CYIL vol. 8 (2017)

PETR STEJSKAL CYIL 8 ȍ2017Ȏ it is possible to schematically identify the limitations of the conduct of each party to the hostilities. 3.1 International armed conflict 3.1.1 Damaging acts When state A uses force against state B on which territory the foreign investment is situated, this investment can be harmed in several ways. Firstly, state A can physically damage or destroy the investment during the hostilities (for example, by air strike, and by launching missiles or artillery bombardment across the borders, all aimed for example, at a power plant, oil platform or key industrial areas). Secondly, it can be the host state itself imperilling foreign investment on its territory by its destruction during a military operation against the invading forces of state A (or for example, when a particular facility can become a valuable military utility for an invading army) or by its confiscation for the needs of war. There are many examples of international armed conflicts in recent history, such as the so-called Six-Day War between Israel and Egypt, Jordan and Syria in 1967, the intervention of Iraq into Kuwait in 1990 and the intervention of the United States led coalition in Iraq in 2004). 27 3.1.2 The law of armed conflict According to the law of armed conflict, parties to the conflict have a general obligation at all times to distinguish between military and civilian objects. Only attacks against combatants and military objectives are considered legal according to Art. 48 of Additional Protocol I. 28 To assess whether a particular object is a military object, we need to look at Art. 52 par. 2 of the Protocol. However, even a civilian object can become a legal target of attack if being used for military purposes if its destruction or seizure offers a definite military advantage. 29 In that case, this object loses its civilian character and qualifies as a military objective. 30 Civilian means of transportation and communication or even economic targets that effectively support military operations are cited as examples of military objectives. 31 Furthermore, the principle of necessity (according to which the destruction or seizure of the enemy’s property is prohibited unless it is demanded by the necessities of war) 32 and the principle of proportionality (prohibiting attacks which may cause incidental damage to civilian objects, among others, which would be excessive in relation to a concrete and confiscation of foreign investments during armed conflict. Applicability of the norms of law of armed conflict seem to be very limited to indirect forms of damage (namely administrative measures), and therefore are not analysed here, even though consequences of such measures may be equally fatal for the foreign investor. 27 International armed conflicts are often connected with occupation of territory or with the existence of insurgents (and therefore having character of internationalized armed conflict) and those particularities are mentioned in following scenarios. 28 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, June 8, 1977, hereinafter as ‘Additional Protocol I.’ 29 Additional Protocol I, Art. 52, par. 1 and 2. 30 HENCKAERTS, J., DOSSWALD-BACK, L., Customary International Humanitarian Law. Volume I: Rules . International Committee of the Red Cross, 2009, pp. 34-35. 31 Ibid , pp. 29-32. 32 Art. 23 letter g) of Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, October 18, 1907, hereinafter ‘1907 Hague Regulations’.

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