lecture 1 ihl07 1 slides
TRANSCRIPT
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International Humanitarian
LawThe Law of Armed Conflicts
Associate Professor Gro Nystuen [email protected]
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Practical information
JUR5739 International Humanitarian Law
(The Law of Armed Conflict):
www.uio.no/studier/emner/jus/jus/JUR5730/index.xml
Autumn 2007:
Time and place (teaching) (Corr.:11 Oct.: 14.15 16.00) Syllabus (achievement requirements)
Course outline
Reading Assignment
http://www.uio.no/studier/emner/jus/jus/JUR5730/index.xmlhttp://www.uio.no/studier/emner/jus/jus/JUR5730/index.xml -
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Lecture 1
Introduction to IHL course:
Overview of the course Terminology
International law
Jus ad bellum andjus in bello
Brief history of IHL
Main sources of IHL
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Overview
1. Introduction
2. Main Principles of IHL
3. Applicability and Scope4. Group work
5. Methods in armed conflict
6. Means in armed conflict
7. Protection (Civilians andPrisoners of war)
8. Grave breaches/Individual criminalresponsibility
9. Asymmetrical warfareand direct participation inhostilities
10. a) Cultural property
b) National implementation
of IHL11. Group work (The heavy
water sabotage actions)
12. IHL and Human Rights
13. Armed conflicts and the
war on terror14. Peace Support
Operations: which rulesapply?
15. Group work/exam
preparation
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Introduction
Terminology: International Humanitarian Law (IHL)
Law of Armed Conflict (LOAC)
International Human Rights Law
International Refugee Law International Criminal Law
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International Law
The law that regulates the relationship between States
States are the core subjects of international law - - stateshave rights and obligations under international law
International organisations can be subjects ofinternational law
Individuals can to a certain extent be subjects underinternational law
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Examples of International law areas:
Trade Customs
Outer space
Airspace
Sea Disarmament
Waterways
Post
Environment Reindeer fences
International Peace
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What is a State?
Territory
Population
Control/jurisdiction on territory
Sovereignty
All states are sovereign All states are therefore formally equal
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Autonomy and authority
State
State
State
StateState
State
State
State
L+E
Individuals / legal persons
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Sources of international law
Point of departure: states must agree:
Primary Sources:
Treaties Customary law
General Principles
Secondary Sources: Jurisprudence
Literature
(Statute of the International Court of Justice art.38)
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Article 38 of the ICJ Statute:
1. The Court, whose function is to decide in accordancewith international law such disputes as are submitted to
it, shall apply:
a. international conventions, whether general orparticular, establishing rules expressly recognized by thecontesting states;
b. international custom, as evidence of a generalpractice accepted as law;
c. the general principles of law recognized by civilizednations;
d. subject to the provisions of Article 59, judicialdecisions and the teachings of the most highly qualifiedpublicists of the various nations, as subsidiary means forthe determination of rules of law.
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Vienna Convention on the Law of Treaties:
Article 31 General rule of interpretation:
1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to theterms of the treaty in their context and in the light of itsobject and purpose.
Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of
interpretation, including the preparatory work of thetreaty and the circumstances of its conclusion, in order toconfirm the meaning resulting from the application of
article 31, or to determine the meaning when theinterpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.
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The Content of IHL is PROTECTION of
1) Combatants:- Soldiers/officers
- Others (participants in hostilities)
2) Non-combatants:- Soldiers hors de combat (Sick, wounded, surrendered,
POWs)- Civilians
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Jus ad bellum and jus in bello
Jus ad bellum are the international rules
pertaining to to which extent the use of
military force against another state is
allowed.
Jus in bello are the international rules
pertaining to how armed conflict must be
conducted.
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Jus ad bellum
The Prohibition:
The UN Charter Article 2 (4): The use or
threat of use of force against states is
prohibited
The only exceptions:
The UN Charter Articles 39 41 and theright of self defence (Article 51)
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Article 2 (4) isjus cogens
Jus cogens: peremptory norm of general
international law:
..a norm accepted and recognized by the
international community of States as a
whole as a norm from which no derogation
is permitted The Vienna Convention on the Lawof Treaties (VCLT) Article 53
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The Prohibition against the use of force
Article 2 (4) All Members shall refrain in their
international relations from the threat or
use of force against the territorial integrityor political independence of any state, or
in any other manner inconsistent with the
Purposes of the United Nations.
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CHAPTER VII
ACTION WITH RESPECT TO THREATS TO THE PEACE,
BREACHES OF THE PEACE, AND ACTS OF
AGGRESSION
Article 39
The Security Council shall determine theexistence of any threat to the peace,
breach of the peace, or act of aggressionand shall make recommendations, ordecide what measures shall be taken inaccordance with Articles 41 and 42, tomaintain or restore international peaceand security.
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Article 41
The Security Council may decide what
measures not involving the use of armed force
are to be employed to give effect to its decisions,
and it may call upon the Members of the United
Nations to apply such measures. These mayinclude complete or partial interruption of
economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of
communication, and the severance of diplomaticrelations.
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Article 42
Should the Security Council consider that
measures provided for in Article 41 would beinadequate or have proved to be inadequate, it
may take such action by air, sea, or land forces
as may be necessary to maintain or restore
international peace and security. Such actionmay include demonstrations, blockade, and
other operations by air, sea, or land forces of
Members of the United Nations.
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Article 51
Nothing in the present Charter shall impair theinherent right of individual or collective self-defence if an armed attack occurs against aMember of the United Nations, until the SecurityCouncil has taken measures necessary tomaintain international peace and security.Measures taken by Members in the exercise of this rightof self-defence shall be immediately reported to theSecurity Council and shall not in any way affect the
authority and responsibility of the Security Council underthe present Charter to take at any time such action as itdeems necessary in order to maintain or restoreinternational peace
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The lex superior nature of the UN
CharterArticle 103
In the event of a conflict between the obligationsof the Members of the United Nations under thepresent Charter and their obligations under anyother international agreement, their obligationsunder the present Charter shall prevail.
Article 2 (6)
The Organization shall ensure that states which are notMembers of the United Nations act in accordance withthese Principles so far as may be necessary for the
maintenance of international peace and security.
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Brief History of IHL
Many examples of humanitarian rules of warfarethroughout history and many examples of the opposite
The concept of just war (Roman law, Thomas Aquinas,etc..)
Chivalry (the middle ages)
Mercenaries
Hugo Grotius (1625)
The age of enlightenment (Rousseau)
The battle of Solferino (1859)
The first Geneva Convention 1864 The Lieber Code
Hague Lawand Geneva Law
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Main principles of IHL
HUMANITY
Distinction
Military necessity
Proportionality
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Main Sources of IHL Hague Law (pertaining chiefly to means of war)
The Petersburg Declaration 1868
Hague Regulations of 1899 and 1907
Gas protocol of 1925
NPT (non-proliferation of nuclear weapons) 1968 Biological weapons 1972
ENMOD convention 1977
Convention on inhuman weapons (CCW) 1980
Chemical weapons 1993
Anti Personnel Mines 1997
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Geneva Law (pertaining chiefly to protection)
The four Geneva Conventions (1949): 1: Wounded and sick soldiers on land
2: Wounded and sick soldiers on sea
3: Prisoners of war
4: Protection of civilians and occupation
The two Additional Protocols (1977):
Additional rules on means and protection
1) In international armed conflicts
2) In non-international armed conflicts
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International Customary Law
Article 38 (1) b ICJ Statutes: ..international custom, asevidence of a general practice accepted as law;
The ICRC Study on International Humanitarian Law wasCommissioned by State Parties to the GenevaConventions in 1995
Three volumes in 2005: 1) The rules (161 rules)
2 and 3) State practice