International Law Midterm 2

jus ad bellum

the conditions under which a state may legally or morally resort to war or use armed force

Hague Conventions

established that a formal declaration of war is required and force is banned

Covenant of League of Nations

established collective security, so now war is a global concern, but there’s not full ban on war and no authority to enforce the peace

UN Charter Article 2(4)

established a non-use of force norm, but use of force is legal if the UNSC authorizes it or is considered self-defense

The right of self-defense

the only unilateral legal use of force without UNSC authorization and is considered an inherent right rooted in sovereignty

Anticipatory self-defense

is considered unlawful, self-defense is only legal after an attack has occurred. the ICJ has strategically avoided ruling on whether an armed attack must occur.

UN Security Council

the primary responsibility for maintaining international peace and security. can enforce the peace via diplomatic, economic, and military action. may issue legally binding decisions that states must accept and carry out. can intervene in domestic affairs or override states’ other legal rights.

UNSC members and voting

5 permanent members with veto power - France, China, Russia, UK, US

10 members that are elected for 2 years by the UNGA

a successful vote requires 9 affirmative votes and no vetos

UNSC authorization

may authorize non-forcible measures like economic sanctions, arms embargoes, travel bans, and creation of tribunals

may authorize forcible measures, but can’t obligate states to use force

The protection of nationals abroad

non-combatant evacuations like rescue missions, but has a controversial legal basis

Intervention by invitation of a state

a state gives consent to another state to use force on its territory. this must serve a lawful purpose under IL and cannot be against territorial integrity or political independence.

Humanitarian intervention

military intervention to stop or prevent grave and widespread human rights violations. justified if it’s not directed against territorial integrity or political independence, is consistent with UN purposes, and states’ duty to protect HRs. this is lawful with UNSC authorization, but not recognized as a legal right to intervene under IL without UNSC approval.

Responsibility to Protect

a politically more acceptable reformulation of “humanitarian intervention.” state sovereignty implies responsibility for the protection of its people, but if a state is unwilling or unable to halt HR violations, then it becomes an international responsibility to protect.

jus in bello

the legal and moral conduct of states during an armed conflict

International Humanitarian Law

regulates the conduct of all actors during armed conflict and applies to international and non-international armed conflict. grave breaches are war crimes and possibly crimes against humanity. ICRC drafts, interprets, and monitors this.

Hague Law

regulates the means and methods of warfare

Geneva Law

regulates the protection of non-combatants and victims of conflict

Geneva conventions

treatment of wounded/sick, treatment of wounded/sick at sea, treatment of prisoners of war, protection of civilians in wartime. additional protocols: protection of victims of IACs, protections of victims of NIACS. repackaged and combined in 1949.

The relationship between IHL and HR

IHL allows lethal force against lawful targets so it violates HR. IHL is HR in armed conflict.

Non-combatant treatment

the fundamental guarantees for civilians and hors de combat during armed conflict. no targeting of civilians or civilian objects: medical, religious, humanitarian relief, journalists, cultural property, food and water systems. it is a state’s duty to take all feasible precaution to avoid civilian harm and verify targets. must not violate HR.

Legitimate military targets

must make an effective contribution to military action and must offer a definite military advantage. an attack disproportionately harming civilians is a war crime if carried out purposely or through recklessness.

International Criminal Court

individual criminal responsibility. legally independent from the UN. 18 judges for 9 year terms. 3 chambers: pre-trial, trial, appeals

International Court of Justice

create treaties with jurisdictional clauses

UNSC Chapter VII resolutions

enforces cross-border humanitarian access

International Committee of the Red Cross

an authoritative interpretation of IHL

International Criminal Law

rules on the personal accountability of individuals for conducts amounting to “international crimes”

International military tribunals that helped develop ICL

the Nuremburg and Tokyo trials established individual responsibility under IL. counts included war crimes, crimes against peace, crimes against humanity

Crimes against peace / crimes of aggression

planning, preparation, initiation, or execution of an act of aggression. invasion, military occupation, annexation by the use of force, blockade of the ports or coasts.

Crimes against humanity

odious offenses constituting a serious attack on human dignity, grave humiliation, or a degradation of one or more human beings

Ad hoc tribunals established by UNSC

International Criminal Tribunal for the former Yugoslavia

International Criminal Tribunal for Rwanda

International Residual Mechanism for Criminal Tribunals

deals with remaining functions after dissolution

Hybrid criminal tribunals

applies both domestic law and IL in internationalized domestic courts. may include both domestic and international judges

ICC jurisdiction criteria

war crimes, crimes against humanity, crimes of genocide, crimes of aggression, crimes against peace. if the accused is a national of a party state, if crime took place on a party state’s territory, if the UNSC refers a situation to ICC, if a non-state party voluntarily accepts ICC jurisdiction

ICC case admissibility criteria

must have sufficient gravity in terms of scale, nature, and impact. the court of last resort when national courts are unable to investigate and prosecute.

Genocide

the intent to destroy in whole or in part a national ethnic, racial, or religious group

Clear cases of genocide

Armenia, Cambodia, Guatemala, Rwanda, Bosnia, Darfur

Possible cases of genocide

Myanmar, Uyghurs in China, Tigray crisis, Ukraine, Gaza

Genocide Convention

created a legal definition of genocide in 1948. established that it is a state’s duty to prevent and punish genocide

South Africa v. Israel - ICJ case

proceedings instituted by South Africa at ICJ in 2023. alleges violations by Israel of its obligations under the Genocide Convention. no judgement or jurisdiction, but ordered that Israel must take all measures to prevent acts against the convention.

Elements of genocide

Only protected groups - national, ethnic, racial, and religious

Material element - the prohibited acts listed in the Rome Statue

Mental element - must have the intent to commit genocide, not just criminal intent

Double intent

the combination of general criminal intent and a special intent to commit genocide. sometimes the crime itself isn’t enough, to prove genocide there must be special intent to commit genocide.

Human rights

the rights that every individual possesses by virtue of their humanity, regardless of nationality

Generations of HR

civil and political rights - rights the state cannot interfere with

economic, social, and cultural rights - minimum material rights the state must provide

group and collective security - rights of a specific vulnerable groups

Early IHRL efforts

anti-slavery movements

LoN - no mention of human rights, but included labor rights and protection of national minorities

actual IHRL emerged post-WWII - UN Charter and the 1948 Universal Declaration of Human Rights

1948 Universal Declaration of Human Rights - UDHR

contains a list of “human rights and fundamental freedoms” as a non-binding declaration by UNGA

Derogable rights

rights that may be suspended in an emergency that threatens the life of a state

Non-derogable rights

rights that must always be upheld and can never be suspended. arbitrary deprivation of life, no torture, no slavery, no retroactive penalty, freedom of religion

Margin of appreciation doctrine

discretion is left to states to determine an emergency that demands some derogable rights to be suspended

Monitors of HR agreements

NGOs, UN agencies, other states, other IOs

HR protection and enforcement institutions

domestic courts - strong enforcement

regional bodies - strong enforcement

global mechanisms - weak enforcement

Special treaty bodies - state reviews

9 committees of 18 independent experts that monitor the compliance of core HR treaties. issue non-binding decisions, but they are public.

Special treaty bodies - complaints procedures

individual petitions and is quasi-judicial. only against parties to the treaty that accepted individual complaints as an optional protocol. resembles a court, but issues non-binding decisions.

UN Human Rights Council

monitors all HRs with universal periodic reviews or special procedures. 47 members. The US withdrew and Russia was voted out.

Universal periodic review

reviews of HR performance of all UN members with a peer review every 4 years regardless of which treaties they’re joined

Special procedures

special rapporteurs are independent experts on specific countries and themes.

12 country mandates - Russia, Iran, Myanmar, etc.

44 thematic mandates - torture, cultural rights, freedom of religion

states must agree and there is no veto power.