- What is an International Armed Conflict (IAC) and what is a Non-International Armed Conflict (NIAC)? Does it make a difference for the administration of international criminal law whether a conflict is an IAC or NIAC?
An IAC is a conflict that involves the use of armed forces between two or more states. However, this understanding of the International Armed Conflict has been stretched out over some time. The traditional method of classification of armed conflict has always been actor based. This type of conflict happens when a foreign army inhabits a territory belonging to another state. However, there is another way this conflict can play out if a country uses domestic military groups as proxies in the war; then, this can also be classified as an International Armed Conflict. It can only be international if a third state exercises overall control over the organized armed group fighting the other state (Carsten 77).
NIAC referring to non-International Armed Conflict are civil wars occurring within a state’s borders and are mostly considered ‘internal affairs.’ Most nations, however, fail to take responsibility for the violations that occur during these civil wars within their borders. The lines have been drawn in these civil wars whereby elementary consideration of humanity and common sense in the strife’s use of weapons. The state, however, can use weapons when putting an end to the rebellion within its borders.
The difference in the administration of international criminal law to whether a conflict is an IAC or NIAC is very slim but doubles down to the perspective of accountability (Carsten 78). Most of the time, these conflicts may coexist and therefore making their classification somewhat problematic. The difficulty in distinction is mainly because of warfare’s hybridization that includes the spillover effects caused by most conflicts.
- For an offence to count as a war crime under the legal regime of the International Criminal Court, such an offence need to have a “nexus to armed conflict.” What does it mean? What situations could the “nexus to armed conflict” potentially exclude from the jurisdiction of the International Criminal Court?
When an offence is a nexus to armed conflict, the NIAC gives the overall ruling of the crime. The implication of this is in the transition to NIAC. If a global armed group conducts hostilities with a state, they remain questionable to their actions irrespective of where they go. The conflict caused by the group and the direct participants in the hostilities can be targeted based on international humanitarian law in non-aggressive states. This nexus means that individuals or groups are tied to their actions regardless of the disparity between the place of conflict and the group’s current location. Nexus to armed conflict has been put in place to distinguish between ordinary offenses and war crimes. There is no reason whatsoever to qualify individuals who commit crimes that aren’t hostilities towards other individuals as war crimes. According to ICTY, what ultimately distinguishes a war crime from a domestic offense is based on the environment where the armed conflict is committed (Carsten 81).
Nexus to the armed conflict could exclude the ICC’s jurisdiction if the war crimes were committed not as a part of a policy of a large-scale commission of crimes. ICC’s legal framework requires that the nature of all war crimes in its jurisdiction took place in the context of and was associated with international armed conflict. Suppose the proprietor is a combatant who commits a crime against a member of the conflict’s opposition, and its commission is not in an official capacity. In that case, the crime may be excluded from the ICC’s jurisdiction. The commission of war crimes that cannot be considered an act towards international conflict, then the crimes become a domestic conflict, and subsequently, ICC will not be involved.
- The principle of distinction is one of the binding rules in customary international law regulating the conduct of armed conflict. What does it mean?
The principle of distinction is supposed to mean that the principle of distinction is essential to limit warfare methods like any method or strategy that is not exclusively directed towards a military cause should not be used. This customary law’s main objective is to distinguish between civilian objects and military objectives along with civilians and combatants. An excellent example of this is in the context of torture, which is considered an international crime under customary laws and treaties. Torture can be punished in the context of crimes against humanity and war crimes. However, in some other context like Kunarac, ICTY argued that the definition of torture under human rights laws does not necessarily have to be aligned with the definition under international law (Carsten 61). In an official capacity, an official can legitimately impose torture when the victim is in custody, irrespective of state involvement. However, not all means and methods of warfare are allowed in an armed conflict, whether international or non-international. According to the International humanitarian law, the other principle is the principle of proportionality, and they are both set to on several rules. These rules include excluding direct attacks on the civilian population, excluding indiscriminate attacks, and limiting or entirely avoiding casualties among civilians and civilian objects.
The distinction principle has a unified goal to protect the civilian population and outlaw attacks against civilian objects and civilians themselves. Parties to a conflict are required to conduct their military operations with little to no harm imposed on civilians. This peace can be made when a line is drawn to differentiate between civilians and combatants, subsequently, military objects and civilian objects.
- The principle of proportionality is one of the binding rules in customary international law regulating the conduct of armed conflict. What does it mean?
The proportionality principle restricts potential harm to civilians and dictates that the least amount of damage is caused to civilians. If civilians are harmed, the injury should be proportional to the military advantage gained in the process. It can also be viewed from a military standpoint such that the loss of civilian life and damage of civilian objects are viewed as collateral damage. The priority is the prohibition of an attack on the military objective. A comparison is made between the possible collateral damage anticipated and the potential military advantage to be attained. In the event of repeated attacks that fall within the area between unlawfulness and undisputed legality, it can be warranted the cumulative effects of these attacks necessitates that they aren’t in keeping with international law (Carsten 88).
However, the assessment of proportionality can be chaotic since it is phrased in a rather prospective manner. Most of this assessment depends on circumstantial evidence to be adequate and be cautious. This principle can be taken in the ICC context, where it considers attacks that cause long-term and widespread damages to the natural environment. The notions that underline the threshold values for the balance in proportionality are very vague and open to conflicting interpretations and understanding.
- International criminal courts may rely upon a theory called “Control Theory” to establish individual criminal responsibility in situations that entail collective violence. What are the major tenets of Control Theory?
Control theory has been formulated to curb the dilemma associated with allocating responsibility beyond the physical perpetrator. This theory can be controversial, especially when an individual is not physically or structurally involved in the commission of the crime to be charged for collective action forms. Control theory points to the various forms of control, which can be very advantageous since it ties responsibility to objective factors like control over the act and contributions made. This theory was first formulated in Germany and is branched into two; control over the crime and administrative control (Carsten 136).
- a) Control over the crime– this incarcerates perpetrators who have controlled or masterminded the crimes in question although they were not necessarily at the scene of the crime. This theory is rooted in the idea that delinquency results primarily from hierarchy and abuse of power and not value orientation or role orientation.
- b) Organizational Control -This is the literal control over the crime, and the shortcomings of this theory are that it fails to deal with collaboration and decentralized authority. On the flip side, organizational control is rooted in the idea of abusing power in the functioning of an organization (Carsten 137). Liability in this scenario is tied to the nature and internal systemic dynamics of the organization.