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The use of force in international law
This Collection. It is notable that Article 3 of AP II itself calls for non-intervention, as it prohibits the States from invoking the Articles of the Protocol to the detriment of sovereignty of a State and that they should instead strive to defend it. Evidently, the Protocol tries to strike a balance between humanitarian aims and the fears over weakening the sovereignty of States.
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Two, that the domestic legal framework is deemed adequate to protect their rights. Labelling the conflict in North East India as mere internal disturbance — a strategy for the justification of severe human rights violations. The drafters of the Protocol were careful enough to set a minimum threshold for the identification of NIACs covered by the AP II by excluding situations of internal disturbances and tensions. While the protection offered by IHL in international armed conflicts was initially much more comprehensive when compared to that offered in cases of internal armed conflicts, the ICRC study on customary IHL establishes that this difference has reduced considerably.
Nearly of the customary IHL rules are applicable even to the internal armed conflicts. Customary IHL rules provide an additional layer of protection to the civilians in internal armed conflicts but India still flouts these rules. India has long maintained that conflicts within the territory of the State, except those of liberation movements, must be resolved by the State itself without any intervention from other States and through the domestic legal framework only.
Most important of such domestic legislations is the infamous Armed Forces Special Powers Act [AFSPA] which gives extensive powers to the armed forces to search, destroy property, arrest and kill individuals without any warrant if they consider it to be necessary to maintain law and order in the area.
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The armed conflicts in these states were not so much between various communities but between various insurgent groups and the Indian armed forces that either demand to be separated from the Indian Union or regional autonomy. The extensive powers granted by AFSPA circumvents the fundamental right to life granted under Article 21 of the Constitution of India as it endangers the lives of civilians as well.
Therefore, the AFSPA has to be repealed immediately to ensure that the blatant human rights violations committed by the armed forces are not protected under domestic law anymore. As described in the introduction, many Non-State Armed Groups in North-East India fulfil this criteria which further justifies the need to appropriately identify the ongoing conflicts as internal armed conflicts rather than classifying them as mere internal disturbances. International humanitarian law is applicable throughout the territory controlled by a party or on the territory of the belligerent States regardless of whether or not actual combat is ongoing.
Thus, as concerns the nexus between the armed conflict and the alleged crimes, it is not necessary to prove that combat took place at the sites where the crimes were allegedly committed. It is sufficient to establish that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. Moreover, the principle of individual responsibility requires that the Prosecution prove that each one of the Accused was aware of the factual circumstances demonstrating the international character of the armed conflict.
The Chamber will address this point in the part devoted to the criminal responsibility of the Accused. In the jurisprudence of the Tribunal, an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between government authorities and organised armed groups or between such groups within a State. Whether the grave breaches regime in the Geneva Conventions applies is contingent upon the international character of the conflict.
It is indisputable that a conflict is possessed of an international character when it pits two or more States against one another. The Chamber finds that, to determine whether the conflict is international in character, the conflict must be examined in its entirety. For instance, it is not necessary to prove that troops from another State were present in each of the places were the crimes were committed.
The presence of troops belonging to a foreign army in the region ravaged by conflict or in the regions that border the territory in which the conflict is unfolding and which are of strategic importance to the conflict, may constitute an indicator sufficient to support a finding that a foreign State was intervening directly in the conflict, establishing its international character. Concerning the legal definition of an occupation, in its Final Trial Brief, the Prosecution submits that the existence of pockets of resistance in certain zones of the territory considered to have been occupied does not void their status as occupied areas, provided that the occupying power still wields control over these areas.
In its closing arguments, the Praljak Defence nevertheless states that the Prosecution committed an error of law in its analysis of whether a state of occupation existed in Herceg-Bosna at the time of the events, and considers that the existence of an international armed conflict and an occupation constitute distinct issues.
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The Prosecution specifically argues that the areas behind battle lines also constitute an occupied area. The Chamber is of the opinion that nothing in case-law or customary law excludes the possibility that fighting with the character of an international armed conflict might take place in the occupied territory without that territory losing its status as an occupied territory, provided that the occupying power maintains its control over the territory at issue, in keeping with the criteria defined above. Uganda, that for a territory in BiH to be considered occupied by the HVO, the Prosecution should have demonstrated beyond a reasonable doubt that the degree of control exercised by the Government of Croatia over the HVO was identical to the control it exercised over the HV.
The Appeals Chamber has established that an armed conflict is international in nature when, for example, a foreign State exercises overall control over one of the parties to the conflict.
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Accordingly, the Chamber finds that if the Prosecution proves that the party to the armed conflict under the overall control of a foreign State fulfils the criteria for control of a territory as identified above, a state of occupation of that part of the territory is proven. According to the ICTY, the test for determining the existence of such a conflict is that:. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international or, depending upon the circumstances, be international in character alongside an internal armed conflict if i another State intervenes in that conflict through its troops, or alternatively if ii some of the participants in the internal armed conflict act on behalf of that other State.
The Appeals Chamber holds the view that international law also embraces a third test. This test is the assimilation of individuals to State organs on account of their actual behaviour within the structure of a State and regardless of any possible requirement of State instructions.