IHL Q&A - Aug 31, Sept 1 and Sept 18

7/24/2019 IHL Q&A - Aug 31, Sept 1 and Sept 18

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No. Q

1

2

3 What is a war crime?

4 What is fungibility?

5

What is belligerent nexus?

What is the dierencebetween an IAC and an NIAC?

What are the sources of

international law?

What is treachery underinternational law?


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!

"

#

1$

11

What is the dierence of amilitary objective between acivilian object?

What is the standard of prooffor this trial?

ow is impartiality similar ordierent with neutrality?

What is the dierence ofcommand responsibility andsuperior responsibility?

What is the evidentiary valueof a direct testimony beforethis court?


3/12

12

13

14

15

What is a combatantadversary?

!oes indirect perpetrationgive more weight to de jurethan de facto authority?

!id the withdrawal of theconsent made the I""#belligerents?

What is eective commandand control?


4/12

1 What is humanitarianassistance?


5/12

A

PRACTICE: August 31 and Se

An IAC is when one or more "tates have recourse to armed force against another "tateor the intensity of this confrontation% An NIAC is when an armed con&ict 'ta(es place inContracting )arty between its armed forces and dissident armed forces or other organ

,he sources of international law are as follows-a% international conventions$ whether general or particular$ establishing rules expresslcontesting states.b% international custom$ as evidence of a general practice accepted as law.

c% the general principles of law recogni*ed by civili*ed nations.d% subject to the provisions of Article /0$ judicial decisions and the teachings of the mopublicists of the various nations$ as subsidiary means for the determination of rules of

'War crimes+ means-3a4 5rave breaches of the 5eneva Conventions of 67 August 6080.3b4 9ther serious violations of the laws and customs applicable in international armed established framewor( of international law.3c4 In the case of an armed con&ict not of an international character$ serious violationsthe four 5eneva Conventions of 67 August 6080. and

3d4 9ther serious violations of the laws and customs applicable in armed con&icts not ocharacter$ within the established framewor( of international law%

#ungibility is generally understood as a characteristic of the individual carrying out thehe or she can be exchanged or substituted by the highest strategic level in the operatout of the criminal plan%

In international law$ treachery and per2dy are used interchangeably% )er2dy is de2nedcon2dence of an adversary to lead him to believe that he is entitled to$ or obliged to arules of international law applicable in armed con&ict$ with intent to betray that con2d

,he concept of belligerent nexus means that an act must be speci2callydesigned to directly cause the re1uired threshold of harm in support of a party to thecon&ict and to the detriment of another%


6/12

Substantial grounds to believe that the person committed each of the crimes charged.

$ $contribution to military action and whose total or partial destruction$ capture or neutracircumstances ruling at the time$ oers a de2nite military advantage% Civilian objects a

Impartiality is crucial to maintaining the consent and cooperation of the main parties$ with neutrality or inactivity% =nited Nations peace(eepers should be impartial in their dthe con&ict$ but not neutral in the execution of their mandate%

Impartiality means being guided solely by needs$ ma(ing no discrimination on the basgender$ class$ or religious>political beliefs. while neutrality means to ta(e no sides in htime$ in controversies of a political$ racial$ religious or ideological nature%

Command responsibility is associated foremost with military commanders$ while supeclearly covers both military and civilian leaders%

Command responsibility applies only to military commanders% "uperior responsibility cany person who$ not being a military or '1uasimilitary+ commander$ is able to exercisone or more people%

,he court gives probative value for direct testimony in the pretrial chamber$ which maevidences%


7/12

Combatant adversary refers to individuals from the adverse party participating in the 2

PRACTICE: Septembe

Indirect perpetration is committed through another person$ thus no need to identify if authority or de facto authority% ,he fact that it is committed through another person mperpetration% @asis of conviction is on the notion of instigation or necessary contributperpetration can exist in an organi*ed structure of power where senior political leaderscommanders ma(e use of the organi*ations that they control to eect the commissionnot necessarily limited to organi*ed structure of power 3de jure or de facto4%

es$ withdrawal of consent causes peace(eeping operations to lose its character% A paconsent to the deployment of a =nited Nations peace(eeping operation may subse1ueoperationBs freedom of action$ resulting in a de facto withdrawal of consent% ,he comp

by one or more of the main parties challenges the rationale for the =nited Nations peawill li(ely alter the core assumptions and parameters underpinning the international cosupport the peace process%

,he concept of ;eective control; is mainly perceived as ;the material ability or powethe commission of oences$ and$ as such$ failure to exercise such abilities of control gresponsibility if other re1uirements are met%


8/12

umanitarian assistance is generally accepted to mean the aid and action designed tosuering and maintain and protect human dignity during and in the aftermath of mandisasters$ as well as to prevent and strengthen preparedness for the occurrence of suc


9/12

S%&RCE 'IN(S

Article :E$ ICF "tatute

Common Article 7 tothe 5enevaConventions of 6080.Article 6$ Additional)rotocol II

Article E 374$ ICC"tatute

)ar% G:G of the Fujimoricase (2009)

http->>digitalcommons%wcl%american%edu>cgi>viewcontent%cgi?articleH6:JcontextHauilr

Article :G$ Additional)rotocol I

http->>www%crimesofwar%org>a*guide>per2dyandtreachery>

page /E of >www%icrc%org>eng>assets>2les>other>icrc700%pdf


10/12

Article /7$ Additional)rotocol I

Article 6 3G4$ ICC"tatute

Capstone !octrine.,he #undamental)rinciples of the MedCross

page 688$ '"uperiorMesponsibility+ 3MeneOar(4.Article 7E 3a4 and 3b4

http->>www%(s(%edu%ee>wpcontent>uploads>767>67>PO=9AQ,oimetisedQ6/QGQOar(%pdf

par% 676 and 677$)rosecutor v% Lubanga!yilo


11/12

Capstone !octrine

https->>boo(s%google%com%ph>boo(s?idHxba1lwR9v5CJpgH)A8GEJlpgH)A8GEJd1HcombatantSadversarySde

2nitionJsourceHblJotsHxPMo9CEoJsigHOmd=etO@Qut*G0bowGnvcs#@cJhlHenJsaHTJvedHCU(VAUwC5oOCh>boo(s%google%com%ph>boo(s?idHFEuCVAAV@AFJpgH),688JlpgH),688J

d1HtreacherySinSwarScrimesJsourceHblJotsH1FnlRw@/JsigHexeU:TOefd:adnx85F#uU/0MoJhlHenJsaHTJvedHC!8VAUw@WoOCh>www%*if

berlin%org>2leadmin>uploads>analyse>do(umente>=NQCapstoneQ!octrineQUN5%pdf

par% 86/$ )rosecutor v%@emba


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http->>www%globalhumanitarianassistance%org>dataguides>de2ninghumanitarianaid

Documents

IHL Q&A - Aug 31, Sept 1 and Sept 18