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27 Cards in this Set

  • Front
  • Back
Two Theories of the Role of Human Rights in IHL
Complementarity - HR & IHL can assist each other, but are distinct
Convergence - Two are Coming together into a single body of law
Two Different Questions Asked by HR Law & IHL
HR - "How can I protect individuals to the maximum extent?"
IHL - "How can I achieve a military objective while minimizing harm to the population?"
Martens Clause
Hague Convention -- you must do as much as you can to adhere to international law during conflict
2 Initial Problems of working with both IHL and Human Rights simultaneously
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.
Definition: Civilian
A person not taking a direct part in hostilities
Definition: Unlawful Combatant
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
Basic Protections for Detained Unlawful Combatants in Non-International Armed Conflict Under Protocol II
Humane non-discriminatory treatment which respects religious belief, protects from nature, provides hygiene, food, water, etc.
When does civilian lose protection to be FREE FROM ARBITRARY DETENTION under GC
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.
Rights of Detained Unlawful combatants under GC IV
Treated with humanity
Right to a fair and regular trial
Full rights and privileges of convention as soon as security concerns permit.
When may a civilian be DIRECTLY TARGETED?
Absolutely protect "unless and for such time as they take direct part in hostilities."
What does "direct participation" mean?
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)
When does a civilian's active engagement in hostilities begin and end?
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.
What if a person takes direct part in hostilities but then stops?
Regains FULL civilian protection (but can be prosecuted for any domestic or int'l crimes committed).
When is territory occupied? Hague standard.
Actually placed under the authority of the hostile army.

Only extends to where such authority has been established and can be exercised (ambiguous)
When is territory considered to be "actually placed" under occupation?
If you have CAPABILITY as an occupier then you are considered to "actually occupy" (to avoid shirking duties of occupation).
Additional Protocols - Subject Matter
Protocol I - International Armed Conflict

Protocol II - Non-international armed conflict
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
When does occupation end?
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.
Georgia/Russia Case (under CERD)
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.
What is "cruel or inhuman" treatment?
Terms interchangeable
Serious nature (objective standard)
Question of fact, case-by-case (can't list possibilities in advance)
Can be single or cumulative acts
What is Torture?
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")
Who is an "official actor" for purposes of defining torture?
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
Broad standards ICJ establishes with regards to IHL
Jus cogens -- norms from which no derogation is permitted.
Erga omnes -- Rights owed to all
Two criteria for humanitarian aid
Must be non-discriminatory

Must be for humanitarian purpose
Israel Separation Wall Case - Problem of Jurisdiction
Israel claims that under VCLT, treaties only apply to territory of the state. Israel says this excludes occupied territories.
Derogation - HR vs. IHL
HR - Broad protections, but derogation permissible in emergency.
IHL - minimal protections, but NO derogation.
DRC v. Congo & Self-Defense
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.