International Law & Conflict Targeting Review Outline A basic guide to answering a problem question regarding ‘targeting’ – BONUS POINTS: is targeting really any different than any acts of warfare? Not really – but the mere fact that targeting is more of a counter-insurgency, wherein you know the person’s social insurance number/ how many kids he have/his job etc – as opposed to just them being ‘oh, they are wearing a swastika on themselves – we can kill them”. Legally, no real difference in terms of the law, but it differs in this regard. Part I: Is there an armed conflict? YES or NO? You can go into a bit of a history lesson of what armed conflict is: Discussing how the Modern Low of Armed Conflict emerged from Henry Dunant (Swiss Guy) who saw the atrocities happening in the battle of Solferino in 1859 which lead to the Geneva Convention of 1864, followed by The Hague Process and then later the emergence of Additional Protocols I and II (1977) which updated the Geneva Convention of 1949 and added more additional limits to it. Briefly mention that there are four principles to the law of armed conflict: (i) Military Necessity o Article 23(g) Hague Regulation VI (1907) forbids “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’. (ii) Humanity o forbids infliction of suffering, injury or destruction not necessary for accomplishment of legitimate military purposes. Martens Clause – Article 1(2) AP I: stating that in cases where you are not covered by the AP or international agreements, civilians + combatants remain under the protection by customs and public conscience. (iii) Principle of Distinction o tells us what is lawful/legitimate target of attack, and what isn’t. (iv) Principle of Proportionality Differentiate in the Problem Question the competing ‘armed conflicts’ that are going on. Note: there could be instances where you have both an IAC and a NIAC interplaying at the same time. And with the two parallels, you can bring in the case of Nicaragua. In the sense that 1st – the US were using force (against Nicaragua) State on State. 2nd – there were traces of NIAC because the contras were fighting the central governments at same time. International Armed Conflict? o Common Article 2 Geneva Conventions 2(1): In addition to the provisions which shall be implemented in peacetime, 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. 1 International Law & Conflict Targeting Review Outline 2(2): 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. o If it is an IAC, you then need to determine how that armed conflict is distinguished. Is it: (1) Declared? (2) Armed Conflict? (Most likely it’ll be this one) CASE: Tadich o It gives the definition of what an armed conflict is, basically saying that when there is a result to armed force between states, what we are looking at is the violence. o Looking for violence and differentiate between a low threshold (which is the one that the International Committee of the Red Cross (ICRC) takes or a higher one (which is supported in State practice, although many incidents are not treated as conflicts. o YOU NEED: INTESNITY & ORGANIZATION This most applies to NIAC but then it gets confusing because when you talk about the intensity aspects, those are customary rules which seep over and whatnot. But for the most Part – it is NIAC. The International Law Association (non-profit organization) did a Report on the meaning of Armed Conflict: o Unified Concept of armed conflict o Certain level of organization AND intensity. (3) Occupation (of territory) Article 42 Hague Regulations 1907: “occupation, even though there was no resisting” Such as: presence of foreign forces, local government incapable of exerting powers etc. Example: Russia & Crimea (4) Or is it a new IAC under Article 1(4) API – where people are fighting against a colonial domination etc against racist regimes in the exercise of self-determination. Non-International Armed Conflict? o Common Article 3 of the Geneva Conventions (1949) – sets out the minimum guarantees to be respected during NIACs. o Bring up CASE Tadich again, and say how there needs to be a level of organization & intensity. o Case: Prosecutor v Boskovi Paragraph 176: The Trial Chamber in Tadic noted that factors relevant to this determination are addressed in the Commentary to Common Article 3 of the Geneva Conventions. These ‘convenient criteira’ were identified by the drafters of Common Article 3 during negotiations of the Geenva Conventions in order to distinguish an armed conflict from lesser forms of violence, although these were 2 International Law & Conflict Targeting Review Outline rejected from the final text. While these criteria give some useful indiciations of armed conflict, they remain examples only. The drafters of the Commentary were of the view that Common Article 3 should be applied as widely as possible and could still be applicable in cases where ‘armed strife breaks out in a country, but does not fulfil any of the above conditions’. The Trial Chamber in Limaj after having reviewed the drafting history of Common Article 3, concluded that ‘no such explicit requirements for the application of Common Article 3 were intended by the drafters of the Geneva Conventions”. Consistent with this approach, Trial Chambers have assessed the existence of armed conflict by reference to objective indicative factors of intensity of the fighting and the organisation of the armed group or groups involved depending on the facts of each case. o To determine whether or not there is a NIAC, apply the principles of Boskoski: Organization Intensity Five groups of facts: -seriousness of attacks (ie. who is affected etc) (i) common structure -spread of clashes over territory and time (ii) conduct operations in organised -mobilisation manner -distribution of weapons type of weapons, (iii) level of logistics number of displaced civilians, extent of (iv) discipline destruction/casualties, existence of front (v) speak with one voice lines. Note: if you have these, then you probably have a non-state actor – can be a combination of them, doesn’t necessarily have to have all of them – hence why there is some confusion and debate amongst it. Bring in Additional Protocol II – imposes a much higher threshold, which develops obligations imposed by the Geneva Convention in Common Article 3 much higher. Say that this threshold does not reflect custom. **NOTE: Additional Protocol II does not apply unless the Non-State actors are in control of the territory. It applies only to relations between state military forces and rebels, but does not cover fighting which occurs between rebel groups. Part II: Targeted Objects _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ Once you determine the differentiating law of armed conflict, then have a small statement of: Jus ad Bellum: the rules simply telling you when you can use the force. But not when/how you can do it. Just in bello: the rules that govern the conduct of warfare once hostilities have broken out; their main aim is to limit the effects of warfare by imposing certain rules on the belligerent parties. Essentially – the Conduct of Warfare. 3 International Law & Conflict Targeting Review Outline This may not be needed actually – Prof said that it would be very easy to confuse. In the seminar it says ‘differentiate between use ‘ad-bellum’ and see whether or not it crossed the threshold of the use of force – Geneva Convention #4. _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ THIS IS A BRIEF HISTORY – TO LAY OUT THE LAW Bring in the Concept of the Principle of Distinction: It is a fundamental principle of LOAC that any belligerent, whether in an IAC or a NIAC, must distinguish between military objectives on the one hand and civilian persons and objects on the other and direct its operations only against the former (principle of distinction). Article 48 AP I: “… the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives” requires belligerents to ‘direct their operations only against military objectives’. And in determining whether it is in line with the list of military objectives – Recall Article 52(2) AP I: wherein when looking at objects you are determining its effective contribution and its definite military advantage. Object The objects, who does it belong to? The State or Non-State? o Make a note whether or not it falls in the context of an IAC or NIAC. Note: Most potentially, if those forces are part of the state, it does not fall in the context of a NIAC. Part III: Actual Destruction of the Objects Take each object and start to deconstruct o Example: Pick-Up Truck Is there hostile intent (part of the rules of engagement terminology) As in – does it have machine guns on top of them etc? o Start to deconstruct the example in terms of: Article 52(1) AP I (i) Effective contribution o (a) Nature – look at things that its inherent qualities which make an effective contribution to enemy action (ie. tank/bullets) o (b) Location – (ie) that tree is blocking the target. o (c) Purpose – for intended future use. As in, does it carry the special forces people from one place to another etc. (ii) definite military advantage 4 International Law & Conflict Targeting Review Outline o Does the destruction of ‘said object’ give ‘us’ an advantage? Example: We are destroying the capability of the enemy to ‘move around’. Big guns on the trucks, if you take that away, they can’t shoot us. Go over these criteria for each military objects. Note: There is this Proportionality Rule – what is the harm to civilian damage v. the concrete direct military advantage. Unlike it Article 52 – we require a concrete and direct standard. Concrete being = not speculative, we have a clear idea Direct = it cannot be indirect. What is really important to underline, is that proportionality allows a calculative Part IV: People: Still going off of the Principle of Distinction Next, if there is people involved, you need to differentiate between civilians and noncivilians. IAC: Make note, that this is just a Guidance From the Interpretive Guidance on the Notion of: Direct Participation in Hostilities under International Humanitarian Law – Nils Melzer, Legal Adviser, ICRC “The Concept of Civilian In IAC: For the purposes of the principle of distinction in IAC, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levee en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Under Rules of International Armed Conflict (IAC) Civilians: o Civilian Definition in Article 50 Additional Protocol I (contains negative definition) Civilians enjoy immunity (primary status) unless and for such time as they are direct participants in hostilities (secondary status). o Article 51 AP I (defines immunity) How all civilians enjoy a general protection against dangers arising from military operations. Article 51(3) AP I: enjoy immunity unless they take a direct part in hostilities. Combatants: o Combatants do not enjoy immunity (primary status) unless they are hors de combat or otherwise protected (secondary status). A combatant is a person who is a member of the armed forces. 5 International Law & Conflict Targeting Review Outline Article 4(A) of the Geneva Convention III: Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. Bit Obvious to Write this but you must: (for example): Combatants do not enjoy immunity from attack. They are not exempt from the attack from the use of legal force. And that is the reason we can go ahead and use military force against these people. Under a Non-International Armed Conflict: From the Interpretive Guidance on the Notion of: Direct Participation in Hostilities under International Humanitarian Law – Nils Melzer, Legal Adviser, ICRC Treaty IHL governing NIAC uses the terms ‘civilians’, ‘armed forces’, and ‘organized armed group’ without expressly defining them. These concepts must therefore be interpreted in good faith in accordance with the ordinary meaning to be given to them in their context and in the light of the object and purpose of IHL’. The Concept of Civilian in NIAC: “For the purpose of the principle of distinction in a NIAC conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (continuous combat function). Basic Components of the Notion of Direct Participation in Hostilities (DPH) The notion of direct participation in hostilities essentially comprises two elements, namely “hostilities’ and that of ‘direct participation’. o While the concept of ‘hostilities’ refers to the (collective) resort by the parties to the conflict to means and methods of injury the enemy, ‘participation’ in hostilities refers to the (individual) involvement of a person in these hostilities. Persons participate directly in hostilities when they carry out acts, which aim to support one party to the conflict by directly causing harm to another party, either directly inflicting death, injury or destruction, or by directly harming the enemy’s military operations or capacity. If, and for as long as civilians carry out such acts, they are directly participating in hostilities and they lose their protection against an attack. Indirect Participation in hostilities = are those which contribute to the general war effort of a party, but does not directly cause harm and, therefore, does not lead to a loss of protection against direct attack. Next Discuss: Reasonable Certainty **Everyone is presumed a civilian, unless they are not** o The burden is on us to prove and remove the doubt that these are not civilians. 6 International Law & Conflict Targeting Review Outline Article 57 AP I: these are the precautions to take and are all the reasonable measures, to verify when undertaking an attack. o 57 AP (2)(a)(i): make sure that you verify that the objects attacked are neither civilians nor civilian objects o 57 AP (2)(a)(ii): Have to minimize civilian life/injury to civilian and damages to civilian objects etc. Part V: People/Weapons they Use Next, determine if whether them carrying weapons/ or actually using them differentiates them. o Example: The People are Special Forces – we have determined this in the above. Next, there are other people who are ‘just carrying weapons’. What does this mean? IF they are carrying weapons, but we do not actually know whether they are ‘special forces’ and whatnot, then we need to determine: Direct Participants in Hostilities. o Determine whether or not that civilian falls within the IAC or NIAC category. Article 51(3) AP I – Discusses when civilians loses immunity – in that they take direct part in hostilities. o **Civilians enjoy immunity from attack, with one exception: civilians who participate directly in hostilities lose their immunity during the period of that direct participation and also during any period in which they perform acts preparatory to the attack they intend to launch** So We have the Guidance of the International Committee of the Red Cross – which we have noted that this is just a guidance aspect. But we also have the Law of War Manual – from the Department of the Defence of the US. Page 222: Civilians who take a direct part in hostilities forfeit protection from being made the object of an attack. This manual uses the phrase ‘direct part in hostilities’ to indicate what activities cause a civilian to forfeit his or her protection from being made the object of attack. This usage does not mean that the United States has adopted the direct participation in hostilities rule that is expressed in Article 51 of AP I. o *Although, as drafted, Article 51(3) of AP I does not reflect customary international law, the United States supports the customary principle on which Article 51(3) is based. **Takes a different approach to what DPH is from the Guidance Notes by the ICRC, and in particular to what memberships of the organized armed group actually is** Next, talk about this: Belligerent Nexus – the nexus is about asking, why are they causing that harm, and in what context are they causing it? 7 International Law & Conflict Targeting Review Outline **Them carrying a rifle (for example) does not mean anything, because it could be in Iraq, and people have just left all these rifles there. So the context is important. If you see people in Luxemburg carrying riles, then that would be a bit confusing. From the Guidance Notes: o Not every act that directly adversely affects the military operations or military capacity of a party to an armed conflict or directly inflicts death, injury or destruction on persons and objects protected against direct attack necessarily amounts to direct participation in hostilities. o So in other words, in order to amount to direct participation in hostilities, an act must not only be objectively likely to inflict harm that meets the first two criteria, but it must also be specifically designed to do so in support of a party to an armed conflict and to the detriment of another (Belligerent nexus). Part VI: Proportionality Next before you implement the targeted killing & attack, discuss proportionality. Proportionality requires you to calculate the expected civilian harm. o Again, you can mention Article 57 AP I – which addresses all the necessary steps to ensure the following precautions that are taken. Part VII: Conclusion Once you have gone through all of this list, talking about: whether there is an armed conflict in the first place, then going over the rules of military objectives – and if those military objectives become even more increasingly difficult with the added element of civilians in them (whether they are combatants or non) – and then you assess the proportionality of whether the military objective would be greater to actually go ahead and ‘kill’ them/target it. Then you will say either yes, or no. Or do a balance of a percentage and give you reasoning. FINIS! 8