Understand the Distinction

Between Jus ad Bellum and Jus in

Bello

Examine the Legality of the Use of

Force under International law, Self
Last Week Defence Exceptions and the Crime
of Aggression

Discuss Humanitarian Intervention

and the Responsibility to Protect
Doctrines

1
 Process of Assessment:
• Is the use of force lawful under UN Charter?
• Is it Armed conflict?
Process of • Is it International or Non-International?
Assessing • Are these targets lawful?
• Have all necessary precautions been taken to
IHL verify legitimate target and minimize harm?
• Has proportionality calculation been undertaken?
• Is the weapon to be used lawful in its application?
Weapons Systems
• Art 36 review been undertaken?
• Is the weapon system specifically prohibited?
 Conclusion
• Principles of non –intervention, Article 2(4)
and 51 of the Charter.
• Easy to trip over Article 2(4) – harder to
justify a reaction in self defence Art 51 in
face of an armed attack (requiring gravity).
• Non State Actors and rights of self defence
• State/Academic views; State practice.
• Security Council Role
• Chap VII
• Rescue of Nationals
• Humanitarian Intervention and R2P.
 Outline
• Definition of Armed Conflict
• Classification of Armed Conflict
• International vs Non-International
Armed conflict
When does an Armed
Conflict Exist? -
Definition
 What Constitutes an Armed Attack?
• A state soldier fired a gun over the border of another state hitting a tree or a cow – Does this constitute an
armed attack?
• Court determined that was a mere frontier incident – Nicaragua case
• UN Charter does not define “armed attack”
• Generally understood to be more severe and significant than a use of force
• international tribunals have not provided sufficient guidance on the level or kind of violence that satisfies
that threshold
• Some general agreement that the following will constitute an armed attack depending on the gravity and
scale:
➢ action by regular armed forces across an international border
➢ a State sending armed bands, groups, irregulars or mercenaries, to carry out acts of armed force against
another (or substantial involvement in their activity)
➢ assistance to rebels in the form of the provision of weapons or logistical or other support (debatable).
• The state that was attack makes the declaration on whether it was an ‘armed attack’
 Why is it important to
Define/Classify Armed conflict
• the existence of an armed conflict renders international
humanitarian law applicable; otherwise, international
human rights law applies (more restrictive)

• International humanitarian law also imposes duties on

states that do not exist outside armed conflict

• the scope of application of international humanitarian

law and international human rights law is different

• in terms of accountability, serious violations of

international humanitarian law are criminalized as war
crimes – Not the same with human rights violations
International • Article 2 – 1949 Geneva Conventions –
Armed
armed conflict between two or more of
states, even if the state of war is not
Classification
Conflict: recognized by one of them. of Armed
Conflict –
Non- International
• Common Article 3 – Geneva Conventions
International and Tardic Case: - “protracted armed Armed
Armed
violence between governmental
authorities and organized armed groups
Conflict
Conflict: or between such groups within a State.”
 Classification– When is there an
International Armed Conflict?

• International Armed Conflict

• Article 2 – 1949 Geneva Conventions – ‘the present Convention shall apply to all cases of declared
war or of any other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of them…The Convention
shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party,
even if the said occupation meets with no armed resistance’.

• 1982 US Navy pilot shot down over Lebanon – captured by Syrian armed forces
• US asserted PW status;
• 1998 four US soldiers captured by Serbian forces after brief firefight – US demanded they be treated
iaw GC III – as PW’s.

• No qualification as to scope, duration or intensity requirements.

Reinforced through ICRC
Commentary which notes ‘it makes no difference how long the conflict lasts, how much slaughter
takes place, or how numerous are the participating forces..’
 Scholarly Definitions
According to "the existence of an armed conflict within the meaning of Article 2 common to
Dietrich the Geneva Conventions can always be assumed when parts of the armed
Schindler forces of two States clash with each other. […] Any kind of use of arms
(1979): between two States brings the Conventions into effect"

"any use of armed force by one State against the territory of another, triggers
the applicability of the Geneva Conventions between the two States. […] It is
Dr Hans-Peter also of no concern whether or not the party attacked resists. […] As soon as
the armed forces of one State find themselves with wounded or surrendering
Gasser members of the armed forces or civilians of another State on their hands, as
explains: soon as they detain prisoners or have actual control over a part of the
territory of the enemy State, then they must comply with the relevant
convention"
 • Article 1(3):
• This Protocol, which supplements the Geneva
Conventions of 12 August 1949 for the
protection of war victims, shall apply in the
1977 situations referred to in Article 2 common to
those Conventions.
Additional • Article 1(4):
Protocol 1 – • Article 1(4) – Additional Protocol I : Armed
Conflicts in which peoples are fighting against
International colonial domination and alien occupation and
Armed Conflict against racist regimes in the exercise of their
right of self-determination.
• Very controversial, one reason a number of
countries have not ratified AP I.
• Historically based – 1970’s realities.
• The Ghana ratified AP I : 28 February 1978.
 • Common Article 3 to the 1949 Geneva
Conventions
Legal • 1977 Additional Protocol II

Framework – • Parties fighting against colonial

domination, alien occupation, and
Non against racist regimes come within the
terms of Art 1(4) of AP I and the
International international armed conflict regime.
Armed Conflict • Note – also growing range of
applicable Customary International
Law.
 Classification – Non
International Armed Conflict
• Common Article 3: In the case of armed conflicts 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
following provisions:...’
• Tadic ICTY – ‘protracted armed violence between
governmental authorities and organised armed groups or
between such groups within a State’.
• Criteria: (i) Does the State use the military rather than
the police force to deal with the situation? (ii) What
intensity of violence? (iii) What weaponry? (iv) Do the
rebel forces operate under a ‘command structure’, (v) are
they organized, (iv) what are their goals?
 Geneva Conventions Common Article 3

• ICRC Commentary: ‘as widely as

Lower possible’
Threshold for • Intensity rather than duration:
Non- Haradinaj (2008 ICTY) para.49

International • US Supreme Court – Hamdan

(2006): term non-international
Armed Conflict used in contradistinction to
international therefore covers all
conflict which is not international.
 AP II Threshold
• Article 1 APII applies to:

• all armed conflicts ‘which take place in the territory

of a High Contracting Party between its armed
forces and dissident armed forces or other
organized armed groups which, under
responsible command, exercise such control
over a part of its territory as to enable them to
carry out sustained and concerted military
operations and to implement this Protocol’.

• Art 1 (2):This Protocol shall not apply to situations of

internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a
similar nature, as not being armed conflict.
 Case Study 1 – Israel – Hamas War:
International or Non-International?
• Some facts (amended for teaching purpose):
• Palestinians declared independence in 1988 and that 138 countries recognize
Palestine as a State (but some states do not, including Israel). Israel withdrew
from the Gaza strip in 2005. Hamas forcibly expelled the Palestinian military
from Gaza in 2007.
• The Gaza Strip is neither a State nor a territory occupied or controlled by Israel.
Tensions have been exceptionally high, with recurring violence between Israel
and Palestinians in Gaza and the West Bank for some time.
• On 7th October 2023, Hamas launched a brutal surprise attack into Israel that
included a barrage of over 3,000 missiles and the air, sea, and land penetration
of Israeli territory. Over a hundred Israeli soldiers and civilians were taken
hostage. Hamas also attacked an open-air music festival on the same day and
massacred at least 260. As of October 9, over 900 Israelis had been killed. Israel
declared war on Hamas and undertook a siege of Gaza preparing for a ground
invasion.
• There is no indication that Hamas acted in collaboration with or under the
direction of the Palestinian Authority although there is increasing evidence that
Iran provided weapons, finance and military training.
 Case Study 2: Alfa vs Beta
• The two neighbouring countries Alfa and Beta have had increasingly strained relations since the 1990s. One of
the reasons is that a local rebel group, Omega, is fighting for independence from Alfa. The Omega rebels
operate both in the southern part of Alfa and in a remote mountainous border area of Beta. They engage in
drug production and trafficking on both sides of the border in order to fund their armed struggle. The Omega
rebels claim that the southern part of Alfa really belongs to them, and they want to establish their own state
there. Since they started with armed attacks inside Alfa, the Alfa government has tried to drive them out of
this area.
• On New Years Eve in 2008, an Alfa military aircraft patrolling the border area between Alfa and Beta is shot at
by machine gun fire. The firing comes from the Beta side of the border. The pilots shoot themselves out in
parachutes, and land in the border zone, where they are captured by Omega rebels and taken hostage.
• Also on 10 January 2009, the Alfa President issues a Decree where he gives full authority to all Alfa military
forces to directly attack drug producers and drug traffickers in the areas of military operations on both sides of
the border. Use of deadly force in these attacks is expressly permitted.
• In March 2009, after several useless attempts to free the two pilots that are hostages of the Omega rebel
group, the Alfa government decides to send in a rescue team disguised as an international humanitarian
mission. They use a military helicopter that is painted white with a red cross on each side, with a crew of elite
soldiers dressed as medical personnel and with concealed guns. The Omega rebels are taken by surprise, the
two hostages are freed, but four rebels are killed in the operation.
• Qualify the situation: a) Before New Years Eve 2008 b) Between New Years Eve 2008 and 10 January 2009 c)
After 10 January 2009
 Case Study 3: Aragonia vs the
Independence Movement (Skylar)
• Aragonia, a State on the southern side of the Lagon peninsula, has
been involved in a major crisis for the last three years. An
independence movement group, acting under the name of Skylar, is
engaged in armed operations in the western provinces. After intense
combat, this rebellious group took control of the major part of these
provinces and set up a de facto government. The de facto government
decided to follow a policy of forcefully gathering the population into
camps. The argument advanced to justify this displacement of the
population was to ensure the safety and protection of the civilian
population against the present and future military actions of the
government of Aragonia. By military decree, any person that usually
resided in these provinces and refused to go to the camps was
immediately arrested. Skylar refuses to accept any international or
domestic humanitarian organizations in the territory they control,
claiming that humanitarian workers could be spying for the
government of Aragonia.
• Is this an International or Non-International Armed conflict or mere
Internal disturbance?
 Why Distinguish Between International and Non-
International Armed Conflict
• Despite the convergence in the legal there remain important differences. Generally, the rules
governing non-international armed conflicts are less detailed than those governing
international armed conflicts
• Important differences in terms of status - Civilians and persons hors de combat are granted
special protection under the four 1949 Geneva Conventions. No equivalent special protection
regime based on status during non-international armed conflicts.
• Under international armed conflict, combatants are immune from criminal prosecutions for
acts that comply with IHL. Also entitled to prisoner of war status if they are captured by the
enemy. No similar protection exist under non-international armed conflict. Combatants may
be prosecuted and punished for the mere fact of taking up arms.
• The ICC Statute distinguishes between war crimes committed during international armed
conflict and those during non-international armed conflicts e.g Starvation as a war crime.
 Context of International and Non-
International Armed Conflict

• Between two states (international).

• Between a state and an internal rebel group (non-
international) that evolves into an inter-state conflict
through intervention by another State on the side of
the rebels (international).
• Implosion of state amidst civil war (non-international)
– two independent state entities then emerge (i.e.
former Yugoslavia) (International).
• An intervention by one state on the side of a second
state and its conflict with insurgency (non-
international).
• Between two armed groups within a State (non-
international at least for CA 3 application not APII –
which is based upon hostilities with a State armed
force).