HOW THE LAW OF ARMED CONFLICT

(LOAC) IS TRIGGERED
HOW THE LOAC IS TRIGGERED

The LOAC is triggered by conflict, either as:

A. International Armed Conflict

B. Non-International (Internal) Armed Conflict

Once triggered, the LOAC intrudes upon the sovereignty of the regulated
State by limiting the means and methods of its application of violence in
combat, and by imposing obligations to respect and protect certain persons
and places.
State Sovereignty

Among the most fundamental aspects of State sovereignty is

freedom from external threats.
The Barrier of Sovereignty

The concept of sovereignty protects a State from outside interference in

its internal affairs. However, in times of conflict (jus in bello) the LOAC
regulates the conduct of the States.

LOAC tells combatants and the commanders that there are certain
minimum standards of behavior in conflict which, if sensibly and
professionally applied, can and will reduce the suffering of the victims of
the fighting
Law of Armed Conflict RULES

1. Distinction - Only engage military objectives. Do not

attack civilians or civilian objects.
2. Proportionality - When engaging military objectives,
ensure that expected collateral damage is not excessive to
the expected military advantage.
3. Precautions - Take all feasible precautions to avoid or
minimize collateral damage
Fundamental Values of the Law of Armed
Conflict

1. Balance between military necessity and humanity

2. Distinction between civilian/ civilian objects and military objectives
3. Reciprocity (Reprisal) is prohibited
4. All parties to conflict – State or non-State – are treated equally in their
rights and obligations
 A. International Armed Conflict (IAC)

Arises when one State unilaterally uses armed force against another State
even if the latter does not or cannot respond by military means.

There is no requirement that the use of armed force between the Parties
reach a certain level of intensity before it can be said that an IAC exists.

Example: Minor skirmishes between state armed forces, or the capture of a

single soldier, would spark an international armed conflict and lead to the
applicability of humanitarian law.
B. Non-international armed conflicts (NIAC)

Are protracted armed confrontations occurring between governmental

armed forces and the forces of one or more armed groups, or between such
groups arising on the territory of a State party to the Geneva Conventions.
The armed confrontation must reach a minimum level of intensity and the
parties involved in the conflict must show a minimum of organization.

Does not involve the armed forces of any other State.

One example is the use of the State’s armed forces against dissident, rebel
or insurgent groups. Another is two or more armed groups fighting within a
State, but not necessarily with the involvement of government troops.
1. ORGANIZATION (NIAC)

State armed forces – are presumed to be organized.

Non-State armed group - must possess organized armed forces. Such forces
have to be under a certain command structure and have the capacity to
sustain military operations.
ORGANIZATION Indicative Factors (NIAC)

• The existence of a command structure and disciplinary rules and mechanisms

within the group
• The existence of a headquarters; the fact that the group controls a certain
territory;
• The ability of the group to gain access to weapons, other military equipment,
recruits and military training;
• The ability to plan, coordinate and carry out military operations, including troop
movements and logistics;
• The ability to define a unified military strategy and use military tactics; and
• The ability to speak with one voice and negotiate and conclude agreements such
as cease-fire or peace accords
2. INTENSITY (NIAC)

may be met when hostilities are of a collective character or when the

government is obliged to use military force against the insurgents, instead
of mere police forces. For non-international armed conflict, States have
chosen to refer to a combination of common Article 3 and Article 1(2) of
Additional Protocol II
 Intensity Indicative Factors (NIAC)

• the seriousness of attacks and whether there has been an increase in

armed clashes,
• the spread of clashes over territory and over a period of time, any
increase in the number of government forces and mobilization and the
distribution of weapons among both parties to the conflict
• the conflict has attracted the attention of the United Nations Security
Council, and whether any resolutions on the matter have been passed.
• the number of civilians forced to flee from the combat zones;
• the type of weapons used, in particular the use of heavy weapons, and
other military equipment, such as tanks and other heavy vehicles;
 Intensity Indicative Factors (NIAC)

• the blocking or besieging of towns and the heavy shelling of these towns;
• the extent of destruction and the number of casualties caused by shelling
or fighting; the quantity of troops and units deployed;
• existence and change of front lines between the parties;
• the occupation of territory, and towns and villages;
• the deployment of government forces to the crisis area;
• the closure of roads; cease fire orders and agreements, and the attempt of
representatives from international organizations to broker and enforce
cease fire agreements.
Internal Disturbances

Are internal Conflicts that do not arise to the level of non-

international armed conflict.
• Banditry, riots, isolated and sporadic acts of violence and other
acts of a similar nature
Applicable Laws (IAC, NIAC, Internal
Disturbances)

IAC • Common Article 2

• Additional Protocol I

NIAC • Common Article 3

• Additional Protocol II

Internal • National Law

Disturbances
COMMON ARTICLES (GC)

It refers to the articles that are common to all four of the 1949 Geneva
Conventions. Some of the Common Articles are identically numbered, while
others are worded virtually the same but numbered differently in various
Conventions.

For example, the article dealing with special agreements is Article 6 of the
first three Conventions, but Article 7 of the fourth Convention.
COMMON ARTICLES (GC)

1. Common Article 2 – International Armed Conflict (IAC)

2. Common Article 3 – Non-International Armed Conflict (NIAC)
I. Common Article 2 – International Armed
Conflict (IAC)

• This article is broadly defined to extend the reach of the

Conventions to as many conflicts as possible.
• Any difference arising between two States and leading to the
intervention of armed forces is an armed conflict within the
meaning of Article 2, even if one of the Parties denies the
existence of a state of war
Additional Protocol I Supplements Common
Article 2

Expands the Geneva Conventions’ application to conflicts

previously considered non-International:

Example:
Armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes in
the exercise of their right of self determination
II. Common Article 3 – Non-International
Armed Conflict (NIAC)

• These types of conflicts make up the vast bulk of ongoing conflicts.

• The existence of an international armed conflict triggers the entire
body of the LOAC while the existence of a non-international armed
conflict only triggers application of Common Article 3’s “mini
convention” protections
Additional Protocol II. Supplements
Common Article 3

Additional Protocol II formalized the criteria for the application

of that Convention to a non-international armed conflict,
requiring both more formalized command structures and some
control over specific territory.
Additional Protocol II. Supplements
Common Article 3

Dissident armed forces or other organized armed groups must:

1. Be under responsible command.

2. Exercise control over a part of a State so as to enable them to
carry out sustained and concerted military operations and to
implement the requirements of AP II.
How do the Protocols fit in?

As indicated, the 1977 Additional Protocols to the 1949 Geneva

Conventions are supplementary treaties.
• AP I is intended to supplement the LOAC related to
international armed conflict (Common Article 2 conflicts)
• AP II is intended to supplement the LOAC related to non-
international armed conflict (Common Article 3 conflicts).
LOAC AND INTERNATIONAL HUMAN RIGHTS
LAW (IHRL)

International human rights law refers to a distinct body of

international law, intended to primarily protect individuals from
the arbitrary or cruel treatment by their own governments.

While the substance of human rights protections may be

synonymous with certain LOAC protections, it is critical to
remember these are two distinct bodies of international law.
LOAC AND INTERNATIONAL HUMAN
RIGHTS LAW (IHRL)

LOAC traditionally regulates wartime relations between

belligerents and civilians as well as protected individuals, usually
not one’s own citizens or nationals. LOAC largely predates IHRL
and, therefore, was never intended to comprise a sub-category
of human rights law.
LOAC AND INTERNATIONAL HUMAN
RIGHTS LAW (IHRL)

The LOAC is triggered by conflict. No such trigger is required for

international human rights law.

These two bodies of international law are easily confused,

especially because of the contemporary use of the term
“international humanitarian law” in place of “law of war” or
“law of armed conflict.”
LOAC AND INTERNATIONAL HUMAN
RIGHTS LAW (IHRL)

• The human rights system and the law of armed conflict should
be seen as complementary. Respect for human rights should not
be fragmented into time of peace and conflict. It is after all in
conflict situations that those rights are most at risk and that
civilians will look to the armed forces for protection.
Principle of Complementarity

Complementarity is a fundamental principle on which the

functioning of the International Criminal Court (ICC) is based.
Under the Rome Statute, States have the primary jurisdiction
and obligation to prosecute, punish, and prevent genocide,
crimes against humanity, war crimes and the crime of
aggression.
For that reason, the ICC will only step in when national judicial
systems fail and it can be demonstrated that the State is either
unwilling or unable to bring perpetrators to justice. The term
‘complementarity’ makes the ICC a Court of last resort.
United Nations General Assembly Resolution
3314 (XXIX) - Definition of Aggression

Any of the following acts, regardless of a declaration of war,

shall, subject to and in accordance with the provisions of article
2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the

territory of another State, or any military occupation, however
temporary, resulting from such invasion or attack, or any
annexation by the use of force of the territory of another State
or part thereof;
United Nations General Assembly Resolution
3314 (XXIX) - Definition of Aggression

(b) Bombardment by the armed forces of a State against the

territory of another State or the use of any weapons by a State
against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed

forces of another State;

(d) An attack by the armed forces of a State on the land, sea or

air forces, or marine and air fleets of another State;
United Nations General Assembly Resolution
3314 (XXIX) - Definition of Aggression

(e) The use of armed forces of one State which are within the
territory of another State with the agreement of the receiving
State, in contravention of the conditions provided for in the
agreement or any extension of their presence in such territory
beyond the termination of the agreement;

(f) The action of a State in allowing its temtory, which it has

placed at the disposal of another State, to be used by that other
State for perpetrating an act of aggression against a third State;
United Nations General Assembly Resolution
3314 (XXIX) - Definition of Aggression

(g) The sending by or on behalf of a State of armed bands,

groups, irregulars or mercenaries, which carry out acts of armed
force against another State of such gravity as to amount to the
acts listed above, or its substantial involvement therein.
War Crimes Cases

• My Lai Massacre (1968)

• Ahatovići massacre
• Korićani Cliffs massacre
My Lai Massacre (1968)

• was the Vietnam War mass killing of between 347 and 504 unarmed
civilians in South Vietnam on March 16, 1968
• committed by U.S. Army soldiers from the Company C of the 1st Battalion,
20th Infantry Regiment, 11th Brigade of the 23rd (America) Infantry
Division
• Victims included men, women, children, and infants. Some of the women
were gang-raped and their bodies mutilated.
• 26 soldiers were charged with criminal offenses, but only Lieutenant
William Calley Jr., a platoon leader in C Company, was convicted.
Ahatovići massacre

• Crime of torture (64 men and boys tortured, 56 killed)

• Serb forces put them on a bus, which they attacked with machine guns
and grenades on June 14, 1992.
• 8 survived by hiding under bodies of the dead.
Korićani Cliffs massacre

• Former detainees were killed one-by-one by being shot while

kneeling at the edge of the ravine.
• the rest were taken to be executed in groups of three. Before
leaving, the police officers also fired down on the bodies and threw
hand grenades at them.
• The massacre was carried out by members of the special response
team of the Public Security Center (CJB) of Prijedor, a Bosnian Serb
reserve police unit.
• The leader of the group that carried out the killings, Darko Mrđa was
convicted for violating laws or customs of war and sentenced to 17
years in prison
Transnational Organized Crime
• International organized criminal activity poses a threat to
world security, and in that sense, is analogous to acts of
aggression that are traditionally dealt with by international
organizations, such as the United Nations. International
• It is an assault on the three pillars of state sovereignty:
 the control of borders,
 the monopoly on the use of violence for enforcement, and
 the power to tax economic activities within state borders.
• International criminal organizations pose as an alternative to
legitimate state power, thereby undermining stability and state
control. Their espousal of corruption in government threatens
the development of democracy in many countries around the
world.
Transnational Organized Crime

The four biggest areas of transnational organized crime are:

• Drug trafficking
• Arms trafficking
• Money laundering
• Smuggling of cultural artifacts
Drug trafficking

The drug business holds great allure for organized criminals. By

some accounts, worldwide, the drug trade may be larger than
the trade in oil, with an estimated trade volume of $500 billion a
year. According to Paul Stares, "the rewards of the drug trade are
larger than the gross national product of three fourths of the 207
economies of the world.

The effects of drug trafficking on states are tantamount to an

attack on the government itself. Drug crime drains the economy,
degrades governmental legitimacy, and causes increased levels
of corruption by government officials.
Arms trafficking

• Arms trafficking, also known as gunrunning, is the trafficking of

contraband weapons and ammunition. What constitutes legal
trade in firearms varies widely, depending on local and national
laws.
• Although arms trafficking is widespread in regions of political
turmoil, it is not limited to such areas, and for example, in
South Asia, an estimated 63 million guns have been trafficked
into India and Pakistan.
• The suppression of gunrunning is one of the areas of increasing
interest in the context of international law.
Money laundering

Money laundering is the process of transforming the profits of

crime and corruption into ostensibly 'legitimate' assets.
In a number of legal and regulatory systems, however, the term
money laundering has become conflated with other forms of
financial and business crime, and is sometimes used more
generally to include misuse of the financial system (involving
things such as securities, digital currencies, credit cards, and
traditional currency), including terrorism financing and evasion
of international sanctions.
Smuggling of cultural artifacts

• Smuggling is the illegal transportation of objects, substances,

information or people, such as out of a house or buildings, into a
prison, or across an international border, in violation of applicable
laws or other regulations.

• There are various motivations to smuggle. These include the

participation in illegal trade, such as in the drug trade, illegal
weapons trade, exotic wildlife trade, illegal immigration or illegal
emigration, tax evasion, providing contraband to a prison inmate, or
the theft of the items being smuggled. Examples of non-financial
motivations include bringing banned items past a security checkpoint
(such as airline security) or the removal of classified documents from
a government or corporate office.
EXISTING LEGAL MECHANISMS
THAT RELATE TO ORGANIZED CRIMINAL ACTIVITY

• The U.N. Drug Convention

• Conventions on Money Laundering
• Anti-Corruption Agreements
• Interpol
• The European Union
• Other Regional Arrangements
• Extradition Treaties
• Mutual Legal Assistance Treaties
• Domestic Law