3 pages take home exam for my political science class. the subject of the class is international law. There are short answers and one essay question. I attached the exam also some class slides that should be helpful and can get the information from there.
Michelle_Michy
20190507055448chpt_20_legal_restraints_on_violence_in_armed_conflict.pptxLegal Restraints on Violence in Armed Conflict
Chpt 20 Cassese
Discussion
Why restrain war?
“All is fair in love and war”, but is it, should all be fair?
Purpose of this chapter?
20.3 Traditional Law in a Nutshell
Describe restraints on violence in armed conflict under traditional law.
Made distinction b/w civilians and combatants
Although civilians were often targets—leading to the Brussels 1874 convention and 1899 & 1907 Hague Peace Conferences
Only inter-State armed conflict was regulated….no regulations for intrastate
Laws applied si omnes, applied to an armed conflict so long as all belligerents were contracting parties
Few prohibitions on weapons
Combatants= members of regular armies as well militias and volunteer corps
Detailed rules on neutrality
20.3 Traditional Law in a Nutshell
What were the main principles governing neutrality?
Neutral states must refrain from giving direct or indirect assistance to the belligerents
Belligerents must refrain from using a neutral territory for any warlike action
Belligerents have the right to search and visit, and seize, neutral vessels carrying contraband (goods that may assist the enemy); additionally, they may blockade the enemy coast
20.4 Developments in Modern Armed Conflict
Describe modern armed conflict, what is it like? 1-6
1) new classes of combatants
Resistance movements and guerillas
2)Two styles of War— ‘wars of the rich’ and ‘wars of the poor’ and sometimes they mixed
Modern wars—non-combatants suffer the most
3) New agencies/tools of destruction
Aircraft—atomic bomb
4) Civil Wars more widespread
5) Terrorism—attacks against civilians, largely in response to belligerent occupation
6) laws of neutrality ignored and fell into decline---alliances
20.5 The New Law: An Overview
Modern methods for waging war have led to codification of limitations on warfare in 1949
What are the names of some of these legal documents?
4 Geneva Conventions 1949
On war victims
Wounded and sick in the field;
wounded, sick and shipwrecked at sea;
prisoners of war;
civilians
1977 added 2 Protocols
Updates to the 1907 Hague Conventions
Who do these Conventions apply to?
Geneva Conventions specifically apply to contracting parties
20.6.1 IL --Combatants
Who are lawful combatants?—(contemporary IL based upon traditional law)
Members of the military
All organized armed forces, groups and units’
20.6.1 IL --Combatants
Who else are considered lawful combatants?—expansion of the category
Militias
Volunteer corps
20.6.1 Combatants—Traditional IL
What were the four requirements for recognition as a lawful combatant in IL?
1) they are commanded by person responsible to their subordinates
2) they have a fixed distinctive sign recognizable at a distance
3) they carry arms openly
4) they conduct their operations in accordance with the laws and customs of war
20.6.1 IL --Combatants
What about a group called Levee en masse, are they lawful?
Yes…if they carry arms openly and respect the laws of war
20.6.1 IL --Combatants
Who are lawful combatants—new categories? Entitled to prisoner of war status in case of capture
Partisans---who are they?
‘organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied’
Are they entitled to prisoner of war status?
Yes—if they follow the 4 conditions of combatants and are linked to a party in the conflict
20.6.1 IL-Combatants
What about guerrillas? Are they lawful combatants
1974-7 Geneva Conference
Yes, if they
1) linked to a party in the conflict
2) are under responsible command
3)comply with the laws of war
What about distinctive sign or open carry of arms?
These conditions are relaxed for the guerilla
4) Are obliged to distinguish themselves from the civilian population when they are engaged in an attack or immediately prior to an attack (distinguish themselves from civilians) Article 44.3
Irregular combatants NOT fulfilling these conditions do NOT forfeit their status of legal combatants, therefore they continue to be entitled prisoner of war treatment; although they are liable to punishment for violating article 44.3
20.6.1 Combatants
Guerillas who fight wars of national liberation and belligerent occupation have fewer conditions to meet.
44.3 Only requests that a combatant carry arms openly
a) during each military engagement, and
b) during such time as he is visible to the adversary while he is engaged in military deployment proceeding an attack
Carry arms when visible moving to the place where the attack is going to take place
20.6.1 Combatants
What about Mercenaries? What are they and are they lawful according to the 1974 Geneva Convention?
Mercenaries are persons who take part in an armed conflict, but are not the nationality of any of the belligerents, they take part for private gain (money)
No, they are unlawful/illegal combatants, and therefore not entitled to be treated as prisoners of war upon capture
Why did this discussion come about?
20.6.1 IL --Combatants
Summary
Traditionally Combatants are the gov’t military, militia or volunteer corps
Expanded to new categories in the Modern era—Irregular Combatants
1) Partisans
2) Guerillas
3) Mercenaries
Combatants who meet the requirements for legitimately participating in armed hostilities are called ‘lawful combatants’
20.6.1 IL –Combatants Fundamental dichotomy b/w Combatants and Civilians
As lawful combatants, what rights are accorded prisoners of war?
1) may not be punished for participating in hostilities
2) are entitled to the treatment (rights and privileges) accorded to combatants who satisfy all requisite conditions
3) may only be tried and punished for awr crimes they may have perpetrated during the hostilities
20.6.1 IL --Combatants
What about illegal combatants?
1) may be tried and punished for taking part in armed action
2) are not entitled to the status of prisoners of war
3) if their status is not clear, they shall enjoy protection of legitimate belligerent until proven else by competent tribunal
20.6.1 IL --Combatants
The flawed 3rd category of combatants---‘unlawful combatants’….what is this?
According to IL is there an intermediary step b/w combatants and civilians?
NO
It is contrary to Int. Humanitarian Law to say that these persons are neither legitimate belligerents nor civilians….therefore are deprived of any rights
20.6.1 IL --Combatants
The flawed 3rd category of combatants---‘unlawful combatants’….How is this related to the US War on Terror?
2-7-2002 Bush declared ‘captured Taliban personnel’ would not be entitled to be treated as prisoners of war (although they would be treated ‘humanely, consistently with the general principles of the Third Geneva Convention, and delegates of the ICRC may privately visit each detainee’
US holds in ‘administrative detention’
20.6.1 IL --Combatants
The flawed 3rd category of combatants---‘unlawful combatants’….What about members of al Qaeda?
Should be regarded as civilians engaging in criminal activities
20.6.2 IL –Conduct of Hostilities: Means of War
Under traditional law what types of agencies of hostility were proscribed?
Those that were ineffective or could imperil the life of their user
Examples?
Poison, poisonous weapons, asphyxiating or deleterious gases, automatic submarine contact mines
And indiscriminate weapons
20.6.2 IL –Conduct of Hostilities: Means of War
What about new law, specific bans on weapons?
Chemical
Bacteriological
Prohibit stockpiling these weapons
Weapons who injure with non-detectable fragments
Land mines, booby traps, other devices
Incendiary weapons
Blinding lacer weapons
20.6.2 IL –Conduct of Hostilities: Means of War
What about Nuclear Weapons, is their use banned?
1) aggressive first strike
illegal
2)pre-emptive first strike
illegal
3) second use in self-defense
Legal-with certain restraints
4) first use in conventional war
Illegal
5) retaliatory use in conventional war
legal
20.6.3 IL –Conduct of Hostilities: Methods of Combat
What methods of combat are contrary to traditional IL?
1)treachery—
killing or wounding enemies who have ‘laid down their arms or, no longer have any means of defense, or have surrendered, willful killing of defeated enemies; improper use of flags, insignia, or uniforms of the enemy; pillage
2) belligerents must not attack from land or sea undefended towns, villages, dwellings, buildings
3) attacks on defended localities---warn local authorities of attack, except in case of assault—care to spare chruches, works of art, hospitals, and historic monuments
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20.6.3 IL –Conduct of Hostilities: Methods of Combat
What methods of combat are contrary to modern IL?
1) deliberately attack civilians…principle of distinction
2) attack on military objectives, must not cause incidental loss of civilian life or destruction of civilian objects….principle of proportionality
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20.6.3 IL –Conduct of Hostilities: Methods of Combat
What are some rules that guide the principle of distinction, when a govt. decides to attack a civilian target because it aids the enemy?
1) belligerents should take all precautionary measures for avoiding hitting civilians who may be working in, or regularly using the installation
May include prior notification
2) attack should be limited to neutralizing the military potential of the object…not all out destruction of the object
20.6.3 IL –Conduct of Hostilities: Methods of Combat
What are some rules that guide the principle of proportionality?
ICC—war crimes—the intentional launching of an attack in the knowledge that the incidental injury to civilians would be excessive in relation to the overall military advantage anticipated.
1) all feasible precautions must be taken to avoid/minimize incidental loss of civilian life
2) where collateral damage is disproportionate the belligerent must refrain from attack
3) belligerents must not attack targets of special protection, or indispensable to the survival of the civilian population or works containing dangerous forces
1977—methods of war that cause widespread, long-term, and severe damage to the environment are prohibited
20.6.3 IL –Conduct of Hostilities: Methods of Combat
What happens if a State is found to have violated the principle of proportionality in their methods of combat?
Belligerents should be prepared to accept independent verification of an attack
1) belligerents are required to pay compensation to the victims of disproportionate attacks
2) belligerents are bound to institute criminal proceedings if there is evidence that the unlawful attack was intentional or serious culpable negligence
20.6.3 IL –Conduct of Hostilities: Methods of Combat
What about the targeted killing of enemy ‘unlawful combatants’?
What are they talking about?
In territories of Israeli occupation, the killing in surprise attack of Palestinians suspected of belonging to terrorist organizations
Israel argues that these terrorists are neither lawful combatants nor civilians
20.6.3 IL –Conduct of Hostilities: Methods of Combat
Does international Humanitarian Law permit these attacks?
Armed conflict that takes place b/w an occupying power and rebel/insurgent group (whether or not they are terrorist in character) in occupied territory amounts to an international armed conflict. Pg 420
So are these targets civilians or combatants?
Only combatants may be lawful objects of attack
IF civilians take direct part in hostilities, they may be targeted while they are actually engaging in combat, or while carrying arms openly
Civilians may NOT be attacked while planning or preparing, or after committing an attack….
Why? Need to avoid killing innocent civilians
Need to prove the civilian is an illegal combatant—apprehend, verify etc
20.6.3 IL –Conduct of Hostilities: Methods of Combat
What about terrorists?
If caught while in the act, they should be arrested…criminal civilian, not subject to prisoner of war status…civilians unlawfully participating in an armed hostility may be tried and punished for war crimes
If not it the act, must, through proper trial, prove that they have committed hostile acts or plan to do so
20.6.2 IL –Conduct of Hostilities: Methods of Combat
What if you cannot capture the suspect and the suspect will not surrender?
If the belligerent must apprehend the suspected terrorist, and is incapable of capturing them, then they may use lethal force if you suspect they are on their way to carry out an attack
But this attack is subject to:
Subsequent holding of independent inquiry to establish if attack was justified
Granting compensation to the family of the victim if the suspect was not a terrorist, but rather an innocent civilian
20.6.2 IL –Conduct of Hostilities: Methods of Combat
Can Israelis use lethal force against suspected terrorists?
Not if the suspect is just going about their daily life—must seek to apprehend them
Only use lethal force: if the terrorist refuses to surrender, reacts by using armed violence, or believe they are on their way to an attack
20.6.4 Protection of War Victims
Who are war victims?
Civilians
but also those that have engaged in combat, but are no longer capable of continuing combat: prisoners of war, the wounded, the sick, or shipwrecked
20.6.4 Protection of War Victims
What protections do prisoners of war have?
May be interned in prisoner-of-war camps, must be located far from combat zone
Must be held in good health and treated humanely
Rights—no violence, intimidation, or insult
20.6.5 Means of Ensuring Compliance with the Law
At present, what are the means available for ensuring the compliance with IL on conflict?
Reprisals
Penal repression of breaches
Compensation
Protecting Powers
ICRC
20.6.5 Means of Ensuring Compliance with the Law
At present, what are the means available for ensuring the compliance with IL on conflict?
Reprisals
Resort must be preceded by a warning to the adversary
Must be proportionate
Decision must be made at the highest level…not by troops in the field
Must be terminated as soon as the adversary’s breach ends
Penal repression of breaches
Prosecuted by both national or international courts
Compensation
From one State to the other
Protecting Powers
3rd State asked to monitor treaties/agreements b/w States
ICRC
Visit prisoner of war camps, inspect, monitor, ensure compliance with IL
20.7 Current Regulation of Internal Armed Conflict
Are insurgents/rebels lawful combatants?
NO
They are criminals fighting against the State
If captured they do not enjoy status of prisoner of war….can be punished for taking up arms against the State
Insurgents can be upgraded to lawful combatants ONLY If the incumbent govt. decides to grant them recognition of belligerency
20.7 Current Regulation of Internal Armed Conflict
What are some rules for internal conflict?
1) non-combatants must not be attacked
contending parties may not use tactics intended to terrorize the civilian population
2) taking of hostages is prohibited
3) reprisals on non-combatants are forbidden
4) members of the adversary armed forces, or civilians, may be arrested, detained, or put in to internment camps…but MUST be treated humanely….no torture, cruel, humiliating treatment
5) wounded and sick must be collected and cared for
6) those means of war that are prohibited in interstate wars are also prohibited in intrastate wars
