HOW ARE WAR CRIMINALS PROSECUTED UNDER HUMANITARIAN LAW?
On becoming party to the Geneva Conventions, States undertake to enact any legislation necessary to punish persons guilty of grave breaches of the Conventions. States are also bound to prosecute in their own courts any person suspected of having committed a grave breach of the Conventions, or to hand that person over for judgment to another State. In other words, perpetrators of grave breaches, i.e. war criminals, must be prosecuted at all times and in all places, and States are responsible for ensuring that this is done.Generally speaking, a States criminal laws apply only to crimes committed on its territory or by its own nationals. International humanitarian law goes further in that it requires States to seek out and punish any person who has committed a grave breach, irrespective of his nationality or the place where the offence was committed. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed. Such prosecutions may be brought either by the national courts of the different States or by an international authority. In this connection, the International Criminal Tribunals for the former Yugoslavia and Rwanda were set up by the UN Security Council in 1993 and 1994, respectively, to try those accused of war crimes committed during the conflicts in those countries.
Why are the humanitarian rules not always respected and violations not always repressed?
This question can be answered in various ways. Some claim that ignorance of the law is largely to blame, others that the very nature of war so wills it, or that it is because international law and therefore humanitarian law as well is not matched by an effective centralized system for implementing sanctions, among other things, because of the present structure of the international community. Be that as it may, whether in conflict situations or in peacetime and whether it is national or international jurisdiction that is in force, laws are violated and crimes committed.Yet simply giving up in the face of such breaches and halting all action that seeks to gain greater respect for humanitarian law would be far more discreditable. This is why, pending a more effective system of sanctions, such acts should be relentlessly condemned and steps taken to prevent and punish them. The penal repression of war crimes must therefore be seen as one means of implementing humanitarian law, whether at national or international level.Lastly, the international community has created a permanent International Criminal Court, which will be competent to try war crimes, crimes against humanity, and genocide.
What is a war crime?
War crimes are understood to mean serious violations of international humanitarian law committed during international or non-international armed conflicts. Several legal texts contain definitions of war crimes, namely the Statute of the International Military Tribunal established after the Second World War in Nuremberg, the Geneva Conventions and their Additional Protocols, the Statutes and case law of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Statute of the International Criminal Court. Definitions of the notion of war crime are also given in the legislation and case law of various countries. It is important to note that one single act may constitute a war crime.The following acts are, among others, included in the definition of war crimes:
· wilful killing of a protected person (e.g. wounded or sick combatant, prisoner of war, civilian);
· torture or inhuman treatment of a protected person;
· wilfully causing great suffering to, or serious injury to the body or health of, a protected person;
· attacking the civilian population;
· unlawful deportation or transfer;
· using prohibited weapons or methods of warfare;
· making improper use of the distinctive red cross or red crescent emblem or other protective signs;
· killing or wounding perfidiously individuals belonging to a hostile nation or army;
· pillage of public or private property.
What is the ICRC's role in ensuring respect for humanitarian law?
Extract from ICRC publication "International humanitarian law: answers to your questions"
As the promoter and guardian of international humanitarian law, the ICRC must encourage respect for the law. It does so by spreading knowledge of the humanitarian rules and by reminding parties to conflicts of their obligations.Dissemination and Advisory ServiceSince ignorance of the law is an obstacle to its implementation, the ICRC reminds States that they have undertaken to make the humanitarian provisions known. It also takes its own action to this end . The ICRC further reminds States that they must take all the necessary steps to ensure that the law is applied effectively and therefore respected. It does so chiefly through its Advisory Service on international humanitarian law, which provides technical guidance to States and helps their authorities adopt national implementing laws and regulations.Reminding parties in conflict of their obligationsOn the strength of the conclusions it draws from its protection and assistance work, the ICRC makes confidential representations to the relevant authorities in the event of violations of humanitarian law. If the violations are serious and repeated and it can be established with certainty that they have occurred, the ICRC reserves the right to take a public stance; it does so only if it deems such publicity to be in the interest of the people affected or threatened. This therefore remains an exceptional measure.
The ICRC as guardian of international humanitarian law
Humanitarian law enables the ICRC to ensure that humanitarian rules are respected.Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour (...). And again: The delegates of the International Committee of the Red Cross shall enjoy the same prerogatives. (Art. 126, Third Convention).
What are jus ad bellum and jus in bello?
The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter . The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum (law on the use of force or law on the prevention of war).
On the prohibition of war
Until the end of the First World War, resorting to armed force was regarded not as an illegal act but as an acceptable way of settling differences.In 1919, the Covenant of the League of Nations and, in 1928, the Treaty of Paris (Briand-Kellogg Pact) sought to outlaw war. The adoption of the United Nations Charter in 1945 confirmed the trend: The members of the Organization shall abstain, in their international relations, from resorting to the threat or use of force (...).When a State or group of States is attacked by another State or group of States, however, the UN Charter upholds the right to individual or collective self-defence. The UN Security Council, acting on the basis of Chapter VII of the Charter , may also decide on the collective use of force. This may involve:-coercive measures aimed at restoring peace against a State threatening international security; -peace-keeping measures in the form of observer or peacekeeping missions.
What does humanitarian law provide for in terms of material assistance to the victims of armed conflict
The States party to the Geneva Conventions recognize the right of victims of armed conflicts to receive supplies indispensable to their survival. That right was further developed with the adoption of the Additional Protocols in 1977.In an international armed conflict, the right to assistance includes in particular:
· free passage for consignments of certain objects necessary to the survival of the civilian population (Art. 23, Fourth Convention, drafted to deal with blockades);
· the duty of the Occupying Power to ensure essential supplies to the population of territories it occupies (Art. 55, Fourth Convention); if its own supplies are inadequate, the Occupying Power must agree to relief provided by outside sources (Art. 59, Fourth Convention).
Protocol I (Arts. 69 and 70) strengthens the body of rules adopted in 1949. For instance, a State at war must accept impartial humanitarian relief schemes carried out without discrimination for the population on its own territory, subject to the agreement of the parties concerned. If those conditions are met, however, it would be wrong to refuse such relief schemes, which are regarded neither as interference in the armed conflict nor as hostile acts. In a non-international armed conflict, Protocol II specifies, among other things, that if the civilian population is suffering excessive deprivation owing to a lack of supplies essential to its survival, relief actions which are of an exclusively humanitarian and impartial nature and conducted without any adverse distinction must be undertaken subject to the consent of the warring parties . It is now generally recognized that the State must authorize purely humanitarian relief operations of this nature.
The ICRC and the right to assistance
The ICRC in any case has a right of initiative that enables it to offer its services to parties in conflict, in particular with a view to assisting the victims. Its offer of assistance (relief or other activities) does not constitute interference in the internal affairs of a State, since it is provided for in humanitarian law.
Humanitarian law and the "right to intervene on humanitarian grounds"
In so far as a right or even a duty to intervene is tantamount to justifying armed intervention undertaken for humanitarian reasons, this is a matter not for humanitarian law but for the rules on the legality of the use of armed force in international relations, i.e. of jus ad bellumIf there is armed intervention on humanitarian grounds, the ICRC must, in accordance with its mandate (see Index), ensure that those engaged in the intervention observe the relevant rules of IHL; it must also endeavour to aid the victims of the conflict.
Who is bound by the Geneva Conventions?
Only States may become party to international treaties, and thus to the Geneva Conventions and their Additional Protocols. However, all parties to an armed conflict whether States or non-State actors are bound by international humanitarian law. At the end of 2003, almost all the world's States - 191, to be precise - were party to the Geneva Conventions. The fact that the treaties are among those accepted by the greatest number of countries testifies to their universality. In the case of the Additional Protocols, 161 States were party to Protocol I and 156 to Protocol II by the same date.
Signature, ratification, accession, reservations, succession
Multilateral treaties between States, such as the Geneva Conventions and their Additional Protocols, require two separate procedures:a) signature followed by ratificationWhile signature does not bind a State, it does oblige the State to behave in a way which does not render the substance of the treaty meaningless when the State subsequently ratifies and solemnly undertakes to respect the treaty.b) accessionThis is the act whereby a State which did not sign the text of a treaty when it was adopted consents to be bound by it. Accession has the same implications as ratification. A newly independent State may, by means of a declaration of succession, express the desire to remain bound by a treaty which applied to its territory prior to independence. It may also make a declaration of provisional application of the treaties while examining them prior to accession or succession. Within the context of those procedures and under certain conditions, a State may make reservations in order to exclude or modify the legal effect of certain provisions of the treaty. The main condition is that such reservations do not run counter to essential substantive elements of the treaty.Lastly, national liberation movements covered by Article 1, paragraph 4, of Protocol I may undertake to apply the Conventions and the Protocol by following the special procedure set down in Article 96, paragraph 3, of Protocol I.
Whose duty is it to spread knowledge of the Conventions and Protocols?
States have a legal obligation to spread knowledge of the Conventions and Protocols:The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains. (Arts. 47, 48, 127 and 144 of, respectively, GC I, II, III & IV) The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed forces and to the civilian population. (Art. 83, Protocol I)
What are the essential rules of international humanitarian law?
Extract from ICRC publication "International humanitarian law: answers to your questions"
The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solely against military objectives. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavorable distinction whatever. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering.The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared. The red cross or red crescent on a white background is the distinctive sign indicating that such persons and objects must be respected.Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.
These rules, drawn up by the ICRC, summarize the essence of international humanitarian law. They do not have the authority of a legal instrument and in no way seek to replace the treaties in force. They were drafted with a view to facilitating the promotion of IHL.
Fundamental principles of humanitarian law
Like Grotius, jurists and philosophers took an interest in the regulation of conflicts well before the first Geneva Convention of 1864 was adopted and developed.In the 18th century, Jean-Jacques Rousseau made a major contribution by formulating the following principle about the development of war between States:War is in no way a relationship of man with man but a relationship between States, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to destroy the enemy State, it is legitimate to kill the latters defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: (...) civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.The above, known as the Martens clause, was already considered a standard part of customary law when it was incorporated in Article 1, paragraph 2, of Additional Protocol I of 1977.While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of unnecessary suffering, as follows:Considering: (...) That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;That for this purpose it is sufficient to disable the greatest possible number of men;That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction: (...) the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. (Art. 48, Protocol I; see also Art. 13, Protocol II).Finally, the underlying principle of proportionality seeks to strike a balance between two diverging interests, one dictated by considerations of military need and the other by requirements of humanity when the rights or prohibitions are not absolute.
What is international humanitarian law?
international humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.
International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practise considered by them as legally binding, and in general principles.
International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.
In what situations does humanitarian law apply? For whom is it intended and who does it protect?
international humanitarian law is applicable in two situations; that is to say, it offers two systems of protection:a) International armed conflicts In such situations the Geneva Conventions and Additional Protocol I apply.Humanitarian law is intended principally for the parties to the conflict and protects every individual or category of individuals not or no longer actively involved in the conflict, i.e.:
· wounded or sick military personnel in land warfare, and members of the armed forces' medical services;
· wounded, sick or shipwrecked military personnel in naval warfare, and members of the naval forces' medical services;
· prisoners of war;
· the civilian population, for example:
· foreign civilians on the territory of parties to the conflict, including refugees;
· civilians in occupied territories;
· civilian detainees and internees;
· medical and religious personnel or civil defence units.
Wars of national liberation, as defined in Article 1 of Protocol I, are classified as international armed conflicts .b) Non-international armed conflicts In the event of a non-international conflict, Article 3 common to the four Conventions and Protocol II apply.It should be noted that the conditions of application of Protocol II are stricter than those provided for by Article 3 . In such situations, humanitarian law is intended for the armed forces, whether regular or not, taking part in the conflict, and protects every individual or category of individuals not or no longer actively involved in the hostilities, for example:
· wounded or sick fighters;
· people deprived of their freedom as a result of the conflict;
· the civilian population;
· medical and religious personnel.
Humanitarian law and non-international armed conflicts.
Article 3 common to the four Geneva Conventions is regarded as a sort of treaty in miniature . Even including the provisions of Protocol II, the rules on internal armed conflicts remain less complete than those dealing with international armed conflicts. It has proven difficult to strengthen the system of protection in non-international armed conflicts in the face of the principle of State sovereignty. The rules contained in Article 3 are considered as customary law and represent a minimum standard from which the belligerents should never depart.
What law applies to internal disturbances and other situations of internal violence?
International humanitarian law does not apply to situations of violence not amounting in intensity to an armed conflict. Cases of this type are governed by the provisions of human rights law and such measures of domestic legislation as may be invoked.
Basic rules of international humanitarian law in armed conflicts
This text has been prepared for dissemination purposes and cannot in any circumstances serve as a substitute for the complete provisions of the international agreements - Extract from "Basic rules of the Geneva Conventions and their Additional Protocols"
The seven fundamental rules which are the basis of the Geneva Conventions and the Additional Protocols.1 - Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for theirlives and their moral and physical integrity. They shall in all circumstances be protected and treated humanelywithout any adverse distinction.2 - It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.3 - The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power.Protection also covers medical personnel, establishments, transports and equipment. The emblem of the redcross or the red crescent is the sign of such protection and must be respected.4 - Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives,dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.5 - Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.6 - Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.7 - Parties to a conflict shall at all times distinguish between the civilian population and combatants in order tospare civilian population and property. Neither the civilian population as such nor civilian persons shall be theobject of attack. Attacks shall be directed solely against military objectives.
What are the provisions of humanitarian law governing use of the emblem?
Extract from ICRC publication "International humanitarian law: answers to your questions"
The Geneva Conventions mention three emblems: the red cross, the red crescent and the red lion and sun, although only the first two are now being used.The Conventions and their Additional Protocols contain several articles on the emblem. Among other things, they specify the use, size, purpose and placing of the emblem, the persons and property it protects, who can use it, what respect for the emblem entails and the penalties for misuse.
· In times of armed conflict, the emblem may be used as a protective device only by:
· armed forces medical services;
· National Red Cross and Red Crescent Societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces; the National Societies may use the emblem for protective purposes only for those of their personnel and equipment assisting official medical services in wartime, provided that those personnel and equipment perform the same functions and only those functions and are subject to military law and regulations;
· civilian hospitals and other medical facilities recognized as such by the government and authorized to display the emblem for protective purposes (first-aid posts, ambulances, etc.);
· other voluntary relief agencies subject to the same conditions as National Societies: they must have government recognition and authorization, may use the emblem only for personnel and equipment allocated exclusively to medical services, and must be subject to military law and regulations.
International humanitarian law also specifies that each State party to the Geneva Conventions is required to take steps to prevent and punish misuse of the emblem in wartime and peacetime alike, and to enact a law on the protection of the emblem.
What are the provisions of humanitarian law governing use of the emblem?
The Geneva Conventions mention three emblems: the red cross, the red crescent and the red lion and sun, although only the first two are now being used.The Conventions and their Additional Protocols contain several articles on the emblem. Among other things, they specify the use, size, purpose and placing of the emblem, the persons and property it protects, who can use it, what respect for the emblem entails and the penalties for misuse.
· In times of armed conflict, the emblem may be used as a protective device only by:
· armed forces medical services;
· National Red Cross and Red Crescent Societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces; the National Societies may use the emblem for protective purposes only for those of their personnel and equipment assisting official medical services in wartime, provided that those personnel and equipment perform the same functions and only those functions and are subject to military law and regulations;
· civilian hospitals and other medical facilities recognized as such by the government and authorized to display the emblem for protective purposes (first-aid posts, ambulances, etc.);
· other voluntary relief agencies subject to the same conditions as National Societies: they must have government recognition and authorization, may use the emblem only for personnel and equipment allocated exclusively to medical services, and must be subject to military law and regulations.
International humanitarian law also specifies that each State party to the Geneva Conventions is required to take steps to prevent and punish misuse of the emblem in wartime and peacetime alike, and to enact a law on the protection of the emblem.
What measures are available for implementing humanitarian law?
The following implementation measures must be taken.Preventive measures, based on the duty of States to comply with humanitarian law.They include:
· spreading knowledge of IHL;
· training qualified personnel to facilitate the implementation of IHL, and the appointment of legal advisers in the armed forces;
· adopting legislative and statutory provisions to ensure compliance with IHL;
· translating the texts of the Conventions.
Measures for monitoring compliance with the provisions of humanitarian law for the duration of the conflict:
· action by the Protecting Powers or their substitutes;
· ICRC action (see Q15).
Repressive measures, based on the duty of the parties to the conflict to prevent and put a halt to all violations. Mechanisms for repression include:
· the obligation for the national courts to repress grave breaches considered as war crimes (for international tribunals, see Q16);
· the criminal liability and disciplinary responsibility of superiors, and the duty of military commanders to repress and denounce offences;
· mutual assistance between States on criminal matters.
Apart from the fact that they are inherent in any consistent legal construct, these repressive measures also serve as a deterrent.There are other implementation measures, which encompass prevention, control and repression; the last two are derived chiefly from the duty of States to ensure respect for humanitarian law. They include:
· the enquiry procedure;
· the International Fact-Finding Commission;
· the examination procedures concerning the application and interpretation of legal provisions;
· cooperation with the United Nations.
Diplomatic efforts and pressure from the media and public opinion also help ensure implementation of IHL.
· Coercive measures that States may take themselvesThe list that follows includes only measures available to States which are legally permissible in international law, and does not therefore take into consideration armed intervention undertaken unilaterally, i.e. without any reference to a treaty or custom, by a State or a group of States, as such intervention is not permitted under public international law and as no armed intervention can be based on international humanitarian law [5]. It would be useful at this stage to touch very briefly upon the legality, in international law, of the adoption of coercive (albeit unarmed) measures by States vis-a-vis other States. Practice shows that States employ a wide range of such measures in order to exert pressure on other States in retaliation for an act committed by the State against which they are directed. Such measures may be classified in two broad categories, namely retortion and unarmed reprisals.Retortion refers to acts which are unfriendly, and even damaging, but intrinsically lawful, carried out in response to a prior act which might also be unfriendly but lawful, or internationally unlawful.Reprisals are acts which are by their very nature unlawful but are exceptionally justified in the light of a prior unlawful act committed by the State at which they are directed. Thus the International Law Commission, which uses the term "countermeasures" to designate such acts, considers the initial illegality to constitute a circumstance which precludes the illegality of the response. [6The lawfulness of the measures themselves [7], notably with regard to their content and implementation, is determined not only in terms of the limits dictated by the demands of civilization and humanity, but also in terms of their aim. The aim is neither to punish (we are concerned with countermeasures, not sanctions) nor to seek compensation, but solely to oblige the State which is responsible for violating the law to stop doing so, by inflicting damage upon it, and to deter it from repeating the same offence in the future. Thus, in order to remain lawful, the coercive measures must :- be directed against the State responsible for the unlawful act itself;- be preceded by a warning to the State in question, asking it to stop the said act or acts;- be proportional; all measures out of proportion with the act which prompted them would be excessive, and hence unlawful;- respect fundamental humanitarian principles, as provided for in public international law an International humanitarian law, whereby such measures are forbidden against certain categories of persons;[8]- be temporary and therefore cease as soon as the violation of the law by the State in question ceases.[9]Possible measures of retortiona) Expulsion of diplomats.For instance, during the hostages affair at the United States embassy in Tehran (1979-1980), the United States expelled some of the Iranian diplomatic personnel posted in Washington.b) Severance of diplomatic relations.Soon after the aforementioned decision, the United States broke off diplomatic relations with Iran.c) Halting ongoing diplomatic negotiations or refusing to ratify agreements already signed.The American Senate refused to examine the SALT II agreements, already signed by the USSR and the United States, following the invasion of Afghanistan (1979).d) Non-renewal of trade privileges or agreements.The United States decided, in 1981, not to renew its bilateral maritime agreement with the USSR and to introduce restrictions on the admission of its vessels to American ports as from January 1982, following the repression in Poland.e) Reduction or suspension of public aid to the State in question.As a reaction to militia killings and other human rights violations in Suriname, the Netherlands in December 1982 suspended implementation of a 10 to 15-year aid programme to that country.Possible unarmed reprisalsThese include measures to exert economic pressure [10]. The aim is to hamper normal economic and financial relations, either by failing to respect agreements in force or by way of decisions running counter to the rules governing those relations. a) Restrictions and/or ban on arms trade, military technology and scientific co-operation.The European Communities took a series of decisions on 4 August 1990 with regard to Iraq which comprised, among others, an embargo on the sale of arms and other military equipment, and the suspension of all technical and scientific co-operation.b) Restrictions on exports and/or imports to and from the State committing the violations; total ban on commercial relations.Following the invasion of Afghanistan (1979) the United States set up a grain embargo against the USSR; the European Communities imposed a total ban on imports from Argentina during the Falklands/ Malvinas conflict (1982); the United States suspended commercial relations with Uganda in 1978 in reaction to violations of human rights.c) Ban on investments.A ban on all new investment in South Africa was imposed by France in 1985, following a hardening of the repression associated with apartheid.d) Freezing of capitalThe European Communities decided to freeze Iraqi assets on the territory of the Member States (4 August 1990).e) Suspension of air transport (or other) agreements.On 26 December 1981, the United States suspended the 1972 US-Polish Air Transport Agreement following the Polish government's repression of the Solidarity movement.
How does humanitarian law protect refugees and internally displaced persons?
Refugees are people who have fled their countries, while internally displaced persons (IDPs) are those who have not left their countrys territory.Refugees enjoy first and foremost the protection afforded them by refugee law and the mandate of the Office of the United Nations High Commissioner for Refugees (UNHCR). If they are in a State involved in an armed conflict, refugees are also protected by international humanitarian law. Apart from the general protection afforded by IHL to civilians, refugees also receive special protection under the Fourth Geneva Convention and Additional Protocol I. This additional protection recognizes the vulnerability of refugees as aliens in the hands of a party to the conflict and the absence of protection by their State of nationality.IDPs are protected by various bodies of law, principally national law, human rights law and, if they are in a State undergoing armed conflict, international humanitarian law.If IDPs are in a State which is involved in an armed conflict, they are considered civilians provided they do not take an active part in the hostilities and, as such, are entitled to the protection afforded to civilians.When they are respected, these rules play an important role in preventing displacement, as it is often their violation which leads to displacement. In addition, humanitarian law expressly prohibits compelling civilians to leave their places of residence unless their security or imperative military reasons so demand.Once displaced, IDPs are protected from the effects of hostilities by the general rules governing the protection of civilians and humanitarian assistance set out above.The general rules of humanitarian law for the protection of civilians, if respected, can prevent displacement. If not, they can offer protection during displacement. Particular mention should be made of the following rules, which prohibit:
· attacks on civilians and civilian objects or the conduct of hostilities in an indiscriminate manner;
· starvation of the civilian population and the destruction of objects indispensable to its survival;
· collective punishments which often take the form of destruction of dwellings.
There are also the rules requiring parties to a conflict to allow relief consignments to reach civilian populations in need.
Definition of a refugee
According to Article 1 of the 1951 UN Convention on the status of refugees, the term refugee applies to any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it.The 1969 Convention of the Organization of African Unity on refugee problems in Africa and the 1984 Cartagena Declaration on refugees have broadened that definition to include people fleeing events which seriously disrupt public order, such as armed conflicts and disturbances.
Does humanitarian law apply to the new conflicts?
There is much talk today of new conflicts. This expression covers different types of armed conflict: those known as anarchic conflicts and others in which group identity becomes the focal point. These terms are used fairly loosely."Anarchic" conflicts, the upsurge of which doubtless results from the end of the Cold War, are often marked by the partial, and sometimes even total, weakening or breakdown of State structures. In such situations, armed groups take advantage of the political vacuum in an attempt to grab power. This type of conflict is, however, marked above all by a weakening or breakdown in the chain of command within the same armed groups.Conflicts aimed at asserting group identity often seek to exclude the adversary through "ethnic cleansing". This consists in forcibly displacing or even exterminating populations. Under the effect of spiralling propaganda, violence and hatred, this type of conflict strengthens group feeling to the detriment of the existing national identity, ruling out any possibility of coexistence with other groups.International humanitarian law still applies in these "anarchic" and "identity-related" conflicts, in which the civilian population in particular is exposed to violence. Common Article 3 requires all armed groups, whether in rebellion or not, to respect individuals who have laid down their arms and those, such as civilians, who do not take part in the hostilities.Consequently, it is not because a States structures have been weakened or are nonexistent that there is a legal vacuum with regard to international law. On the contrary, these are precisely the circumstances in which humanitarian law comes fully into its own.Admittedly, the humanitarian rules are harder to apply in these types of conflict. The lack of discipline among belligerents, the arming of the civilian population as weapons flood the territory and the increasingly blurred distinction between fighters and civilians often cause confrontations to take an extremely brutal turn, in which there is little place for the rules of law.As a result, this is the type of situation in which particular efforts are needed to make people aware of humanitarian law. Better knowledge of the rules of law will not solve the underlying problem which led to the conflict, but it is likely to attenuate its deadlier consequences.
Common Article 3: a treaty in miniature
In the case of armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:1)Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
What are the origins of international humanitarian law?
To answer this question we have to ask other questions.What law governed armed conflicts prior to the advent of contemporary humanitarian law?First there were unwritten rules based on customs that regulated armed conflicts. Then bilateral treaties (cartels) drafted in varying degrees of detail gradually came into force. The belligerents sometimes ratified them after the fighting was over. There were also regulations which States issued to their troops. The law then applicable in armed conflicts was thus limited in both time and space in that it was valid for only one battle or specific conflict. The rules also varied depending on the period, place, morals and civilization.Who were the precursors of contemporary humanitarian law?Two men played an essential role in its creation: Henry Dunant and Guillaume- Henri Dufour . Dunant formulated the idea in A Memory of Solferino, published in 1862. On the strength of his own experience of war, General Dufour lost no time in lending his active moral support, notably by chairing the 1864 Diplomatic Conference.Dunant:"On certain special occasions, as, for example, when princes of the military art belonging to different nationalities meet (...) would it not be desirable that they should take advantage of this sort of congress to formulate some international principle, sanctioned by a Convention and inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries?"Dufour (to Dunant):"We need to see, through examples as vivid as those you have reported, what the glory of the battlefield produces in terms of torture and tears."How did the idea become a reality?The Swiss government, at the prompting of the five founding members of the ICRC, convened the 1864 Diplomatic Conference, which was attended by 16 States who adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field.What innovations did that Convention bring about?The 1864 Geneva Convention laid the foundations for contemporary humanitarian law. It was chiefly characterized by:
standing written rules of universal scope to protect the victims of conflicts;
its multilateral nature, open to all States;
the obligation to extend care without discrimination to wounded and sick military personnel;
respect for and marking of medical personnel, transports and equipment using an emblem (red cross on a white background).
Humanitarian law prior to its codification
It would be a mistake to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the starting point of international humanitarian law as we know it today. Just as there is no society of any sort that does not have its own set of rules, so there has never been a war that did not have some vague or precise rules covering the outbreak and end of hostilities, as well as how they are conducted.Taken as a whole, the war practices of primitive peoples illustrate various types of international rules of war known at the present time: rules distinguishing types of enemies; rules determining the circumstances, formalities and authority for beginning and ending war; rules describing limitations of persons, time, place and methods of its conduct; and even rules outlawing war altogether. (Quincy Wright) The first laws of war were proclaimed by major civilizations several millennia before our era: I establish these laws to prevent the strong from oppressing the weak. (Hammurabi, King of Babylon)Many ancient texts such as the Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the Viqayet a text written towards the end of the 13th century, at the height of the period in which the Arabs ruled Spain contains a veritable code for warfare. The 1864 Convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered laws and customs of war protecting the wounded and those caring for them.
The Lieber Code
From the beginning of warfare to the advent of contemporary humanitarian law, over 500 cartels, codes of conduct, covenants and other texts designed to regulate hostilities have been recorded. They include the Lieber Code, which came into force in April 1863 and is important in that it marked the first attempt to codify the existing laws and customs of war. Unlike the first Geneva Convention (adopted a year later), however, the Code did not have the status of a treaty as it was intended solely for Union soldiers fighting in the American Civil War.
Why are the humanitarian rules not always respected and violations not always repressed?
This question can be answered in various ways. Some claim that ignorance of the law is largely to blame, others that the very nature of war so wills it, or that it is because international law and therefore humanitarian law as well is not matched by an effective centralized system for implementing sanctions, among other things, because of the present structure of the international community. Be that as it may, whether in conflict situations or in peacetime and whether it is national or international jurisdiction that is in force, laws are violated and crimes committed.Yet simply giving up in the face of such breaches and halting all action that seeks to gain greater respect for humanitarian law would be far more discreditable. This is why, pending a more effective system of sanctions, such acts should be relentlessly condemned and steps taken to prevent and punish them. The penal repression of war crimes must therefore be seen as one means of implementing humanitarian law, whether at national or international level.Lastly, the international community has created a permanent International Criminal Court, which will be competent to try war crimes, crimes against humanity, and genocide.
What is a war crime?
War crimes are understood to mean serious violations of international humanitarian law committed during international or non-international armed conflicts. Several legal texts contain definitions of war crimes, namely the Statute of the International Military Tribunal established after the Second World War in Nuremberg, the Geneva Conventions and their Additional Protocols, the Statutes and case law of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Statute of the International Criminal Court. Definitions of the notion of war crime are also given in the legislation and case law of various countries. It is important to note that one single act may constitute a war crime.The following acts are, among others, included in the definition of war crimes:
· wilful killing of a protected person (e.g. wounded or sick combatant, prisoner of war, civilian);
· torture or inhuman treatment of a protected person;
· wilfully causing great suffering to, or serious injury to the body or health of, a protected person;
· attacking the civilian population;
· unlawful deportation or transfer;
· using prohibited weapons or methods of warfare;
· making improper use of the distinctive red cross or red crescent emblem or other protective signs;
· killing or wounding perfidiously individuals belonging to a hostile nation or army;
· pillage of public or private property.
What is the ICRC's role in ensuring respect for humanitarian law?
Extract from ICRC publication "International humanitarian law: answers to your questions"
As the promoter and guardian of international humanitarian law, the ICRC must encourage respect for the law. It does so by spreading knowledge of the humanitarian rules and by reminding parties to conflicts of their obligations.Dissemination and Advisory ServiceSince ignorance of the law is an obstacle to its implementation, the ICRC reminds States that they have undertaken to make the humanitarian provisions known. It also takes its own action to this end . The ICRC further reminds States that they must take all the necessary steps to ensure that the law is applied effectively and therefore respected. It does so chiefly through its Advisory Service on international humanitarian law, which provides technical guidance to States and helps their authorities adopt national implementing laws and regulations.Reminding parties in conflict of their obligationsOn the strength of the conclusions it draws from its protection and assistance work, the ICRC makes confidential representations to the relevant authorities in the event of violations of humanitarian law. If the violations are serious and repeated and it can be established with certainty that they have occurred, the ICRC reserves the right to take a public stance; it does so only if it deems such publicity to be in the interest of the people affected or threatened. This therefore remains an exceptional measure.
The ICRC as guardian of international humanitarian law
Humanitarian law enables the ICRC to ensure that humanitarian rules are respected.Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour (...). And again: The delegates of the International Committee of the Red Cross shall enjoy the same prerogatives. (Art. 126, Third Convention).
What are jus ad bellum and jus in bello?
The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter . The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum (law on the use of force or law on the prevention of war).
On the prohibition of war
Until the end of the First World War, resorting to armed force was regarded not as an illegal act but as an acceptable way of settling differences.In 1919, the Covenant of the League of Nations and, in 1928, the Treaty of Paris (Briand-Kellogg Pact) sought to outlaw war. The adoption of the United Nations Charter in 1945 confirmed the trend: The members of the Organization shall abstain, in their international relations, from resorting to the threat or use of force (...).When a State or group of States is attacked by another State or group of States, however, the UN Charter upholds the right to individual or collective self-defence. The UN Security Council, acting on the basis of Chapter VII of the Charter , may also decide on the collective use of force. This may involve:-coercive measures aimed at restoring peace against a State threatening international security; -peace-keeping measures in the form of observer or peacekeeping missions.
What does humanitarian law provide for in terms of material assistance to the victims of armed conflict
The States party to the Geneva Conventions recognize the right of victims of armed conflicts to receive supplies indispensable to their survival. That right was further developed with the adoption of the Additional Protocols in 1977.In an international armed conflict, the right to assistance includes in particular:
· free passage for consignments of certain objects necessary to the survival of the civilian population (Art. 23, Fourth Convention, drafted to deal with blockades);
· the duty of the Occupying Power to ensure essential supplies to the population of territories it occupies (Art. 55, Fourth Convention); if its own supplies are inadequate, the Occupying Power must agree to relief provided by outside sources (Art. 59, Fourth Convention).
Protocol I (Arts. 69 and 70) strengthens the body of rules adopted in 1949. For instance, a State at war must accept impartial humanitarian relief schemes carried out without discrimination for the population on its own territory, subject to the agreement of the parties concerned. If those conditions are met, however, it would be wrong to refuse such relief schemes, which are regarded neither as interference in the armed conflict nor as hostile acts. In a non-international armed conflict, Protocol II specifies, among other things, that if the civilian population is suffering excessive deprivation owing to a lack of supplies essential to its survival, relief actions which are of an exclusively humanitarian and impartial nature and conducted without any adverse distinction must be undertaken subject to the consent of the warring parties . It is now generally recognized that the State must authorize purely humanitarian relief operations of this nature.
The ICRC and the right to assistance
The ICRC in any case has a right of initiative that enables it to offer its services to parties in conflict, in particular with a view to assisting the victims. Its offer of assistance (relief or other activities) does not constitute interference in the internal affairs of a State, since it is provided for in humanitarian law.
Humanitarian law and the "right to intervene on humanitarian grounds"
In so far as a right or even a duty to intervene is tantamount to justifying armed intervention undertaken for humanitarian reasons, this is a matter not for humanitarian law but for the rules on the legality of the use of armed force in international relations, i.e. of jus ad bellumIf there is armed intervention on humanitarian grounds, the ICRC must, in accordance with its mandate (see Index), ensure that those engaged in the intervention observe the relevant rules of IHL; it must also endeavour to aid the victims of the conflict.
Who is bound by the Geneva Conventions?
Only States may become party to international treaties, and thus to the Geneva Conventions and their Additional Protocols. However, all parties to an armed conflict whether States or non-State actors are bound by international humanitarian law. At the end of 2003, almost all the world's States - 191, to be precise - were party to the Geneva Conventions. The fact that the treaties are among those accepted by the greatest number of countries testifies to their universality. In the case of the Additional Protocols, 161 States were party to Protocol I and 156 to Protocol II by the same date.
Signature, ratification, accession, reservations, succession
Multilateral treaties between States, such as the Geneva Conventions and their Additional Protocols, require two separate procedures:a) signature followed by ratificationWhile signature does not bind a State, it does oblige the State to behave in a way which does not render the substance of the treaty meaningless when the State subsequently ratifies and solemnly undertakes to respect the treaty.b) accessionThis is the act whereby a State which did not sign the text of a treaty when it was adopted consents to be bound by it. Accession has the same implications as ratification. A newly independent State may, by means of a declaration of succession, express the desire to remain bound by a treaty which applied to its territory prior to independence. It may also make a declaration of provisional application of the treaties while examining them prior to accession or succession. Within the context of those procedures and under certain conditions, a State may make reservations in order to exclude or modify the legal effect of certain provisions of the treaty. The main condition is that such reservations do not run counter to essential substantive elements of the treaty.Lastly, national liberation movements covered by Article 1, paragraph 4, of Protocol I may undertake to apply the Conventions and the Protocol by following the special procedure set down in Article 96, paragraph 3, of Protocol I.
Whose duty is it to spread knowledge of the Conventions and Protocols?
States have a legal obligation to spread knowledge of the Conventions and Protocols:The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains. (Arts. 47, 48, 127 and 144 of, respectively, GC I, II, III & IV) The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed forces and to the civilian population. (Art. 83, Protocol I)
What are the essential rules of international humanitarian law?
Extract from ICRC publication "International humanitarian law: answers to your questions"
The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solely against military objectives. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavorable distinction whatever. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering.The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared. The red cross or red crescent on a white background is the distinctive sign indicating that such persons and objects must be respected.Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.
These rules, drawn up by the ICRC, summarize the essence of international humanitarian law. They do not have the authority of a legal instrument and in no way seek to replace the treaties in force. They were drafted with a view to facilitating the promotion of IHL.
Fundamental principles of humanitarian law
Like Grotius, jurists and philosophers took an interest in the regulation of conflicts well before the first Geneva Convention of 1864 was adopted and developed.In the 18th century, Jean-Jacques Rousseau made a major contribution by formulating the following principle about the development of war between States:War is in no way a relationship of man with man but a relationship between States, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to destroy the enemy State, it is legitimate to kill the latters defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: (...) civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.The above, known as the Martens clause, was already considered a standard part of customary law when it was incorporated in Article 1, paragraph 2, of Additional Protocol I of 1977.While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of unnecessary suffering, as follows:Considering: (...) That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;That for this purpose it is sufficient to disable the greatest possible number of men;That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction: (...) the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. (Art. 48, Protocol I; see also Art. 13, Protocol II).Finally, the underlying principle of proportionality seeks to strike a balance between two diverging interests, one dictated by considerations of military need and the other by requirements of humanity when the rights or prohibitions are not absolute.
What is international humanitarian law?
international humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.
International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practise considered by them as legally binding, and in general principles.
International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.
In what situations does humanitarian law apply? For whom is it intended and who does it protect?
international humanitarian law is applicable in two situations; that is to say, it offers two systems of protection:a) International armed conflicts In such situations the Geneva Conventions and Additional Protocol I apply.Humanitarian law is intended principally for the parties to the conflict and protects every individual or category of individuals not or no longer actively involved in the conflict, i.e.:
· wounded or sick military personnel in land warfare, and members of the armed forces' medical services;
· wounded, sick or shipwrecked military personnel in naval warfare, and members of the naval forces' medical services;
· prisoners of war;
· the civilian population, for example:
· foreign civilians on the territory of parties to the conflict, including refugees;
· civilians in occupied territories;
· civilian detainees and internees;
· medical and religious personnel or civil defence units.
Wars of national liberation, as defined in Article 1 of Protocol I, are classified as international armed conflicts .b) Non-international armed conflicts In the event of a non-international conflict, Article 3 common to the four Conventions and Protocol II apply.It should be noted that the conditions of application of Protocol II are stricter than those provided for by Article 3 . In such situations, humanitarian law is intended for the armed forces, whether regular or not, taking part in the conflict, and protects every individual or category of individuals not or no longer actively involved in the hostilities, for example:
· wounded or sick fighters;
· people deprived of their freedom as a result of the conflict;
· the civilian population;
· medical and religious personnel.
Humanitarian law and non-international armed conflicts.
Article 3 common to the four Geneva Conventions is regarded as a sort of treaty in miniature . Even including the provisions of Protocol II, the rules on internal armed conflicts remain less complete than those dealing with international armed conflicts. It has proven difficult to strengthen the system of protection in non-international armed conflicts in the face of the principle of State sovereignty. The rules contained in Article 3 are considered as customary law and represent a minimum standard from which the belligerents should never depart.
What law applies to internal disturbances and other situations of internal violence?
International humanitarian law does not apply to situations of violence not amounting in intensity to an armed conflict. Cases of this type are governed by the provisions of human rights law and such measures of domestic legislation as may be invoked.
Basic rules of international humanitarian law in armed conflicts
This text has been prepared for dissemination purposes and cannot in any circumstances serve as a substitute for the complete provisions of the international agreements - Extract from "Basic rules of the Geneva Conventions and their Additional Protocols"
The seven fundamental rules which are the basis of the Geneva Conventions and the Additional Protocols.1 - Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for theirlives and their moral and physical integrity. They shall in all circumstances be protected and treated humanelywithout any adverse distinction.2 - It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.3 - The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power.Protection also covers medical personnel, establishments, transports and equipment. The emblem of the redcross or the red crescent is the sign of such protection and must be respected.4 - Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives,dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.5 - Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.6 - Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.7 - Parties to a conflict shall at all times distinguish between the civilian population and combatants in order tospare civilian population and property. Neither the civilian population as such nor civilian persons shall be theobject of attack. Attacks shall be directed solely against military objectives.
What are the provisions of humanitarian law governing use of the emblem?
Extract from ICRC publication "International humanitarian law: answers to your questions"
The Geneva Conventions mention three emblems: the red cross, the red crescent and the red lion and sun, although only the first two are now being used.The Conventions and their Additional Protocols contain several articles on the emblem. Among other things, they specify the use, size, purpose and placing of the emblem, the persons and property it protects, who can use it, what respect for the emblem entails and the penalties for misuse.
· In times of armed conflict, the emblem may be used as a protective device only by:
· armed forces medical services;
· National Red Cross and Red Crescent Societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces; the National Societies may use the emblem for protective purposes only for those of their personnel and equipment assisting official medical services in wartime, provided that those personnel and equipment perform the same functions and only those functions and are subject to military law and regulations;
· civilian hospitals and other medical facilities recognized as such by the government and authorized to display the emblem for protective purposes (first-aid posts, ambulances, etc.);
· other voluntary relief agencies subject to the same conditions as National Societies: they must have government recognition and authorization, may use the emblem only for personnel and equipment allocated exclusively to medical services, and must be subject to military law and regulations.
International humanitarian law also specifies that each State party to the Geneva Conventions is required to take steps to prevent and punish misuse of the emblem in wartime and peacetime alike, and to enact a law on the protection of the emblem.
What are the provisions of humanitarian law governing use of the emblem?
The Geneva Conventions mention three emblems: the red cross, the red crescent and the red lion and sun, although only the first two are now being used.The Conventions and their Additional Protocols contain several articles on the emblem. Among other things, they specify the use, size, purpose and placing of the emblem, the persons and property it protects, who can use it, what respect for the emblem entails and the penalties for misuse.
· In times of armed conflict, the emblem may be used as a protective device only by:
· armed forces medical services;
· National Red Cross and Red Crescent Societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces; the National Societies may use the emblem for protective purposes only for those of their personnel and equipment assisting official medical services in wartime, provided that those personnel and equipment perform the same functions and only those functions and are subject to military law and regulations;
· civilian hospitals and other medical facilities recognized as such by the government and authorized to display the emblem for protective purposes (first-aid posts, ambulances, etc.);
· other voluntary relief agencies subject to the same conditions as National Societies: they must have government recognition and authorization, may use the emblem only for personnel and equipment allocated exclusively to medical services, and must be subject to military law and regulations.
International humanitarian law also specifies that each State party to the Geneva Conventions is required to take steps to prevent and punish misuse of the emblem in wartime and peacetime alike, and to enact a law on the protection of the emblem.
What measures are available for implementing humanitarian law?
The following implementation measures must be taken.Preventive measures, based on the duty of States to comply with humanitarian law.They include:
· spreading knowledge of IHL;
· training qualified personnel to facilitate the implementation of IHL, and the appointment of legal advisers in the armed forces;
· adopting legislative and statutory provisions to ensure compliance with IHL;
· translating the texts of the Conventions.
Measures for monitoring compliance with the provisions of humanitarian law for the duration of the conflict:
· action by the Protecting Powers or their substitutes;
· ICRC action (see Q15).
Repressive measures, based on the duty of the parties to the conflict to prevent and put a halt to all violations. Mechanisms for repression include:
· the obligation for the national courts to repress grave breaches considered as war crimes (for international tribunals, see Q16);
· the criminal liability and disciplinary responsibility of superiors, and the duty of military commanders to repress and denounce offences;
· mutual assistance between States on criminal matters.
Apart from the fact that they are inherent in any consistent legal construct, these repressive measures also serve as a deterrent.There are other implementation measures, which encompass prevention, control and repression; the last two are derived chiefly from the duty of States to ensure respect for humanitarian law. They include:
· the enquiry procedure;
· the International Fact-Finding Commission;
· the examination procedures concerning the application and interpretation of legal provisions;
· cooperation with the United Nations.
Diplomatic efforts and pressure from the media and public opinion also help ensure implementation of IHL.
· Coercive measures that States may take themselvesThe list that follows includes only measures available to States which are legally permissible in international law, and does not therefore take into consideration armed intervention undertaken unilaterally, i.e. without any reference to a treaty or custom, by a State or a group of States, as such intervention is not permitted under public international law and as no armed intervention can be based on international humanitarian law [5]. It would be useful at this stage to touch very briefly upon the legality, in international law, of the adoption of coercive (albeit unarmed) measures by States vis-a-vis other States. Practice shows that States employ a wide range of such measures in order to exert pressure on other States in retaliation for an act committed by the State against which they are directed. Such measures may be classified in two broad categories, namely retortion and unarmed reprisals.Retortion refers to acts which are unfriendly, and even damaging, but intrinsically lawful, carried out in response to a prior act which might also be unfriendly but lawful, or internationally unlawful.Reprisals are acts which are by their very nature unlawful but are exceptionally justified in the light of a prior unlawful act committed by the State at which they are directed. Thus the International Law Commission, which uses the term "countermeasures" to designate such acts, considers the initial illegality to constitute a circumstance which precludes the illegality of the response. [6The lawfulness of the measures themselves [7], notably with regard to their content and implementation, is determined not only in terms of the limits dictated by the demands of civilization and humanity, but also in terms of their aim. The aim is neither to punish (we are concerned with countermeasures, not sanctions) nor to seek compensation, but solely to oblige the State which is responsible for violating the law to stop doing so, by inflicting damage upon it, and to deter it from repeating the same offence in the future. Thus, in order to remain lawful, the coercive measures must :- be directed against the State responsible for the unlawful act itself;- be preceded by a warning to the State in question, asking it to stop the said act or acts;- be proportional; all measures out of proportion with the act which prompted them would be excessive, and hence unlawful;- respect fundamental humanitarian principles, as provided for in public international law an International humanitarian law, whereby such measures are forbidden against certain categories of persons;[8]- be temporary and therefore cease as soon as the violation of the law by the State in question ceases.[9]Possible measures of retortiona) Expulsion of diplomats.For instance, during the hostages affair at the United States embassy in Tehran (1979-1980), the United States expelled some of the Iranian diplomatic personnel posted in Washington.b) Severance of diplomatic relations.Soon after the aforementioned decision, the United States broke off diplomatic relations with Iran.c) Halting ongoing diplomatic negotiations or refusing to ratify agreements already signed.The American Senate refused to examine the SALT II agreements, already signed by the USSR and the United States, following the invasion of Afghanistan (1979).d) Non-renewal of trade privileges or agreements.The United States decided, in 1981, not to renew its bilateral maritime agreement with the USSR and to introduce restrictions on the admission of its vessels to American ports as from January 1982, following the repression in Poland.e) Reduction or suspension of public aid to the State in question.As a reaction to militia killings and other human rights violations in Suriname, the Netherlands in December 1982 suspended implementation of a 10 to 15-year aid programme to that country.Possible unarmed reprisalsThese include measures to exert economic pressure [10]. The aim is to hamper normal economic and financial relations, either by failing to respect agreements in force or by way of decisions running counter to the rules governing those relations. a) Restrictions and/or ban on arms trade, military technology and scientific co-operation.The European Communities took a series of decisions on 4 August 1990 with regard to Iraq which comprised, among others, an embargo on the sale of arms and other military equipment, and the suspension of all technical and scientific co-operation.b) Restrictions on exports and/or imports to and from the State committing the violations; total ban on commercial relations.Following the invasion of Afghanistan (1979) the United States set up a grain embargo against the USSR; the European Communities imposed a total ban on imports from Argentina during the Falklands/ Malvinas conflict (1982); the United States suspended commercial relations with Uganda in 1978 in reaction to violations of human rights.c) Ban on investments.A ban on all new investment in South Africa was imposed by France in 1985, following a hardening of the repression associated with apartheid.d) Freezing of capitalThe European Communities decided to freeze Iraqi assets on the territory of the Member States (4 August 1990).e) Suspension of air transport (or other) agreements.On 26 December 1981, the United States suspended the 1972 US-Polish Air Transport Agreement following the Polish government's repression of the Solidarity movement.
How does humanitarian law protect refugees and internally displaced persons?
Refugees are people who have fled their countries, while internally displaced persons (IDPs) are those who have not left their countrys territory.Refugees enjoy first and foremost the protection afforded them by refugee law and the mandate of the Office of the United Nations High Commissioner for Refugees (UNHCR). If they are in a State involved in an armed conflict, refugees are also protected by international humanitarian law. Apart from the general protection afforded by IHL to civilians, refugees also receive special protection under the Fourth Geneva Convention and Additional Protocol I. This additional protection recognizes the vulnerability of refugees as aliens in the hands of a party to the conflict and the absence of protection by their State of nationality.IDPs are protected by various bodies of law, principally national law, human rights law and, if they are in a State undergoing armed conflict, international humanitarian law.If IDPs are in a State which is involved in an armed conflict, they are considered civilians provided they do not take an active part in the hostilities and, as such, are entitled to the protection afforded to civilians.When they are respected, these rules play an important role in preventing displacement, as it is often their violation which leads to displacement. In addition, humanitarian law expressly prohibits compelling civilians to leave their places of residence unless their security or imperative military reasons so demand.Once displaced, IDPs are protected from the effects of hostilities by the general rules governing the protection of civilians and humanitarian assistance set out above.The general rules of humanitarian law for the protection of civilians, if respected, can prevent displacement. If not, they can offer protection during displacement. Particular mention should be made of the following rules, which prohibit:
· attacks on civilians and civilian objects or the conduct of hostilities in an indiscriminate manner;
· starvation of the civilian population and the destruction of objects indispensable to its survival;
· collective punishments which often take the form of destruction of dwellings.
There are also the rules requiring parties to a conflict to allow relief consignments to reach civilian populations in need.
Definition of a refugee
According to Article 1 of the 1951 UN Convention on the status of refugees, the term refugee applies to any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it.The 1969 Convention of the Organization of African Unity on refugee problems in Africa and the 1984 Cartagena Declaration on refugees have broadened that definition to include people fleeing events which seriously disrupt public order, such as armed conflicts and disturbances.
Does humanitarian law apply to the new conflicts?
There is much talk today of new conflicts. This expression covers different types of armed conflict: those known as anarchic conflicts and others in which group identity becomes the focal point. These terms are used fairly loosely."Anarchic" conflicts, the upsurge of which doubtless results from the end of the Cold War, are often marked by the partial, and sometimes even total, weakening or breakdown of State structures. In such situations, armed groups take advantage of the political vacuum in an attempt to grab power. This type of conflict is, however, marked above all by a weakening or breakdown in the chain of command within the same armed groups.Conflicts aimed at asserting group identity often seek to exclude the adversary through "ethnic cleansing". This consists in forcibly displacing or even exterminating populations. Under the effect of spiralling propaganda, violence and hatred, this type of conflict strengthens group feeling to the detriment of the existing national identity, ruling out any possibility of coexistence with other groups.International humanitarian law still applies in these "anarchic" and "identity-related" conflicts, in which the civilian population in particular is exposed to violence. Common Article 3 requires all armed groups, whether in rebellion or not, to respect individuals who have laid down their arms and those, such as civilians, who do not take part in the hostilities.Consequently, it is not because a States structures have been weakened or are nonexistent that there is a legal vacuum with regard to international law. On the contrary, these are precisely the circumstances in which humanitarian law comes fully into its own.Admittedly, the humanitarian rules are harder to apply in these types of conflict. The lack of discipline among belligerents, the arming of the civilian population as weapons flood the territory and the increasingly blurred distinction between fighters and civilians often cause confrontations to take an extremely brutal turn, in which there is little place for the rules of law.As a result, this is the type of situation in which particular efforts are needed to make people aware of humanitarian law. Better knowledge of the rules of law will not solve the underlying problem which led to the conflict, but it is likely to attenuate its deadlier consequences.
Common Article 3: a treaty in miniature
In the case of armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:1)Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
What are the origins of international humanitarian law?
To answer this question we have to ask other questions.What law governed armed conflicts prior to the advent of contemporary humanitarian law?First there were unwritten rules based on customs that regulated armed conflicts. Then bilateral treaties (cartels) drafted in varying degrees of detail gradually came into force. The belligerents sometimes ratified them after the fighting was over. There were also regulations which States issued to their troops. The law then applicable in armed conflicts was thus limited in both time and space in that it was valid for only one battle or specific conflict. The rules also varied depending on the period, place, morals and civilization.Who were the precursors of contemporary humanitarian law?Two men played an essential role in its creation: Henry Dunant and Guillaume- Henri Dufour . Dunant formulated the idea in A Memory of Solferino, published in 1862. On the strength of his own experience of war, General Dufour lost no time in lending his active moral support, notably by chairing the 1864 Diplomatic Conference.Dunant:"On certain special occasions, as, for example, when princes of the military art belonging to different nationalities meet (...) would it not be desirable that they should take advantage of this sort of congress to formulate some international principle, sanctioned by a Convention and inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries?"Dufour (to Dunant):"We need to see, through examples as vivid as those you have reported, what the glory of the battlefield produces in terms of torture and tears."How did the idea become a reality?The Swiss government, at the prompting of the five founding members of the ICRC, convened the 1864 Diplomatic Conference, which was attended by 16 States who adopted the Geneva Convention for the amelioration of the condition of the wounded in armies in the field.What innovations did that Convention bring about?The 1864 Geneva Convention laid the foundations for contemporary humanitarian law. It was chiefly characterized by:
standing written rules of universal scope to protect the victims of conflicts;
its multilateral nature, open to all States;
the obligation to extend care without discrimination to wounded and sick military personnel;
respect for and marking of medical personnel, transports and equipment using an emblem (red cross on a white background).
Humanitarian law prior to its codification
It would be a mistake to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the starting point of international humanitarian law as we know it today. Just as there is no society of any sort that does not have its own set of rules, so there has never been a war that did not have some vague or precise rules covering the outbreak and end of hostilities, as well as how they are conducted.Taken as a whole, the war practices of primitive peoples illustrate various types of international rules of war known at the present time: rules distinguishing types of enemies; rules determining the circumstances, formalities and authority for beginning and ending war; rules describing limitations of persons, time, place and methods of its conduct; and even rules outlawing war altogether. (Quincy Wright) The first laws of war were proclaimed by major civilizations several millennia before our era: I establish these laws to prevent the strong from oppressing the weak. (Hammurabi, King of Babylon)Many ancient texts such as the Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the Viqayet a text written towards the end of the 13th century, at the height of the period in which the Arabs ruled Spain contains a veritable code for warfare. The 1864 Convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered laws and customs of war protecting the wounded and those caring for them.
The Lieber Code
From the beginning of warfare to the advent of contemporary humanitarian law, over 500 cartels, codes of conduct, covenants and other texts designed to regulate hostilities have been recorded. They include the Lieber Code, which came into force in April 1863 and is important in that it marked the first attempt to codify the existing laws and customs of war. Unlike the first Geneva Convention (adopted a year later), however, the Code did not have the status of a treaty as it was intended solely for Union soldiers fighting in the American Civil War.
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