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Law of Armed Conflict
South Texas College of Law Houston
Corn, Geoffrey S.

Law of Armed Conflict

Corn

Fall 2016

Legal Bases for the Use of Force

· Jus ad bellum

o Law applicable to going to war

· Jus in Bello

o Law applicable in war

· UN Charter

o Purposes of UN

§ Maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity w/ the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to the breach of peace;

§ All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered

§ 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 w/ the Purposes of the UN

o UN Organization

§ General Assembly

§ Security Council

§ International Court of Justice

· Use of Force

o Exceptions to the Prohibition

§ Consent

ú Realistic consent

ú Coerced consent

· Economic pressure

· Military pressure

§ Security Council Authorization

ú Chapter VI

ú Chapter VIII

ú Art. 39 Threshold

ú Arts. 41 and 42

ú No Article 43 Forces

ú Invites/Authorizes

§ Self-Defense

ú 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 UN, until the Security Council has taken measures necessary to maintain international peace and security

o Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the SC and shall not in any way affect the authority and responsibility of the SC 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

ú Armed Attack

· Does “armed” require heat, blast, and fragmentation?

ú Necessity, Proportionality, Timeliness

· Necessity

o An objective necessity to respond

o Military necessity

§ Principle of the law that the law authorizes belligerence to take measures to achieve the prompt and efficient means of submission

§ Authorizes all measures, not otherwise prohibited by international law

· Proportionality

o Response limited in scope, intensity, and duration

o Humanity

§ Limits to the barbarity of war

§ Humane treatment of civilians

§ Treat someone like a human being

§ Unnecessary suffering

ú Can’t be justified by military necessity

§ Article 23 Hague Convention

ú Can produce weapons for calculated suffering

· Timeliness

o Reasonable proximity in time to the hostile act

ú Anticipatory SD

· Instant, overwhelming, and leaving no choice of means, and no moment for deliberation

ú Interceptive SD

· Attacker has committed itself to an armed attack in an ostensibly irreversible way

ú Preemptive SD

· Other Uses of Force

o Protection of Nationals

§ Noncombatant Evacuation Operations

o Responsibility to Protect

§ Domestic State responsibility

§ International communities responsibility to assist Domestic State

§ International community should use appropriate methods

§ International community has the responsibility to intervene if Domestic State fails

· Conte

however

· Post 1977 Treaty Development

o Convention on Certain Conventional Weapons of 1980

§ Based on key principles of humanity in LOAC

§ Allows for either regulation or prohibition of specific weapons, such as incendiaries

o Specialty treaties to ban specific weapons

§ Antipersonnel landmine ban

§ Cluster munitions

§ US is not a party

o Statutes for War Crimes Tribunals

§ Building on WWII international tribunals

§ Beginning w/ 1993 tribunal for former Yugoslavia

· Art. 1, AP I

o Treats as an international armed conflict subject to the Geneva Conventions, “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination

§ Effectively, allows a non-State actor the same status as a State under LOAC

· Art. 44(3), AP I

o Reaffirms that combatants “are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack

§ If a combatant cannot distinguish himself “owing to the nature of the hostilities,” he still retains his status as a privileged combatant, so long as he carries his arms openly:

ú During each military engagement, and

ú During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate