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Additional Protocol II:

Does the legal framework suffice to regulate NIACs?
Does the legal framework suffice to regulate NIACs?
II: Does the legal framework suffice to regulate NIACs? Dr. ZHOU Wen Legal Adviser, ICRC Regional

Dr. ZHOU Wen

Legal Adviser, ICRC Regional Delegation for East Asia

Does the legal framework suffice to regulate NIACs? Dr. ZHOU Wen Legal Adviser, ICRC Regional Delegation

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Additional Protocol II
Additional Protocol II

The first-ever treaty devoted exclusively to the protection of people

affected by non-international armed conflicts (NIACs)

Containing 28 articles (compared to 102 articles in AP I)

It develops and supplements Common Article 3

A simplified Martens clase in the preamble “in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience”

human person remains under the protection of the principles of humanity and the dictates of the

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International armed conflicts (IAC)

 Geneva Conventions I, II, III & IV  Additional Protocol I  Customary IHL
 Geneva Conventions I, II, III & IV
 Additional Protocol I
 Customary IHL
 Principles of humanity (Martens Clause)
Non-international armed conflicts (NIAC)
 Common Article 3
 Additional Protocol II
 Customary IHL
 Principles of humanity
IHL

Other situations of violence (OSV)

of humanity IHL Other situations of violence (OSV)  International Human Rights Law  Domestic law

International Human Rights Law

Domestic law

Elementary considerations of humanity

1899/1907 The Hague Conventions (laws & customs of war)

1925 Protocol for the Prohibition of the Use of Asphyxiating Gases

1949

Four Geneva Conventions

1954 Hague Convention on the Protection of Cultural Property

1972 Biological Weapons Convention

1977 Two Additional Protocols to the GC

1980 Conventional Weapons Convention (and Protocols)

1993 Chemical Weapons Convention

1997 Convention on the Ban of Anti-personnel Landmines

1998

Statute of the International Criminal Court

1999 Protocol II to the Hague Convention of 1954

2000 Opt. Prot. on the Involvement of Children in Armed Conflict

2005 Additional Protocol III on an Additional Distinctive Emblem

2008 Convention on Cluster Munitions

2005 – Additional Protocol III on an Additional Distinctive Emblem • 2008 – Convention on Cluster

Scope of application:

An armed conflict …
An armed conflict …

Common Article 3

Additional Protocol II

not of an international character

between the State Party's armed forces and dissident armed forces

occurring in the territory of one of the [HCP]

in the territory of the State Party

exercise such control over a

Party • … • exercise such control over a part of its territory as to enable

part of its territory as to enable

them to carry out sustained and concerted military operations and to implement this Protocol.

its territory as to enable them to carry out sustained and concerted military operations and to
Threshold: NIAC
Threshold: NIAC
IL NIAC
IL
NIAC

Organised forces

Violence
Violence
Threshold: NIAC IL NIAC Organised forces Violence
Threshold: NIAC IL NIAC Organised forces Violence
Threshold: NIAC IL NIAC Organised forces Violence
Why a “classification” of armed conflicts?
Why a “classification” of armed conflicts?

Protection of civilians against the effects of hostilities

combatant status - right to take part in hostilities (only in IAC)

Protection of persons in the power of the adverse party

prisoner of war no prosecution for lawful acts of war / treatment of internees (PoW/IC) (only in IAC)

Enforcement and supervision mechanisms

Protecting powers/ICRC

Individual criminal responsibility

Grave breaches regime (only in IAC)

Mandatory universal jurisdiction (only in IAC)

criminal responsibility  Grave breaches regime (only in IAC)  Mandatory universal jurisdiction (only in IAC)
Who is "protected" under IHL? International (IAC) Non-international (NIAC)
Who is "protected" under IHL?
International (IAC)
Non-international (NIAC)
under IHL? International (IAC) Non-international (NIAC)  civilians  "persons who do not take

civilians

"persons who do not take

(in the power of the

a direct part or who have

enemy)

ceased to take part in hostilities” (Art. 4(1), APII)

wounded, sick and shipwrecked

 

prisoners of war

“persons deprived of their liberty for reasons related to the armed

conflict, whether they are

interned or detained“ (Art. 5(1), APII)

of their liberty for reasons related to the armed conflict, whether they are interned or detained“

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Civilians in the power of the enemy
Civilians in the power of the enemy
Civilians in the power of the enemy 9

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Common Art. 3, GCs
Common Art. 3, GCs

Persons taking no active part in the

hostilities, including persons hors de combat, shall in all circumstances

be respected and protected

treated humanely, without any adverse distinction

in all circumstances  be respected and protected  treated humanely , without any adverse distinction

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Common Art. 3, GCs Are and shall remain prohibited at any time and in any
Common Art. 3, GCs
Common Art. 3, GCs

Are and shall remain prohibited at any time and in any place

whatsoever:

 
 

violence to life and person;

taking of hostages;

outrages upon personal dignity;

extrajudicial sentences and executions

 taking of hostages;  outrages upon personal dignity;  extrajudicial sentences and executions 11

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Rules in AP II
Rules in AP II

More precise rules in AP II

Fundamental guarantees of humane treatment (arts. 4&5)

Judicial guarantees (art. 6)

Wounded, sick and shipwrecked (arts. 7 & 8)

Use of the emblem

Special rules in AP II

Protection of children (art. 4(3))

Protection of medical personnel and units, duties of medical personnel (arts. 9-12)

of children (art. 4(3)) • Protection of medical personnel and units, duties of medical personnel (arts.

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Fundamental guarantees of humane treatment
Fundamental guarantees of humane treatment

Prohibition of torture and ill-treatment

Living conditions that preserve health and dignity

Adequate medical care

Safe custody and secure environment

Purposeful activities

Appropriate treatment for groups with special needs

Appropriate treatment for detainees awaiting trial

Professional management and staff

Effective mechanisms for requests and complaints

Contact with the outside world

Non-international armed conflicts (NIAC)

Persons deprived of their liberty for reasons related to the armed conflict
Persons deprived of their liberty for reasons
related to the armed conflict

shall, to the same extent as the local civilian population, be provided with food and drinking water

be afforded safeguards as regards health and hygiene and

protection against the rigours of the climate and the dangers of the armed conflict

they shall be allowed to practise their religion

places of internment and detention shall not be located close to the combat zone

shall have the benefit of medical examinations

their physical or mental health and integrity shall not be

endangered by any unjustified act or omission

 their physical or mental health and integrity shall not be endangered by any unjustified act

Protection of the civilian popluation

from the effects of hostilities
from the effects of hostilities

No CoH rules to impose constraints on means and methods of warfare, except the no- quarter prohibition (Art. 4(1), APII)

o

Equality of belligerents

o

Weapons regulations in NIACs

 

Prohibition of attacks against:

o

Civilian population

o

Objects indispensable to the survival of the civilian population

 

o

Works and installations containing dangerous forces

o

Cultural objects and places of worship

Prohibition to spread terror among the civilian population

Prohibition to order the displacement of the civilian population unless for security or

Implementation and Enforcement
Implementation and Enforcement

Obligation to respect and ensure respect for IHL (CA 1)

Lack of formal implementation mechanisms

Individual criminal responsiblity

Special Agreement and Unilateral Declaration

“The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.” (CA

3(3))

Legal status of non-State armed groups

“The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.” (CA 3(4))

application of the preceding provisions shall not affect the legal status of the Parties to the

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Amnesty
Amnesty

At the end of hostilities, the authorities in power shall endeavour to

grant the broadest possible amnesty to persons who have participated

in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

(Art. 6(5), APII)

Serious violations of IHL cannot be granted amnesty.

whether they are interned or detained .” (Art. 6(5), APII) • Serious violations of IHL cannot

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Legal frameworks applicable to situations of violence
Legal frameworks applicable to
situations of violence
IHRL National law
IHRL
National
law
IHRL National law
IHRL
National
law
IHL IHL IHRL IHRL National National law law
IHL
IHL
IHRL
IHRL
National
National
law
law
IHL IHRL National law
IHL
IHRL
National
law
armed conflict OSV NIAC IAC
armed conflict
OSV
NIAC
IAC
IHL HRL Sources Scope of application Subjects of law Rights and obligations Enforcement

IHL

HRL

Sources Scope of application Subjects of law

Rights and obligations

Enforcement

IHL HRL Sources Scope of application Subjects of law Rights and obligations Enforcement
International humanitarian law & human rights law
International humanitarian law
& human rights law

IHL

HRL

protection and care

of persons adversely

affected by armed conflicts

Economic, social & cultural rights

right to health

right to education

right to work

right to family life

Civil & Political Rights

right to life prohibition of torture

& ill-treatment

non-discrimination respect of judicial guarantees

protection of civilians

for the effect of hostilities

regulation of means

and methods of warfare

freedom of association

freedom of the press

freedom of conscience

providing humanitarian relief

• freedom of association • freedom of the press • freedom of conscience  providing humanitarian
International humanitarian law & human rights law IHL HRL  At all times  derogations
International humanitarian law & human rights law
International humanitarian law
& human rights law

IHL

HRL

At all times

derogations in times of emergency

Armed conflicts

in all circumstances

States' rights & obligations

Individual rights and duties

All individuals within the territory and/or subject to the jurisdiction of the State

States' / armed groups' /

individual duties and

obligations

Categories of persons affected by armed conflicts

Territory of the parties to the conflict

and obligations  Categories of persons affected by armed conflicts  Territory of the parties to
Some of the challenges of contemporary NIACs
Some of the challenges of contemporary NIACs

Definition and threshold

Geographical scope

IHL and Counter-terrorism

Interplay between IHL and IHRL

Use of force

Detention

Geographical scope  IHL and Counter-terrorism  Interplay between IHL and IHRL • Use of force

Application of IHL outside the territory of the State

concerned
concerned

Spill-over / cross-border hostilities

Extra-territorial hostilities/targeting

A B AF AG
A
B
AF
AG

Geographical Scope of Application

•“Hot zone of combat(battlefield)

Throughout the territory of the country involved

Regional application (spill-over NIACs)

•Global application (“global war on terror”) ?

of the country involved • Regional application (spill-over NIACs) •Global application (“global war on terror”) ?

Case Study: Drone Strikes

Case Study: Drone Strikes
Case Study: Drone Strikes

Case Study: Drone Strikes

Case Study: Drone Strikes  When can States use force in the territory of another State?

When can States use force in the territory of another State?

Under which exceptional circumstances can

lethal force against an individual be justified?

o In an “assisting” State

o In a non-neighbouring non-belligerent State

force against an individual be justified? o In an “assisting” State o In a non-neighbouring non-belligerent
"Fight against Terrorism"
"Fight against Terrorism"

Can all acts of warfare of organized armed groups be labeled as 'terrorist'?

In NIACs:

all such acts of violence are subject to criminal prosecution under domestic law

only unlawful acts of war may give rise to individual criminal responsibility under IHL

Can the label of "terrorism" or "terrorist group" affect the

characterization of a situation of violence?

Is it armed conflict or not?

or "terrorist group" affect the characterization of a situation of violence?  Is it armed conflict

When can States use force in the territory of another

State?

Jus ad bellum

Security Council Authorization

Consent

Self-Defense, Article 51 UN Charter

of another State? Jus ad bellum • Security Council Authorization • Consent • Self-Defense, Article 51
Under which exceptional circumstances can lethal force against an individual be justified?
Under which exceptional circumstances can lethal
force against an individual be justified?

In case of an armed conflict rendering applicable IHL

And provided the person in question qualifies as a

legitimate target in accordance with IHL

rendering applicable IHL • And provided the person in question qualifies as a legitimate target in
IHL rules on detention
IHL rules on detention

Treatment of detainees

Material conditions of detention

Fair trial rights (judicial guarantees)

Grounds and process for internment

Material conditions of detention • Fair trial rights (judicial guarantees) • Grounds and process for internment
Material conditions of detention • Fair trial rights (judicial guarantees) • Grounds and process for internment

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Non-international armed conflicts (NIAC)

Persons deprived of their liberty for reasons related to the armed conflict
Persons deprived of their liberty for reasons
related to the armed conflict

No privilege of the combatant

No prisoner of war status

If captured, the "rebel fighter" may be prosecuted under

national law for the sole fact of

having taken up arms

If captured, the "rebel fighter" may be prosecuted under national law for the sole fact of
If captured, the "rebel fighter" may be prosecuted under national law for the sole fact of
Internment in NIAC
Internment in NIAC

Non-criminal internment

Common Article 3 + AP II

Grounds? Procedural safeguards?

o Traditional NIAC o Extraterritorial NIAC: Serdar Mohammed v. Ministry of Defence

legal grounds? “power to detain”

NIAC o Extraterritorial NIAC: Serdar Mohammed v. Ministry of Defence legal grounds? “power to detain” 32

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Serdar Mohammed v. Ministry of Defense
Serdar Mohammed v. Ministry of Defense

Facts:

UK armed forces have since 2001 been participating in the International Security Assistance Force (“ISAF”), a multinational force present in Afghanistan with the consent of the Afghan government under a mandate from the United Nations Security Council.

UNSC resolutions have authorised the UN member states participating in ISAF to

take all necessary measures to fulfil its mandate”.

ISAF standard operating procedures permit its forces to detain people for a

maximum of 96 hours after which time an individual must either be released or

handed into the custody of the Afghan authorities.

96 hours after which time an individual must either be released or handed into the custody

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Facts continued…
Facts continued…

Serdar Mohammed was captured by UK armed forces in April 2010 as part of a planned ISAF mission. He was suspected of being a Taliban commander and his

continued detention after 96 hours for the purposes of interrogation was authorised

by UK Ministers. He was interrogated over a further 25 days. At the end of this

period the Afghan authorities said that they wished to accept him into their custody but did not have the capacity to do so due to prison overcrowding. He was kept in detention on British military bases for this ‘logistical’ reason for a further 81 days

before he was transferred to the Afghan authorities. During the 110 days in total for which he was detained by UK armed forces he was given no opportunity to make any representations or to have the lawfulness of his detention decided by a judge.

was given no opportunity to make any representations or to have the lawfulness of his detention

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Strengthening IHL protection of detainees in NIAC
Strengthening IHL protection of detainees in NIAC

4 areas of humanitarian concerns identified by the ICRC for further elaboration:

Conditions of detention

Particularly vulnerable detainees

Grounds and procedures for internment

Transfer of detainees

detention • Particularly vulnerable detainees • Grounds and procedures for internment • Transfer of detainees 35

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Thank you!

Thank

you!

Thank you!