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CLASSIFICATION OF CONFLICTS

CLASSIFICATION OF CONFLICTS. Non-International Armed Conflicts Prosecutor v. Boskoski & Tarculovski. IHL Applies in Any Armed Conflict. See Common Article 3 of 1949 Geneva Conv. and Additional Protocol II. Declaration of War not necessary for armed conflict to exist.

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CLASSIFICATION OF CONFLICTS

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  1. CLASSIFICATION OF CONFLICTS Non-International Armed Conflicts Prosecutor v. Boskoski & Tarculovski

  2. IHL Applies in Any Armed Conflict • See Common Article 3 of 1949 Geneva Conv. and Additional Protocol II. • Declaration of War not necessary for armed conflict to exist. • Conversely, a statement that a country is at war may not be sufficient to have legal effect for application of IHL. • Fleck, Handbook of IHL, pp. 49-50

  3. Common Article 3 of G.C.s • In NIAC, persons taking no active part in hostilities shall be treated humanely.

  4. ICTY: BOSKOSKI AND TARCULOVSKI The Test for Armed Conflict: “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups, or between such groups within a state.” B & T, para. 175 (citing Tadic Jurisdiction Decision, para. 70).

  5. Non-InternatinalArmed Conflicts Under Common Article 3 • Two Criteria: • 1) intensity of the conflict; and • 2) organisation of the parties to the conflict.

  6. Intensity • Essential Point: Common Article 3 will not apply to isolated acts of violence committed in peace time. B and T, para. 185. Ask: Are acts of violence perpetrated in isolation, or as part of a protracted campaign that entails engagement of both party in hostilities?

  7. Article 8 (2) (c) and(d) of ICC Statute • Prosecute Serious Violations of Common Article 3. • Applies to NIACs. • (d) So does not apply to situations of internal disturbances and tensions, such as riots, isolated acts of violence or other acts of a similar nature.

  8. Labels are irrelevant. • So called “Terrorist Attacks” may form part of protracted campaigns of armed violence. • IHL will apply • IHL prohibits acts of terrorism and “acts or threats of violence that primary purpose of which is to spread terror among civilian population. “ B & T, para. 187, Art. 51(2) of API

  9. While isolated acts of terrorism may not reach the threshold of armed conflict, when there is protracted violence of this type, especially when they require the engagement of the armed forces in hostilities, such acts are relevant to assessing the level of intensity with regard to existence of an A.C. • B & T, para. 190.

  10. Condemnation of “Terrorist Groups” or “Terrorist Acts” by States or international organisations does not preclude situation from being an armed conflict. • “Resolutions by the UNSC, and by States or their officials, are made on a political, not legal basis, and cannot be directly interpreted as evidence of, or a legal interpretation of, a factual state of affairs, despite the fact that such resolutions may have legal consequences.” B & T, para. 192.

  11. B & T. Exh. P474 • 5 March 2001 • Carry out partial mobilisation and raise combat readiness of the units, in order to strengthen system for security for state border.

  12. B and T. Exh. 1D51 • 18 March 2001 • Army Main Staff was “free of all constraints.”

  13. UNSC Resolution 1345 • 21 March 2001 UNSC recognised that violence constituted threat to security and stability in wider region, referred to “armed action against the authorities” and exhorted “all parties to act with restraint and full respect for IHL and human rights.” Def. Exh. 1D230.

  14. B & T, Exh. 1D50 • 3 May 2001 • In conformity with Art. 79 of the Constitution • Now “forces of the Ministry of Interior” involved. • Law of Internal Affairs – you can only engage MOI employees in combat activities in “conditions of war situation.”

  15. Exh. 1D58 • 4 June 2001 • In compliance with Art. 79 of Constitution • “Attacking operation in wider region of mountain of SkopskaCrna Gora (villages of ...), destroy the DTG and create conditions for “establishment of full control over abovementioned territory and functioning of local authorities therein.”

  16. B and T. Exh. P476 • 7 June 2001 • Mobilization of Army Units

  17. B and T. P 477 • Mobilisation of Army Units • 8 June 2001

  18. B and T. Exh. P478 • Mobilization of OganMultiple Rocket Launcher Artillery Battallion

  19. B & T. Exh. 1D100 • 11 June 2001 • In conformity with Article 79 of the Constitution • Mobilisation of 4 Army Brigades in 24 hours

  20. B and T. Exh. P481 • 5 August 2001 • Order for Army to Occupy Tetovo

  21. Systemic Level • How do State organs, such as police and military, use force against armed groups? • Do they apply human rights law, and use lethal force restrictively? • Or do they interpret their own actions according to IHL? B & T, para. 178.

  22. Prior to August 2001 • Macedonian Ministry of Interior requested domestic investigation and pre-trial confinement for NLA members for: • Endangering territorial integrity • Armed rebellion • Genocide • War crimes against prisoners of War • War crimes against civilians

  23. B and T EXHIBIT 1D193 13 August 2001 – President of Macedonia to NATO Secretary General President of Macedonia offers immunity to NLA fighters, except for those who committed crimes under jurisdiction of ICTY

  24. Organisation of the Armed Group • “For an armed group to be considered organised, it would need to have some hierarchical structure and its leadership requires the capacity to exert authority over its members.” B & T, para. 195. • “Some degree of organisation by the parties will suffice to establish the existence of an A.C. The leadership of the group must, as a minimum, have ability to exercise some control over its members so that basic obligations of Common Art. 3 may be implemented. B & T, para. 196.

  25. Degrees of Organisation • Minimal. B & T, para. 197 • Belligerent parties do not need to be as organised as armed forces of a state. B & T, para. 197. • “Some hierarchical structure and its leadership requires capacity to exert authority over its members.” B & T, para. 195

  26. If Common Article 3 applies, belligerent parties do not need to be as organised as required for APII armed conflicts: 1) have responsible command and 2) exercise such control over a part of territory to enable them to carry out sustained and concerted military operations and implement APII. B & T, para. 197.

  27. Factors Indicating “Organization” • Command Structure • Ability to Carry Out Operations in Organised Manner • Level of logistics • Level of Discipline and ability to implement IHL • Ability to Speak with One Voice

  28. Command Structure • General Staff or High Command that appoints and directs commanders, authorises military action, disseminates internal regulations, organises weapons supply, assigns tasks, issues political statements and communiques. • Receives Reports from Subordinate Units • Establishes HQ • Creates Chain of military hierarchy between levels of commanders

  29. B & T. Exh. P458 • 14 August 2001 • Communique Regarding “military agreement.”

  30. Ability to Carry Out Operations in Organised Manner • Ability to determine a unified military strategy. • Ability to conduct large scale military operations • Capacity to control territory • Division of territory into zones of responsibility • Capacity for operational units to coordinate actions • Effective Dissemination of Written and Oral Orders and Decision

  31. Logistics • Ability to Recruit New Members • Military Training • Organised Supply of military weapons. • Supply and use of uniforms • Communications Equipment to link HQ with Subordinate Units

  32. B &T. Exh. 2D55

  33. Discipline • Can the Armed Group implement basic elements of Common Article 3? • Disciplinary rules and mechanisms • Training • Internal Rules and Regulations Disseminated to members. • B & T, para. 202.

  34. B and T. P507 • 8 May 2001 • NLA will always respect Geneva Conventions

  35. Ability to Speak with One Voice • Capacity to act on behalf of its members in political negotiations with international representatives. • Ability to negotiate and conclude agreements.

  36. “Terrorist Attacks” • Violations of IHL, use of “terror,” does not necessarily imply a lack of discipline for purposes of determining the level of a group’s organization. B and T, paras. 204 – 205.

  37. Is Afghanistan a NIAC? • Multi-National Forces – Fighting on Behalf of State. • Does APII Apply? See application Paragraph • Organized Armed Groups? • Controlling Territory?

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