INTERNATIONAL HUMANITARIAN LAW
International humanitarian law is the body of rules and principles which seek to protect those who are not participating in the hostilities, including civilians but also combatants who are wounded or captured. It limits the means and methods of conducting military operations. Its central purpose is to limit, to the extent feasible, human suffering in times of armed conflict. The four Geneva Conventions of 1949 and their two Additional Protocols of 1977 are the principal instruments of international humanitarian law.
If a party to the conflict fails to fulfil their obligations under international humanitarian law, AI will call on other High Contracting Parties (neutral, allied or enemy) of the Geneva Conventions to take action to "ensure respect" for international humanitarian law (in accordance with common Article 1 of the Conventions.)
Basic demandsAll parties to the conflict must issue clear instructions to their forces: prohibiting any direct attacks against civilians or civilian objects, (including in reprisal); prohibiting attacks which do not attempt to distinguish between military targets and civilians or civilian objects (indiscriminate attacks); prohibiting attacks which, although aimed at a legitimate military target, have a disproportionate impact on civilians or civilian objects;
prohibiting attacks using inherently indiscriminate weapons;
to treat humanely all prisoners, the wounded and those seeking to surrender – prisoners must never be killed or held as hostages, and to respect the rules relating to prisoners of war; to take all other necessary measures to protect the civilian population from the dangers arising from military operations, including not locating military objectives among civilian concentrations;
to refrain from recruiting and deploying child soldiersto punish all breaches of the laws of war and to ensure those responsible are brought to justice.(1)They should also make clear to any of their allied or proxy forces that they expect them to follow the same rules.1. No direct attacks on civiliansOne of the cornerstones of international humanitarian law is the principle that all possible measures must be taken to distinguish between civilian persons and objects, and combatants and military objectives. Article 48 of Protocol I sets out the ''basic rule'' regarding the protection of civilians (often referred to as the principle of distinction):
''In order to ensure respect for and protection of the civilian population and civilian objects, 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.''
No states (and very few armed political groups) admit to deliberately targeting civilians. (For attacks on civilians in reprisal see below). Direct attacks on civilians are often justified by denying that the victims are actually civilians. Civilian immunity is also undermined by the manner in which definitions of military objectives/civilian objects are interpreted by attacking forces (see below). In practice, of course, civilians are targeted. In March 1988 an estimated 5,000 people were deliberately killed and thousands wounded as a result of chemical weapon attacks by Iraqi forces on the Iraqi-Kurdish town of Halabja, Sulaimanya province, launched after Kurdish opposition forces had allegedly entered the town. Most of the victims were civilians, many of them women and children.(2) Further, hundreds of civilians were killed in northern and southern Iraq by government forces in the wake of the March 1991 uprising.(3)
. Reprisal attacks prohibited Protocol I expressly prohibits all direct attacks on civilians, including attacks carried out in reprisal. Article 51 (6) of Protocol I states: Attacks against the civilian population or civilians by way of reprisals are prohibited. Protocol I also prohibits attacks by way of reprisal against civilian objects (Article 52(1)) cultural objects and places of worship (Article 53(c)) objects indispensable to the survival of the civilian population (Article 54 (4)) the natural environment (Article 55 (2)) works and installations containing dangerous forces (Article 56(4)) In addition to protecting civilians and civilian objects against reprisals, Protocol I also prohibits reprisals against other non-combatants, including the wounded, sick and shipwrecked, medical facilities and personnel. And Geneva Convention III of August 12, 1949 stipulates that measures of reprisal against prisoners of war are prohibited.
Targeting – military versus civilian objects According to Protocol I, Article 52 (1): "Civilian objects are all objects which are not military objectives." Article 52 (2) defines military objectives as
''those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.''
Objects that do not meet these criteria are civilian objects. In cases where it is unclear whether a target is used for military purposes, ''it shall be presumed not to be so used'' (Article 52(3)).
No indiscriminate or disproportionate attacksArticle 51(4) of Protocol 1 prohibits indiscriminate attacks, including:
"those which employ a method or means of combat which cannot be directed at a specific military objective" and "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol".
Consequently, in each case, indiscriminate attacks "are of a nature to strike military objectives and civilians or civilian objects without distinction." Article 51(5) defines a further type of indiscriminate attack:
"an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Disproportionate attacks, as well as indiscriminate attacks generally, occur when armed forces disregard the principle of distinction and attack a military target without regard to the likely consequences for civilians. They might use weapons which are not capable of hitting a military target with precision -- either by their nature or as a result of the circumstances in which they are employed. Or their tactics or method of attack might show a disregard for civilian lives.
Precautions in attack
Under Protocol I, ''In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.'' (Article 57). Where it is unclear whether a target is used for military purposes, ''it shall be presumed not to be so used'' (Article 52(3)). Precautionary measures include verifying that targets are not civilian objects, and giving advance warning of attacks that might affect civilians "unless circumstances do not permit". Attacks should be suspended where it is apparent that they are causing a disproportionate impact on civilians.(10)
Human Shields"
Protocol I prohibits the use of tactics such as using "human shields" to prevent an attack on military targets. Article 51 (7) states: "The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations." However, the Protocol also makes it clear that even if one side is shielding itself behind civilians, such a violation of international law "…shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians."Furthermore, Article 50(3) of Protocol I states that: "The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character."
No use of indiscriminate weapons Article 51 (4) Protocol I prohibits indiscriminate attacks, including "those which employ a method or means of combat which cannot be directed at a specific military objective" and "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol" (emphasis added). Consequently, in each case, the attacks "are of a nature to strike military objectives and civilians or civilian objects without distinction
Rights of the displacedThe displacement of the civilian population is prohibited unless the security of civilians involved or imperative military reasons so demand. Parties to a conflict must prevent displacement caused by their own acts, when those acts are prohibited in themselves
Humanitarian access and prohibition of starvation The use of starvation of the civilian population as a method of warfare is prohibited. Attacking , destroying, removing or rendering useless objects indispensable to the survival of the civilian population is prohibited (Protocol I, Article 54 (1,2). The parties to the conflict must allow and facilitate rapid and unimpeded passage of impartial humanitarian relief (Protocol I, Article 70). They must respect and protect medical personnel and their means of transport (Protocol I, Articles 15 and 21).
No use of indiscriminate weapons Article 51 (4) Protocol I prohibits indiscriminate attacks, including "those which employ a method or means of combat which cannot be directed at a specific military objective" and "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol" (emphasis added). Consequently, in each case, the attacks "are of a nature to strike military objectives and civilians or civilian objects without distinction."
Other weapons
In addition to the prohibition on the use of inherently indiscriminate weapons, IHL prohibits weapons that cause superfluous injury or unnecessary suffering (e.g. blinding laser weapons). The use of other weapons is governed by the fundamental principles of IHL. They should not be used to target civilians and should not be used in indiscriminate or disproportionate attacks
International humanitarian law has been increasingly incorporated into military manuals and doctrine. Domestic legislation and regulations have been progressively adopted or adapted. Other necessary structures have been put in place to give effect to the rules contained in the relevant treaties.International humanitarian law is increasingly being considered as part of the political agenda of governments. In many States, specific advisory bodies have been created. For example, National international humanitarian law Committees – which advise and assist governments in implementing and spreading knowledge of humanitarian law – have been established in 68 countries.Additionally, by encouraging the national prosecution of war crimes and, more significantly, by establishing international bodies such as the ad hoc international criminal tribunals and the International Criminal Court, the international community has concentrated its efforts since the early 1990s on the repression of serious violations of international humanitarian law.
Any discussion on how to strengthen measures favoring respect for humanitarian law during armed conflicts must begin with a reflection on the obligation contained in Article 1 common to the four Geneva Conventions and Additional Protocol I – that is, the responsibility for States to “respect and ensure respect” for these instruments in all circumstances. In addition to a clear legal obligation on States to “respect and ensure respect” for international humanitarian law within their own domestic context, common Article 1 also requires that States neither encourage a party to an armed conflict to violate international humanitarian law nor take action that would assist in such violations. Furthermore, as recently affirmed in an Advisory Opinion from the International Court of Justice, common Article 1 is generally interpreted as enunciating a responsibility on States not involved in armed conflict to ensure respect for international humanitarian law by the parties to an armed conflict, by means of positive action. Third States have a responsibility, therefore, to take appropriate steps – unilaterally or collectively – against parties to a conflict who are violating international humanitarian law, in particular to intervene with States or armed groups over which they might have some influence to stop the violations.
A second useful strategy in non-international armed conflicts is to encourage armed groups to issue unilateral declarations, stating clearly their commitment to comply with humanitarian law. The aim of such declarations is to provide a self-disciplining effect on the armed groups, in particular where groups are concerned about their public image and reputation. Although there is a risk that unilateral declarations might be made for purely political motives, they might still serve a positive function as an additional tool of leverage to encourage compliance with international humanitarian law. to encourage armed groups to adopt internal codes of conduct on respect for international humanitarian law.
addresses only the rules of international humanitarian law, known as jus in bello, which govern the way each party to the armed conflict must conduct itself in the course of the hostilities
International humanitarian law protect civilians and other noncombatants from the hazards of armed conflict. Among the customary rules, parties that engage in hostilities must distinguish at all times between combatants and noncombatants
.
Common Article 3 provides a number of fundamental protections for noncombatants, which include those who are no longer taking part in hostilities, such as captured combatants, and those who have surrendered or are unable to fight because of wounds or illness. The article prohibits violence against these noncombatants – particularly murder, cruel treatment and torture – as well as outrages against their personal dignity and degrading or humiliating treatment. It also prohibits the taking of hostages and “the passing of sentences and the carrying out of executions” if basic judicial guarantees have not been observed
Two fundamental tenets of international humanitarian law are those of “civilian immunity” and the principle of “distinction.” They impose a duty to distinguish at all times in the conduct of hostilities between combatants and civilians, and to target only the former. It is forbidden in any circumstance to direct attacks against civilians; indeed, as noted, to do so intentionally amounts to a war crime.
It is also generally forbidden to direct attacks against what are called “civilian objects,” such as homes and apartments, places of worship, hospitals, schools, or cultural monuments, unless they are being used for military purposes. Military objects that are legitimately subject to attack are those that make an “effective” contribution to military action and whose destruction, capture or neutralization offers a “definite military advantage.”
If a party to the conflict fails to fulfil their obligations under international humanitarian law, AI will call on other High Contracting Parties (neutral, allied or enemy) of the Geneva Conventions to take action to "ensure respect" for international humanitarian law (in accordance with common Article 1 of the Conventions.)
Basic demandsAll parties to the conflict must issue clear instructions to their forces: prohibiting any direct attacks against civilians or civilian objects, (including in reprisal); prohibiting attacks which do not attempt to distinguish between military targets and civilians or civilian objects (indiscriminate attacks); prohibiting attacks which, although aimed at a legitimate military target, have a disproportionate impact on civilians or civilian objects;
prohibiting attacks using inherently indiscriminate weapons;
to treat humanely all prisoners, the wounded and those seeking to surrender – prisoners must never be killed or held as hostages, and to respect the rules relating to prisoners of war; to take all other necessary measures to protect the civilian population from the dangers arising from military operations, including not locating military objectives among civilian concentrations;
to refrain from recruiting and deploying child soldiersto punish all breaches of the laws of war and to ensure those responsible are brought to justice.(1)They should also make clear to any of their allied or proxy forces that they expect them to follow the same rules.1. No direct attacks on civiliansOne of the cornerstones of international humanitarian law is the principle that all possible measures must be taken to distinguish between civilian persons and objects, and combatants and military objectives. Article 48 of Protocol I sets out the ''basic rule'' regarding the protection of civilians (often referred to as the principle of distinction):
''In order to ensure respect for and protection of the civilian population and civilian objects, 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.''
No states (and very few armed political groups) admit to deliberately targeting civilians. (For attacks on civilians in reprisal see below). Direct attacks on civilians are often justified by denying that the victims are actually civilians. Civilian immunity is also undermined by the manner in which definitions of military objectives/civilian objects are interpreted by attacking forces (see below). In practice, of course, civilians are targeted. In March 1988 an estimated 5,000 people were deliberately killed and thousands wounded as a result of chemical weapon attacks by Iraqi forces on the Iraqi-Kurdish town of Halabja, Sulaimanya province, launched after Kurdish opposition forces had allegedly entered the town. Most of the victims were civilians, many of them women and children.(2) Further, hundreds of civilians were killed in northern and southern Iraq by government forces in the wake of the March 1991 uprising.(3)
. Reprisal attacks prohibited Protocol I expressly prohibits all direct attacks on civilians, including attacks carried out in reprisal. Article 51 (6) of Protocol I states: Attacks against the civilian population or civilians by way of reprisals are prohibited. Protocol I also prohibits attacks by way of reprisal against civilian objects (Article 52(1)) cultural objects and places of worship (Article 53(c)) objects indispensable to the survival of the civilian population (Article 54 (4)) the natural environment (Article 55 (2)) works and installations containing dangerous forces (Article 56(4)) In addition to protecting civilians and civilian objects against reprisals, Protocol I also prohibits reprisals against other non-combatants, including the wounded, sick and shipwrecked, medical facilities and personnel. And Geneva Convention III of August 12, 1949 stipulates that measures of reprisal against prisoners of war are prohibited.
Targeting – military versus civilian objects According to Protocol I, Article 52 (1): "Civilian objects are all objects which are not military objectives." Article 52 (2) defines military objectives as
''those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.''
Objects that do not meet these criteria are civilian objects. In cases where it is unclear whether a target is used for military purposes, ''it shall be presumed not to be so used'' (Article 52(3)).
No indiscriminate or disproportionate attacksArticle 51(4) of Protocol 1 prohibits indiscriminate attacks, including:
"those which employ a method or means of combat which cannot be directed at a specific military objective" and "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol".
Consequently, in each case, indiscriminate attacks "are of a nature to strike military objectives and civilians or civilian objects without distinction." Article 51(5) defines a further type of indiscriminate attack:
"an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Disproportionate attacks, as well as indiscriminate attacks generally, occur when armed forces disregard the principle of distinction and attack a military target without regard to the likely consequences for civilians. They might use weapons which are not capable of hitting a military target with precision -- either by their nature or as a result of the circumstances in which they are employed. Or their tactics or method of attack might show a disregard for civilian lives.
Precautions in attack
Under Protocol I, ''In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.'' (Article 57). Where it is unclear whether a target is used for military purposes, ''it shall be presumed not to be so used'' (Article 52(3)). Precautionary measures include verifying that targets are not civilian objects, and giving advance warning of attacks that might affect civilians "unless circumstances do not permit". Attacks should be suspended where it is apparent that they are causing a disproportionate impact on civilians.(10)
Human Shields"
Protocol I prohibits the use of tactics such as using "human shields" to prevent an attack on military targets. Article 51 (7) states: "The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations." However, the Protocol also makes it clear that even if one side is shielding itself behind civilians, such a violation of international law "…shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians."Furthermore, Article 50(3) of Protocol I states that: "The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character."
No use of indiscriminate weapons Article 51 (4) Protocol I prohibits indiscriminate attacks, including "those which employ a method or means of combat which cannot be directed at a specific military objective" and "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol" (emphasis added). Consequently, in each case, the attacks "are of a nature to strike military objectives and civilians or civilian objects without distinction
Rights of the displacedThe displacement of the civilian population is prohibited unless the security of civilians involved or imperative military reasons so demand. Parties to a conflict must prevent displacement caused by their own acts, when those acts are prohibited in themselves
Humanitarian access and prohibition of starvation The use of starvation of the civilian population as a method of warfare is prohibited. Attacking , destroying, removing or rendering useless objects indispensable to the survival of the civilian population is prohibited (Protocol I, Article 54 (1,2). The parties to the conflict must allow and facilitate rapid and unimpeded passage of impartial humanitarian relief (Protocol I, Article 70). They must respect and protect medical personnel and their means of transport (Protocol I, Articles 15 and 21).
No use of indiscriminate weapons Article 51 (4) Protocol I prohibits indiscriminate attacks, including "those which employ a method or means of combat which cannot be directed at a specific military objective" and "those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol" (emphasis added). Consequently, in each case, the attacks "are of a nature to strike military objectives and civilians or civilian objects without distinction."
Other weapons
In addition to the prohibition on the use of inherently indiscriminate weapons, IHL prohibits weapons that cause superfluous injury or unnecessary suffering (e.g. blinding laser weapons). The use of other weapons is governed by the fundamental principles of IHL. They should not be used to target civilians and should not be used in indiscriminate or disproportionate attacks
International humanitarian law has been increasingly incorporated into military manuals and doctrine. Domestic legislation and regulations have been progressively adopted or adapted. Other necessary structures have been put in place to give effect to the rules contained in the relevant treaties.International humanitarian law is increasingly being considered as part of the political agenda of governments. In many States, specific advisory bodies have been created. For example, National international humanitarian law Committees – which advise and assist governments in implementing and spreading knowledge of humanitarian law – have been established in 68 countries.Additionally, by encouraging the national prosecution of war crimes and, more significantly, by establishing international bodies such as the ad hoc international criminal tribunals and the International Criminal Court, the international community has concentrated its efforts since the early 1990s on the repression of serious violations of international humanitarian law.
Any discussion on how to strengthen measures favoring respect for humanitarian law during armed conflicts must begin with a reflection on the obligation contained in Article 1 common to the four Geneva Conventions and Additional Protocol I – that is, the responsibility for States to “respect and ensure respect” for these instruments in all circumstances. In addition to a clear legal obligation on States to “respect and ensure respect” for international humanitarian law within their own domestic context, common Article 1 also requires that States neither encourage a party to an armed conflict to violate international humanitarian law nor take action that would assist in such violations. Furthermore, as recently affirmed in an Advisory Opinion from the International Court of Justice, common Article 1 is generally interpreted as enunciating a responsibility on States not involved in armed conflict to ensure respect for international humanitarian law by the parties to an armed conflict, by means of positive action. Third States have a responsibility, therefore, to take appropriate steps – unilaterally or collectively – against parties to a conflict who are violating international humanitarian law, in particular to intervene with States or armed groups over which they might have some influence to stop the violations.
A second useful strategy in non-international armed conflicts is to encourage armed groups to issue unilateral declarations, stating clearly their commitment to comply with humanitarian law. The aim of such declarations is to provide a self-disciplining effect on the armed groups, in particular where groups are concerned about their public image and reputation. Although there is a risk that unilateral declarations might be made for purely political motives, they might still serve a positive function as an additional tool of leverage to encourage compliance with international humanitarian law. to encourage armed groups to adopt internal codes of conduct on respect for international humanitarian law.
addresses only the rules of international humanitarian law, known as jus in bello, which govern the way each party to the armed conflict must conduct itself in the course of the hostilities
International humanitarian law protect civilians and other noncombatants from the hazards of armed conflict. Among the customary rules, parties that engage in hostilities must distinguish at all times between combatants and noncombatants
.
Common Article 3 provides a number of fundamental protections for noncombatants, which include those who are no longer taking part in hostilities, such as captured combatants, and those who have surrendered or are unable to fight because of wounds or illness. The article prohibits violence against these noncombatants – particularly murder, cruel treatment and torture – as well as outrages against their personal dignity and degrading or humiliating treatment. It also prohibits the taking of hostages and “the passing of sentences and the carrying out of executions” if basic judicial guarantees have not been observed
Two fundamental tenets of international humanitarian law are those of “civilian immunity” and the principle of “distinction.” They impose a duty to distinguish at all times in the conduct of hostilities between combatants and civilians, and to target only the former. It is forbidden in any circumstance to direct attacks against civilians; indeed, as noted, to do so intentionally amounts to a war crime.
It is also generally forbidden to direct attacks against what are called “civilian objects,” such as homes and apartments, places of worship, hospitals, schools, or cultural monuments, unless they are being used for military purposes. Military objects that are legitimately subject to attack are those that make an “effective” contribution to military action and whose destruction, capture or neutralization offers a “definite military advantage.”
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