Challenges of Contemporary Armed Conflicts Case Study
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages
1. In view of all the challenges mentioned in the texts, do you think that IHL is still relevant to regulate organized violence in the contemporary world? Are some of these forms of violence new? Does, or should, IHL apply to them?
2. How could interpretations of IHL be harmonized? Is there a need to clarify further the rules of IHL?
II. Direct Participation in Hostilities [Parts A and B.]
[See ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities]
a. May anyone be outside the scope of IHL? Wouldnt that be contrary to the object and purpose of IHL? What are the legal arguments, if any, in favour of this interpretation? What are the legal arguments in favour of the second interpretation (according to which only common Art. 3 and Art. 75 of Protocol I apply to civilians directly participating in hostilities)? In your opinion, which rules of IHL apply to civilians who directly participate in hostilities: while they are actually doing so? Once they are in the power of the enemy? (GC IV, Arts 3 and 4; P I, Art. 51(3); P II, Art. 13(3); CIHL, Rule 6)
b. Does IHL contain any explicit reference to unlawful combatants? What is the purpose of some governments in creating such a category of person? [See Israel, The Targeted Killings Case, and Israel, Detention of Unlawful Combatants] To whom does it refer? What would be the dangers of creating such a category? What are the ICRCs views on that subject?
4. Is it easy to draw a line between taking direct part and not taking part in hostilities? When does direct participation in hostilities start? When does it end? Can the preparation of an attack be considered as direct participation in hostilities? When does a civilian lose immunity from attack? What are the dangers of a blurred definition of direct participation?
5. [Parts A. and B.] If civilians directly participating in hostilities fall into enemy hands, according to which status must they be protected? Does the fact that they were participating in hostilities when captured have any consequences for their treatment during detention? Do you agree that unprivileged belligerents have minimal or no rights? In international armed conflict, what kind of protection are they entitled to? In non-international armed conflict? (GC IV, Arts 3, 4 and 5)
III. Related Conduct of Hostilities Issues [Part A.]
[See Eritrea/Ethiopia, Awards on Military Objectives, and United States/United Kingdom, Report on the Conduct of the Persian Gulf War]
6. In your opinion, what does the criterion of effective contribution to military action cover? Does it cover all war-sustaining capabilities? Why did the drafters add the second criterion to the definition (whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage)? What would have been the dangers of defining military objectives solely on the basis of the first criterion? (P I, Art. 52(2) and (3); CIHL, Rule 8)
a. Is there a fixed borderline between civilian objects and military objectives? Why/Why not? Are there any lists of military objectives? Why/Why not? Should/could such lists be drafted? (P I, Art. 52(2) and (3); CIHL, Rule 8)
b. When may a civilian object be attacked? May a civilian object be automatically attacked when it is concurrently used for civilian and military purposes? Are effects upon the civilian purposes of a dual-use object incidental effects subject to the proportionality principle? Is incidental damage to so-called dual-use objects more easily accepted? [See Federal Republic of Yugoslavia, NATO Intervention] (P I, Arts 51(5)(b), 52(2) and (3); CIHL, Rule 8, 9 and 14)
a. Does the principle of proportionality give permission to cause incidental loss of life among civilians? How do you calculate proportionality? Is it easy to determine at which point an incidental loss of civilian life becomes excessive compared to the concrete and direct military advantage? (P I, Arts 51(5)(b), and 57(2)(a)(iii), CIHL, Rule 14) [See Israel/Gaza, Operation Cast Lead]
b. May the concrete and direct military advantage refer to a campaign of attacks as a whole, or only to individual attacks? (P I, Arts 51(5)(b); CIHL, Rule 13)
a. Does the proportionality principle cover the long-term effects of an attack on the civilian population? The long-term military advantages? Could envisaging long-term military advantages justify larger incidental losses of civilian lives? Could long-term effects include knock-on effects on the natural environment? (P I, Arts 35(3) and 55, CIHL, Rules 44 and 45)
b. If the knock-on effects are taken into account, does it mean that an attack on a military objective that would cause no civilian loss of life, injury or damage in the short-term may still be unlawful if it is expected to cause damage in the long-term? How long should those effects be taken into account?
[See Case Study, Armed Conflicts in the former Yugoslavia]
10. According to the ICRC, in striking a balance between the protection of armed forces and the protection of civilians, which protection counts more? Should the safety of the armed forces be taken into account at all? In the proportionality evaluation of whether an attack has excessive incidental effects on civilians? In evaluating the feasibility of precautionary measures? Is it realistic to say that it should not? (P I, Arts 51(5)(b) and 57; CIHL, Rules 14-21)
11. Is the obligation to take precautionary measures greater for the attacker than for the defender? If the defender fails to take the required precautions and, for instance, locates military objectives within civilian areas, does this relieve the attacker of the obligation to take precautionary measures? (P I, Arts 51(7) and (8), and 58; CIHL, Rules 14-24)
12. What are the attackers legal responsibilities if the defender uses civilians or civilian objects to shield military objectives? When is the attack prohibited? Which additional measures must be taken? (GC IV, Art. 28; P I, Arts 51(7) and (8) and 58; CIHL, Rules 14-21 and 97) [See Israel/Lebanon/Hezbollah, Conflict in 2006]
Asymmetric and Urban Warfare [Part B.]
13. What do the concepts of asymmetric warfare and urban warfare refer to? Is IHL still relevant to regulate such situations? Are such situations new? Do these new situations not reveal the limits of IHL?
14. Is respect for IHL subject to reciprocity? Do the repeated violations of IHL by one party lessen the other partys obligation to respect IHL? How should a party react to repeated violations of IHL by its enemies?
IV. The Concept of Occupation [Part A.]
[See Israel, Applicability of the Fourth Convention to Occupied Territories, and Eritrea/Ethiopia, Awards on Occupation]
15. What are the traditional conditions for a territory to be considered occupied? (HR, Art. 42; GC IV, Art. 2) Are the conditions of applicability different for occupation law norms contained in the Hague Regulations and the Fourth Geneva Convention?
a. What is the exact meaning of effective control for the purposes of occupation? At which point may a party to a conflict be considered to have effective control over the other partys territory? Is effective control required for the provisions contained in the Hague Regulations to apply? For the provisions of Convention IV to apply? (HR, Art. 42; GC IV, Art. 2)
b. To what extent does the functional approach to occupation reinterpret the criterion of effective control of the territory? What is the ultimate purpose of this approach? What are the consequences for the protection of civilians?
c. According to the functional approach, when would a territory be occupied? Is it occupied as soon as the enemy forces enter the territory? Or is it necessary that they exercise complete and exclusive control over persons and/or facilities in that territory over a certain period of time? Can some provisions of Convention IV relating to occupation be implemented as soon as the enemy forces enter the territory? If yes, which ones?
d. If Part III, Section III, of Convention IV on occupied territories is not applicable during an invasion phase, are enemy civilians arrested by invading forces nevertheless protected civilians? Are they covered by Section II? Can there be protected civilians covered neither by Section II nor by Section III, but only by Section I? By no substantive rules of Part III?
a. Is the law of occupation appropriate to UN operations? Do they fulfil the same goals? Is that relevant for the applicability of the law of occupation? [See Iraq, Occupation and Peacebuilding]
b. Would it be necessary to reinforce, clarify or develop the rules of occupation, or even to create a new set of rules exclusively for occupation by UN multinational forces? Why/why not?
V. Non-International Armed Conflict and IHL [Parts A. and B.]
18. [Part B.] Is common Art. 3 now considered as part of jus cogens? If it is, what are the consequences? (GC I-IV, common Art. 3)
19. Is the ICRCs customary law study sufficient to improve the law applicable to non-international armed conflict? What could the next step be to improve the law applicable to such conflicts? [See ICRC, Customary International Humanitarian Law]
VI. IHL and the Fight Against Terrorism [Parts A. and B.]
[See United States, The September 11, 2001 Attacks, and United States, The Schlesinger Report]
20. What is the difference between lawful acts of war and acts of terrorism? May States label as terrorist all acts of warfare committed by organized armed groups not belonging to a State? (GC IV, Art. 33; P I, Arts 37, 48, 51, 52, 57, 58, 85; P II, Arts 4(2)(d) and 13(2); CIHL, Rules 1-21, 57, 106)
21. Why, as a rule, are terrorist activities not imputable to a State under international rules on State responsibility? In which cases can a terrorist act be imputable to a specific State? [See International Law Commission, Articles on State Responsibility]
22. [Part A.]
a. Do you agree with the argument that the law enforcement paradigm is not adequate to combat terrorist acts? Does it mean that all acts of terrorism should come within the scope of IHL? Would that be legally possible?
b. Do you agree with the view that transnational violence fits neither the definition of international armed conflict nor that of non-international armed conflict? Cannot a conflict between a State and an armed group operating from outside that State be considered as a non-international armed conflict? Do you think a new category should be created under IHL?
23. [Part B.] Does the notion of global war on terror consider the world as a global battlefield? That acts of violence perpetrated around the world can be attributed to one global non-state party? What is the geographical field of application of the IHL of international armed conflicts? Of the IHL of non-international armed conflicts? Would it be appropriate to apply IHL to any act performed during the global armed conflict? At least if committed by a member of the global non-state party? What are the dangers of such a concept for the protection of human rights? What approach does the ICRC take to qualifying acts of transnational terrorism and the responses thereto? [See ICTY, The Prosecutor v. Tadic, A. Appeals Chamber, Jurisdiction, para. 68] (GC I-IV, common Arts 2 and 3; P I, Art. 1; P II, Art. 1)
24. What does the notion of enemy combatant refer to? Does this status apply independently of the qualification of the situation of violence? What kind of protection does it grant? Can IHL be applied à la carte for enemy combatants? (GC III, Arts 1 and 4; GC IV, Art. 4)
VII. Improving Compliance with IHL [Part A.]
25. What kind of action does Art. 89 of Protocol I provide for? Does it include reprisals? Why has Art. 89 not been resorted to consistently? How could it be better utilized?
Scope of the obligation to ensure respect for IHL
[See UN, Resolutions and Conference on Respect for the Fourth Convention]
26. Since it is acknowledged that common Art. 1 lays down a responsibility for third States to ensure respect for IHL by parties to a conflict, what kinds of action does this entail? What are the lower and upper limits to action under Art. 1? Does it allow interference in the internal affairs of another State? May force be used to fulfil the obligation? (GC I-IV, Arts 47/48/127/144 respectively; P I, Arts 6(1), 80, 82, 83 and 87(2))
Existing IHL mechanisms and bodies
27. Considering the lack of effectiveness of existing mechanisms to date, what could be done to make the existing mechanisms established under IHL more acceptable to parties to an armed conflict? (GC I-IV, Arts 8/8/8/9, 10/10/10/11 and 52/53/132/149 respectively; P I, Arts 5 and 90)
New IHL supervision mechanisms: pro et contra
28. What would be the political and legal feasibility of an individual complaints mechanism for violations of IHL? What would be the advantages and disadvantages of such a mechanism compared with a periodic reporting system? What would be the political and legal feasibility of an International Court of IHL? Of an International Commission of IHL? Would the politicization of mechanisms such as a Diplomatic Forum help improve compliance with IHL? How could such politicization be reduced?
Improving compliance in non-international armed conflict [Parts A. and B.]
[See Geneva Call, Puntland State of Somalia adhering to a total ban on anti-personal mines]
29. Can IHL be adapted to provide better incentives for armed groups to comply with the rules? Do all existing rules of the IHL of non-international armed conflict set realistic standards of conduct for armed groups? Are the legal tools designed to improve compliance with IHL effective? In your opinion, are States willing to accept such measures?
30. How can existing IHL mechanisms and bodies be used in non-international armed conflicts? Is there a need for specific supervision, enquiry or fact-finding possibilities?
PMCs / PSCs [Part B.]
[See Montreux Document on Private Military and Security Companies]
31. Are PMCs defined under IHL? What is the status of PMCs? Are PMCs employees operating in an armed conflict bound by IHL? On which basis? Who is responsible for ensuring that they are aware of IHL rules and that they respect them? How? What is the legal basis for such an obligation?
32. When is a contracting State responsible for violations of IHL committed by a PMC/PSC? When is their home State responsible? When is the territorial State (i.e. where the violations were committed) responsible? Does the responsibility of such States include an obligation to prevent violations? How can they ensure better compliance with IHL by those companies?
QUALITY OF RESPONSE NO RESPONSE POOR / UNSATISFACTORY SATISFACTORY GOOD EXCELLENT Content (worth a maximum of 50% of the total points) Zero points: Student failed to submit the final paper. 20 points out of 50: The essay illustrates poor understanding of the relevant material by failing to address or incorrectly addressing the relevant content; failing to identify or inaccurately explaining/defining key concepts/ideas; ignoring or incorrectly explaining key points/claims and the reasoning behind them; and/or incorrectly or inappropriately using terminology; and elements of the response are lacking. 30 points out of 50: The essay illustrates a rudimentary understanding of the relevant material by mentioning but not full explaining the relevant content; identifying some of the key concepts/ideas though failing to fully or accurately explain many of them; using terminology, though sometimes inaccurately or inappropriately; and/or incorporating some key claims/points but failing to explain the reasoning behind them or doing so inaccurately. Elements of the required response may also be lacking. 40 points out of 50: The essay illustrates solid understanding of the relevant material by correctly addressing most of the relevant content; identifying and explaining most of the key concepts/ideas; using correct terminology; explaining the reasoning behind most of the key points/claims; and/or where necessary or useful, substantiating some points with accurate examples. The answer is complete. 50 points: The essay illustrates exemplary understanding of the relevant material by thoroughly and correctly addressing the relevant content; identifying and explaining all of the key concepts/ideas; using correct terminology explaining the reasoning behind key points/claims and substantiating, as necessary/useful, points with several accurate and illuminating examples. No aspects of the required answer are missing. Use of Sources (worth a maximum of 20% of the total points). Zero points: Student failed to include citations and/or references. Or the student failed to submit a final paper. 5 out 20 points: Sources are seldom cited to support statements and/or format of citations are not recognizable as APA 6th Edition format. There are major errors in the formation of the references and citations. And/or there is a major reliance on highly questionable. The Student fails to provide an adequate synthesis of research collected for the paper. 10 out 20 points: References to scholarly sources are occasionally given; many statements seem unsubstantiated. Frequent errors in APA 6th Edition format, leaving the reader confused about the source of the information. There are significant errors of the formation in the references and citations. And/or there is a significant use of highly questionable sources. 15 out 20 points: Credible Scholarly sources are used effectively support claims and are, for the most part, clear and fairly represented. APA 6th Edition is used with only a few minor errors. There are minor errors in reference and/or citations. And/or there is some use of questionable sources. 20 points: Credible scholarly sources are used to give compelling evidence to support claims and are clearly and fairly represented. APA 6th Edition format is used accurately and consistently. The student uses above the maximum required references in the development of the assignment. Grammar (worth maximum of 20% of total points) Zero points: Student failed to submit the final paper. 5 points out of 20: The paper does not communicate ideas/points clearly due to inappropriate use of terminology and vague language; thoughts and sentences are disjointed or incomprehensible; organization lacking; and/or numerous grammatical, spelling/punctuation errors 10 points out 20: The paper is often unclear and difficult to follow due to some inappropriate terminology and/or vague language; ideas may be fragmented, wandering and/or repetitive; poor organization; and/or some grammatical, spelling, punctuation errors 15 points out of 20: The paper is mostly clear as a result of appropriate use of terminology and minimal vagueness; no tangents and no repetition; fairly good organization; almost perfect grammar, spelling, punctuation, and word usage. 20 points: The paper is clear, concise, and a pleasure to read as a result of appropriate and precise use of terminology; total coherence of thoughts and presentation and logical organization; and the essay is error free. Structure of the Paper (worth 10% of total points) Zero points: Student failed to submit the final paper. 3 points out of 10: Student needs to develop better formatting skills. The paper omits significant structural elements required for and APA 6th edition paper. Formatting of the paper has major flaws. The paper does not conform to APA 6th edition requirements whatsoever. 5 points out of 10: Appearance of final paper demonstrates the student’s limited ability to format the paper. There are significant errors in formatting and/or the total omission of major components of an APA 6th edition paper. They can include the omission of the cover page, abstract, and page numbers. Additionally the page has major formatting issues with spacing or paragraph formation. Font size might not conform to size requirements. The student also significantly writes too large or too short of and paper 7 points out of 10: Research paper presents an above-average use of formatting skills. The paper has slight errors within the paper. This can include small errors or omissions with the cover page, abstract, page number, and headers. There could be also slight formatting issues with the document spacing or the font Additionally the paper might slightly exceed or undershoot the specific number of required written pages for the assignment. 10 points: Student provides a high-caliber, formatted paper. This includes an APA 6th edition cover page, abstract, page number, headers and is double spaced in 12’ Times Roman Font. Additionally, the paper conforms to the specific number of required written pages and neither goes over or under the specified length of the paper.
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