute necessity to use force and you need to first try to arrest the person before
using force and killing the person. Under IHL, a member of an armed force or non-armed
force can be killed at any time because of their status. The question when there is a person
(member of FARK which is a member of the Columbian armed group) in an area which is in
the control of Belgium. If we take the IHL paradigm, it is possible to kill him, even if there
are collateral damages but in the law enforcement paradigm, there is a need to arrest the
person and if it is not possible then you can kill him. Normally states use the argument of the
armed conflict. But there is an evolution saying that the lex specialis is human rights because
we are in the territory of one state control by one state. Another view is to change the
paradigm and consider that in that instance, then there is no military necessity to directly kill
that person. The military necessity is used as restriction not to kill that person.

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Chapitre 2 : Sources et sujets

05/03/2020

1. Traités

There is first the 1907 Hague Convention about the conduct of hostilities. That regulates
international armed conflict. That regulates the targeting of the persons: civilians cannot be
targeted, ... That explains what means of combats are authorized and which one are not. There
is also the Annex Regulation to the Hague Convention: that’s where we find the regulations.

The second group is the 4 Geneva Convention:

- Sick and wounded soldiers

- Warfare at Sea (shipwreck persons)
- Prisoners of war
- Civilians (after the Second World War)

Those 4 Geneva Convention applied to international armed conflict (state to state or state to
international organization). One of the most important provision is article 3 which is common
to all 4 conventions. That is a provision that applies in non-international armed conflict. It is
about the protection/treatment of the persons that are in the hands of the enemy.

Then there are the Protocols (I and II). The first one is about international armed conflict and
in this protocol, it says that the struggles for independence must be regulated as international
armed conflict. There is also Additional Protocol II which regulates non-international armed
conflict. There are 18 provisions contained within that protocol. There is a big gap in treaty
law between the regulation of international armed conflict and non-international armed
conflict.

 What are the specific features of IHL treaties?

They are very detailed because it regulates very concrete relations and the soldiers on the field
must know what to do.

There is also a big number of states that ratified it. All the states ratified the Geneva
Convention for example. So there is no need to have customary law because all states are
bound. What about the Hague Convention: it was ratified by all states at the time but it is now
customary international law. For the Additional Protocol, some provisions didn’t meet the
agreement of some states that decided not to ratify additional protocol I but some of its
provisions are of a customary nature. For Additional Protocol II, some states didn’t ratify it
like Syria, Somalia, ... and in those states there is a non-international armed conflict. But he
thinks that all the provisions of Protocol II are of a customary nature and are thus binding on
all states. That is the position of many scholars but also the position of the ICRC.

The basis of IHL is not reciprocity. Human rights treaty are not reciprocal : if another state
does not respect it, the one that will suffer from the non-performance of the obligations are the

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individuals and not the other states. That’s the same logic in IHL. If someone tortured your
combatants, torturing the other state’s combatants will arm the individual. Those treaties are
then non-reciprocal treaties. It was said in the Kupreskic Case of the ICTY.

 What are the legal basis?

It is written in Art 60 of the Vienna Convention on the Law of Treaties. If another contracting
party breach the treaty, the other party can suspend or terminate the treaty. It is called the
principle adimplenti non adimplentum. It was discussed and the ICRC went to the conference
and said that if that mechanism applies to IHL treaties, it can lead to violent results. In that
article, it says that that mechanism does not apply to the provisions of the treaty concerning
the protection of persons.

There is also the Common article 1 of the Four Geneva Convention: States must respect in all
circumstances those conventions so even if another state has breached those conventions.

But there are still a little bit of reciprocity in IHL with reprisals: it is possible to make the
same breach than the one that was made. It is the Talion Rule. Before Additional Protocol 1, it
was partially authorized. Before the adoption of Additional Protocol 1, there was a big
discussion about it. The violation can go unsanctioned by a police because there is no
obligatory judge. But we wouldn’t authorize it because the point is to protect the people. The
risk is the military escalade. There is a need to balance between two interests: reprisals are
needed as revenge but that is dangerous. They did not agree on a general prohibition but there
are some prohibition of reprisal for the individuals, etc. For instance, if a state use weapons
that are not authorized, the other state can also do so. There is also the method of war like
perfidy where you say that you are wounded to be able to kill your enemy. That is a war crime
and it is possible to use perfidy as reprisal. There is some kind of reciprocity.

2. Coutume

 What are the roles of customary law?

There are gaps in IHL such as the regulation of international armed conflict and non-
international armed conflict for treaties. There are not so many new treaties in IHL. But
customary law is then useful. That partially fills the gap.

A provision of customary law is binding on all the states even if they are not parties to the
treaty. That provision will also still work for a state withdrawing from the Convention will
still apply.

It is also important for war crimes/grave breaches. There is no list. You cannot be prosecuted
for a crime without a law: nullum crimen sine lege. We can find the war crimes at the end of
the Geneva Convention. The technical term is grave breaches of IHL. There are also grave
breaches in Additional Protocol One but there are no list for non-international armed conflict.

What about the Tribunal for Rwanda? The point of the tribunal is to rule grave
breaches in non-international armed conflict. So how to solve the problem?

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The judge used customary law to be able to identify the war crimes in non-
international armed conflict.

It is really important for the non-retroactivity of crimes. Because of customary law, war
crimes already existed.

For intentional obligations, since they cannot ratify the treaties, they can only be bound by the
customary norms.

 What must be proved to prove customary international law?

There is a need to prove the practice and the opinion juris. But it is really hard to prove it.
How identifies it? It is the judge/the tribunal/the court but also ICTY.

There is also the Commission for Eritrea and Ethiopia. Eritrea had not ratified the Geneva
Convention yet so to settle the dispute, they only need to look at customary norms. So it is
really important because they identified the norms reflecting customary law in the
Convention.

There is also the International Committee of the Red Cross that established the international
customary nature of the rules of IHL. It is not possible to be sure that it is of a customary
nature because the Committee is not a judge. It is still relevant because it relies on state
practice. USA said it was only to look at material conduct and not on declarations because the
USA is involved in armed conflicts. Some states criticised the methodology of the ICRC. But
International criminals endorsed it.

 Which practice is relevant?

What about the practice of armed groups? Because if we say that it is possible, then they
would be able to create law. What about the customary law applicable to them? If they can
create an obligation applicable to them, it is also applicable to the state. It is a principle of
IHL which is the equality of belligerents.

What about the practice of the ICRC? The RCTY said yes that the practice of the ICRC could
create customary norms but only indirectly. The strategy of the ICRC is to propose. The ICRC
said in one of its work that there was a principle of military necessity where you could only
kill a member of an armed force is it was necessary. Its point was to influence, to push states
to adopt that view. It was actually endorsed by some states like Columbia. It’s still
controversial to know if the practice of the ICRC can create customary international law.

When there is an abstention, it is difficult to see if there is a relevant practice or not. The
IRCR and the ICTY said that they needed to focus on resolutions, code of conducts, etc. so
declarations rather than material conduct. The appreciation of the State practice is then very
wide. The Commission adopted that view.

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 What’s the state of customary law today? Is everything of a customary nature?

There is a big gap between the law of international and non-international armed conflict and
that gap was partially filled by customary international law. For the Hague Law, it is pretty
much the same but for Geneva Law, there are still a lot of differences like the status/privilege
of combatants.

o Combatants have the right to participate in the hostilities so they can kill people,
injure member of armed groups, detain persons for security reasons, ... It is only
recognized in situations of international armed conflict. If you have a status of
combatants, you have the privilege of combatants where you are immune for
lawful acts of war and you enjoy the status of prisoner of war if captured.

What about non-international armed conflict? They are considered as criminals by

the states and so its state must still be able to prosecute them for having killed
people, taken the arms. It is quite problematic because even if the member of the
armed forces respected IHL, it could still be prosecuted unless the state adopted
amnesty laws like in Columbia. It is written in Additional Protocol II. The status of
prisoner of war will not be applied here.

o The Law of Occupation: it only concerns the occupation of a State by another state.

3. Organisations internationales

The main subjects of IHL are states. In addition, there are international organizations. Are
they bound by IHL? Yes, if they are engaged in an armed conflict, they are bound by IHL,
especially the UN.

 What about the UN?

At the beginning, the UN said that they weren’t bound because UN is neutral. The other
argument was to say that it was party to the conventions because it was not a state. Also there
were some provisions in the treaty that were not relevant for them like to trial someone that
committed a war crime if he is in its jurisdiction.

It evolved with firstly the “Unilateral Commitment” where the UN said that for some armed
conflict, it would respect the spirit and the principles. Then it involved with ad hoc
agreements with states. And finally there the Bulletin of 1999 where it says that it is
applicable to the UN. There is a criterion of the operational and strategic control. IHL could
apply to peacekeeping (blue helmets operations) and peacemaking operations.

- For peacekeeping operations, they are neutral so they are normally not involved in
armed conflict.
- For peacemaking operations : the Monusco in RDC.

There is also authorized nationals forces but IHL does not apply.

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 What about NATO?

States may have a different approach. USA would want to bomb some drug field while
Belgium said it was not an interesting target. So if NATO asks a state to bomb something, it
can refuse.

4. Groupes armés

 Are they bound by IHL?

If they are party to an armed conflict, then they are bound by IHL. How are they bound by
IHL? Just because the state ratified the treaty then the armed group by IHL is a problematic
theory because the armed group won’t agree since they fight against it. There is a problem of
effectiveness of the territoriality approach.

That’s the reason why some states invented the consent approach like not to commit act of
sexual violence, not to recruit children for their army. Armed groups can make unilateral
commitment. There is also a possibility of special agreements concluded between armed
groups and states. Is that a treaty or a contract? That’s a difficult question. What is the
problem? It would mean that the armed group has the capacity to make law but also it would
mean that they would only be bound to the rules to which they would express its consents.
That is against the usual understanding in which armed groups are bound by IHL.

 International struggle for national liberation

It can apply in Western Sahara with the Polisario Front because Marocco ratified Additional
Protocol 1 and therefore Polisario Front made a declaration based on art. 96.

Chapitre 3: Champs d’application

19/03/19

There is the material, temporal and geographical scope of application but today we will only
deal with material law. IHL only applies in a situation of war so it is very important to know
if we are in such a situation because there are things that we are able to do like killing
people,... which are things you wouldn’t be able to do in a non-situation of war. There are a
lot of derogatory norms applicable in such a situation. The scope of application of IHL is so
very important to determine.

There are 2 very important categories of armed conflict:

- International armed conflict

- Non-international armed conflict.

It is really important because the rules applying will depend on the category. There are very
few norms applying to non-international armed conflict that are going to apply: art. 3
Common to the 4 Geneva Conventions. Additional protocol 1 only applies in international

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armed conflict. Additional protocol II will apply in certain non-international armed conflict.
There are so very few treaty provisions applying for non-international armed conflict.

Why is this difference so important? The difference is grounded on 2 important factors:

- Linked on sovereignty: Non-international armed conflicts are not much regulated

because states would not agree to be bound by norms when they are fighting against
people that they consider to be illegitimate. When they are fighting against another
state, there are rules of immunity, ... that apply in order to protect the population but
they do not want that for non-international armed conflicts.

- Liked with effectivité: In international and non-international armed, conflict there are
not the same actors. The state armed forces have at their disposal very high machinery
that are more developed. It is not the case in non-international armed conflict because
armed groups do not have the same facilities than states. They don’t sometimes
control a territory or be organised. It makes sense that the actors are subject to less
develop norms because the actors are different in nature and do not have the capacity
of states.

There is one difficulty regarding to the determination of an armed conflict. The laws of armed
conflict are very unclear as to the concrete elements for NIAC and IAC. There are some very
general criteria that can be found in art. 2, common to the 4 Geneva Convention. So it is
mainly in the ICTY that criteria emerged. The judges had to determine if there was an armed
conflict or not. These criteria have be reused by other tribunals.

Let’s study this distinction

1. International armed conflict

Traditionally there are 3 categories:

- Traditional international armed conflict: 2 states fighting against each other

- Wars of national liberation: when Additional Protocol 1 was adopted in 1977, there
are some wars taking place in the context of decolonization and they will be treated as
international armed conflict.
- Internationalized armed conflict: Non-international armed conflict that are going to
become international : they will change nature and because international.

 Traditional international armed conflict

Usually in order to distinguish a NIAC and a IAC, we need to look at the actors involved in
the activities. When two states fight against each other, there is an IAC. As soon as there is an
independent non-state actor, there is a NIAC.

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What does it mean that two states are fighting against each other?

1) We need to look at the actors involved

As soon as the armed forces are fighting against another state, there is an international
armed conflict. It is not always easy to determine. It can be easy to determine when there are
official armed forces of the state where there are laws uniforms, etc. There are also not
official forces that are fighting on behalf of the state but it is sometimes difficult to assess.
There is always a need to make this determination to determine whether the armed forces act
in this armed conflict. The criterion is not very clear in the jurisprudence. There is the
criterion of the extent of the operational control so the state must control the planning, orders,
organization, execution of the military operation of this paramilitary force. If there is such a
control, it is possible to consider that those forces are fighting on behalf of the state. The
financing of the group is not sufficient to consider that the group is fighting on behalf of the
state. There is a need of overall control. Usually this criterion is considered to be of a
customary nature.

Those armed forces must fight another state. These armed forces must be fighting another
state and not an armed group on the territory of the other state. Therefore they must be
attacking another state. If a state is fighting an armed group in the territory of another state, it
is a non-international armed conflict. As long as there is an attack from one state to another
state, there will be an international armed conflict.

2) Nature of the hostilities

There is not a very low threshold of hostilities: as soon as the state arrest one member of the
armed forces of the other states, the rules of international armed conflict. In non-international
armed conflict, the threshold is very high. In IAC, very law hostilities, even unilateral attacks
as long as this attack is directed on this other state, it is sufficient to trigger the application of
the laws of IAC.

Why? Some scholars say it was really dangerous because the rules of international armed
conflict are really derogatory. In NIAC, national law can apply since the state is fighting
armed forces within its own territory. In IAC, if international law does not apply immediately,
no other laws can apply because national law will not apply.

Human Rights Law could apply so why not apply this law instead? HRL can apply
extraterritorially but there are conditions of application of HRL in the territory of the other
state. Firstly, there is a need for control in that territory. Secondly, the extraterritorial
application of HRL does not meet the agreement of all states like the USA and Israel. That’s
why it is important to have a body of law governing the altercation between states as soon as
it happens.

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3) The fact that the State does not recognize the existence of an internatonal armed
conflict does not prevent it from being classified as an international armed
conflict

Subjective elements are most of the time not taken into account. The point is to protect
individuals so the rules will apply no matter what the state think about the hostilities. What is
important is what concretely happens on the ground and not the political motives. There is no
need now to have a declaration of war. Before, war was triggered by the declaration.

 Wars of national liberation

In the 50ies and 60ies, the General Assembly adopted many resolutions to recognize the wars
of liberation that happened during the process of decolonization. Those groups have a right to
be involved in the hostilities because they are fighting against colonial power. When
Additional Protocol 1 was adopted, its art. 1, §4 include the wars of national liberation in
IAC. It is a war of national liberation when the group is fighting in the context of its right of
self-determination as recognized by the UN Charter. As in today, there is no more wars that
occur in the context of liberation so this article does not really apply anymore.

There is an exception in the case of Western Sahara. It has been treated as a war of national
liberation. The situation is the product of decolonization. When Portugal and Spain left
Morocco, Morocco immediately moved on that territory.

Some are making arguments for liberation movements that are fighting against a racist
regime. This is subject to debate even when there is a racist regime that is not respecting the
rights of the people in its territory, it is not sure that there is a right for self-determination so it
is not sure that we can apply the rules of wars of national liberation.

Even if they are not really meaningful today, what are the criteria? There is a need for an
occupying power and a liberation movement. The law is not clear about what is a liberation
movement, which one to choose if they are many, or if the UN should recognize it. It is not
clear from the convention. To what extent must it have some control of effectivité with
control of the territory is not clear. According to art. 96 of AP1, the liberation movement must
make a declaration according to which it undertakes to respect all the laws applicable to
international armed conflict. The declaration is then given to the Swiss authorities that are
depositary of the Geneva Convention. Many states have done it but the Swiss never accepted
it because the occupying powers were not signatories of AP1. Tchétchénia made one but the
Swiss did not accept it because its right of self-determination was not recognized. However,
in the case of South Sahara, it was accepted because Morocco ratified AP1. There is no war
for the time being because there is no war between the parties.

 Internationalized armed conflict

These are conflict that are originally non-international : a State is fighting an armed group in
its own territory. Because of a factor which is going to happen, the conflict will change nature
and will become international.

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For example, Soudan was a unique single country because the creation of South
Soudan. There were fights between the South of Soudan (rebels group at the time)
against the government of Soudan. At first it was considered as a NIAC. At one point,
the Southern part of Soudan became an independent State. If they are still fighting, the
conflict that was first non-international becomes international because two states are
fighting each other since a new state was created during the course of the hostilities.
That does not happen much because usually when the new state is created, the conflict
will stop. That’s what happened in Soudan.

In the former Yugoslavia, originally, there was only one state. There were fights
within the state with different entities. So there were non-international armed conflicts.
After the dissolution with former Yugoslavia, the fights that were non-international
became international because three new states entities were created: Serbia, Bosnia
and Croatia.

Under which conditions can this process take place? It is only possible when a non-state entity
become a state entity. There is a need to determine whether or not a new state existed. To
have a new state, the state entity must have a territory, a government and a population. There
are many entities having all of that like Daesh. Why were the fights not considered to be
international? That is problematic. Even if Daesh has all the attribute of the state, very few
states consider it to be a state, the group is not recognized by the international community. A
subjective element still plays a role here. A long as there are no recognition, it will not be
recognized as an internationalized armed conflict. But when is it enough recognized? It is
quite complicated. It is quite against the objective of IHL which is effectivité. That’s not
enough.

The second possibility is the control. It is when there is an armed group which is independent
fighting the state authorities. A state can intervene in the armed conflict indirectly by
controlling an armed group. At one point, the armed group can be controlled by a third state.
That can happen: a state can intervene indirectly by exercising some sort of control over the
armed group. The conflict will become international because we consider that the armed
group is an emanation of the state because that state exercise control over the armed group.
For instance, it is the situation in Ukraine because Russia has some overall control over the
armed group. So the criterion is the overall control.

02/04/20

The most difficult question is to determine the extent of control necessary to consider that the
group is controlled by a third state. There is nothing in the Conventions about it. The question
that was raised in the jurisprudence was to know what the nature of the control was which
must exist in order to consider that the armed group is not acting independently anymore.
That criterion is not clear. The tribunal looked at the rule of the state responsibility and so it
was necessary to what extent the third state is responsible for the actions of the armed group.
Overall control means that the State does not need to plan really but it just needs to control in
general terms the administration, planning, ... It is enough to trigger the responsibility of the
third state.
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This has raised many controversies because the criterion of overall control was not accepted
by everyone. The criterion of the ICJ is much more strict and requires to show that the third
state ordered some acts. The ICJ maintained that criterion for state responsibility but that it
was possible that there might be another criterion for armed conflict. In regard to the
qualification of armed conflict, it is accepted that the overall control is the criterion but there
is a debate about the extent of the responsibility.

It is a conflict which is originally non-international since an armed group is involved in the

hostilities but once a State is involved, that becomes an international armed conflict so it
changes nature.

There is another possibility where the State won’t control the armed group. Let’s take the
conflict with the former Yugoslavia. The new states of Croatia and Serbia were involved in
the armed conflict by supporting armed groups or intervening directly. In that case, how to
qualify the armed conflict? According to the tradition, we need to distinguish both conflicts:

- One between Croatia and the Bosnian State

- One between an armed group helped by Croatia and the Bosnian State.

Croatia provided help to the armed group. In that case, a third state comes and help the armed
group. Either the third state control the armed group and in that case, the nature of the conflict
changes and we consider that the armed group is acting for the state. Another possibility is
that the state troops will fight with the armed group the national authority of the state. In that
case, there will be two conflicts: a non-international conflict between the armed group and the
state and one international armed conflict between the two states. If there is only a support
linked to military operation, it might be sufficient if the support is more than general but is
concrete, then there is again an international armed conflict.

If here is a state which provides help to another state which itself is fighting an armed group.
(Congolese authorities). In that case, the nature of the conflict will not change because in that
case, we will have two non-international armed conflict.

Inc onclusion, we studied the general conflict of IAC: the wars of national armed conflict and
the different forms of internationalization of NIAC.

2. Non-international armed conflict

 Low intensity non-international armed conflict

It is the category that will trigger the application of art. 3 Common to the Geneva Convention
and the customary international law. If we look at art. 3 Common to the Geneva Convention,
there is a reference to armed conflict that is non-international but there is no definition. So the
jurisprudence had to give the answer to say when this rule would apply. There are three
important elements

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 Actors involved

In order for a NIAC to exist, there always a need to have an independent armed group. It has
to be independent which means not under the control of a third state. Whether the armed
group is fighting a state or another armed group does not change anything. What is important
is that on one end, there is an armed group.

Why is there a different body of law? A non-state actor has no legitimacy and usually less
effectivity so it cannot apply the same rules as states.

What is an armed group? It is only when there is a structure in the armed group and that that
armed group can destabilize the state that NIAC is applicable. It is only if the armed group is
organized enough that the armed group is considered as an armed group for IHL. There is a
need for an organization, a hierarchical structure. The fact that they have uniforms, a
structure, arms... there are certain indicia shown by the jurisprudence to show that there is an
organization. Now in modern wars, it is much more complicated : they are armed groups
much more less organized than it was before in Croatia and Serbia. In Syria, they didn’t have
any weapons at the beginning. It is not easy to determine at one point it is possible to qualify
it as an armed group. In the jurisprudence of the ICC, there is a tendency to consider groups
as armed group for the purpose of IHL even if they are not that organized so that the ICC can
try these individuals for war crimes. There is a need with a link with an armed conflict to exist
for the Court in order for it to have jurisdiction on these crimes. The Committee of the Red
Cross said that it was dangerous because they weren’t that organized.

 Nature of the hostilities

It is also widely admitted that NIAC will only apply when the conflict reached a certain
intensity. For IAC, it is applicable as soon as a state arrest one member of the armed forces of
the other state. In NIAC, usually, a state is fighting an armed group within its own territory,
national law and Human Rights Law will govern that conflict. It is only when the conflict
reached a certain intensity that IHL will apply. There is a quite high threshold in order for
NIAC to apply. What does it mean? It means that it is appreciated bases on indicia: number of
people killed, ... There is no simple criterion which will be determinant. This vagueness is
quite problematic. It is not easy to show that the threshold is attained. It is easy to say that
there is a NIAC in Syria, ... because it is obvious that the conflicts are heavy. But when it
starts, it is not that easy. There is a need for certain duration.

 Subjective element

Do we need to take into consideration the intention of the belligerents? No. The only thing
necessary is to look at what is happening on the ground. Often the state will deny the
application of NIAC because it is bad press but what is important is what happens on the
ground. There has been a huge discussion about the situation in South America. There are a
lot of armed groups engaged in armed conflicts with the states. The drug traffickers are quite
organized and armed. Are there involved in a NIAC? There are not a usual armed group that
wants to overthrow the government. Their motivation is very different because they just want

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to sell their drugs. Their intention might apply but the RCRC said that it was difficult to take
in consideration their intention that we don’t know. So what is important above all is to see if
they are military organized.

 High intensity non-international armed conflict

This category is important because it will trigger the application of Additional Protocol II.

When the two additional protocol were adopted, the state mainly concentred on the first one.
They were also concerned about the wars of international liberation and once it was
assimilated to state entities, they were not really interested in NIAC. The convention is quite
weak. The provisions explain common art. 3. They agreed to develop the norms in quite a
minimal way and reduced the scope of the application of that convention because APII only
applies when there is a high intensity NIAC.

What is a high intensity NIAC ? The answer can be found in art. 1 of APII.

 It only applies if it opposes armed forces of a state to an armed group and not
armed groups between them.

 The second element is territorial. There is a need to have organized armed group that
have territorial control, which control the territory of the state in order to carry
sustainable military operation and in order to apply the rules of APII. What does it
mean concretely? To control wide part of the territory? That’s not clear. It is not clear
from the conventions of the jurisprudence of the tribunals. It was not clear in the
convention because states could not agree. For some like Australia, there is a need to
be quasi a state while for the others including the RCRC, a very small territory is
needed.

The tribunal do not very much apply APII. The tribunal consider that the rules in APII are of
customary nature. They consider them to be of customary nature. Usually this is accepted that
the norms of APII are of a customary nature in the context of low intensity NIAC.

 NIAC requiring some duration

That is a new category that is only found in the ICC Statute. There are 2 categories of conflict
in ICC Statute: low intensity NIAC and NIAC that requires some duration. They are certain
war crimes in the ICC if the conflict has acquired certain duration. This new category is only
admitted in the case of the ICC. It is very specific to the ICC and link to its jurisdiction. A
temporal criterion is even more complex than the territorial criterion. The ICC does not give
any information on the duration necessary. Usually, the Court says that if there is a war crime,
the conflict attained the duration required.

 Transnational armed conflict

More and more, there are conflicts that are opposing states against an armed group which is
on the territory of another state. For instance, Belgium is fighting Daesh, ... There are many

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transnational armed conflict. It is a category not found in the Convention. The question was
raised for the first time for Israel and Esbola (Lebanon). There is on the one side a state and
on the other side, there is an armed group. Normally it should be treated as a non-international
armed conflict. There would be two conflicts at the same time: one between the 2 states (IAC)
and an NIAC between the armed group and the armed group. To have an IAC, there is a need
to have a clash between the two states. Two rules would apply which could be problematic
but it is normal because of the difference of legitimacy and capacity. That raised some critics.

The RCRC said that when Israel fight against Esbola, it is also attacking Lebanon. When
Israel attacks, it will kill Lebanon people, infrastructures, ... so there is an attack on the state
itself and that should be recognized. The armed group is located in the territory of the other
state so it should be recognized that there is also a conflict with the State.

The RCRC said that there was a need to see to what extent the state has given its consent. If
the state has given its consent, based on its sovereignty, it could do it and so there will be no
problems. If there is no consent, the situation becomes more difficult. According to the
RCRC, the attacks lounged by the state to an armed conflict, it is a NIAC but if there is NO
consent, there will be a parallel IAC to the NIAC. He does not understand that position but
what does it mean concretely. If there is no clash between the two states, why would the
situation be regulated by the laws of IAC. The conflict would be governed by NIAC but the
repercussions would be governed by NIAC. There is a big importance that is set on the
subjective element which is the consent of the state. That is a problem because consent is a
political element.

3. Temporal scope of application

The laws of armed conflict will apply when the criteria are present and until the end of the
hostilities. It is often really difficult to find. A cease-fire can be taken into consideration but
there is no element determinant. There is a need to see that there are no longer hostilities and
that there is no prospect that it will restart. Usually, it is traditionally accepted that the laws of
armed conflict will apply till the end of the hostilities and that it would not restart. There is a
need for clear elements to show that the armed conflict won’t start again. It is not easy to
make that appreciation.

4. Geographical scope of application

The laws of armed conflict will apply within the territories of all states that are concerned by
the armed conflicts. It applies until the end of the hostilities in all the territory. It does not
mean that the law will apply the same way everywhere. If there are no hostilities in that part,
might not be applied but it is still applicable.

It is tricky for transnational armed conflict. It would mean that if Daesh attacks Belgium, it
might not necessarily be against international law. Not all states would agree to have that kind
of interpretation. The RCRC wants to warn states that their conflict in other states against
armed groups could also have repercussion on their territory.

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Chapter 4: The Geneva Law

We will start to study the laws of armed conflict themselves. There are two categories:

 Rules for the protection of People: Geneva Law + Additional Protocols.

 Rules about the conduct of hostilities: Hague Law.

We will start with the protection of individuals and the 4 Geneva Convention.

1. Protection of Prisoners of War

It is regulated by the third Convention which governs the protection of prisoners of war. The
third Geneva Convention is an important Convention because if we are prisoners of war, we
have to be treated humanely, we can be detained till the end of the hostilities and we have
immunity for our lawful acts of war. As a POW, we are fully protected.

POW Convention only applies in the context of IAC. The status of POW is only given to
member of the armed forces of a state. It means that the member of armed groups can never
claim this status. No state would want to give it to members of armed group because it allows
them immunity for their acts of hostilities.

The Convention is really much developed because there were many POW during the Second
World War that were very badly treated so the states wanted to make sure that they would not
badly treated.

 Categories of individuals that can get the POW status

We need to look at art. 4 of Geneva Convention III which lists all the categories of persons
that can get POW status and an additional article in API.

Who are they? The first to get that status are the members of regular armed forms, all the
persons fighting for the state. The second category is the members of irregular armed forces.
They are taking part in the hostilities and are fighting on behalf of the states. They are
however some conditions. The third category is persons who are mostly civilians but are
accompanying the armed forces: furnishing the armed forces, etc. They are going to receive
the POW status because they contribute to the war efforts.

What about members of private military companies? They are some conditions. When a
mercenary is employed, there is protection. What about spies? It is written in API.

o Members of regular armed forces: in principles, it is easy. It is automatic. They

do wear a uniform which is determined by law. By the fact that they have a
uniform, if they fall within the hands of the enemy, they will have POW status. If
they have their identification card, it is a good proof but it is not necessary. It
means that you will be put in detention until the end of the hostilities and be
granted immunity for what you’ve done during your combat functions. Of course,
you cannot violate the rules of war.

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o Members of irregular armed forces: it raised a lot of difficulties after the Second
World War because of resistants. Resistants are persons that organized themselves
to fight alongside the army but that were not regular armed forces. To what extent
should they get protection? Before 1949, they could be killed for the simple fact
that they took part in the hostilities.

That is when the situation became difficult. Members of irregular armed forces
usually act in a clandestine manner. They do not have a uniform. If they could not
act in a clandestine manner, they could not carry out military operation BUT at the
same time, that is very problematic for civilians because it means that it is possible
to have members of the armed forces in the civilians and that the armed forces of
the other state could not know who they are. It is important to protect the civilians
to would be put in danger. Thy finally found a compromise: in principle, they are
protected if they respect certain conditions encompassed in art. 4 of GCIII.

They are protected if they meet certain conditions. These conditions do not apply
for regular armed forces because they are presumed to be regular armed forces and
are thus granted POW status. For irregular armed groups, there are some
conditions:

1) There first needs to be a link between them and the state.

2) They must wear a fix and distinctive sign recognizable at distance.
The idea behind it is that when you are fighting, there is a need to
see that the person fighting is member of irregular armed forces.
The person must have it all the time.
3) They must carry weapons openly which shows that they are
fighting.
4) They must broadly respect the laws of war.

These conditions need to be complied with by the general group itself. If one or
two individuals breach the rules of war, it will not change the status that they can
get. The conditions need to be fulfilled by the group itself.

Individually, it is different. This the compromise found in 1949 between on the

one hand fulfilling the military interest of the group acting clandestinely and on
the other hand a duty to ensure the protection of the civilians. This compromise
will be rethought in API.

 ....

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 Treatment in detention

2. Protection of civilians

Chapter 5: The Hague Law

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