International Law and Armed Conflict

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International Law and Armed Conflict

• Vassilios Grammatikas
• Lecturer in International Law
• Dept. of Languages, Literature Culture
• Of the Black Sea Countries
• Democritus University of Thrace
• Komotini - Greece

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Historical account of the use of force

• Until WWI states were free to use force in their
  international relations
• Very few restraints (eg. 1907 Convention)
• League of Nations attempted to regulate resource
  to force
• Art. 10 prohibited aggressive war
• All other forms of force were not covered
• Italian occupation of Corfu
• Japanese invasion of Manchuria
• Italian invasion of Ethiopia
• German annexation of Czechoslovakia
• Anschluss
• Lack of enforcement mechanism by the LoN

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International law related to the use of force

• 3 Categories
• International law related to resource to armed
  force (jus ad bellum)
• International law on the conduct of warfare (jus
  in bello)

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Jus ad bellum

• Basic Text UN Charter
• Drafters tried to correct the deficits of the LoN
  Covenant
• Abandoned the obsolete concept of war and
  referred to use of force in general, thus
  avoiding loopholes
• The right to use force is removed from States and
  becomes a privilege for the organs of the UN
  (mainly the SC)

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Relevant Charter Provisions
Jus ad bellum

• Principle
• General prohibition of the use of force (Art. 2
  4)
• Exceptions
• self-defence in case of an armed attack (Art. 51)
• Authorisation of the use of force by the Security
  Council under Chapter VII (Arts. 39-42)
• Action by regional organizations under Chapter
  VIII in accordance with the UN Charter

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Content of Art. 2 4
Jus ad bellum

• Reference to force in general
• Threats are also forbidden
• in their international relations
• against the territorial integrity or political
  independence of any State
• Any other manner inconsistent with the UN
  purposes
• The prohibition as rule of customary
  international law
• Nicaragua Case (ICJ 1986)

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Content of Art. 2 4
Jus ad bellum

• Type of force covered by the prohibition
• Charter not clear
• Art. 44 in conjunction with Arts. 42, 43 ?
  prohibition refers to armed force only
• Preparatory work also subscribes to the latter
• Opposite view that Art. 2 4 also covers
  political and economic force
• ?? Support by certain GA Resolutions
• (eg. UNGA Res. 1514 (XV) of 14-12-1960)
• Declaration on Friendly Relations ? term force
  not specified

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Exceptions
Jus ad bellum

• Action through regional organizations
• (Chapter VIII)
• Intended to allow collective defence clauses of
  regional organizations (OAS)
• Very important recent development
• S/RES/1640/2006 ? Establishment of cooperation
  between regional (African) organizations and the
  UN on issues of terrorism

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Exceptions
Jus ad bellum

• Action authorized by the SC under Ch. VII
• Once the SC has decided that a situation consists
  a threat to the peace, a breach of the peace or
  an act of aggression under Art. 39
• Measures include the use of force under Art. 42
  after all other available measures have been
  exhausted or have proved inadequate
• Forces provided by UN members

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Exceptions
Jus ad bellum

• 3. Self-defence (Art. 51)
• Nothing it the present Charter shall impair the
  inherent right of individual or collective
  self-defence if an armed attack occurs against a
  Member of the United Nations, until the Security
  Council has taken the measures necessary to
  maintain international peace and security
• Inherent right
• In case of an armed attack
• Meaning of armed attack
• frontier incidents

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Exceptions
Jus ad bellum

• 3. Self-defence (Art. 51)
• Individual vs. collective
• Crucial issue Time of the attack
• anticipatory self defence
• Pearl Harbor case
• 6 day war (Israel - 1967)
• Iraqi Nuclear Reactor (Israel - 1981)
• Customary right of self-defence
• Nicaragua Case (ICJ 1986) ? content of
  customary right coincides with the provision of
  Art. 51

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Jus ad bellum

• Limits of self-defence
• Necessity
• Immediacy
• Proportionality
• military means
• area of operations
• targets

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Jus in bello(International humanitarian law)

• Constraints on the conduct of warfare
• Protection of certain categories of vulnerable
  persons

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Jus in bello

• 2 categories of prohibitions
• Prohibited means and methods of warfare
• Prohibited weapons

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Jus in bello

• Gradual development of relevant rules
• Geneva Convention for the Amelioration of the
  Condition of the Wounded in Armies in the Field
  (1864)
• Hague Conventions of 1899 and 1907

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Jus in bello

• 4 Geneva Conventions of 1949
• (194 states parties)
• Geneva Convention I for the Amelioration of the
  Condition of the Wounded and Sick in Armed Forces
  in the Field
• Geneva Convention II for the Amelioration of the
  Condition of Wounded, Sick and Shipwrecked
  Members of Armed Forces at Sea
• Geneva Convention III relative to the Treatment
  of Prisoners of War
• Geneva Convention IV relative to the Protection
  of Civilian Persons in Time of War

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Jus in bello

• 3 Additional Protocols
• Protocol I (1977)for the protection of victims
  of international armed conflicts (167 states
  parties)
• Protocol II (1977) for the protection of victims
  of non-international armed conflicts (163 states
  parties )
• Protocol III (2005) relating to the Adoption of
  an Additional Distinctive Emblem (red crystal
  20 states parties)

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• Common Article 3 to the 4 Geneva Conventions
• 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 followingprovisions
  (1) Persons taking no active part in the
  hostilities, including members of armed forces
  who have laid down their arms and those placed
  hors de combat by sickness, wounds, detention, or
  any other cause, shall in all circumstances be
  treated humanely, without any adverse distinction
  founded on race, colour, religion or faith, sex,
  birth or wealth, or any other similar
  criteria.To this end, the following acts are and
  shall remain prohibited at any time and in any
  place whatsoever with respect to the
  above-mentioned persons(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, in particular, humiliating and degrading
  treatment(d) the passing of sentences and the
  carrying out of executions without previous
  judgement pronounced by a regularly constituted
  court, affording all the judicial guarantees
  which are recognized as indispensable by
  civilized peoples.

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Prohibited weapons and ammunition

• Point of departure
• The principle of distinction (between combatants
  and civilians)
• The principle of military necessity (unnecessary
  suffering by combatants)

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AP I, Arts. 35, 48, 51

• Art.35 (2) It is prohibited to employ weapons,
  projectiles and material and methods of warfare
  of a nature to cause superfluous injury or
  unnecessary suffering.
• Art.48the Parties to the conflict shall at all
  times distinguish between the civilian population
  and combatants and between civilian objects and
  military objectives
• Art.51 (4) Indiscriminate attacks are prohibited.
  

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ICJ, Advisory Opinion on the Legality of the
Threat of Use of Nuclear Weapons (1996)

• States must never make civilians the object of
  attack and must consequently never use weapons
  that are incapable of distinguishing between
  civilian and military targets.
• it is prohibited to cause unnecessary
  suffering to combatants
• meaning harm greater than that unavoidable
  to achieve legitimate military objectives

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ICC Statute, Article 8 (2)(b)(xx)

• Example of war crime
• Employing weapons, projectiles and material and
  methods of warfare which are of a nature to cause
  superfluous injury or unnecessary suffering or
  which are inherently indiscriminate

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Conventional framework on weapons

• Exploding ammunition (1868)
• Expanding bullets (1899)
• Gas weapons (1925)
• Non-proliferation Treaty (1968)
• Biological Weapons (1972)
• ENMOD (1977)
• CCW (Inhuman Weapons) (1980 2003)
• Chemical Weapons (1993)
• Antipersonnel landmines (1997)

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The Petersburg Declaration, renouncing the use of
Explosive Projectiles Under 400 Grammes Weight
(1868)

• Unnecessary suffering of combatants
• Aimed at drawing a line between explosive
  artillery shells and rifle ammunition
• Not prohibited to use against hard targets

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The Hague Declaration Concerning Expanding
Bullets (1899)

• Unnecessary suffering of combatants
• Not prohibited to use in law enforcement

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The Geneva Gas Protocol (1925)

• Protocol for the Prohibition of the Use of
  Asphyxiating, Poisonous or Other Gases, and of
  Bacteriological Methods of Warfare.
• Consumed by the Conventions on biological and
  chemical weapons

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The Non-Proliferation Treaty (1968)

• The States concluding this Treaty,
• Considering the devastation that would be visited
  upon all mankind by a nuclear war and the
  consequent need to make every effort to avert the
  danger of such a war and to take measures to
  safeguard the security of peoples,
• Believing that the proliferation of nuclear
  weapons would seriously enhance the danger of
  nuclear war,

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The Non-Proliferation Treaty (1968)

• Article I
• Each nuclear-weapon State Party to the Treaty
  undertakes not to transfer to any recipient
  whatsoever nuclear weapons or other nuclear
  explosive devices or control over such weapons or
  explosive devices directly, or indirectly and
  not in any way to assist, encourage, or induce
  any non-nuclear-weapon State to manufacture or
  otherwise acquire nuclear weapons or other
  nuclear explosive devices, or control over such
  weapons or explosive devices.
• Article II
• Each non-nuclear-weapon State Party to the Treaty
  undertakes not to receive the transfer from any
  transferor whatsoever of nuclear weapons or other
  nuclear explosive devices or of control over such
  weapons or explosive devices directly, or
  indirectly not to manufacture or otherwise
  acquire nuclear weapons or other nuclear
  explosive devices and not to seek or receive any
  assistance in the manufacture of nuclear weapons
  or other nuclear explosive devices.

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ICJ on the legality of nuclear weapons

• the threat or use of nuclear weapons would
  generally be contrary to the rules of
  international law applicable in armed conflict.
• However, in view of the current state of
  international lawthe Court cannot conclude
  definitely whether the threat or use of nuclear
  weapons would be lawful in an extreme
  circumstance of self-defence, in which the very
  survival of a State would be at stake.

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Biological Weapons Convention (1972)

• Convention on the Prohibition of the
  Development, Production and Stockpiling of
  Bacteriological (Biological) and Toxin Weapons
  and on their Destruction.
• Contains no clear definition of biological
  weapons

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Article 1 Each State Party to this Convention
undertakes never in any circumstances to develop,
produce, stockpile or otherwise acquire or
retain

• 1. microbial or other biological agents, or
  toxins whatever their origin or method of
  production, of types and in quantities that have
  no justification for prophylactic, protective or
  other peaceful purposes2. weapons, equipment or
  means of delivery designed to use such agents or
  toxins for hostile purposes or in armed conflict.

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ENMOD (Environmental Modification) (1977)

• The Convention on the Prohibiting of Military or
  other Hostile Use of Environmental Modification
  Techniques
• Came after the Vietnam war made it prohibited
  to use environmental modification as means of
  warfare
• AP I art.35 (3)

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Convention on Certain Conventional Weapons (1980)

• Convention on Certain Conventional Weapons (CCW)
  -also called the UN Convention on inhumane
  weapons.
• Full title Convention on Prohibitions or
  Restrictions on the Use of Certain Conventional
  Weapons Which May be Deemed to be Excessively
  Injurious or to have Indiscriminate Effects

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CCW Protocols

• I Non-Detectable Fragments (1980)
• II Mines, Booby-traps etc. (1980 and 1996)
• III Incendiary Weapons (1980)
• IV Blinding Laser Weapons (1995)
• V Explosive Remnants of War (2003)

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Chemical Weapons Convention (1993)

• Art. I (1). Each State Party to this Convention
  undertakes never under any circumstances
• (a) To develop, produce, otherwise acquire,
  stockpile or retain chemical weapons, or
  transfer, directly or indirectly, chemical
  weapons to anyone
• (b) To use chemical weapons

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Definition of a Chemical Weapon

• Art. II (1) "Chemical Weapons" means the
  following, together or separately
• (a) Toxic chemicals and their precursors, except
  where intended for purposes not prohibited under
  this Convention, as long as the types and
  quantities are consistent with such purposes

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Mine Ban Treaty (1997)

• Convention on the Prohibition of the Use,
  Stockpiling, Production and Transfer of
  Anti-Personnel Mines and on their Destruction, 18
  September 1997
• (155 states parties Georgia, Russia, China, US
  not included)

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General obligations

• Article 1 (1) Each State Party undertakes never
  under any circumstancesa) To use
  anti-personnel minesb) To develop, produce,
  otherwise acquire, stockpile, retain or transfer
  to anyone, directly or indirectly, anti-personnel
  minesc) To assist, encourage or induce, in any
  way, anyone to engage in any activity prohibited
  to a State Party under this Convention.

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Cluster weapons (not prohibited)

• A weapon (air or surface delivered) which
  contains more than one sub-munition
• Everything between
• High tech missiles. Each sub-munition is target
  seeking, and self destructs if target is not
  found. Relatively few (6-12) sub-munitions in
  each bomb (Advanced Munitions)
• Area weapons (covers footprints) with large
  numbers of sub-munitions. Non-guided
  sub-munitions. Failure rates from 1 - up to 70.

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ICTY, Trial Chamber I, Judgement 12 June 2007,
Milan Martic

• Para 463 ..the Trial Chamber notes the
  characteristics of the weapon, it being a
  non-guided high dispersion weapon. The Trial
  Chamber therefore concludes that the M-87 Orkan,
  by virtue of its characteristics and the firing
  range in this specific instance, was incapable of
  hitting specific targets. For these reasons, the
  Trial Chamber also finds that the M-87 Orkan is
  an indiscriminate weapon,