RE: Palestinian Talks, lectures, & interviews
⁜→ rylah, et al,
BLUF: That is a very tall order. "War" is actually on the verge of being obsolete. So, I put down five legal concepts to start with as a means of keeping us all on the same page.
I propose - the subject of war.
What do I mean? All the tactics of this conflict are open for discussion.
Meaning that I can discuss Hamas tactics detached from political affiliation,
as tactics in themselves, and you can bring all the arguments against Israeli tactics.
Everything is open, but we discuss it around the subject of: 'self-defense' vs 'terror'.
At what point do they correlate, the intents, outcomes...
Maybe it deserves a thread of its own.
Are you in?
(COMMENT)
Just as the meaning of "Terrorism" has been quibbled-over for decades, so the same can be said about "Self-Defense" on the international scene.
And when we discuss the terms "war," that gets entangled in the discussion as to whether or not "Palestine" encompasses Israel (as our friend P F Tinmore has often claimed), since it makes a difference in terms of the AIC and the NAIC. Some of the Articles in the GCIV. Another entanglement is in the meaning of "Self-Defense" relative to the language of the obligation under the Charter (threat or use of force against the territorial integrity or political independence).
I am also wondering about the General Principles of any allegation. Should we follow Article 22, RS-ICC (Nullum crimen sine lege):
The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity,
the definition shall be interpreted in favor of the person being investigated, prosecuted, or convicted.
Just a few thoughts.
Most Respectfully,
R
(REFERENCES)
International Committee of the Red Cross (ICRC) Opinion Paper, March 2008 Opinion Paper
IAC 'vs' NAIC How is the Term "Armed Conflict" Defined International Humanitarian Law (IHL)?
Parry & Grant Encyclopaedic Dictionary of International Law pg 285
international armed conflict (IAC) Aside from its obvious meaning as a synonym for war, this
term is used as the title of the First Protocol of 8 June 1977 to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of International Armed Conflict
( 1125 U.N.T.S. 3 ). The term is not defined (save that it includes armed conflicts involving
‘fi ghting against colonial domination and alien occupation and against racist régimes’
(art. 1(4))), and its meaning becomes clearer in the Second Protocol of 8 June 1977 to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-
International Armed Conflict ( 1125 U.N.T.S. 609 ), art. 1(1) of which defines its scope as
armed conflicts ‘which take place in the territory of a High Contracting Party between its
armed forces and dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement this Protocol’.
Parry & Grant Encyclopaedic Dictionary of International Law pg417
non-international armed conflicts (NIAC) ‘ The distinction between international and non-international
armed conflicts has been important in the application of the laws of war although, in practice, the distinction is often difficult to draw. … The distinction has … been important in the development of the law from a legal regime principally dealing with armed conflicts between states to one also dealing directly with internal armed conflicts. … Certain
international agreements adopted since the mid-twentieth century have established a basic the written regime for jus in bello interno , not dependent upon recognition of belligerency, which provides that certain fundamental humanitarian principles are applicable in non-international armed conflicts’: Roberts and Guelff, Documents on the Laws of War (3rd
ed.), 22–23. Thus, common art. 3 of the four Geneva Conventions of 12 August 1949 (75 U.N.T.S. 31 ff .) established some minimum humanitarian principles to be applied to armed conflicts not of an international character. Art. 1(4) of Protocol I to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 ( 1125 U.N.T.S. 3 ) subsumes within its ambit conflicts that previously might have been thought
of as non-international: ‘conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination’. And Protocol II to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts of the same date ( 1125 U.N.T.S. 609 ) essentially confirms and extends the fundamental guarantees enumerated in common art. 3. See
Perna, The Formation of the Treaty Law of Non-International Armed Conflicts ( 2006 ).
Parry & Grant Encyclopaedic Dictionary of International Law pg 549
self-defence (1) Under customary law, it is generally understood that the correspondence
between the United States and the United Kingdom of 24 April 1841, arising out of the
Caroline Incident (Moore, Digest of International Law, Vol. 2, 25) expresses the rules
on self-defence: self-defence is competent only where the ‘necessity of that self-defense
is instant, overwhelming, and leaving no choice of means, and no moment for deliberation
. . . [and] the act, justified by the necessity of self-defense, must be limited by
that necessity, and kept clearly within it’. These principles were further elucidated in
the Corfu Channel Case 1949 I.C.J. Rep. 4 . See Jennings, The Caroline and McLeod
Cases, 32 A.J.I.L. 82 ( 1938 ) ; Tucker, Reprisals and Self-Defense: The Customary Law,
66 A.J.I.L. 586 ( 1972 ) .
(2) Art. 51 of the U.N. Charter provides that ‘[n]othing in the present Charter shall impair
the inherent right of individual or collective self-defence if an armed attack occurs against
a Member of the United Nations . . .’. The relationship between the right under customary
international law and art. 51 of the U.N. Charter has caused considerable debate: see, e.g.,
Jessup, A Modern Law of Nations ( 1948 ), 166–167; Stone, Legal Controls of International
Confl icts (2nd imp. rev.), 245. However, the International Court of Justice in Military and
Paramilitary Activities in and against Nicaragua (Merits) 1986 I.C.J. Rep. 14 at 95 made
it clear that the right of self-defence under international law exists alongside the provision
in art. 51 of the Charter: ‘it cannot be presumed that article 51 is a provision which “subsumes
and supervenes” customary international law’. It has been argued that customary
international law allows for the possibility of anticipatory self-defence (see, e.g., Franck,
Fairness in International Law and Institutions ( 1995 ), 267) or even pre-emptive self-defense
( see Bush doctrine ). Whether such rights exist appears unsettled; however, it is
clear that the legality of a self-defensive action, whether in response to an armed attack or
in anticipation of it, is dependent upon the key concepts of necessity and proportionality.
Parry & Grant Encyclopaedic Dictionary of International Law pg 599/600
terrorism Terrorism as a phenomenon has a considerable history, but early terrorism was
mainly internal and thereby readily subject to national criminal jurisdiction. For the origins
and history of terrorism, see Laquer, A History of Terrorism (rev. ed. 2001 ); Laquer,
The New Terrorism ( 1999 ); and Reich, Origins of Terrorism: Psychologies, Ideologies,
Theologies, States of Mind (rev. ed. 1998 ). A generally accepted definition of terrorism
has proved elusive for the international community, becoming one of the major obstacles
in the elaboration of a Comprehensive Convention against Terrorism. Each of the terrorism
conventions instead merely identified the specific proscribed acts for its purposes.
However, the International Convention for the Suppression of Financing of Terrorism of
9 December 1999 ( U.N. Doc. A/RES/54/109 Annex ) offers (in art. 2(1)(b)) a useful definition,
terrorism being ‘any . . . act intended to cause death or serious bodily injury to a civilian
. . . when the purpose of such act, by its nature and context, is to intimidate a population
or to compel a government or an international organization to do or abstain from doing any
act’. Another definition is offered in the (as yet unadopted) Comprehensive Convention
on International Terrorism (see U.N. Doc. 57/37 Annex II ), art. 2(1): terrorism is an act
which ‘by any means, unlawfully and intentionally, causes: (a) Death or serious bodily
injury to any person; or (b) Serious damage to public or private property, including a place
of public use, a State or government facility, a public transportation system, an infrastructure
facility or the environment; or (c) Damage to [such] property, places, facilities, or
systems . . ., resulting from or likely to result in major economic loss; when the purpose of the
conduct, by its nature or context, is to intimidate a population or to compel a Government
or an international organization to do or abstain from doing any act’. See Saul, Defining
Terrorism in International Law ( 2008 ). See terrorism conventions.
Parry & Grant Encyclopaedic Dictionary of International Law pg 669
war ‘War is a contention between two or more States through their armed forces…. To be war, the contention must be between States …. War, in principle, is contention between States through their armed forces .’: II Oppenheim 202–204. This definition, though from 1952, reflects the traditional view of war in international law. The term has no precise meaning—or consequences—in contemporary international law, and the term ‘ armed conflict ’ is utilized instead. Armed conflict, as a term of art, began to be used in the four Geneva Conventions on the Laws of War of 12 August 1940 ( 75 U.N.T.S. 31, 85,135, 287 ) and had become firmly established by the time of the two Additional Protocols of 8 June 1977 ( 1125 U.N.T.S. 3, 609 ). The laws of war, dating from the nineteenth century, regulated the conduct of war (
jus in Bello ; see international humanitarian law ), but not the right to wage war (
jus ad bellum )—although attempts were made to distinguish between the just and the unjust war (
bellum justum, injustum ). Art. 2(4) of the U.N. Charter outlawed the use and threat of force, making war (armed conflict between States) illegal save in self-defense (art. 52) or as ordered or authorized by the U.N. Security Council under Chap. VII
of the Charter. See Detter, The Law of War (2nd ed.), Part II; Neff, War and the Law of Nations: A General History ( 2005 ).
