ATrainP-2_Training_In_the_Law_of_Armed_Conflict.pdf

NATO STANDARD

ATrainP-2

TRAINING IN THE LAW OF ARMED

CONFLICT

Edition A Version 1

MARCH 2013

NORTH ATLANTIC TREATY ORGANIZATION

ALLIED TRAINING PUBLICATION

Published by the

NATO STANDARDIZATION AGENCY (NSA)

© NATO/OTAN

INTENTIONALLY BLANK

NORTH ATLANTIC TREATY ORGANIZATION {NATO)

NATO STANDARDIZATION AGENCY {NSA)

NATO LETTER OF PROMULGATION

20 March 2013

1. The enclosed Allied Training Publication ATrainP-2 Edition A Version 1, TRAINING IN THE LAW OF ARMED CONFLICT, which has been approved by the nations in the MCJSB, is promulgated herewith. The agreement of nations to use this publication is recorded in STANAG 2449.

2. ATrainP-2 Edition A Version 1 is effective upon receipt.

3. No part of this publication may be reproduced, stored in a retrieval system, used commercially, adapted, or transmitted in any form or by any means, electronic, mechanical, photo-copying, recording or otherwise, without the prior permission of the publisher. With the exception of commercial sales, this does not apply to member nations and Partnership for Peace countries, or NATO commands and bodies.

4. This publication shall be handled in accordance with C-M(2002)60.

Dr. Cihangir Aksit, TUR Civ Director NATO Standardization Agency

I Edition A Version 1

RESERVED FOR NATIONAL LETTER OF PROMULGATION

II Edition A Version 1

III Edition A Version 1

RECORD OF RESERVATIONS

CHAPTER RECORD OF RESERVATION BY NATIONS

General GRC

Note: The reservations listed on this page include only those that were recorded at time of promulgation and may not be complete. Refer to the NATO Standardization Document Database for the complete list of existing reservations.

IV Edition A Version 1

V Edition A Version 1

RECORD OF SPECIFIC RESERVATIONS

[nation] [detail of reservation]

GRC (1) p.133/Slide No 70/Suggested Text for the Instructor Note/par.1/line 5: Art 64 Par.1 GCIV raises a reservation concerning the jurisdiction applied to the occupied territory for security reasons or in order to implement the GCIV. For this reason, the text has to be modified as follows: "of the occupied territory in principle shall remain in force".

(2) p.148/Slide No77/ Suggested Text for the Instructor Note/par.4: Awaiting for the internal ratification process concerning the review of the ICC Statute as decided during the relevant conference held in Uganda (2010).

Note: The reservations listed on this page include only those that were recorded at time of promulgation and may not be complete. Refer to the NATO Standardization Document Database for the complete list of existing reservations.

VI Edition A Version 1

VII Edition A Version 1

TABLE OF CONTENTS

CHAPTER 1 1-1

ANNEX A LOAC REFERENCE MATERIAL A-1

ANNEX B LOAC TRAINING PROGRAMME FOR ALL PERSONNEL B-1

ANNEX C LOAC TRAINING PROGRAMME FOR NON-COMMISSIONED

OFFICERS C-1

ANNEX D LOAC TRAINING PROGRAMME FOR OFFICERS D-1

ANNEX E SPECIALIZED LOAC TRAINING E-1

ANNEXF LOAC TRAINING MODULE TEMPLATE F-1

VIII Edition A Version 1

1-1 Edition A Version 1

CHAPTER 1

1. TRAINING STANDARD GOAL

The training standard goal is to standardize training in the Law of Armed Conflict (LOAC) by establishing a minimum standard of training to ensure that NATO operations are conducted in accordance with LOAC, where applicable.

2. DEFINITIONS

2.1. In the context of this publication, LOAC is the part of international law relating to the conduct of armed conflict and military occupations.

2.2. The training guidelines are meant for Personnel, that is in the context of this publication to all members of the armed forces.

3. DETAILS OF THE PUBLICATION

3.1. Objective of this publication

This publication provides guidance on the minimum standard of training in the LOAC.

Annex A lists LOAC reference material which Nations may draw from when conducting their LOAC training. Annexes B - D lists topics that should be covered in the training of Personnel. Specialized LOAC training may be required for categories of Personnel identified in Annex E. Annex F offers a template for Nations to use in the preparation of their national training documents. If Nations wish to use this publication to train persons other than members of the armed forces, they may do so.

3.2. Responsibilities for training

3.2.1. In order to meet the legal obligations placed upon them by LOAC, Nations are required to train their Personnel in LOAC. LOAC training is a national responsibility.

3.2.2. Obligations under LOAC are binding on Nations and individuals. Those in command shall ensure that Personnel under their command are aware of their obligations under LOAC and that they comply with LOAC.

3.2.3. Nations shall ensure that legal advisors are available, when necessary, to advise military commanders at the appropriate level on the application of LOAC and on the appropriate instruction to be given to the armed forces on this subject.

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3.3. Objectives of training

3.3.1. The overall objective of LOAC training is to ensure in all circumstances an appropriate knowledge of and adherence to LOAC by all Personnel.

3.3.2. The training objectives are:

a. To provide Personnel with the knowledge they require to conduct their duties in compliance with LOAC.

b. To reaffirm the awareness of possible criminal liability and other consequences of a breach of LOAC.

c. To provide Personnel with the ability necessary to properly apply LOAC and to react accordingly.

d. To enable commanders and staff officers to take into account LOAC limitations and precautions during the planning, the preparation and the conduct of operations within the framework of their assignment.

e. To enable commanders to solve the problems inherent in the application of LOAC and to take decisions accordingly.

3.4. Instruction and training principles

The following instruction and training principles are to be applied:

a. All Personnel are to be trained in LOAC. Forces deployed on NATO operations should conduct training prior to and during the operation.

b. LOAC training should be incorporated in all levels of military education, individual and collective training, and exercises.

c. LOAC training should be commensurate with the degree of responsibility of Personnel and their operational role. Training for Personnel should be more detailed and progressive according to rank and responsibilities.

d. The basic level of instruction for all Personnel is outlined in Annex B.

e. NCOs and officers require a more detailed appreciation and understanding of LOAC. As such, enhanced instruction and training, as outlined in Annexes C and D, is recommended.

f. Certain individuals and functions may require specialized training, as identified in the non-exhaustive list in Annex E.

g. Nations should ensure that LOAC training is delivered by properly trained instructors.

h. LOAC training should include scenarios, exercises and practical field training. When preparing units and staff for NATO operations, specific emphasis should be placed upon practical field training.

i. Nations are encouraged to cooperate with the International Committee of the Red Cross (ICRC), and national Red Cross and Red Crescent societies in LOAC training.

j. The effectiveness of LOAC training should be evaluated at all levels of command. Lessons learned and after action reports should be incorporated into the development of training programmes.

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3.5. Evaluation of training

Nations are encouraged to evaluate their national LOAC training programmes and to tailor the evaluation to the specific needs of their audience in accordance with national requirements and with their own training standards. Nations are encouraged to use a combination of methods to evaluate the knowledge of the training audience.

Evaluation methods may include class room assessment, test papers and field training scenarios.

4. COORDINATION

Nations should regularly inform each other of LOAC training programmes.

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ANNEX A to

A-1 Edition A Version 1

ANNEX A LOAC REFERENCE MATERIAL

LOAC obligations primarily arise from customary international law and treaties. This non-exhaustive list does not impose any obligation on States that are not party to one or more of the listed treaties.

TITLE ABBREVIATION

Convention on Cluster Munitions, 2008 CCM 2008

Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 2005

AP III 2005

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 2000

Opt Prot CRC 2000

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 1999

Hague Prot 1999

Rome Statute of the International Criminal Court, ICC Statute 1998

Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti- Personnel Mines and on their Destruction, 1997

AP Mine Ban Conv 1997

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1993

CWC 1993

Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (“Convention on Conventional Weapons”), 1980. (Amendment article 1, 21 December 2001)

CCW 1980 / CCW Amdt 2001

Protocol on Non-Detectable Fragments (Protocol I) 1980 to the Convention on Conventional Weapons

CCW Prot I 1980

Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) 1980 to Convention on Conventional Weapons (Protocol II as amended in 1996)

CCW Prot II 1980

A-2 Edition A Version 1

TITLE ABBREVIATION

Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) 1980 to the Convention on Conventional Weapons

CCW Prot III 1980

Protocol on blinding laser weapons (Protocol IV) 1995 to the Convention on Conventional Weapons

CCW Prot IV 1995

Protocol on Explosive Remnants of War (Protocol V) 2003 to the Convention on Conventional Weapons

CCW Prot V 2003

Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977

AP II 1977

Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), AP I 1977

Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques, adopted by the General Assembly of the United Nations, 1976

ENMOD Conv 1976

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972

BWC 1972

Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 1954

Hague Prot 1954

Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, Hague Conv 1954

Convention (I) for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, signed at Geneva, 1949

GC I 1949

Convention (II) for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, signed at Geneva, 1949

GC II 1949

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TITLE ABBREVIATION

Convention (III) relative to the Treatment of Prisoners of War, signed at Geneva, 1949

GC III 1949

Convention (IV) relative to the Protection of Civilian Persons in Time of War, signed at Geneva, 1949

GC IV 1949

Convention on the Prevention and Punishment of the Crime of Genocide adopted by Resolution 260 (III) A of the United Nations General Assembly, 1948

Genocide Convention 1948

Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva, 1925

Geneva Gas Prot 1925

Convention (IV) respecting the Laws and Customs of War on Land, signed at The Hague, 1907, and its annex: Regulations concerning the Laws and Customs of War on Land

Hague Reg 1907

Declaration (IV, 3) concerning Expanding Bullets, signed at The Hague, 1899

Hague Declaration 1899

Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grams Weight, signed at St Petersburg, 1868

St Petersburg Declaration

A-4 Edition A Version 1

ANNEX B to

B-1 Edition A Version 1

ANNEX B LOAC TRAINING PROGRAMME FOR ALL PERSONNEL

1. Upon completion of the training all Personnel should know their rights and duties relating to LOAC.

2. All Personnel are to receive training on the following topics:

a. Introduction

(1) Historical background

(2) Purpose and rationale of LOAC

(3) LOAC applicability

(4) Relationship between LOAC and national law

(5) Importance of LOAC in planning and conduct of operations

b. Basic principles

(1) Military necessity

(2) Proportionality

(3) Humanity

(4) Distinction

c. Combatants

d. Protected persons

e. Protected objects

f. Protective and distinctive emblems

g. Means and methods of warfare, including prohibitions under LOAC and applicable national obligations

h. Enforcement of LOAC

(1) State obligations

(2) Individual responsibility

(3) Command responsibility

(4) War crimes

ANNEX B to

B-2 Edition A Version 1

ANNEX C to

C-1 Edition A Version 1

ANNEX C LOAC TRAINING PROGRAMME

FOR NON COMMISSIONED OFFICERS

1. Upon completion of training NCOs should:

a. Know their rights and responsibilities relating to LOAC.

b. Be able to ensure compliance with the essential LOAC rules at their level.

c. Be able to fulfill their command responsibilities relating to LOAC and LOAC violations.

d. Be able to take proper action in the face of a breach of LOAC.

e. Apply LOAC limitations and precautions during the planning, the preparation and the conduct of operations.

2. Training for NCOs should emphasize the following areas:

a. Introduction

(1) Historical background

(2) Purpose and rationale of LOAC

(3) LOAC applicability

(4) Relationship between LOAC and national law

(5) Importance of LOAC in planning and conduct of operations

b. Basic principles

(1) Military necessity

(2) Proportionality

(3) Humanity

(4) Distinction

c. Combatants

d. Protected persons

e. Role of ICRC

f. Protected objects

g. Protective and distinctive emblems

h. Means and methods of warfare, including prohibitions under LOAC and applicable national obligations

i. Enforcement of LOAC

(1) State obligations

(2) Individual responsibility

ANNEX C to

C-2 Edition A Version 1

(3) Command responsibility

(4) Prevention of LOAC violations

(5) War crimes

ANNEX D to

D-1 Edition A Version 1

ANNEX D LOAC TRAINING PROGRAMME FOR OFFICERS

1. Training for officers should be more detailed and progressive according to rank and responsibilities. Upon completion of the training, officers should:

a. Know their rights and responsibilities relating to LOAC.

b. Be able to ensure compliance with the essential LOAC rules at their level.

c. Be able to fulfill their command responsibilities relating to LOAC and LOAC violations.

d. Be able to take proper action in the face of a breach of LOAC.

e. Apply LOAC limitations and precautions during the planning, the preparation and the conduct of operations.

f. Know that in multinational operations obligations may vary among personnel of different nationalities according to national law or LOAC obligations, and reflect this in the planning and conduct of operations.

2. Training for officers should include the following areas in relation to LOAC:

a. Introduction

(1) Historical background

(2) Purpose and rationale of LOAC

(3) LOAC applicability

(4) Relationship between LOAC and national law

(5) Importance of LOAC in planning and conduct of operations

b. Basic principles

(1) Military necessity

(2) Proportionality

(3) Humanity

(4) Distinction

c. Combatants

d. Protected persons

e. Role of ICRC

f. Protected objects

g. Protected places and zones

h. Protective and distinctive emblems

i. Means and methods of warfare, including prohibitions under LOAC and applicable national obligations

j. LOAC in planning and conduct of operations

k. Truce and armistice

ANNEX D to

D-2 Edition A Version 1

l. Law of occupation

m. Enforcement of LOAC

(1) State obligations

(2) Individual responsibility

(3) Command responsibility

(4) Prevention of LOAC violations

(5) War crimes

ANNEX E to

E-1 Edition A Version 1

ANNEX E SPECIALIZED LOAC TRAINING

Depending on each Nation’s requirements, the categories of Personnel on the following non-exhaustive list may be provided with specialized LOAC training:

a. Commanding officers

b. Flag and general officers

c. Legal advisors

d. Medical personnel

e. Military police

f. Personnel involved in targeting

g. Personnel who handle captured persons

h. Pilots

i. Religious personnel

j. Special operations forces

ANNEX E to

E-2 Edition A Version 1

ANNEX F to

F-1 Edition A Version 1

ANNEX F LAW OF ARMED CONFLICT TRAINING MODULE TEMPLATE

Training in the Law of Armed Conflict (LOAC)

• The Geneva Conventions and their Additional Protocols provide that States shall disseminate the text of the Conventions as widely as possible. In order to meet the legal obligations placed upon States by LOAC and to ensure that military operations conducted by NATO forces are carried out in accordance with LOAC, where applicable, it is imperative that all Personnel be properly trained in LOAC. The responsibility for training in LOAC always rests with the national authorities.

• This document is intended to serve as an exemplar or template for Troop Contributing Nations (TCN) to use in the conduct of LOAC training that addresses the topics contained in Annexes B - D in the publication. This training module template (in format of power-point presentation) may be adapted, completely or partially, for use in format, substance, and structure by TCN. The abbreviations concerning international treaties and conventions used in the instructor´s notes correspond with the Annex A (LOAC Reference material) of this publication. This presentation does not prescribe the substance of LOAC that must be taught; it is fully recognised that each TCN is responsible for providing LOAC instruction based on national interpretation.

• Nothing in this Annex shall be construed as any of the STANAG 2449 Edition ATrainP-2 ratifying nations deviating from their national standpoints regarding international law, in particular, LOAC. It is only for training purposes and does not necessarily constitute a part of any nations’ state practice or the NATO position on the substance of LOAC.

• Instructors should consult their legal advisors for additional support and guidance as to the appropriate, nationally approved content for LOAC training.

F-2 Edition A Version 1

Slide 1.

Topic: TITLE Suggested image on the slide:

NOT NECESSARY, THIS IS A TITLE PAGE

Suggested text for the slide:

LAW OF ARMED CONFLICT

Suggested text for the instructor note

F-3 Edition A Version 1

Slide 2.

Topic: INTRODUCTION

OUTLINE

Outline:

- Introduction to Law of Armed Conflict

- Basic principles

- Combatants

- Protected persons

- Role of ICRC

- Protected objects

- Protective and distinctive emblems

- Means and methods of warfare

- LOAC in the Planning and Conduct of Operations

- Truce and ceasefires or armistices

- Law of Occupation

- Enforcement of LOAC

- Summary

The instructor should tailor this slide to identify the topics to be covered according to the rank and responsibilities of the target audience as outlined in Annexes B - D of STANAG 2449 Edition ATrainP-2

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Slide 3.

INTRODUCTION

TO THE

LAW OF ARMED CONFLICT

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Slide 4.

What is LOAC?

LOAC is a set of rules which:

• defines the rights and obligations of the parties to an armed conflict

• limits the effects of armed conflict by restricting the means and methods of warfare

• protects persons and objects in armed conflict

Law of armed conflict (LOAC) is also known as the law of war (LOW) or international humanitarian law (IHL).

International law governs relations between states. LOAC is the part of international law that governs the conduct of armed conflict.

LOAC is a set of rules which seeks, for humanitarian reasons, to limit the effects of armed conflict.

It defines the rights and obligations of the parties to a conflict in the conduct of hostilities. For instance, there are rules designed to save combatants from superfluous injury or unnecessary suffering.

It also aims to protect persons who are not or are no longer taking part in hostilities, such as the sick, wounded and shipwrecked, prisoners of war, religious and medical personnel, and civilians. Certain objects such as cultural property, places of worship and hospitals benefit from special protections which will be discussed later.

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Slide 5.

Historical Background

The cornerstone of LOAC are the Geneva Conventions of 1949. The first was signed by 12 countries in 1864. For centuries before then, rules had applied to the conduct of war, but they were based on custom and tradition and were local or just temporary. Year 1864 changed all that and began a process of building a body of law that is still evolving today.

The initiative for the first convention came from five citizens of Geneva. One of them, Henry Dunant, had, by chance, witnessed the battle of Solferino in 1859. He was appalled by the lack of help for the wounded and organized local residents to come to their aid. Out of this act came one of the key elements of the first Geneva Convention of 1864 – the humane treatment of those no longer taking part of the battle, regardless of which side they were on.

New Geneva Conventions were concluded in 1906 and 1929, so as to improve the conditions of sick and wounded soldiers in the field and to define new rules on the protection of prisoners of war. In 1899 and 1907, the Hague Conventions concerning respecting the Laws and Customs of War on Land (Hague Reg 1907, mainly aimed at regulating the conduct of warfare, were also adopted. In August 1949, the four Geneva Conventions as we know them today were adopted. This time they also included the protection of civilians, reflecting the terrible experience of World War II.

Protocols were added to the Geneva Conventions in 1977 (AP I, AP II) and 2005 (AP III).

The reach of LOAC has been expanded by a range of other international conventions and protocols covering specific areas such as:

• certain conventional weapons (e.g. blinding laser weapons, non-detectable fragments);

• chemical and biological weapons;

• anti-personnel mines;

• cluster munitions; and

• protection of children in armed conflicts.

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The core, however, remains the Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005. They combine clear legal obligations and enshrine basic humanitarian principles.

F-8 Edition A Version 1

Slide 6.

Purpose of LOAC

• To protect combatants from unnecessary suffering;

• To protect those who are not, or are no longer, taking part in hostilities;

• To protect certain objects and the natural environment from the effects of armed conflict; and

• To facilitate the restoration of peace and resumption of friendly relations between belligerents following hostilities.

LOAC has evolved to its present content over centuries and has at its core the following rationales:

LOAC represents the international community’s attempt to balance two basic criteria – military necessity and concerns that affect the successful planning and execution of military operations, and the humanitarian concerns which allow all societies to meet the basic moral and ethical norms. This balance has taken place, and continues to take place, in all cultures and times. Where the balance is struck in any particular conflict or operation may vary, just as the specific application of LOAC has varied across cultures and times, however, the basic principles remain.

By regulating the conduct of hostilities, the purpose of LOAC is:

- to protect combatants from unnecessary suffering;

- to protect those who are not, or are no longer, taking part in hostilities; such as the wounded, sick and shipwrecked, prisoners of war (POWs) or civilians;

- to protect certain objects and the natural environment from the effects of armed conflict; and

- to facilitate the restoration of peace and resumption of friendly relations between belligerents following hostilities.

Compliance with LOAC aims to prevent brutality and savagery in conflict, which will inevitably affect future friendly relations. Respect of LOAC contributes to the restoration of peace.

F-9 Edition A Version 1

Slide 7.

Rationale of LOAC (reasons to comply)

Principled

• Common human nature

• Professionalism

• Chivalry

• Conscience

• Legal Obligation

Pragmatic

• Operational Effectiveness

• Reciprocity

• Foreign and Domestic Support

• Criminal Liability

Principled Reasons for Personnel to Obey LOAC:

Common human nature: hostilities, if not avoidable, shall not aim at purposeless destruction, but achieve the military goals with least destruction, suffering and casualties.

Professionalism: the controlled application of force is the hallmark of an honourable, regulated and disciplined armed force.

Chivalry: armed forces exhibit honour, courtesy and justice in all their undertakings.

Conscience: all Personnel possess a conscience and should know the difference between right and wrong. Minimising human suffering is a noble and praiseworthy aim. In short, following LOAC is the right thing to do.

Legal obligation: Nations have accepted responsibilities for the conduct of their armed forces and these responsibilities create legal obligations for their Personnel at individual and command levels.

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Pragmatic Reasons to Obey LOAC:

Operational Effectiveness: LOAC is consistent with the economic and efficient use of force which in turn preserves military resources.

Reciprocity: belligerents must treat their opponents in the same manner that they themselves wish to be treated. By treating others as one wants to be treated, according to the rules of LOAC, we encourage our enemies to do likewise.

Foreign and Domestic Support: compliance with LOAC, long established rules which aim to limit unnecessary suffering, will more likely result in domestic and foreign support.

Criminal Liability: to address breaches of LOAC there are criminal and disciplinary sanctions.

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Slide 8.

LOAC Applicability

• International armed conflict

• Non-international armed conflict

• Occupation

The term armed conflict is not defined in international law. LOAC only states that violence below a certain threshold does not qualify as “armed conflict”.

For the assessment whether an armed conflict exists, the factual circumstances are relevant. In this respect, both the extent and duration of armed violence are the key factors.

For example, many isolated incidents such as border clashes and naval incidents are not treated as “armed conflict” as they often do not involve the level of intensity necessary to be considered “armed conflict”. As well, situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature are not considered to qualify as “armed conflict”.

Decisions of international courts, such as the International Criminal Tribunal for the Former Yugoslavia, although being only binding upon the parties in a particular case, may be used as subsidiary means for the determination of the law. With this in mind, for example, one such definition is found in the International Criminal Tribunal for the Former Yugoslavia decision (1997) in the Tadic case:

International Armed Conflict: “whenever there is a resort to armed force between States”.

Non-International Armed Conflict: “whenever there is protracted armed violence between governmental authorities and organised groups within a State”.

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The specific provisions concerning the applicability of LOAC in situations of international and non-international armed conflicts are as follows:

International Armed Conflicts:

Common Article 2 to the Geneva Conventions 1949 (GC IV) reads as follows:

“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”.

Article 1(4) of Additional Protocol I to the Geneva Conventions 1949 (AP I 1977) applies the same provisions of LOAC as applicable in International Armed Conflicts to armed conflicts in which “peoples are fighting against colonial domination and occupation and against racist regimes in the exercise of their right of self-determination”.

The conflicts referred to in article 1(4) are largely a thing of the past. The article is only binding upon the states parties to Additional Protocol I.

Non-international Armed Conflicts:

Common Article 3 to the Geneva Conventions 1949 reads as follows:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:[…]”.

Article 1 of Additional Protocol II to the Geneva Conventions 1949 (AP II 1977) reads as follows:

“1.This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol

2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

The article is only binding upon the states parties to Additional Protocol II.

Occupation:

Article 42 of Hague Regulations of 1907 (Hague Reg.) reads as follows:

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“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

Common Article 2 to the Geneva Conventions 1949 reads as follows:

“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.”

F-14 Edition A Version 1

Slide 9.

The law of use of force and the law of armed conflict

• The law of use of force – jus ad bellum

• The law of armed conflict – jus in bello

The law of use of force (jus ad bellum):

LOAC applies to armed conflicts. It does not regulate whether a State may actually use force;

this is governed by an important, but distinct, part of international law. The law of use of force is the body of international law that regulates the circumstances when states may use force.

The Charter of the United Nations contains basic rules, including a general prohibition on the use of force, which nonetheless recognizes the inherent right of the States to individual and collective self-defence, and the authority of the UN Security Council to impose measures including the use of military force to maintain international peace and security.

UN Charter

Article 2 (4):

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Article 42:

“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Article 51:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.

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Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

The difference between the law of use of force (jus ad bellum) and the law of armed conflict (jus in bello):

The purpose of LOAC is to limit the suffering caused by war by protecting and assisting its victims to the extent possible. LOAC addresses the reality of armed conflict without considering the reasons for or legality of the initial resort to force. It regulates only those aspects of the conflict which are of humanitarian concern. Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.

The application of LOAC does not involve the denunciation of the parties to a conflict as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, LOAC is intended to protect war victims and their fundamental rights, no matter to which party they belong.

F-16 Edition A Version 1

Slide 10.

Main Sources of LOAC

Treaty Law Agreements which have been concluded by States in writing and which are legally binding on these States only.

Customary International Law Rules which have been developed as a result of State practice and of their acceptance as law and which are legally binding on all States.

Sources of LOAC:

LOAC is part of international law, which is the body of rules governing relations between States and other subjects of international law, such as intergovernmental organizations, or the International Committee of the Red Cross.

International law is contained in international treaties, in customary international law and in general principles of law.

LOAC, like other parts of international law, arises principally from these two basic sources:

treaty and customary law.

Treaty law mainly arises through the conclusion of international treaties between two or more States (there are also treaties between States and intergovernmental organizations, or between intergovernmental organizations). Generally, treaties are binding only on States party to them. Other terms for “treaty” include: Convention, Charter, Protocol, Covenant, etc.

Customary international law consists of rules which have been developed as a result of State practice accompanied by the respective legal belief (opinio juris sive necessitatis) over a period of time. Generally, customary international law is binding on all States, except for those states having persistently objected to the application of such a rule to them.

Much of LOAC in today’s environment comes to us through a mixture of these sources.

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According to article 38 of the Statute of the International Court of Justice, judicial decisions (and the teachings of the most highly qualified publicists) may be applied as subsidiary means for the determination of rules of law.

Some examples of international courts and tribunals are:

- International Court of Justice (ICJ)

- International Criminal Court (ICC)

- International Criminal Tribunal for the former Yugoslavia (ICTY)

- International Criminal Tribunal for Rwanda (ICTR)

- Special Court for Sierra Leone

- Special Tribunal for Cambodia

- Special Tribunal for Lebanon

- Special Court for East Timor

- International Military Tribunal of Nuremberg (1945-49)

- International Military Tribunal of Tokyo (1946-48)

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Slide 11.

Relationship between LOAC and National Law

Rules and provisions contained in international conventions on the LOAC are usually implemented in national laws and regulations through different legal acts, e.g. acts of parliament, governmental decrees, ministerial decrees, military manuals etc.

Personnel shall be aware of obligations stemming them from international conventions to which their state is a party to, as well as obligations arising from national laws. Because not all states are parties to the all international conventions, Personnel should be aware that in multinational operations their obligations may differ.

Provisions of the conventions with criminal liability implications are normally implemented in national criminal codes. Jurisdiction over Personnel usually rests with national authorities although in circumstances when nations are unable or unwilling to hold person criminally liable for violations of LOAC, some international criminal tribunals may have jurisdiction over them.

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Slide 12.

LOAC in the Planning and Conduct of Operations

In the planning and the conduct of operations, LOAC must be considered at all levels and at all times.

LOAC does not only have to be considered by decision making authorities at the command level, but also by all persons involved in the execution of military operations.

Each phase of an operation must be verified for conformity with LOAC during planning stage and continually evaluated during execution to ensure compliance. The overall effects of the operation must be similarly scrutinized during both planning and execution.

LOAC therefore must be part of both the planning and execution of operations.

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Slide 13.

Topic: BASIC PRINCIPLES

BASIC PRINCIPLES

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Slide 14.

Military Necessity

• States may only use force not otherwise prohibited by LOAC that is necessary for the defeat of the enemy.

• Military necessity is not an overriding principle allowing breaches of LOAC rules.

It does not justify violations of LOAC.

Principle of Military Necessity:

• This principle could be considered, in many ways, as the foundation of all of LOAC.

Under this principle, States may only use force not otherwise prohibited by LOAC that is necessary for the complete submission of the enemy. Thus, the right of belligerents to adopt means of injuring the enemy is not unlimited (cf. Art. 22 Hague Reg 1907).

• Military Necessity according to NATO Definition (AAP 6, 2010): “The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war.”

• The only legitimate objective which States should endeavour to accomplish during war is to weaken the military forces of the enemy – St. Petersburg Declaration, 1868.

• The quotation from the St. Petersburg Declaration demonstrates the longstanding nature of the principle of military necessity in treaty law. However, modern authors have suggested that one should aim to ‘defeat’ rather than simply ‘weaken’ the enemy.

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Slide 15.

Proportionality

Civilian losses resulting from military action (collateral damage) must not be excessive in relation to the concrete and direct military advantage anticipated.

Principle of Proportionality:

• This principle requires that the anticipated military advantage must be balanced against other consequences of the action. It involves weighing the interest in a successful operation on the one hand, against the possible harmful effects upon protected persons and objects, such as civilians and civilian objects, on the other hand. Collateral damage arising from military operations must not be excessive in relation to the direct and concrete military advantage anticipated from such operations.

• Collateral damage is the loss of life or injury to civilians or civilian objects resulting from military action. Such damage must never be the objective of an attack. Collateral damage refers only to damage that is incidental to the military action, even if foreseeable.

• The test to determine if an attack is proportionate is whether such attack “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated.”

[Article 51 (5)(b) of the AP I 1977]

• The anticipated military advantage must be balanced against other consequences of the action, such as the adverse effect upon civilians or civilian objects. It involves weighing the interests arising from the success of the operation on the one hand, against the possible harmful effects upon protected persons and objects on the other.

• Although application of the principle of proportionality may result in incidental harm and damage to civilians and civilian objects, attacks against civilians and civilian objects are prohibited.

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[Articles 51(5)(b) & 57(2)(b) of the AP I 1977]

Slide 16.

Humanity

• Where LOAC does not provide specific rules, the principle of humanity applies as a general standard of behaviour in armed conflict.

• Furthermore, this principle is the basis for LOAC provisions regarding the standard of treatment of protected persons and the specific prohibition against the infliction of superfluous injury or unnecessary suffering.

Principle of Humanity:

• Where LOAC does not provide specific rules, the principle of humanity applies as a general standard of behaviour in armed conflict (cf. the so-called Martens’ clause – further comprised e.g. in Article 1 ( 2) AP I 1977: “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 dictates of public conscience.”)

• Protected persons shall in all circumstances be treated humanely. Inhumane treatment of protected persons is a (war) crime.

• Military personnel may not use methods or means of warfare that are calculated or expected to cause superfluous injury or unnecessary suffering.

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Slide 17.

Distinction

Requires to distinguish between:

• Combatants and civilians

• Military objectives and civilian objects

Military attacks shall be directed only at military objectives (combatants and military targets).

Civilians or civilian property must not be the object of attack.

Principle of Distinction:

• The principle of distinction is set out in Article 48 of the AP I 1977. It reads that:

“…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.”

Military Objectives:

• Military objectives are combatants and those objects which by their nature, location, purpose or use, make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

[Article 52(2) of the AP I 1977]

• Military force may be directed only against military objectives, and not against civilian objects. Under the principle of distinction, the civilian population as such, as well as individual civilians, may not be made the object of attack.

• Constant care shall be taken to spare civilian life and civilian objects, such as consideration of populated areas, possibilities of shelter, movements of civilians, pattern of life, different periods of day, etc.

• The application of the principle is dependant on the information available to the commander at the time he makes his decision. Accordingly, if commander makes

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Slide 18.

Topic: COMBATANTS

COMBATANTS

The principle of distinction requires that military force may be directed only against military objectives, and not against civilian objects. The presentation will now turn to the rights and obligations of combatants.

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Slide 19.

Combatants

• Members of the armed forces, except medical and religious personnel, are combatants

• Combatants have the right under international law to participate directly in hostilities

• Combatants can attack enemy combatants or legitimate military objectives causing death, injury and destruction in accordance with LOAC

Member of Armed Forces:

• 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.

[Article 4 of the GC III 1949]

• Armed forces of a party to the conflict consist of all organized armed forces, groups and units that are under a command responsible to that party for the conduct of its subordinates.

[Article 43(1) of the AP I 1977]

• Militias, volunteer corps and organized resistance movements must “belong” to a party to the conflict in the sense that they are acknowledged by that party as fighting on its behalf or in its support.

[Article 43 (1) of the AP I 1977]

• The right to directly participate in hostilities is not an individual right but is given because the individual is a member of the armed forces.

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Paramilitary / Law Enforcement Agents:

• If a party to a conflict incorporates paramilitary or armed law enforcement agencies into its armed forces, it must inform other parties to the conflict of this fact.

• These forces are then considered lawful combatants.

[Article 43 (3) of the AP I 1977]

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Slide 20.

Levée en masse

Levée en masse:

• As a general rule, civilians cannot lawfully engage in hostilities. There is, however, an exception to this rule for inhabitants of a territory that has not been occupied by an enemy.

• Where they have not had time to form themselves into regular armed units, inhabitants of a non-occupied territory are regarded as combatants if:

a. on the approach of the enemy they spontaneously take up arms to resist the invading forces;

b. they carry arms openly; and

c. they respect the LOAC.

• This situation is referred to as a “levée en masse”.

[Article 2 of the Hague Reg 1907, Article 4 (6) of the GC III 1949]

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Slide 21.

Combatant Immunity

The LOAC provides combatant immunity for the lawful acts of combatants during armed conflict

• Together with the combatant’s right to directly participate in hostilities, international law affords combatant immunity for lawful acts committed by a combatant during armed conflict.

• As such, combatants cannot be held criminally responsible for lawful acts within the bounds of LOAC and any national directions regarding the use of force.

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Slide 22.

Spies and Mercenaries

Spies:

• Any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy but are still entitled to basic minimum rights.

[Common Article 3 to the GC / Article 75 of the AP I 1977]

• A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces.

[Article 46 of the AP I 1977]

Mercenaries:

• A mercenary is not a combatant neither a prisoner of war.

• A mercenary is any person who: is specially recruited locally or abroad in order to fight in an armed conflict; does, in fact, take a direct part in the hostilities; is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; is not a member of the armed forces of a Party to the conflict; and has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

[Article 47 of the AP I 1977]

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Slide 23.

Topic: PROTECTED PERSONS

PROTECTED PERSONS

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Slide 24.

Permanent Medical Personnel

They shall not be attacked.

Temporary Medical Personnel

They shall not be attacked while engaged in medical duties.

Medical Personnel – protection and treatment:

Permanent Medical Personnel:

• Personnel of the armed forces permanently assigned to medical activities, to the administration of medical units and to medical transport (“medical duties”) are Medical Personnel.

• Permanent medical personnel shall be protected and respected at all times. They shall not be attacked.

• Permanent medical personnel are not combatants. They may carry light individual weapons for self-defence and defence of wounded under their charge. They do not lose their protection solely for the reason of being so armed.

[Article 22 of the GC I 1949]

• If captured, permanent medical personnel will be returned to their own armed forces unless they are retained by the detaining power to assist POWs.

[Articles 24, 28 (1) & 30 (1) of the GC I 1949; Articles 37 (1) & (2) of the GC II 1949; Article 33 (1) of the GC III 1949; Articles 8 (3) & 43 (2) of the AP I 1977]

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Temporary Medical Personnel:

• Personnel of the armed forces temporarily assigned to medical duties during a limited period of time, such as stretcher-bearers, are non-combatants…