Transnational Asymmetric Armed Conflict under International Humanitarian Law

193 Pages·2015·1.23 MB·English

Eliav Lieblich with Owen Alterman
Transnational Asymmetric
Armed Conflict under International
Humanitarian Law:
Key Contemporary Challenges
cover

Transnational Asymmetric Armed Conflict
under International Humanitarian Law:
Key Contemporary Challenges
Eliav Lieblich with Owen Alterman
Institute for National Security Studies
TICTNEHCNOETR EIhPNRO SFROTAReITT ISNUTGRT TAEITH EFEG OJnIACRF S FNTEsUAEDTIIEtOSNibALt SuEcdCUtRIeTY S TfUDoIESr National Security Studies (INSS), incorporating the Jaffee
Center for Strategic Studies, was founded in 2006.
The purpose of the Institute for National Security Studies is first, to conduct
basic research that meets the highest academic standards on matters related
to Israel’s national security as well as Middle East regional and international
security affairs. Second, the Institute aims to contribute to the public debate
and governmental deliberation of issues that are – or should be – at the top
of Israel’s national security agenda.
INSS seeks to address Israeli decision makers and policymakers, the
defense establishment, public opinion makers, the academic community in
Israel and abroad, and the general public.
INSS publishes research that it deems worthy of public attention, while it
maintains a strict policy of non-partisanship. The opinions expressed in this
publication are the authors’ alone, and do not necessarily reflect the views
of the Institute, its trustees, boards, research staff, or the organizations and
individuals that support its research.
Transnational Asymmetric Armed Conflict
under International Humanitarian Law:
Key Contemporary Challenges
Eliav Lieblich
with
Owen Alterman
c
THE INSTITUTE FOR NATIONAL SEdCURITY STUDIES
b
INCORPORATING THE JAFFEE
CENTER FOR STRATEGIC STUDIES
ימואלניבה ירטינמוהה טפשמה
:תולובג־יצוח םיירטמיסא םיכוסכסב
םייזכרמ םירגתא

ךילביל באילא
ןמרתלא ןאוא םע
This book was published
with the generous assistance of
the Philadelphia-based Neubauer Family Fund.
Graphic design: Michal Semo-Kovetz, Yael Bieber
Cover design: Yael Kfir
Printing: Elinir
Cover photo: Tunnel used by armed groups in Gaza during the conflict of 2014
Image Bank/Getty Images
Institute for National Security Studies (a public benefit company)
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© 2015
All rights reserved
ISBN: 978-965-7425-75-2
Table of Contents
Key Abbreviations 11
Table of Cases 12
Foreword by Eyal Benvenisti and Yehuda Ben Meir 15
Introduction 17
Chapter 1 Transnational Asymmetric Armed Conflict:
Definition and General Legal Regimes 25
Chapter 2 The Principle of Distinction in Transnational
Asymmetric Armed Conflict: Targeting of Persons 53
Chapter 3 The Principle of Distinction in Transnational
Asymmetric Conflict: Targeting of Objects 91
Chapter 4 Proportionality in Asymmetric Warfare and
Closely Related Issues 115
Chapter 5 A Few Comments on the Duty to Investigate
Alleged Violations of International Law during
Armed Conflict 161
Concluding Remarks 173
Detailed Summary 175
Selected Literature 185

Detailed Table of Contents
Key Abbreviations 11
Table of Cases 12
Foreword by Eyal Benvenisti and Yehuda Ben Meir 15
Introduction 17
CHAPTER 1
Transnational Asymmetric Armed Conflict:
Definition and General Legal Regimes 25
DEFINITION – TRANSNATIONAL ASYMMETRIC ARMED CONFLICT 25
GENERAL LEGAL FRAMEWORKS – INTERNATIONAL LAW AND
INTERNATIONAL HUMANITARIAN LAW 29
The Main SourceS of inTernaTional law: TreaTieS and cuSToM 29
inTernaTional huManiTarian law – BaSic PreMiSeS and SourceS 32
The Tension between IHL and LOAC 32
Basic Philosophy 33
The Distinction between Jus in Bello and Jus ad Bellum 34
IHL: Treaties and Customary Law 34
THE LEGAL FRAMEWORK OF TRANSNATIONAL ARMED
CONFLICTS: TOWARDS A CONVERGENCE OF NORMS 36
The TradiTional realMS of ihl: inTernaTional verSuS
inTernal arMed conflicTS 36
The norMaTive coMPlexiTy of TranSnaTional arMed conflicTS 38
IHL AND INTERNATIONAL HUMAN RIGHTS LAW 43
General 43
ihl and ihrl: SeParaTion, Lex SpeciaLiS, coMPleMenTariTy
and The QueSTion of exTraTerriTorialiTy 43
The ThreShold of conTrol 46
The Territorial Control Threshold: Occupation, Overall
Control and Control over Facilities 47
The Personal Control Threshold 49
Cause and Effect Jurisdiction 50
Summary of Current ECtHR Law of Threshold of Control –
Al-Skeini v. UK 51
CHAPTER 2
The Principle of Distinction in Transnational
Asymmetric Warfare: Targeting of Persons 53
BASIC NORMATIVE FRAMEWORK 53
THE STATUS OF MEMBERS IN AN ORGANIZATION ENGAGED IN
TRANSNATIONAL WARFARE 55
General 55
MeMBerS in non-STaTe acTorS aS civilianS direcTly ParTiciPaTinG
in hoSTiliTieS – “The civilian aPProach“ 57
non-STaTe fiGhTerS aS MeMBerS in an orGanized arMed GrouP –
“The STaTuS aPProach” 59
Continuous Combat Function in an Organized
Armed Group as Status 59
The Inequality Debate: Towards a Sub-Category of
Organizations Comparable to Regular Armed Forces? 62
CIVILIANS DIRECTLY PARTICIPATING IN HOSTILITIES 64
eleMenTS of direcT ParTiciPaTion in hoSTiliTieS 64
ParTiciPaTion in hoSTiliTieS – harM and BelliGerenT nexuS 65
General 65
The Case of Voluntary Human Shields 68
direcT verSuS indirecT 71
General 71
Military versus Political Wings; Tactical versus Strategic
Command; Targeting Individuals under
a Self-Defense Paradigm 73