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27 Cards in this Set
- Front
- Back
Two Theories of the Role of Human Rights in IHL
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Complementarity - HR & IHL can assist each other, but are distinct
Convergence - Two are Coming together into a single body of law |
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Two Different Questions Asked by HR Law & IHL
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HR - "How can I protect individuals to the maximum extent?"
IHL - "How can I achieve a military objective while minimizing harm to the population?" |
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Martens Clause
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Hague Convention -- you must do as much as you can to adhere to international law during conflict
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2 Initial Problems of working with both IHL and Human Rights simultaneously
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1) Expertise differs (judges often will only look to whichever is their expertise, e.g.)
2) Language/terms differ - e.g. "proportionality" means totally different things in the two bodies of law. |
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Definition: Civilian
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A person not taking a direct part in hostilities
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Definition: Unlawful Combatant
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A person taking part in hostilities without being entitled to do so (not wearing uniform, carrying arms openly, etc.)
NOT explicitly covered by Geneva Conventions |
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Basic Protections for Detained Unlawful Combatants in Non-International Armed Conflict Under Protocol II
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Humane non-discriminatory treatment which respects religious belief, protects from nature, provides hygiene, food, water, etc.
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When does civilian lose protection to be FREE FROM ARBITRARY DETENTION under GC
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When “definitely suspected of or engaged in activities hostile to the security of the State” AND protection is "prejudicial to the security of" the State.
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Rights of Detained Unlawful combatants under GC IV
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Treated with humanity
Right to a fair and regular trial Full rights and privileges of convention as soon as security concerns permit. |
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When may a civilian be DIRECTLY TARGETED?
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Absolutely protect "unless and for such time as they take direct part in hostilities."
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What does "direct participation" mean?
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NEED ALL 3
1) Act must be likely to ADVERSELY AFFECT military operations or military capacity of a party or hurt protected persons/objects. 2) There must be a DIRECT CAUSAL LINK between the act and the harm or a coordinated military op of which the act constitutes an INTEGRAL PART. 3) The act must be SPECIFICALLY DESIGNED TO DIRECTLY CAUSE the required threshold of harm (intentionality) |
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When does a civilian's active engagement in hostilities begin and end?
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1) Measures PREPARATORY TO the execution of a specific act of direct participation AND/OR
2) DEPLOYMENT TO and RETURN FROM the location of its execution. |
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What if a person takes direct part in hostilities but then stops?
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Regains FULL civilian protection (but can be prosecuted for any domestic or int'l crimes committed).
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When is territory occupied? Hague standard.
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Actually placed under the authority of the hostile army.
Only extends to where such authority has been established and can be exercised (ambiguous) |
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When is territory considered to be "actually placed" under occupation?
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If you have CAPABILITY as an occupier then you are considered to "actually occupy" (to avoid shirking duties of occupation).
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Additional Protocols - Subject Matter
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Protocol I - International Armed Conflict
Protocol II - Non-international armed conflict |
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Rules for occupiers
5 GC and 2 Hague |
GC
1) Protect population 2) Don't seize land unless for military necessity 3) Protect infrastructure 4) Protect status quo ----EXCEPTION can alter if essential to security/law and order 5) No annexation/conquest Hague 1) You can use resources to support occupation, but not for profit. 2) Maintain status quo |
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When does occupation end?
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WHICHEVER IS LATER:
1 year after the close of military operations OR for the duration of the occupation to the extent of control you still have. |
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Georgia/Russia Case (under CERD)
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Georgia: Russia passed out passports, mass expulsion
Russia: It was helping to give right of self-determination, acting as peacekeeper, no effective/de-facto control; CERD not extraterritorial. ICJ decides --> DISMISSED on procedural grounds. Need genuine attempt at negotiation before bringing to ICJ. |
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What is "cruel or inhuman" treatment?
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Terms interchangeable
Serious nature (objective standard) Question of fact, case-by-case (can't list possibilities in advance) Can be single or cumulative acts |
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What is Torture?
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Must be INTENT
Inflict SEVERE PAIN Purpose "such as" to punish/intimidate/coerce (open-ended) CAT ONLY: Must be an "official actor" IHL STD: Anyone can torture ("regardless of perpetrator") |
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Who is an "official actor" for purposes of defining torture?
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If authorities acquiesce --> official actor
Official involvement --> official actor non-state actors can be official actors Conducting oneself as authority in an area (but must be wielding some authority) --> official actor |
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Broad standards ICJ establishes with regards to IHL
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Jus cogens -- norms from which no derogation is permitted.
Erga omnes -- Rights owed to all |
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Two criteria for humanitarian aid
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Must be non-discriminatory
Must be for humanitarian purpose |
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Israel Separation Wall Case - Problem of Jurisdiction
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Israel claims that under VCLT, treaties only apply to territory of the state. Israel says this excludes occupied territories.
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Derogation - HR vs. IHL
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HR - Broad protections, but derogation permissible in emergency.
IHL - minimal protections, but NO derogation. |
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DRC v. Congo & Self-Defense
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Uganda claimed self-defense since it was suffering from armed attacks from rebels in Congo. Court said self-defense only for armed attacks by STATE.
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