Chapter 14 Guidance on Answering the Questions in the Book

Question 1:
Why may one reasonably consider the law of armed conflict as a pragmatic discipline?

Guidance:
The question asks the students to consider the reasons for the inherent pragmatic character of the law of armed conflict. The book notes that the law of armed conflict is pragmatic because it is based on the premise that war is a recurring feature of human existence. Instead of trying to prohibit war it is less ambitious in the sense that it merely seeks to find a way to balance military necessity and humanitarian sentiments. The content of the law therefore represents a long list of compromises that only seek to limit human suffering to the extent possible without seeking to negate the right of the warring parties to pursue their military objectives. The accommodation of military necessity is one of the things that distinguish the law of armed conflict from international human rights law. 

Question 2:
Has the international armed conflict between North and South Korea been brought to an end?

Guidance:
The question encourages the students to engage in the issue of when an international armed conflict ends. The book notes that international armed conflicts traditionally ended with the conclusion of a peace treaty—or at least an express declaration—but that such treaties are now rare. It also notes that hostilities may be terminated either on a temporary or a permanent basis and the conflict cannot generally be considered to have ended unless there is evidence that neither of the parties intend to resume the hostilities. North and South Korea have only signed a cease-fire agreement and never a peace treaty that brought an official end to the armed conflict between the two states. In pure technical terms it can therefore be said that the two states remain at war with each other. The book also notes, however, that some of the obligations in the law of armed conflict arise with the end of active hostilities and therefore before the official end to the conflict. The best example is the obligation contained in the Third Geneva Convention on Prisoners of War to release and repatriate prisoners of war “at the cessation of active hostilities’.

Question 3:
Is Ukraine and Russia engaged in an international armed conflict?

Guidance:
The question asks the students to classify the conflict between Ukraine and Russia according to the different types of armed conflict contained in the law of armed conflict. There are two elements to the conflict. The first relates to the Russian annexation of Crimea in March 2014. The book notes that this is an example of belligerent occupation that is covered by the Fourth Geneva Convention from 1949. The second element of the conflict relates to the situation in Eastern Ukraine where pro-Russian militants are involved in fighting with Ukrainian forces. The classification of those hostilities depends on the level of Russian involvement. The book notes that the conflict may be a non-international armed conflict that is regulated not only in Common Art. 3 to the Geneva Convention from 1949 but also in the 1977 Additional Protocol II to the Geneva Conventions. The Russians may, however, be so involved that the conflict should rightly be considered as one of an international character.

Question 4:
In 2011, US Special Forces killed the leader of al Qaida, Osama bin Laden, in Pakistan. Did the killing of bin Laden violate international humanitarian law?

Guidance:
The question concerns the complicated issue of the concept and geographical scope of an armed conflict and asks the students to consider the issue in light of the 2011 military operation in Pakistan that killed Osama bin Laden. To answer the question, the students need to determine if the operation against bin Laden was governed by the laws of armed conflict and if so, whether bin Laden constituted a lawful military target at the time he was killed. As to the first aspect, the book makes reference to the discussion of the proper classification of an armed conflict between a state and a non-state actor that is not limited to the territory of the state. It also notes the controversial US position that it is engaged in an armed conflict with members of al Qaida and associated forces. The book adopts the approach that nothing precludes a state from engaging in armed conflict with a terrorist organization provided the Tadić conditions (minimum threshold of violence and military organization) are fulfilled. In theory, then, the US could be engaged in an armed conflict with al Qaida if those conditions were fulfilled. The students should discuss if that is the case. Another aspect concerns the location of the operation against bin Laden that took place in a city in Pakistan. What implication does this have, if any, for the determination of whether the operation was governed by the laws of armed conflict? What is, in other words, the geographical scope of an armed conflict? The students should here note the distinction between the jus ad belleum and the jus in bello. On a final note, students must also consider bin Laden’s status under the laws of armed conflict if they find that the operation against him was conducted within the ambit of an armed conflict. A reference should then be made to the concept of ‘direct participation in hostilities’. As the book notes, the temporal aspect of that concept (the issue of “for such time”) differs from international to non-international armed conflicts. While a civilian only loses protection from direct attack ‘for such time’ as he or she participates in the hostilities, in a non-international armed conflict members of an organized armed group that belong to a non-state party to the conflict are not considered ‘civilians’ as long as they remain members of the organized group by virtue of their ‘continuous combat function’; see also Question 6.

Question 5:
In November 2015, individuals with alleged ties to the Islamic State perpetrated a series of terrorist attacks in Paris, France. Could the attacks be considered as part of an armed conflict?

Guidance:
The question asks the students to consider the geographical reach of an armed conflict and apply it to the November 2015 terrorist attacks in Paris. While the question is somewhat similar in character to the previous question that also concerned the territorial reach of an armed conflict, it must be noted that the issue of the existence of an armed conflict with, respectively, al Qaida and the Islamic State differs. Unlike the relationship between the United State and al Qaida, no one disputes the existence of an armed conflict involving the Islamic State to which France by virtue of its participation in the international campaign against the Islamic State in Iraq and Syria is a party. The issue is not, in other words, if there is an armed conflict between France and the Islamic State but merely if that armed conflict can “spread” from the active theatre of hostilities in the Middle East to France. This question is not an easy one to answer. The students should initially determine if the armed conflict between France and the Islamic State in the Middle East is of an international or a non-international character and then consider the territorial scope of such conflicts. While one view may hold that the armed conflict is limited to the area of active hostilities in Iraq and Syria and that terrorist acts perpetrated by members of the Islamic State in France cannot be considered a part of the armed conflict, another view would hold that the determining factor must be the extent to which the acts of members of the Islamic State in France can be reasonably said to constitute direct participation in hostilities. If so, one should not be categorically opposed to finding that acts perpetrated in France could, in theory, be part of the armed conflict between France and the Islamic State. This, however, still leaves open the question of what the link must be (if any) between the individuals in France that commit the hostile acts and the Islamic State.  

Question 6:
When it comes to the use of deadly force against individuals who are not members of the armed forces of a state, why does it matter if the armed conflict is classified as an international and not a non-international armed conflict?

Guidance:
The question asks students to consider the concept of so-called direct participation in hostilities and the manner in which it is applied in international and non-international armed conflicts. The book notes that civilians lose protection from direct attack in an international armed conflict ‘for such time’ as they participate in the hostilities, thus enabling a ‘civilian’ to disengage from the fighting on an on/off basis. As noted in Question 4, the situation is different in a non-international armed conflict where the law of armed conflict operates with a so-called “continuous combat function”. Thus, a member of an organized armed group belonging to a non-state party to the conflict is not protected as a civilian as long as he or she remains a member of the organized group due to the exercise of a ‘continuous combat function’. When members of a private actor ‘go beyond spontaneous, sporadic, or unorganized direct participation’ and become members of an organized armed group they are deprived of protection from direct attack ‘as long as they remain members of that group’. Unlike a civilian in an international armed conflict, then, members of an organized armed group in a non-international armed conflict can therefore be targeted at all times, including in situations where the individual is not actively engaged in acts that are harmful to the enemy.

Question 7:
How is the right to liberty regulated in a non-international armed conflict?

Guidance:
The question asks the students to engage with the contentious issue of detention in non-international armed conflicts and the interplay between human rights law and the laws of armed conflict. To what extent may an individual deemed to be a threat to the security of the state be detained for security purposes in a non-international armed conflict? The book notes that it is well-established that the standards from international humanitarian law serve as lex specialis and thus informs the content of the right to liberty in human rights law in times of an international armed conflict. It also notes that the relationship between the two legal systems is less clear in non-international armed conflicts where there is no explicit authority for security detention of members of the enemy. As the book notes, there are a number of options available to the students. One is to conclude that the treaty-based regulation of non-international armed conflict in international humanitarian law is filled with standards from human rights law. If that is correct, it indicates that there is no right to resort to security detention in a non-international armed conflict. Another option is to fill the gap in the explicit regulation of non-international armed conflict by customary international law and principles derived from international armed conflict. That approach would conclude that international law permits a state to resort to security detention in both international as well as non-international armed conflicts.