LAW 1508 Lecture Notes - Lecture 10: Protocol I, Protocol Ii, Chemical Weapons Convention
23 May 2018
School
Department
Course
Professor
Law of Armed Conflict
STEP 1: Qualification for Armed conflict
• An armed conflict exists whenever there is a resort to armed force between States
• or protracted armed violence between governmental authorities and organized armed groups
• or between such goups ithi a State. Tadic FACT: scale, weaponry, intensity.
STEP 2 Is the conflict International or non- International?
• Between two states (international).
• Between a state and an internal rebel group (non-international) that evolves into an inter-state conflict through
intervention by another State on the side of the rebels (international). (Art 8 DASRIWA) (Nicaragua, effective
control)
• Implosion of state amidst civil war (non-international) – two independent state entities (i.e. former Yugoslavia)
(International).
• An intervention by one state on the side of a second state and its conflict with insurgency (non-international).
• Between two armed groups within a State (non-international at least for CA 3 application not APII – which is
based upon hostilities with a State armed force).
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STEP I: Common Article 3 to the 1949 Geneva Conventions
• Non international armed conflict within territory of high contracting parties - parties the non-international armed
oflit oud to apply, as a iiu, the folloig proisios’
STEP II. Determine if state has ratified Additional Protocol II.
• No ratification- Common Art 3 and custom only
Common Article 3:
3. o lea theshold to distiguish potated aed
iolee euied tadic from conflict which are
matters of domestic law enforcement. but article
commentary indicates,
ORGANISATION: Hostilities conducted by an
organised armed group. weaponry. What are
their goals?
• INTENSITY: such that no ordinary policing
methods work- state needs military action to
counter the clear, collective character
• intensity rather than duration Haradinaj
4. Every person is a civilian, but will lose protection
through
• being a mamber of dissident armed forces or
othe ogaised goups i otiuous oat
futio IC‘C
5. Protection under 1949 GC common article 3
• Humane treatment, Non-discrimination in
treatment, Prohibition of violence including
cruel treatment and torture; taking hostages;
No outrages upon personal dignity;
Indispensable judicial guarantees
Additional Protocol II (rare)
1. Protocol does not apply to internal disturbances and
tensions; riots, isolated and sporadic acts of violence
and other acts of a similar nature Art 1 (2):
2. Art 1 threshold
conflict in state territory
INTENSITY: between its armed forces and
dissident armed forces or other organized
armed groups,
ORGANISATION: under responsible command
CONTROL: over part of its territory as to
enable them to carry out sustained and
concerted military operations & able to
implement AP II
3. Presume that everybody is a civilian, may lose
protection through Taking direct part in hostilities
(may be sporadic/ spontaneous). As soon as weapon
is put down- civilian again. AP II Art 13(3)
4. Protection under AP II:
• Humane treatment (including special protection
of children and women): Art 4 & 5
• Non-discrimination: Art 2
• Various fair trial requirements: Art 6
• Protection of the wounded, sick, shipwrecked,
and other protected personnel: Arts 7-12
• Protection of civilians (including principle of
distinction): Art 13;
• Protection of objects indispensable to the survival
of civilians: Art 14
• Protection of installations containing dangerous
forces and protection of cultural property: Arts 15
& 16; Prohibition of forced displacement of
civilians unless imperative military needs: Art
Non- International armed conflict
- Custom/ Geneva Conventions- Common Art 3/ Additional protocol II
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