Basic Principles of IHL Dr. Hilly Moodrick-Even Khen, Alma course 2011.

Basic Principles of IHLBasic Principles of IHL

Dr. Hilly Moodrick-Even Khen, Alma course 2011

Basic principles of IHL- Basic principles of IHL- general normative frameworkgeneral normative framework

a compromise between military and humanitarian requirements.

guiding principles for the interpretation of the rights and duties of belligerents

Necessity- recognized to permit "only that degree and kind of force, that is required in order to achieve complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources”

Humanity- forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes.


Necessity The prohibition on the infliction of

unnecessary suffering Distinction Proportionality


Adding an additional level of restraint The belligerent may apply only that

amount and kind of force necessary to defeat the enemy.

The right of belligerents to adopt means of injuring the enemy is not unlimited. (Hague Reg. Art. 22)


St. Petersburg Declaration prohibiting the use of projectiles weighing less than 400 grams and declaring that a belligerent may only use such degree of force aimed at weakening the adversary.


The requirement that the belligerents distinguish between:

1. combatants + military objectives 2. civilian population+ civilian

objects.


Civilian objectives Civilian objectives /Military objectives/Military objectives API, Art. 52 Military objectives are 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.


Combatants are defined in the Third Geneva Convention (Art. 4a)and in API Art. 43.

Combatants are ‘fighters’ that are entitled to POW status.


Combatants are eligible to POW status when they are:

members of the armed forces or belonging to militias or other forces such as

resistance groups and answering the following demands:

Being commanded by a person responsible for his subordinates

Having a fixed distinctive sign recognizable at a distance

Carrying their arms openly Conducting their operations in accordance

with the laws and customs of war


Armed Forces- API Art. 43Armed Forces- API Art. 43

All organized armed forces, groups and units which are

Under a command responsible to a party to a conflict for the conduct of its subordinates…

They shall be subject to an internal disciplinary system which…shall enforce compliance with the rules of international law applicable in armed conflict.


Carrying their arms openly during the military engagement and during the deployment preceding the launching of an attack in which they are to participate.


Any person who does not belong to one of the categories of persons referred to in Art. 4 A (1) (2) (3) and (6) GC III and in Art. 43 API

Presumption of civilian protection- In case of doubt that person shall be considered a civilian


CombatantsCivilians

PrivilegesLicense to killProtected

POW status

RisksBeing a legitimate target

Not entitled to POW status


API Art. 51(3); APII, Art. 13(3) Civilians shall enjoy the protection

afforded by this section, unless and for such time as they take a direct part in hostilities.


The following types of attacks are to be considered indiscriminate…

An attack which 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.


Blurring and abusing the principle of distinction

Unprivileged combatants: U.S Army’s Operational Law

Handbook; British Manual of Military Law


US/Israel and TerrorismUS/Israel and Terrorism US- Military order of November 13

2001 Targeted Killings case in Israel (HCJ

769/02 The Public Committee against Torture v. the Government of Israel):

Demanding the killings to be a last resort

Demanding an investigation after the fact


DPH=Direct Participation in Hostilities Defines direct participation in

hostilities. Distinguishes between three

categories of persons in the battlefield


A specific act must meet the following cumulative criteria:

Threshold of harm Direct causation Belligerent nexus


: Continuous combat function Direct participation in hostilities Civilians assuming support functions


TitleActivityStatus

Continuous combat function

Lasting integration into an organized armed group acting as the armed forces of a non-state party to an armed conflict

May be targeted during the whole period of the conflict

DPHCivilians who directly participate in hostilities on a merely spontaneous, sporadic or unorganized basis

May be targeted only in the blazing offence

Civilians not directly

participating in hostilities

Assuming support functions to the armed group but not integrated within it

Can never be targeted; can only be prosecuted for breaching the law.Dr. Hilly Moodrick-Even Khen, Alma course 2011

Attacks should be restrained by: 1) the applicable provisions of customary and

treaty IHL governing the conduct of hostilities: principles of distinction, precaution, infliction of unnecessary suffering and proportionality, the prohibitions of denial of quarter and perfidy; the restriction or prohibition of selected weapons

2) the general framework of necessity and humanity considerations.

No’ 2 Applies mostly to non international armed conflicts; occupied territories and operations against selected individuals in situations comparable to peacetime policing.


Exemplifying case Exemplifying case scenariosscenarios

An unarmed civilian transmitting tactical intelligence from a restaurant.

An insurgent military commander of an organized armed group visiting relatives inside government controlled territory.

Large numbers of unarmed civilians deliberately gathering on a bridge to prevent the passage of ground forces.


The Gaza FlotillaThe Gaza Flotilla IHH- Turkish Foundation for Human

Rights and Freedoms and Humanitarian Relief

IHH members on the Mavi Marmara- Direct participants in hostilities?

Threshold of harm Direct causation Belligerent nexus


Kuperskic case: Proportionality is assessed on the basis of cumulative attacks (within the “grey area” of proportionality) that form an operation.

The Israeli Supreme Court- spectrum of activities.


Issues of ControversyIssues of Controversy Voluntary human shields

Risking soldiers on the battlefield


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Basic Principles of IHL Dr. Hilly Moodrick-Even Khen, Alma course 2011.

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