Mock exam and how to write practical exams in general

Cecilie Hellestveit

Before writing practical exam:MAPPING (facts, issues, legal grounds) • MAIN ISSUES What are the subjects ?

( facts, legal knowledge of IHL, questions asked)

1) Main issues

2) Sub-issues

• LEGAL GROUNDSWhat are the legal documents ? Applicable ?

What are the articles, principles etc ?Applicable?

• DIFFICULT ISSUES, STRAIGHT FORWARD ISSUES

Mapping of PART A

• States A, B and C used to be federal republics of the Socialist Federation of ABC (SFABC), but gained independence after the fall of communism in a peaceful transition. The political situation was nevertheless tense after a long history of political rivalry and several previous violent clashes between the groups.

• State A had been the political centre in SFABC, and had tried to dominate the neighbouring areas for centuries. UN peacekeeping troops were posted around and in the demilitarised zone between State A and State B. As the international attention had been focussed on the situation between State A and State B, it came as a surprise that on the 1 of January 2001, shots were exchanged between customs officers of State A and the special forces of State C.

• Each of the groups that had fired had remained on the territory of its state of origin. There were wounded on each side. Each of the two states denied that their group initiated the exchange of fire.

Mapping of PART A cont…

• it came as a surprise that on the 1 of January 2001, shots were exchanged between customs officers of State A and the special forces of State C. Each of the groups that had fired had remained on the territory of its state of origin. There were wounded on each side. Each of the two states denied that their group initiated the exchange of fire.

• ISSUES: – Applicability of IHL– Is this an « armed conflict » to which IHL applies ?– Consequences for those involved if IHL or if not IHL ?

Mapping of PART A cont….

• Questions : – 1. What are the consequences of these acts for

the application of IHL?

– 2. If applicable, would IHL apply in the entire territory of each State or only in the area where the hostilities took place?

– 3. If this situation does not generate the application of IHL, what consequences would the shooting have for the persons firing the shots?

1) Main issues :– Situation : low threshold for applicability of IHL , and how far IHL applies.

(NIAC ? No facts to substantiate => two states : only question of IAC)– Parties : what repercussions for special forces & custom officials if IHL is or

is not applicable

2) Legal foundations- IAC : GC common art 2 «armed conflict » ?- GC common art 2 « between two … High Contracting Parties » ?- Vienna Convention art 29, API 3(b) « in the territory of Parties »

3) Difficult issues / Issues for discussion (law and/or facts)What is the lower threshold of « armed conflict » in GC art. 2?

ICRC : any intervention of forces, Greenwood => all cases includedICJ: certain level of violence ( but « armed attack »), NIAC : only certain

qualified level => only qualified cases included

Is it « between two…High Contracting Parties »?What does it take to be a « party to the conflict » ? Custom officials, special

forces. Imputable to the States ?

PART A Question 1 : applicability of IHL

• GC art 2. «armed conflict»?– ICJ : «certain intensity » . only shots/

once no ( but for « armed attack »). – Tadic : « protracted armed violence ». no ( but only for NIACs)

– NIAC : not riots etc : analogy? (NO)( but different situation : no other way to ascertain existence. IAC : necessary from the very beginning). Becomes an argument in favor of also small incidents in IAC.)

– Commentary GC : « any intervention » (but not across border) yes/no

– Greenwood/scholars : « if uses force » yes

Conclusion : yes / no

• GC art 2 : «between …High Contracting Parties» ?– Two states yes– Special forces. AP 43(1) Party to the

conflict Yes– Custom officials. AP 43 (3) No– Custom imputable to State A

Yes/No

Conclusion yes/no

If yes to both questions : GC art 2 (+ API) : IHL applies.

ABC of METHODOLOGY :

• Question : does IHL apply ?

• Context (short, to the point :) Why problem ? Minor incident. Can this qualify for IHL ?

• Legal foundation : (if doubt, always start with IAC : best protection). GC I-IV art 2 : « armed conflict », « between high Contracting Parties ».

• Discussion : law : what is « armed conflict » ? And facts: does the fact meet these requirements ?

• Conclusion : at the end.

PART A Question 2 : territorial scope of application

• Vienna Convention 1969: art 29 ”Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory”.

• Tadic : ”international humanitarian law continues to apply in the whole territory of the warring States ……whether or not actual combat takes place there”. Tadic (jurisdiction 1995) para 70.

• GC IV art6, API art 3 (1) b) applies ” in the territory of Parties”

• Logic inherent in IHL : ex. status cannot be limited to area of hostilites

• Scholars ”area of war”.

• Miscellaneous : • Localities & zones under « special » protection API 59-60 : IHL applies particularly to

these ( i.e cannot attack etc).

• Method : Brief or long ? Open up for certain theoretical presentation.

PART A Question 3 : If no IHL applicable, what consequences for persons

• IHL immunity for lawful acts of war for combatants • API art 43 (2) « right to DPH » / GCIII immunity from prosecution for

lawful acts of war

• No IHL no such immunity.NB. Combatant immunity is primarily about prosecutorial immunity with the enemy State !

– Some of you « then will be subject to their national law »

they are always subject to their own national law! • Special forces: If IHL, they are « combatants » API art 43(1), « pow » 44(1)

Absent IHL : no such immunitiy. Can be held criminally liable for acts by state A.

• Custom officials : If IHL; they are not « combatants » API art 43 (3). Are DPH. Can be held liable for their acts irrespective of applicability of IHL

• Methodology : what to treat, what NOT to treat Ex. individual self-defence . Look at FACTS + QUESTIONS

METHOD cont…• SUBSIDIARY DISCUSSIONS : give possibility to

treat subjects that will not need treatment based on the conclusion you have reached.• Exam is more about showing that you see the right

problems and how you discuss them, than how you conclude. Don’t miss the opportunity to treat a subject because of one conclusion you have reached ( « no » when it could also have been « yes » with these facts).

• Identify ‘subsidiary discussions’ + « provided that the conclusion is (….opposite), the question becomes…. »

• Conherence : if the premisses are that IHL (ius in bello) is not applicable, prudent not to discuss ad bellum ( breach of the peace etc)…

MAPPING OF PART B• B) State A starts a large military offensive against State B, resulting in the

occupation of the territory of State B within a week. State B puts up very little armed resistance in the beginning, but a national resistance movement is being set up in the course of a few months.

• The resistance movement decides to sabotage a large weapons factory, which State A now controls. Four resistance fighters manage to enter the factory during the night. They are dressed in dark clothes, one of them is carrying a revolver, otherwise they are unarmed. They manage to emplace a bomb in the large production hall, light a fuse and escape the building just before the explosion takes place.

• The group of resistance fighters are spotted and shot at by State A military guards. Two of the four resistance fighters are killed as they try to escape, the other two are captured. A few days later, State A military police arrests three other members of the resistance group, who did not take part in the sabotage operation.

• B) State A starts a large military offensive against State B, resulting in the occupation of the territory of State B within a week. State B puts up very little armed resistance in the beginning, but a national resistance movement is being set up in the course of a few months. The resistance movement decides to sabotage a large weapons factory, which State A now controls. Four resistance fighters manage to enter the factory during the night. They are dressed in dark clothes, one of them is carrying a revolver, otherwise they are unarmed. They manage to emplace a bomb in the large production hall, light a fuse and escape the building just before the explosion takes place. The group of resistance fighters are spotted and shot at by State A military guards. Two of the four resistance fighters are killed as they try to escape, the other two are captured. A few days later, State A military police arrests three other members of the resistance group, who did not take part in the sabotage operation.

• ISSUES : • status with regard to conduct of hostilites (escaping saboteurs lawful

targets),• status with regard to POW status ( the captured saboteurs), • legal grounds for detention of members of resistance groups ( other

captured resistance members).

MAPPING OF PART B cont…

• 1. Was it lawful for State A military forces to shoot the escaping resistance fighters?

• 2. What status should the two captured resistance fighters be given in this situation? Discuss the potential difference between the rulesapplicable to this situation set out in: 1) the 1949 Geneva Conventions, and 2) the 1977 First Additional Protocol to the Geneva Conventions.

• 3. State A is determined to keep the three members of the resistance movement detained for security reasons even if they had not participated in the sabotage operation. On what legal grounds can State A use to keep the resistance movement members detained?

1) Main issues :– Status of resistance fighters during belligerent occupation : during

conduct of hostilites, for status of POW, legal grounds to detain when members of resistance group

2) Legal foundations- IAC : GC common art 2 «occupation »- GC III art 4 (A)(2) . Requirements for POW ( resistance movements)- API art 43, 44 (3),(4),(5) : requirements for combatant / POW - DPH (art 51(3) : civilians « unless and for such time as »- GC IV art 78, internment ( occupied terrtiory)

3) Difficult issues / Issues for discussion (law and/or facts)Requirements for status according to GC and API 44.DPH « unless and for such time »

PART B QUESTION 1 : lawful to shoot

• Applicability IHL : GC art 2. « Occupation ».

• Lawful for military guards to shoot ? API Art 43

• Were the escaping resistance fighters lawful targets?

• Military objective API art 52(2) ?

• Combatants (GC III art 4 (A) 2, 43, 44(3) « retain status as combatant » if « carries his arms openly » during military engagement ». What is « openly »? YES / NO

• Civilians. API 50(2) Protected against attack API art 51(3)« unless and for such time » take DPH. « for such time » ? YES/NO

PART B Question 2 ) Status of captured resistance members, difference GC III API

• GCIII art 4(A)(2): four requirements for members of resistance movements:

a) Commanded by person responsible …

b) Fixed sign

c) Carrying arms openly

d) Conducting their operations in accordance

• API art 43(1) less stringent requirement : organized, under command, disciplimary system enforcing IHL. Art 44 jf (3)(2) : still POW if « carries his arms openly » «during military engagement »

• API art 44(4) : not POW if fails when he is captured (but treated as)

• GCIII: more strict provisions, API : less strict.

METHODOLOGY

• Art 45(1) : presumption « if » … – Not « presumtion of POW » as such!!!

• Art 45 (3) DPH art 75.– GCIV art 5 (derogation) of right to communication.

(art 45 (3): only such derogation for spies• Nothing else: They are not « legal grounds for

detention »!

Read carefully the articles, where they are, who they apply to and what legal repercussions they have !

PART B Question 3 ) legal grounds for detention of other members

Combatants:

• If Art 44(4) :forfeit right to POW if « caught under such circumstances ».

• Art 44(5) falls into the hands « while not engaged in attack » shall not forfeit his right=> As POW

Not combatants:

• Security detention under occupation. GC IV art 78. « Necessary for imperative reasons of security »

MAPPING OF PART C• C) The situation between State A and State C deteriorates, and

hostilities erupt between them. The air-forces of State A quickly achieve air supremacy due to their overwhelming technical superiority, and the ground-to-air defence of State C have proven completely ineffective. Ground operations have not yet taken place. In light of the ineffectiveness of defensive actions, the President of State C goes on national television and urges the civilian population to go to military installations, government buildings, media facilities, airports, railway stations and electrical generating stations in order to“shield” them from “State A aggression”. Many have done so. Foreign peace activists have also travelled to State C and are acting has human shields in “ solidarity with the people of State C”. The air-offensive of State A continues.

ISSUES : • Human shields ? • Voluntary or involuntary. • DPH?• What influence on State A ?

• 1. Is it lawful for the President to make such a call?

• 2. Does the presence of State C citizens and foreign peace activist in and around these potential military objectives influence the legal obligations of State A with regard to precaution, distinction and proportionality ?

1) Main issues :Is this call to human shield ? Civilian objects Military objectives ?Voluntary or involuntary ?Peace-activists nationals of State C ?Does this abuse of legal protections give an advantage to State C

that State A must accept ? ( I.e no altered rules)2) Legal foundations

- API art 51(7) : « movement of civilians », or Parties shall not « direct …in order to attempt to shield military objectives »- API art 51(8) : « violations…shall not release the Parties from legal obligations….with respect to …civilians »- API art 58 : precautions in defence (b) and (c)

3) Difficult issues / Issues for discussion (law and/or facts)Influence of intentional colocation / voluntary human shields on

proportionality assessment.

PART C Question 1 : call to shieldBEWARE : GC VI art 28 : «protected persons »

GCIV art 4 : « protected persons » are those « ..in the hand of a Party…of which they are not nationals ». Here : State C and State C citizens. Thus not applicable !

• art 48 : « the Parties …. shall… at all times distinguish between ..the civiliain population and combats ».

• API art 51(7) 2nd sentence : «Parties …shall not direct…civilians…in order to attempt to shield military objectives from attack »

– ”military objectives” (API art 52(2) civilian objects (API art 52(1). It is not unlawful to shield civilian objects, thus nor to call to do so

– « direct » : the President merely calls. Within the prohibition ? For effective rule : yes.

• API art 58 (a) « Parties …shall..endeavour to remove…civilians…under their control…..from the vicinity of military objectives »

PART C Question 2 : voluntary shields and consequences

• « Civilians» : Civilians have target immunity (API art 51(3).

• Difference between peace-activists and citizens answering the call?

Indication that both are volunteering as human shields.

Both are civilians and voluntary human shields. • Are they DPH ?

• If are DPH => no application of principles of distinction, precaution and proportionality

• If not DPH => either full application of the rules applicable to civilians , or reduction of the protection given by proportionality ( in order to protect the rules against intentional abuse )

REPERCUSSION :

IF THEY ARE DPH :

• If human shields = DPH : no distinction

(But can they be directly targeted ?)

• IF human shields = DPH : no precaution

• IF human shields = DPH : no proportionality

REPERCUSSION :

IF THEY ARE NOT DPH :

• If human shields = not DPH : full distinction

• IF human shields = not DPH : full precaution

• IF human shields = not DPH : still issue of propotionality ?

(Possible argument that they do not factor into the proportionality test in order to protect the rules from abuse –i.e use of law as an effective ‘weapon’ to immunize military targets.

MAPPING OF PART C • The conflict continues to go badly for State C. Ground forces of State A have

crossed into State C and are advancing rapidly on the capital. Retreating forces of State C are mixing with civilians fleeing the battle, and , at times firing on State A forces from within the crowds of civilian vehicles whenever State A helicopters are in the area. Additionally, State C forces are using civilian apartment complexes as a location from which to launch truck-mounted rockets against the advancing army of State A.

• State A forces have entered the outskirts of the capital of State C, where they are engaged in house –to house fighting. Fearful of booby-traps and ambushes, the units of State A have adopted a tactic of seizing civilians of State C and making those civilians walk in front of them as they approach and enter buildings. For their part, State C forces have seized civilians who, despite State C citizenship, share the ethnicity of the majority of State A. They are being held against their will at the Ministry of Defence and other key military facilities throughout the city.

• ISSUES • Co-location, intentional or accidental ? Human shields?• Involuntary Human shields, Hostages, war crimes

Questions

• 3. Are the forces of State C breaching any obligations, and if so, does it affect the obligations of State A in the conduct of hostilities ?

• 4. What is the legal characterization of the conduct of State A and State C, and what legal repercussions may this conduct have?

1) Main issues :Colocation by defending actor, endanger principle of

distinction. Intentional (thus human shields ?) or accidental ?

Human shields (involuntary/ hostages): State A versus state C citizens, State C versus State C citizens but state A ethnicity.

1) Legal foundations- AP art 58 (c)(b) « to the maximum extent feasible »- API art 51 (7) : « the presence of civilian population »- GC III art 28 (art 4), « protected persons »,- « war crime » : GC art 147 « compell person to serve », ICC 8(2) xv, GC art 147 « hostage »

FINAL ADVICE…

• Answer in full sentences ! And paragraphs.

• Do not start with conclusion.

• Try to get the legal source(s) in very early, so that the discussion revolve around them

• Quotes : do not quote entire articles. Also avoid to quote entire sentences. You add nothing of value except identifying the article…

• Main focus on what is doubtfull, uncertain, intriguing…

• How to quote : is this an « …presence ….of civilians shall not be used to render…areas immune from military operations»

• Stick to the issue at hand. Digressions will only arise suspicion ..

• Normally, it is best to start with the ius ad bellum – questions, and then proceeded to ius in bello – issues

• Always beware of which parties you are dealing with. Even if there is an armed conflict going on, it doesn’t automatically affect everyone, everywhere, at any time, in the same way.

• Make sure to know why you need to discuss a given issue. (E.g. is this an armed conflict? The existence of an armed conflict is necessary for the rules of IHL to apply. Is this person a combatant or a civilian ? This distinction will have consequences for rules of targeting, rules of prosecutorial immunity and certain rules of detention-regimes. But it is not always relevant !) You must always keep in mind what these specific facts, claims and legal issues make relevant.

• Always know which part of the GC / AP you operate in, and that all entry requirements for the particular rule you use are satisfied ! ( and as you know, some of these might be located in other parts of the conventions!)

• Make sure to identify whether you deal with alternative or cumulative requirements !

• (alternative requirements : ‘or’ : only one has to be satisfied, cumulative :’and’ : all must to be satisfied).

• As an aid both to yourself and to your reader : pose clearcut questions, and then reach clearcut conclusions ! Reservations, discussions and arguments related to an issue should be included before you reach your conclusion.

• Beware of not giving too much information that is irrelevantfor the assignment/facts/claims/ legal issues given : if the distinction between combatant and civilian is irrelevant, and you use 2/3 of your time and space to discuss this, it will not be to your advantage ! ( most probably you will be either suspected of not understanding that it is irrelevant, or worse; that you give this information because you do not master the issues that are in fact laid in front of you!)

• Don’t “SPECULATE” in the facts given

• Don’t THEORIZE beyond the facts/questions if not specifically asked to do so..

• And remember : it is not primarily WHAT YOU CONCLUDE that is important, but WHAT QUESTIONS YOU ASK, and HOW YOU RESPOND to them that will decide your rate of success at an exam!

GOOD LUCK !