Additional Protocol II:

Does the legal framework suffice to regulate NIACs?

Dr. ZHOU Wen

Legal Adviser, ICRC Regional Delegation for East Asia
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 Additional Protocol II
• The first-ever treaty devoted exclusively to the protection of people
affected by non-international armed conflicts (NIACs)
• Containing 28 articles (compared to 102 articles in AP I)
• It develops and supplements Common Article 3
• A simplified Martens clase in the preamble
“in cases not covered by the law in force, the human person remains
under the protection of the principles of humanity and the dictates of
the public conscience”

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 International armed conflicts (IAC)
 Geneva Conventions I, II, III & IV
 Additional Protocol I
 Customary IHL
 Principles of humanity (Martens Clause)

Non-international armed conflicts (NIAC)

 Common Article 3
 Additional Protocol II
 Customary IHL
 Principles of humanity
IHL
Other situations of violence (OSV)
 International Human Rights Law
 Domestic law
 Elementary considerations of humanity
1899/1907 – The Hague Conventions (laws & customs of war)
• 1925 – Protocol for the Prohibition of the Use of Asphyxiating Gases
1949 – Four Geneva Conventions
• 1954 – Hague Convention on the Protection of Cultural Property
• 1972 – Biological Weapons Convention
1977 – Two Additional Protocols to the GC
• 1980 – Conventional Weapons Convention (and Protocols)
• 1993 – Chemical Weapons Convention
• 1997 – Convention on the Ban of Anti-personnel Landmines
1998 – Statute of the International Criminal Court
• 1999 –Protocol II to the Hague Convention of 1954
• 2000 – Opt. Prot. on the Involvement of Children in Armed Conflict
• 2005 – Additional Protocol III on an Additional Distinctive Emblem
• 2008 – Convention on Cluster Munitions
 Scope of application:
An armed conflict …
Common Article 3 Additional Protocol II
• not of an international • between the State Party's
character armed forces and dissident
armed forces

• occurring in the territory of • in the territory of the State

one of the [HCP] Party

• … • exercise such control over a

part of its territory as to enable
them to carry out sustained and
concerted military operations
and to implement this Protocol.
 Threshold: NIAC

Organised forces IL

Violence

NIAC
 Why a “classification” of armed conflicts?

 Protection of civilians against the effects of hostilities

 combatant status - right to take part in hostilities (only in IAC)

 Protection of persons in the power of the adverse party

 prisoner of war – no prosecution for lawful acts of war / treatment of internees (PoW/IC) (only
in IAC)

 Enforcement and supervision mechanisms

 Protecting powers/ICRC

 Individual criminal responsibility

 Grave breaches regime (only in IAC)
 Mandatory universal jurisdiction (only in IAC)
 Who is "protected" under IHL?
International (IAC) Non-international (NIAC)
 civilians  "persons who do not take
(in the power of the a direct part or who have
enemy) ceased to take part in
hostilities” (Art. 4(1), APII)
 wounded, sick and
shipwrecked
 prisoners of war  “persons deprived of
their liberty for reasons
related to the armed
conflict, whether they are
interned or detained“ 8
(Art. 5(1), APII)
Civilians in the power of the enemy

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 Common Art. 3, GCs
Persons taking no active part in the
hostilities, including persons hors
de combat, shall in all
circumstances

 be respected and protected

 treated humanely, without any
adverse distinction
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Common Art. 3, GCs

Are and shall remain prohibited at

any time and in any place
whatsoever:

 violence to life and person;

 taking of hostages;
 outrages upon personal dignity;
 extrajudicial sentences and
executions 11
 Rules in AP II
More precise rules in AP II
• Fundamental guarantees of humane treatment (arts. 4&5)
• Judicial guarantees (art. 6)
• Wounded, sick and shipwrecked (arts. 7 & 8)
• Use of the emblem

Special rules in AP II
• Protection of children (art. 4(3))
• Protection of medical personnel and units, duties of medical personnel (arts. 9-12)

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Fundamental guarantees of humane treatment
 Prohibition of torture and ill-treatment
 Living conditions that preserve health and dignity
 Adequate medical care
 Safe custody and secure environment
 Purposeful activities
 Appropriate treatment for groups with special needs
 Appropriate treatment for detainees awaiting trial
 Professional management and staff
 Effective mechanisms for requests and complaints
 Contact with the outside world
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 Non-international armed conflicts (NIAC)

Persons deprived of their liberty for reasons

related to the armed conflict

 shall, to the same extent as the local civilian population, be

provided with food and drinking water
 be afforded safeguards as regards health and hygiene and
protection against the rigours of the climate and the dangers
of the armed conflict
 they shall be allowed to practise their religion
 places of internment and detention shall not be located close
to the combat zone
 shall have the benefit of medical examinations
 their physical or mental health and integrity shall not be
endangered by any unjustified act or omission
…
 Protection of the civilian popluation
from the effects of hostilities
• No CoH rules to impose constraints on means and methods of warfare, except the no-
quarter prohibition (Art. 4(1), APII)
o Equality of belligerents
o Weapons regulations in NIACs

• Prohibition of attacks against:

o Civilian population
o Objects indispensable to the survival of the civilian population
o Works and installations containing dangerous forces
o Cultural objects and places of worship

• Prohibition to spread terror among the civilian population

• Prohibition to order the displacement of the civilian population unless for security or
imperative military reasons 15
 Implementation and Enforcement
• Obligation to respect and ensure respect for IHL (CA 1)
• Lack of formal implementation mechanisms
• Individual criminal responsiblity
• Special Agreement and Unilateral Declaration
“The Parties to the conflict should further endeavour to bring into force, by means of
special agreements, all or part of the other provisions of the present Convention.” (CA
3(3))
• Legal status of non-State armed groups
“The application of the preceding provisions shall not affect the legal status of the
Parties to the conflict.” (CA 3(4))

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 Amnesty
• “At the end of hostilities, the authorities in power shall endeavour to
grant the broadest possible amnesty to persons who have participated
in the armed conflict, or those deprived of their liberty for reasons
related to the armed conflict, whether they are interned or detained.”
(Art. 6(5), APII)

• Serious violations of IHL cannot be granted amnesty.

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 Legal frameworks applicable to
situations of violence

IHL IHL
IHL

IHRL IHRL IHRL IHRL IHRL

National National National National National
law law law law law

armed conflict
OSV NIAC IAC
HRL IHL

Sources
Scope of application
Subjects of law
Rights and obligations
Enforcement
 International humanitarian law
& human rights law
HRL IHL
 protection and care
 Economic, social of persons adversely
& cultural rights affected by armed
conflicts
• right to health
right to life
•right to education
prohibition of torture  protection of civilians
• right to work
& ill-treatment for the effect of hostilities
• right to family life
non-discrimination
 Civil & Political Rights respect of judicial  regulation of means
guarantees and methods of warfare
• freedom of association …
• freedom of the press  providing
• freedom of conscience humanitarian relief
 International humanitarian law
& human rights law
HRL IHL
 At all times  Armed conflicts
 derogations in times of  in all circumstances
emergency

 States' rights & obligations  States' / armed groups' /

 Individual rights and duties individual duties and
obligations

 All individuals within the  Categories of persons

territory and/or subject to affected by armed conflicts
the jurisdiction of the State  Territory of the parties to
the conflict
Some of the challenges of contemporary NIACs

 Definition and threshold

 Geographical scope
 IHL and Counter-terrorism
 Interplay between IHL and IHRL
• Use of force
• Detention
Application of IHL outside the territory of the State
concerned

 Spill-over / cross-border hostilities

 Extra-territorial hostilities/targeting

A B
AF AG
Geographical Scope of Application

•“Hot zone of combat” (battlefield)

•Throughout the territory of the country involved

•Regional application (spill-over NIACs)

•Global application (“global war on terror”) ?

Case Study: Drone Strikes
 Case Study: Drone Strikes

 When can States use force in the territory of

another State?

 Under which exceptional circumstances can

lethal force against an individual be justified?

o In an “assisting” State
o In a non-neighbouring non-belligerent State
 "Fight against Terrorism"

 Can all acts of warfare of organized armed groups be labeled as

'terrorist'?
 In NIACs:
 all
such acts of violence are subject to criminal prosecution under
domestic law
 onlyunlawful acts of war may give rise to individual criminal
responsibility under IHL
 Can the label of "terrorism" or "terrorist group" affect the
characterization of a situation of violence?
 Is it armed conflict or not?
When can States use force in the territory of another
State?

Jus ad bellum

• Security Council Authorization

• Consent

• Self-Defense, Article 51 UN Charter

Under which exceptional circumstances can lethal
force against an individual be justified?

• In case of an armed conflict rendering applicable IHL

• And provided the person in question qualifies as a

legitimate target in accordance with IHL

 IHL rules on detention
• Treatment of detainees
• Material conditions of detention
• Fair trial rights (judicial guarantees)
• Grounds and process for internment

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 Non-international armed conflicts (NIAC)

Persons deprived of their liberty for reasons

related to the armed conflict

• No privilege of the combatant

• No prisoner of war status

 If captured, the "rebel fighter"

may be prosecuted under
national law for the sole fact of
having taken up arms
 Internment in NIAC
Non-criminal internment

• Common Article 3 + AP II
• Grounds? Procedural safeguards?

o Traditional NIAC
o Extraterritorial NIAC: Serdar Mohammed v. Ministry of Defence
legal grounds? “power to detain”

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 Serdar Mohammed v. Ministry of Defense
Facts:
• UK armed forces have since 2001 been participating in the International Security
Assistance Force (“ISAF”), a multinational force present in Afghanistan with the
consent of the Afghan government under a mandate from the United Nations
Security Council.
• UNSC resolutions have authorised the UN member states participating in ISAF to
“take all necessary measures to fulfil its mandate”.
• ISAF standard operating procedures permit its forces to detain people for a
maximum of 96 hours after which time an individual must either be released or
handed into the custody of the Afghan authorities.

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 Facts continued…
• Serdar Mohammed was captured by UK armed forces in April 2010 as part of a
planned ISAF mission. He was suspected of being a Taliban commander and his
continued detention after 96 hours for the purposes of interrogation was authorised
by UK Ministers. He was interrogated over a further 25 days. At the end of this
period the Afghan authorities said that they wished to accept him into their custody
but did not have the capacity to do so due to prison overcrowding. He was kept in
detention on British military bases for this ‘logistical’ reason for a further 81 days
before he was transferred to the Afghan authorities. During the 110 days in total for
which he was detained by UK armed forces he was given no opportunity to make
any representations or to have the lawfulness of his detention decided by a judge.

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 Strengthening IHL protection of detainees in NIAC
4 areas of humanitarian concerns identified by the ICRC for further elaboration:

• Conditions of detention
• Particularly vulnerable detainees
• Grounds and procedures for internment
• Transfer of detainees

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Thank
you!