The first step in application by treaty of IHL norms to non-international armed conflicts, adoption of Common Article 3 of the Geneva Conventions, 1949, was taken before the dramatic development of international human rights law (IHRL). The assumption was that unless international humanitarian law (IHL) norms were applied to such conflicts, the way States acted would be unrestrained by international law. With the development of IHRL this assumption is no longer valid. Application of IHL in such conflicts should therefore be re-examined. The Article argues that moving away from IHL in non-international armed conflicts should be based on the following principles: 1. In cases other than international armed conflicts, the presumption should be that the prevailing international legal regime is the human rights regime, based as it is on a law-enforcement model of law, rather than an armed conflict model. 2. The only justification for departure from that regime and for action under the armed conflict model, should be that the level and scope of organized armed violence are such that the State cannot reasonably be expected to act in accordance with the law-enforcement model. The rule of thumb in deciding whether this test has been met could be the definition of non-international armed conflicts adopted in APII. 3. There should be a return to the notion of minimum humanitarian standards or fundamental standards of humanity, which apply to all Parties in all situations, whether armed conflict, internal violence, disturbances, tensions and public emergencies. 4. A State should not be allowed to employ the armed conflict model, without at least some of the norms of protection that this model affords Parties in international armed conflicts. The ideal solution would be to demand that a State, which employs the armed conflict model has to draw the legal consequences and recognize as combatants those members of dissident forces who meet the substantive conditions of combatants under Article 4, paragraph 2 of Third Geneva Convention.
1 See Greenwood, Christopher, Scope of Application of Humanitarian Law, in The Handbook of International Humanitarian Law 45, 55 (Fleck, Dieter ed., 2008).
2 U.N. Charter, art. l(3).
3 UDHR, preamble.
4 On the legislative function of international treaties see Boyle, Alan & Chinkin, Christine, The Making of International Law 233–62 (2007).
5 This does not imply, of course, that these treaties do not impose inter-State obligations on the States Parties. See Human Rights Committee, General Comment No. 31  Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 2, U.N. Doc. CCPR/C/21/Rev.l/Add.13 (May 26, 2004) [hereinafter General Comment No. 31] in which the Human Rights Committee states:
While article 2 [of the ICCPR] is couched in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms. Furthermore, the contractual dimension of the treaty involves any State Party to a treaty being obligated to every other State Party to comply with its undertakings under the treaty.
6 See Pictet, Jean, Humanitarian Law and the Protection of War Victims 14–15 (1975).
7 See, e.g., Provost, René, International Human Rights and Humanitarian Law, (2002); Meron, Theodor, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239 (2000); Hampson, Françoise & Salama, Ibrahim, Working Paper, The Relationship between Human Rights Law and International Humanitarian Law, U.N. Doc. E/CN.4/Sub.2/2005/14 (June 21, 2004); Watkin, Kenneth, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 Am. J. Int'l L. 1 (2004); Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict, 860 Int'l Rev. Red Cross 737 (2005); Special Issue: Parallel Application of IHR and IHL, 40 (2) Isr. L. Rev. (2007).
8 See generally Rogers, A.P.V., Law on the Battlefield (2nd ed. 2004) (discussing development of the law of war); Neff, Stephen C., War and the Law of Nations—A General History (2005).
9 Commentary On Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War 46, para. 1 (Pictet, J.S. ed., 1958) [hereinafter Pictet Commentary].
10 See Moir, Lindsay, The Law of Internal Armed Conflict 4–18 (2002); Lootsteen, Yair M., The Concept of Belligerency in International Law, 166 Mil. L. Rev. 109 (2000).
11 In 1912 a draft convention on the role of the Red Cross in civil wars and insurrections was submitted to the International Red Cross Conference. However, the Pictet Commentary explains that applications by foreign Red Cross societies or the ICRC for permission to do relief work in such conflicts had “more than once been treated as unfriendly attempts to interfere in the domestic affairs of the country concerned.” See Pictet Commentary, supra note 9, at 27. The subject was therefore not even discussed.
12 See Moir, supra note 10, at 23; Pictet Commentary, supra note 9, at 29-31.
13 This is the official position of the United States. See, e.g., U.S. Responses to Selected Recommendations of the Human Rights Committee, Oct. 10, 2007, available at www.state.gov/documents/organization/100845.pdf, and documents cited by Melzer, Nils, Targeted Killings in International Law 79 (2008). The Government of Israel has also consistently argued that since the applicable regime in the West Bank is IHL, the international human rights regime does not apply there. See, e.g., U.N. Human Rights Committee, International Covenant on Civil and Political Rights Second Periodic Report, para. 8, U.N Doc. CCPR/C/ISR/2001/2 (Nov. 20, 2001). It should be noted, however, that the Supreme Court of Israel does not seem to share this view and has more than once referred to Israel's human rights obligations in cases relating to the West Bank. See, e.g., HCJ 3239/02 Marab v. The IDF Commander in the West Bank  IsrSC 57(2) 349, English translation, available at http://elyon1.court.gov.il/files_eng/02/390/032/A04/02032390.a04.htm HCJ 10356/02; see also HCJ 10356/02 Yoav Hass v. The IDF Commander in Judea and Samaria  IsrSC 58 (3) 443.
14 See Dennis, Michael J., Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 Am. J. Int'l L. 119 (2005).
15 The European Convention of Human Rights (ECHR) and the American Convention on Human Rights (ACHR) refer only to persons subject to the jurisdiction of the State. The meaning in the context of human rights conventions of the tern “jurisdiction” has been discussed by various courts and treaty bodies. In Turkey, Loizidou v., 310 Eur. Ct. H.R. (ser. A) (1995) (Preliminary Objections) the European Court of Human Rights held that the jurisdiction of a State may extend beyond its national territory to territory over which it has effective control as a consequence of military action. In Banković v. Belgium, 2001–XII Eur. Ct. H.R. 333 the same Court held that jurisdiction of a State outside its own borders is exceptional. The Court refused to accept that persons who had been killed by NATO aerial bombings in the Kosovo campaign were subject to the jurisdiction of the States that camed out the bombings. On the other hand, the UN Human Rights Committee has taken the view that anyone who is within the power or effective control of a State is subject to that State's jurisdiction: General Comment No. 31, supra note 5, para. 10. See also Melzer, supra note 13, at 124-39.
16 Dennis, supra note 14.
17 See, e.g., Moir, supra note 10, at 196: “Although they may be seen as a limiting factor in the protection of civilians, the inclusion of the derogation clauses in human rights instruments actually serves to underline that human rights continue to apply in times of armed conflict.” See also Gaggioli, Gloria & Kolb, Robert, A Right to Life in Armed Conflicts: The Contribution of the European Court of Human Rights, 37 Isr. Y.B. Hum. Rts. 115 (2007); Melzer, supra note 13, at 76.
18 See Greenwood, supra note 1, at 49-50.
19 One of the exceptional cases in which lethal force may be used, when absolutely necessary, is “defence of any person from unlawful violence.” While there may indeed be instances when use of force in an armed conflict is covered by this exception, jus in bello does not limit use of lethal force against combatants to cases which are covered by it. Firstly, assuming that combatants of the enemy have acted according to the laws and customs of war, and have only targeted combatants and military targets, their violence would not be regarded as unlawful. It is perfectly lawful to shoot an enemy combatant in order to defend one's own combatants, even though they are not being defended against unlawful violence. Second, it is generally accepted that the said exception to the prohibition on use of lethal force applies only when the violence against which one is protecting oneself or others is imminent, leaving no time for deliberation and no alternative means of protection, such as arresting the person involved. Under jus in bello it is lawful to target combatants of the enemy at any time, unless they are hors de combat. There is no obligation to try to apprehend them before using lethal force. On the interpretation of the provisions of the ECHR in armed conflict situations see below.
20 Under Article 4 of the ICCPR official proclamation of a State of emergency is a prerequisite for derogation from obligations of the State Party. See Human Rights Committee, General Comment No. 29 on States of Emergency, para. 2 U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001). After derogating from its obligations the State Party must also immediately notify the other States, through the Secretary General of the UN, of the provisions it has derogated from and the reasons for the derogation. This latter duty would seem to be parallel to the duty, under Article 51 of the UN Charter, of States that use force in exercise of their inherent right to self-defense to immediately report to the Security Council on the measures taken. While the legality of derogations is dependent, inter alia, on the official proclamation, it is not dependent on the subsequent notification. Similarly, while a State which does not inform the Security Council of measures taken in self-defense violates its Charter obligations, this violation does not of itself affect the legality of those measures.
21 In Russia, Isayeva v., 41 Eur. Ct. H.R. 847 (2005) the ECtHR intimated that since Russia had not declared a state of emergency and had not derogated from any of its obligations under Article 15 of the ECHR its operation against Chechen rebels “has to be judged against a normal legal background.” (Id. para. 191). Melzer notes that having said this, the Court in fact resolved the case before it according to the paradigm of hostilities “including the prohibition on indiscriminate attacks and the obligation to distinguish between armed insurgents and the civilian population …” Melzer, supra note 13, at 391.
22 See Simpson, A.W. Brian, Human Rights and the End of Empire: Britain and the Genesis of the European Convention 875 (2001).
23 Legality of the Threat or Use of Nuclear Weapons, at 25.
24 In its Advisory Opinion on the separation barrier, the ICJ confirmed the position of LOAC as lex specialis, when it stated:
the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.
See Legal Consequences of the Construction of a Wall, para. 106.
25 For a comprehensive discussion of the background see Elder, David A., The Historical Background of Common Article 3 of The Geneva Conventions of 1949, 11 Case W. Res. J. Int'l L. 37 (1979).
26 See Commentary on Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 4342 (Sandoz, Yves, Swinarski, Christophe, & Zimmermann, Bruno ed., 1987). In discussing the situation prior to 1949 the Commentary states: “Positive law has very largely abstained from laying down rules governing non-international armed conflict. According to traditional doctrine, States were the only sovereign entities considered to be subjects of international law; thus the laws of war, which were conceived to govern international relations, were not applicable in internal conflicts.” See also the sources cited in Cullen, Anthony, Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law, 183 Mil. L. Rev. 66 (2005); U.K. Ministry of Defence, The Manual of the Law of Armed Conflict, 16 para. 1.33.3. (2004).
27 UDHR, preamble.
28 The UN Charter does indeed contain provisions relating to protection of human rights but these are of a general nature and do not impose specific obligations on member States that relate to the relationship between them and their citizens or subjects.
29 See Kolb, Robert, The Relationship between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions, 324 Int'l Rev. Red Cross 409 (1998).
30 See Elder. supra note 25, at 57.
32 See Pictet Commentary, supra note 9, at 36.
33 The Pictet Commentaries to the four Geneva Conventions were published in the nineteen-fifties before the two International Covenants had been adopted. Writing later Pictet was more aware of the existence of the parallel system of human rights. He thought, however, that the IHL and human rights law should remain distinct: see Pictet, supra note 6, at 13-15.
34 There will, of course, be differences in the body of law that applies to international and non-international armed conflicts although in recent years these differences are being narrowed.
35 Reisman, W. Michael, Editorial Comment: Holding the Center of the Law of Armed Conflict, 100 Am. J. Int'l L. 852, 856 (2006): “In the period after World War II, Part B enjoyed a dramatic expansion, signaled by the installation in the legal lexicon of the rather Orwellian term ‘international humanitarian law’ in place of the erstwhile grim designations ‘law of war’ and ‘law of med conflict.’”
36 For an excellent discussion of the fundamental “non-humanitarian” premises of LOAC, see Berman, Nathaniel, Privileging Combat: Contemporary Conflict and the Legal Construction of War, 33 Colum. J. Transnat'l L. 1 (2004).
37 See Government of Israel, First Statement, Dec. 28, 2000, para. 286, cited in Sharm el Sheikk Fact-Finding Committee Report n. 11 (May 20, 2001), available at http://www.mideastweb.org/mitchell_report.htm.
38 I have discussed these different models of law elsewhere. See Kretzmer, David, Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Self-Defence?, 16 Eur. J. Int'l L. 171, (2005); see also Watkin, Kenneth, Maintaining Law and Order during Occupation: Breaking the Normative Chains, 41 Isr. L. Rev. 175 (2008); Melzer, supra note 13, at 157-67.
39 The Supreme Court of Israel has held that the situation in the Occupied Territories at the height of the violence there, was one of active armed conflict: HCJ 7015/02 Ajuri v. The IDF Commander  IsrSC 56(6) 352, English translation, available at http://elyon1.court.gov.il/files_eng/02/150/070/a15/02070150.a15.HTM; Marab v. The IDF Commander, supra note 13; HCJ 3451/02, Almadani v. The IDF Commander in Judea & Samaria  IsrSC 56(3) 30. It has also held that it is an armed conflict of an international character: See HCJ 769/02 Public Committee against Torture in Israel v. The Gov't of Israel  IsrSC 57(6) 285. The latter view is supported by Professor Antonio Cassese: Antonio Cassese, Expert Opinion on Whether Israel's Targeted Killings of Palestinian Terrorists Is Consonant with International Humanitarian Law (June 13, 2003), expert opinion written at the request of the petitioners in Public Committee against Torture in Israel v. The Government of Israel, id., available at http://www.stoptorture.org.il/files/cassese.pdf. On the other hand, the Human Rights Inquiry Commission established by the UN Commission on Human Rights in early 2001 could not decide whether an active armed conflict existed or not. However, it opined that if an armed conflict existed, it should be regarded as one of a non-international character, since only one State was involved: UN Commission on Human Rights, Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine: Report of the Human Rights Inquiry Commission, paras. 39-40, UN DOC. E/CN.4/2001/121 (Mar. 16,2001), available at http://ap.ohchr.org/documents/alldocs.aspx?doc_id=2260.
40 See Public Committee against Torture in Israel et al. v. The Govt's of Israel and the Opinion of Professor Cassese, supra note 39.
41 On the notion of the class threat of soldiers as a basis for the vulnerability of combatants to attack even when they present no immediate danger to the enemy see Walzer, Michael, Just and Unjust Wars 144–47(3rd ed. 2000).
42 See Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, para. 70 (Oct. 2 1995); Greenwood, supra note 1, at 46.
43 Of course outside the context of an armed conflict there is no distinction between civilians and non-civilians or combatants.
44 Tadić case, supra note 42, at para. 70.
45 According to Article 13 of APII to the Geneva Conventions, civilians must be protected at all times, “unless and for such time as they take a direct part in hostilities.” By singling out civilians for protection the APII implies that “non-civilians” do not enjoy similar protection. Admittedly APII only applies to certain types of non-international armed conflicts. However, the ICRC Study on Customary International Humanitarian Law came to the conclusion that the principle of distinction is part of customary law in all non-international armed conflicts: Henckaerts, Jean-Marie & Beck, Louise Doswald, 1 Customary International Humanitarian Law, Rule 1: Principle of Distinction 3–8 (2005) [hereinafter ICRC Study].
46 See Nolte, Georg, Preventive Use of Force and Preventive Killings: Moves into a Different Legal Ordel, 5 Theoretical Inq. L. 111 (2004). Also see Kremnitzer, Mordechai, Menashe, Doron, & Ghanayim, Khalid, The Use of Lethal Force by Police, 53 Crim. L. Q. 67 (2007).
47 Public Committee against Torture v. The Gov't of Israel, supra note 39.
48 See Kretzmer, supra note 38; Ben-Naftali, Orna & Michaeli, Keren, “We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings, 36 Cornell Int'l L.J. 223 (2003); and Melzer, who, after pointing out the difficulties of conceding lawfulness of targeted killings under a law-enforcement regime, concludes that “the international normative paradigm of law-enforcement permits the resort by States to the method of targeted killings only in very exceptional circumstances.” Melzer, supra note 13, at 424,
49 See, e.g., Turkey, Güleç v., 1998 IV Eur. Ct. H.R. (July 27, 1998); McKerr v. United Kingdom, 2001-III Eur. Ct. H.R.; Jordan v. United Kingdom, 2001-III Eur. Ct. H.R. (2001); Kelley and Others v. United Kingdom, App. No. 30054/96, Eur. Ct. H.R. (May 4, 2001); Shanaghan v. United Kingdom, App. No. 37115/97, Eur. Ct. H.R. (May 4, 2001); Isayeva v. Russia, App. Nos. 57847/ 00, 57948/00, 57949/00, 57950/00 Eur. Ct. H.R. (Feb. 24, 2005), see also supra note 21; Khamila Isayeva v. Russia, App. No. 6846/02, Eur. Ct. H.R. (Nov. 15, 2007); see also Gaggioli & Kolb, supra note 17. For views of Human Rights Committee see, e.g., U.N. Human Rights Committee, Herrera Rubio v. Colombia, International Covenant on Civil and Political Rights, Communication No. 161/1983, para. 11, U.N. Doc. CCPR/C/31/D/161/1983 (Nov. 2 1987) and General Comment No. 31, supra note 5, para. 8.
50 Thus Article 121 of GCIII provides that:
[e]very death or serious injury of a prisoner of war caused, or suspected to have been caused by a sentry, another prisoner of war, or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official inquiry by the Detaining Power.
Under Article 131 of GCIV such an enquiry is required when a civilian internee dies or is serious injured. See also Melzer, supra note 13, at 432-33; Doswald-Beck, Louise, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide all the Answers?, 88 Int'l Rev. Red Cross 881 (2006).
51 See Article 51 (5) (b) of API to the Geneva Conventions.
52 The situation may be different if the innocent persons are those whom the authorities are aiming to protect by attacking the target. Thus, for example, if terrorists are being held hostage, it may be legitimate to use force against the terrorists in the attempt to free those hostages, even though it is known that some of the hostages themselves might be killed or wounded by that use of force.
53 For analysis of the issue of criminal liability and the possibility of raising the necessity defense in this context see Hornle, Tatjana, Hijacked Airplanes: May They Be Shot Down?, 10 New Crim. L. R. 582 (2007). See also Özkan v. Turkey, App. No. 21689/93 (Apr. 6 2004) in which the ECtHR held that when Turkish forces returned massive fire after being fired upon from a village, the use of force could not be regarded as disproportionate even though a young girl was seriously injured by the fire. The Court emphasized, however, that in reaching this conclusion it had taken into consideration that, apart from the young girl, “no civilians were injured as a result of the security forces' intensive firing.” (Id. para. 305). The Court found that in the circumstances the force used by the security forces could be regarded as absolutely necessary for protecting life (id. para. 306). It should be noted that in this case the situation was one of reaction to a life-threatening situation, in which the response was judged according to the demand stated in Article 2 of the ECHR that any use of lethal force be absolutely necessary to achieve one of the aims mentioned there. In IHL the rule of proportionality is relevant even when an attack is planned against a target that does not present any immediate danger.
54 But see supra note 52 regarding the situation when the innocent persons are endangered in an attempt to save their lives, rather than other interests.
55 Under normal rules of criminal law, if I know to a fair degree of certainty that an act that I am about to commit will result in the death of a person I shall be regarded as having intentionally caused the death, even if that result was not my motive. Thus, for example, Article 30 of the Rome Statue states:
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
56 See judgment of the First Senate of Feb. 15,2006 in 1 BvR 357/05 (English version, available at http://www.bundesverfassungsgericht.de/en/decisions/rs20060215_1bvr035705en.html). It should be noted that the Court did not deal with the question of whether in an actual case in which a plane was shot down the persons involved in shooting down the plane would be criminally liable or not. For discussion of this question see Hornle, supra note 53. See generally Huskisson, Darren C., The Air Bridge Denial Program and the Shootdown of Civil Aircraft under International Law, 56 A.F.L. Rev. 109 (2005).
57 See ICRC study,.supra note 45, at Rules 46-49.
58 It is important in this context to make a distinction between a case in which the force used aims to save the innocent persons who may be harmed, such as a hostage case, and a case in which the force is used to protect others, such as a case in which police fire at a gunman who is hiding in a crowd. See supra note 52.
59 See, e.g., Turkey, Ergi v., 31 Eur. Ct. H.R. 388 (1998); Özkan v. Turkey, supra note 53; Isayeva et al. v. Russia, supra note 49; Isayeva v. Russia, supra note 21, at 46.
60 For discussion of the approach of the ECtHR in these cases see Heintze, Hans-Joachim, The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts, 45 Ger. Y.B. Int'l L. 60 (2002); Abresch, William, A Human Rights Law of Internal Armed Conflict: the European Court of Human Rights in Chechnya, 16 Eur. J. Int'l L. 741 (2005); Doswald-Beck, supra note 50; Melzer, supra note 13, at 393.
61 See Abresch, supra note 60, at 745-46.
62 Article 6 of the ICCPR forbids “arbitrary” deprivation of life; thus lending itself to the idea that what is arbitrary may be determined by the lex specialis. Article 2 of the ECHR prohibits intentional deprivation of life, but recognizes three exceptional cases in which deprivation of life shall not be regarded as a violation of the right to life provided the force used is no more than absolutely necessary. But see Abresch, supra note 60, at 745, who argues that in the light of Article 15, discussed above, the argument for lex specialis under the ECHR is even stronger than under the ICCPR. The problem with this approach, as Abresch himself concedes, is that no state has ever derogated from the right to life in order to allow it to justify causing death by “lawful acts of war.”
63 See, e.g., the decisions cited in infra notes 65 & 66.
64 See Melzer, supra note 13, at 392.
65 See Ergi v. Turkey, supra note 59; Isayeva et al. v. Russia, supra note 49.
66 See, e.g., Özkan v. Turkey, supra note 53, in which the Court stressed that besides the deceased daughter of one of the complainant, “no civilians were injured; Isayeva et al. v. Russia, supra note 49 where the Court once again referred to damage to civilians.
67 This would seem to be the approach of Doswald-Beck, supra note 50.
68 See Abresch, supra note 60.
69 See Melzer, supra note 13, at 392-93.
70 See Banković v. Belgium, supra note 15.
71 See Meron supra note 7, at 240: “The law of armed conflict regulates aspects of a struggle for life and death between contestants who operate on the basis of formal equality.”
72 Id. at 243.
73 On departure from the reciprocity principle in LOAC see Meron, id.
74 Vienna Convention on the Law of Treaties, art. 60, para. 5, May 23, 1969, 1155 U.N.T.S. 331.
75 ICRC Study, supra note 45. at 498. Also see Prosecutor v. Kupreškić. Case No. IT-95-16-A Judgment, para. 511 (Jan. 14, 2000).
76 According to Article 3:
In the case of armed conflict not of an international character occuning in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
77 Under Common Article 3 conflict between different non-State organized groups occurring in the territory of a State could be an armed conflict. The relationship between the Parties in this type of conflict could be symmetrical.
78 For an excellent discussion see Pejic, Jelena, Procedural Principles and Safeguards for Internment/administrative Detention in Armed Conflict and Other Situations of Violence, 858 Int'l Rev. Red Cross 375 (2005).
79 It may be argued that under the necessity principle it should be forbidden to target enemy combatants who have not surrendered when it may be possible to capture them as prisoners of war: see Gaggioli & Kolb, supra note 17. However, this is not the norm as it stands, as is clear from Article 41 of API. See Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict 145 (2004).
80 See, e.g., APII, art. 13 that specifically states: “The civilian population and individual civilians shall enjoy protection against the dangers arising from military operations.” Article 13 (2) provides: “The civilian population as such, as well as individual civilians, shall not be the object of attack.”
81 See APII, art. 13 (3): “Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.”
82 I have presented the argument elsewhere. See Kretzmer, supra note 38.
83 See Commentary on Protocol Additional to the Geneva Conventions, supra note 26, para. 4789 (June 8, 1977) (stating that “[t]hose who belong to armed forces or armed groups may be attacked at any time”).
84 See Schmitt, Michael N., Garraway, Charles H.B. & Dinstein, Yoram, The Manual on the Law of Non-International Armed Conflict With Commentary (2006), printed as a supplement in 36 Isr. Y.B. Hum. Rts. (2006). Rule 1.1.2 states: “a. For the purposes of this Manual, fighters are members of armed forces and dissident armed forces or other organized armed groups, or taking an active (direct) part in hostilities.” The Manual rejects the idea that fighters may only be targeted while taking a direct part in hostilities: see paragraph 4 of the commentary to the above rule. See also Melzer, supra note 13, at 312-13.
85 Public Committee against Torture in Israel v. Government of Israel, supra note 39.
86 This provision is not restricted in its scope, but the general understanding is that amnesties should not be granted for war crimes, which include, of course, intentional killing of persons not taking active part in hostilities. Thus the main object of this provision is to provide amnesty for acts (such as targeting members of the armed forces of the State) which may be crimes under domestic law, but are not international crimes.
87 See Statutes of International Committee of the Red Cross, arts. 4.1.d. & 4.2, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/icrc-statutes-080503. In “Legal bases: extract from ICRC Annual Report 2007,” available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/annual-report-legal-bases-2007 the mandate is described as follows:
in the event of internal disturbances and tensions, and in any other situation that warrants humanitarian action, the ICRC also enjoys a right of initiative, which is affirmed and recognized in the Statutes of the International Red Cross and Red Crescent Movement. Thus, wherever IHL does not apply, the ICRC may offer its services to governments without that offer constituting interference in the internal affairs of the State concerned.
88 See Turku Declaration on Minimum Humanitarian Standards (Dec. 2, 1990), available at http://web.abo.fi/instut/imr/publications/publications_online_text.htm.
89 See U.N. Econ. & Soc. Council, Sub-Comm. on Human Rights, Report of the Secretary General submitted pursuant to Commission Resolution 2000/69, Promotion and Protection of Human Rights: Fundamental Standards of Humanity, U.N. Doc. E/CN.4/2001/91 (Jan. 12, 2001); Human Rights Council, Report to the Secretary General, Annual Report of the U.N. High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary General, Fundamental Standards of Humanity, U.N. Doc. A/HRC/8/14 (June 3, 2008). See also Meron, supra note 7.
90 Tadić case, supra note 42, para. 119. For a detailed analysis of the way the Tadić definition has been interpreted in ICTY jurisprudence see Prosecutor v. Haradinaj, Case No. IT-04-84-T, Trial Chamber, paras. 37-100 (Apr. 3,2008).
91 See Jochnick, Chris, Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights, 21 Hum. Rts. Q. 56 (1999); Clapham, Andrew, Human Rights Obligations of Non-State Actors (2006).
92 For discussion of the definition of the term “non-international armed conflict,” and its development in international law see Moir, supra note 10; Cullen, supra note 26.
93 Tadić case, supra note 42, para. 70.
94 Rome Statute of the International Criminal Court, art. 8, July 17, 1998, 2187 U.N.T.S. 90. Article 8 (f) refers to “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”
95 See Gagglio & Kolb, supra note 17 (suggesting a similar concept).
96 See Gagglio & Kolb, id.
98 See cases cited in supra note 59.
99 See Abresch, supra note 60; Doswald-Beck, supra note 50; Heintze, supra note 60; Melzer, supra note 13, at 392–93.
100 These conditions are:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
* The Hebrew University of Jerusalem; Transitional Justice Institute, University of Ulster; Academic Center of Law and Business, Ramat Gan.
The author would like to thank Dr. Yaël Ronen and anonymous readers for their helpful comments.
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