CYIL Vol. 7, 2016

PETRA DITRICHOVÁǧOCHMANNOVÁ CYIL 7 ȍ2016Ȏ states are often claiming that they are conducting law enforcement operations where instead they should apply the law of armed conflict paradigm. It is interesting in this respect is to observe very inconsistent state practice. For instance, when a U.S. pilot was shot down by Syrian forces over Lebanon in 1988, the U.S. originally claimed that the pilot was entitled to POW status under GC III; however, afterwards President Reagan stated that there is no declared war between the nations, and therefore a pilot is not eligible for the Geneva Convention’s status. 26 Unfortunately, the issue of clarity over the use of appropriate rules is not simple either in a situation of armed conflict. The fact is that it became almost a rule rather an exception that in a situation of armed conflict armed forces are also undertaking law enforcement tasks (e.g. check-points) in addition to conduct of hostilities. Therefore, complexities of modern military operations also actively contribute to The law governing the use of force in peacetime is called “law enforcement”, and the law governing the use of force in wartime is called “law of armed conflict” (LOAC). Both legal regimes are based on different assumptions and conditions upon which a force may be legally used (by and against whom) and naturally leads to different consequences. 27 Despite the assumption that some basic human rights must apply in both situations (e.g. right to life etc.), 28 as well as general trends towards complementary application of human rights in situations of armed conflicts, it is important to understand the different approach of the legal paradigms towards specific issues, such as use of force. First of all, the LOAC is based on the assumption that the use of force is inherent to waging war, because the ultimate aim of military operations is to prevail over the enemy’s armed forces. 29 Military necessity for the use of force is therefore automatically presumed. The assumption is different for law enforcement, which is mainly governed by human rights law. Human rights law was initially conceived to protect individuals from abuse by their State; therefore use of force is considered as 26 International Law Association, The Hague Conference (2010), Final Report on the Meaning of Armed Conflict in International Law, p. 17-18; Similarly, when in 2007 British sailors were detained by Iran, the UK claimed that they are entitled to POW treatment. PAUL BERMAN, “When does violence cross the armed conflict threshold: current dilemmas” in Proceedings of the Bruges Colloquium, Scope of Application of International Humanitarian Law , 13th Bruges Colloquium, No. 43, 2013, p. 39. 27 For more information, see for instance FRANCOISE J. HAMPSON, “The Relationship between International Humanitarian Law and Human Rights Law from the perspective of a Human Rights Treaty Body”, International Review of the Red Cross , Vol. 90, No. 871, September 2008, p. 549-572. 28 For instance, see ICJ, Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996. 29 JEAN PICTET, Development and Principles of International Humanitarian Law , Martinus Nijhoff Publishers, 1985, p. 62. blurring the understanding of what legal regime should be followed. 3.1 Differences in Use of Force in peacetime and situations of armed conflict

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