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Law Outlines International Humanitarian Law / Law of Armed Conflict Outlines

International Humanitarian Law Classifcation And Scope Of Armed Conflicts Outline

Updated International Humanitarian Law Classifcation And Scope Of Armed Conflicts Notes

International Humanitarian Law / Law of Armed Conflict Outlines

International Humanitarian Law / Law of Armed Conflict

Approximately 63 pages

Hello! This is my outline for International Humanitarian Law (IHL), also called Law of War or Law of Armed Conflict. It covers all the main topics in detail, including when a state can lawfully use force, international armed conflicts, non-international armed conflicts, belligerent occupation, targeting, means and methods of war, protected persons and objects, prisoners of war and civilian detainees, humanitarian aid, international criminal accountability, and the interaction of IHL and human rig...

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Classification and Scope of Armed Conflicts 2

International Armed Conflicts (IACs) 2

Geneva Convention, Common Art. 2 2

Additional Protocol I, Art. 1 2

Material Scope 2

Personal Scope 3

Geographic Scope 3

Temporal Scope 4

Non-International Armed Conflicts (NIACs) 5

Geneva Conventions, Common Art. 3 5

Additional Protocol II, Art. 1 5

Material Scope 5

Personal Scope 6

Geographic Scope 6

Temporal Scope 7

Note on citations:

For treaties, I have used an abbreviation, followed by a period and the article number. Thus Geneva Convention IV, Article 42 becomes “GC4.42.” Article 2 Common to the Geneva Conventions becomes GC.CA2. The Hague Regulations are HR, and the Protocols Additional to the Geneva Conventions are AP1 & AP2.

Citations in the form “HB000” refer to section numbers in Fleck, The Handbook of International Humanitarian Law (3rd ed.).

I’ve also cited certain academic articles, commentaries and government documents:

ILA-Sydney refers to the International Law Association’s 2018 Sydney Conference Report on the Use of Force.

Sassòli refers to Marco Sassòli’s 2015 article “Combatants” in the Max Planck Encyclopedia of Public International Law.

DoD refers to the US Department of Defense Law of War Manual (Dec. 2016 Update).

ICRC guidance on civilians directly participating in hostilities refers to Nils Melzer (ICRC) Interpretive Guidance (2009).

Lubell refers to Noam Lubell, “Fragmented Wars: Multi-Territorial Military Operations Against Armed Groups” 93 International Legal Studies 215 (2017).

Classification and Scope of Armed Conflicts

International Armed Conflicts (IACs)

Geneva Convention, Common Art. 2

In addition to the provisions which shall be implemented in peace time, 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.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Additional Protocol I, Art. 1

  1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

  2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

  3. This Protocol, which supplements the Geneva Conventions for the protection of war victims, shall apply in the situations referred to in Article 2common to those Conventions.

  4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

Material Scope

  • Most provisions of IHL activate in situations of armed conflict. (Others apply in peacetime as well.)

  • Under GC.CA2, we take a fact-based approach to determine the existence of an armed conflict.

    • Must be between two or more GC High Contracting Parties. GCs are universally ratified.

    • IHL automatically applies when an AC exists, regardless of whether or not states characterize it as such.

    • Declaration of war is not required, nor is a party’s recognition of another party’s statehood required.

      • On the other hand, a declaration war may be sufficient to activate IAC.

    • Language of GC.CA2 appears to depend on fact states are fighting each other, rather than existence of fighting on the territory of another state.

      • States usually interpret GC.CA2 to say there’s no IAC (e.g., basically everyone in the coalition against ISIS will say there’s no IAC).

  • What counts? “An IAC exists if one state uses armed force against another state” [HB202].

    • First-shot theory: IAC exists from first moment force is used by one state against another, without regard to intensity or duration.

      • Dominant theory. Low threshold, below that of UNC Art. 2(4).

      • At the extreme low end of intensity, some rules will not become operable. Doctrinally, IHL may apply, but in practice it is less clear. According to HB, this is a factual matter rather than a legal one (e.g., no PoWs have been taken, so irrelevant). Most legal experts will say the full range of IHL applies throughout a territory as soon as the IAC begins.

    • Alternative theory: requires parties be engaged in fighting of some intensity.

      • Minority theory. Higher threshold, so border clashes don’t count, nor would singular abduction and detention of member of opposing armed forced. This risks creating legal vacuum.

    • Self-determination: AP I Art. 1(4) adds ACs with peoples fighting against colonial domination.

      • Tricky: it would look like a NIAC/insurrection, but would actually be an IAC immediately.

    • Occupation: partial or total occupation of territory of HCP, even if occupation meets no armed resistance. Applies as soon as the conditions for belligerent occupation are fulfilled.

    • Levée en masse: inhabitants of non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having time to form themselves into regular armed units.

      • GC III Art. 4(A)(6) grants PoW status to participants in levée en masse, provided they carry arms openly...

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