International humanitarian law
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International humanitarian law Document Transcript

  • 1. International Humanitarian Law 1.0 The Nature of International Humanitarian Law 1.1 The sources Customary International Law Reliance on the CIL – applies where one or more of the states involved In the conflict is not a party to a convention Eg ; Award of the Eritrea-Ethiopia Claims Commission ; decided that Eritrea was not a party to the four Geneva Convention of 1949 – the applicable law for the relevant claim is CIL Marten’s clause – authority for the relevance customary international law Treaty Law The Hague Law ; primarily deals with restrictions of means and methods of warfare (conduct of hostilities) Adopted at the Hague Conference of 1899 and 1907 – cover a wide range of areas ; conduct of hostilities on land, air, sea International Military Tribunal at Nuremberg held that Hague Convention IV 1907 has acquired the status of customary international law The Geneva Convention ; deals with the protection of victims of armed conflict The four Geneva Conventions for the Protection of War Victims 1949 ; Second World War caused brutality against civilians and non combatants – resulted in the adoption of the four Geneva Conventions Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Geneva Convention for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea Geneva Convention relative to the Treatment of Prisoners of War Geneva Convention relative to the Protection of Civilian Persons in Time of War The Two Additional Protocols 1977 – more specific provisions are needed in dealing with a more complex situations of armed conflicts – resulted with the adoption of additional protocols Protocol Additional to GC 1949 and relating to the Protection of Victims of International Armed Conflict
  • 2. Protocol Additional to GC 1949 and relating to the Protection of Victims of Non International Armed Conflicts 1.2 International and Non International Armed Conflict IHL refers to two different types of armed conflict 1) International Armed Conflict ; Inter state armed conflict Common Article 2 of the GC 1949 generally agreed that – international armed conflict exist where force is directed by one state against another To include o Occupation of territory – Second Part of Article 2 of 1949 GC – The convention shall apply to all cases of partial or total occupation of the territory of contracting party o Internationalized armed conflict - an armed conflict confined geographically to the territory of a single state (a non international one) can be transformed into an international armed conflict – if a state/s military intervenes directly/indirectly o National liberation movement – Additional Protocol I (Article 1 (4)) extend the definition of international armed conflict to include national liberation movement 2) Non international armed conflict (internal) In the case of internal one – force used within state’s own territory against its own citizen – enforcement action against criminal , operation to quell riots or civil disturbance Tadic case ; sole requirement for the existence of internal armed conflict is a state of protracted armed violence, involving organized non governmental armed groups – no requirement that the insurgent exercise control - must have reached a certain level of intensity Treaty law relating to internal armed conflict o Common Article 3 of the four GC 1949
  • 3. o 1977 Additional Protocol II 1.3 International Humanitarian Law (IHL) v International Human Rights Law (IHRL) Comparison ; IHL – branch of IL which protects persons and property that may be affected by an armed conflict + limits the rights of the parties to an armed conflict to use methods/ means of warfare of their own When applicable – only in times of armed conflict whether international / non international – no derogations are permitted Who is bound? – binds all parties to an armed conflict (international armed conflict ; must be observed by the states involved. Non international conflict ; binds the government and the groups fighting against or among themselves Individual – impose obligation on individuals and provides that they may be held criminally responsible for war crimes – individual will also be accountable for war crimes committed IHRL – provides for fundamental rights of individuals as against their won government When applicable – at all times (peace time and in armed conflict situation) – may derogate if situation of emergency arises Who is bound – lays down rules binding government in their relations with individuals Individuals – provides for individual criminal responsibility for violations – genocides, crimes against humanity and torture – subject to universal jurisdiction 2.0 Basic Principles 2.1 Military necessity and humanity Leiber Code – military necessity is ‘those measures which are indispensable for securing the ends of the war and which are lawful according to the modern laws and usages of war
  • 4. US Air Force Manual – laid down four basic elements of the concept of military necessity o That force is regulated o Force is necessary to achieve as quickly as possible the partial/complete submission of the adversary o Force is no greater that needed to achieve this o Not otherwise prohibited Not possible for military commanders to do anything – must be justified by military requirements Humanity ; the preamble of the Hague Convention IV 1907 known as Marten clause acknowledges the importance of the laws of humanity Guiding principle – put on brake if on undertaking justified by military necessity Eg ; a military necessity requires a commander to put to death a wounded combatants on the ground that they would be able to continue fighting once recovered – but principle of humanity intercedes on behalf of the wounded - recognizing horse de combat do not pose an immediate threat and requiring their lives to be saved. Striking a balance Not an easy task – if not war would not cause bloodshed and destruction IHL takes a middle path – allowing belligerent states much leeway in keeping with the demands of military necessity + attempt to control their freedom of action In the name of humanity – IHL as check and balance Hostage case ; Military Tribunal proclaimed that a belligerent is entitled to do whatever is required by the military necessity to the extent of not exceeding the bounds of legitimacy provided under the IHL 2.2 Principle of Distinction Foundation can be traced back to the preamble of St Petersburg Declaration ; war is waged against the enemy’s armed forces, not against its civilian objects, attacks are to be directed at military targets, not a t civilian objects
  • 5. ICJ in the Nuclear Weapons Advisory Opinion – this principle is a principle of customary international law Article 48 of Additional Protocol 1 - ‘parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and shall direct their operations only against military objectives Distinction between combatants and civilian Combatant ; any member of the armed forces of a party to the conflict – all other person are non combatant/ civilian Combatants may be attacked – civilians may not take part in hostilities ; civilians immunity Problems – production plans, engineering works/transport would be a legitimate military object despite the fact that civilians were working in them – so civilians are at risk (controlled by principle of proportionality) Distinction between military targets and civilian objects Attacker has to distinguish between military targets and civilian objects Article 52 (2) of Additional Protocol I – an object must fulfill two criteria in order to qualify as a military targets 1) By nature, location, purpose or use – it must make an effective contribution to military action 2) Its destruction, capture or neutralization must offer a definite military advantage Nature ; nature denotes the intrinsic character of the military objectives MO by nature include – military fortification, installations, bases, military units and individual members of the armed force, weapon systems, artillery, military vehicle, aircraft, missiles, buildings occupied by the armed force Location ; there are objects which have no military function by nature but due to its location, makes a contribution to military action – bridges, tunnels, hills, narrow passes, area which are important for military operations
  • 6. Purpose ; ICR pointed that – the criterion of purpose is concerned with the intended future use of an object, the use that is concerned with its present function Use ; objects which are normally used for civilian purpose – can also be used for military purpose during an armed conflict – schools, hotels, churches (to accommodate troops/ store military ammunitions) Offer a concrete and definite military advantage 2.3 Principle of Proportionality an attempt to balance the conflicting concepts of military necessity and humanity and is crucial in reducing incidental or collateral damage caused by military operation. No separate article of Protocol I devoted to this principle To be found in two different places 1) Attack prohibited because it is indiscriminate (eg ; attack which may be expected to cause incidental loss of civilian life, injury to civilians, damages to civilian objects – excessive in relation to contribution to military advantage) 2) Dealing with precaution attacks 3.0 Protecting the protected persons 3.1 Wounded, sick and shipwrecked 1949 GC I – concerned with the protection of the wounded and sick in the field 1949 GC II – wounded, sick and shipwrecked at sea Protocol 1 – gives a rather extended definition of what is meant by sick, wounded and shipwrecked (Article 8) – a) Wounded and sick ; persons whether military/civilian who because of trauma, disease/ other physical/mental disorder/ disability are in need of medical assistance/ care and who refrain from act of hostility b) Shipwrecked means..  Covers members of armed force and civilians, provided they refrain from act of hostility
  • 7. 3.2 Prisoners of war Lawful combatants and prisoners of war status Not all persons captured in the course of armed conflict – entitled to the status of POW and the legal protection associated with it Basic principle ; persons who are recognized as ‘combatants’ are entitled to be treated as POW upon capture by enemy Article 4A of the 1949 Geneva Convention III provides that POW are persons belonging to one of the categories, who have fallen into the power of the enemy 1) Members of the armed force of a party to the conflict as well as the members of militias or volunteer corps forming part of armed force 2) Members of other militias and members of other volunteer corps, including organized resistance movement provided that they fulfill the following conditions a) That of being commanded by a person responsible for his subordinates b) That of having a fixed distinctive sign recognizable at a distance c) That of carrying arms openly d) That of conducting their operations in accordance with the laws and customs of the war Article 43 of Protocol 1 – the armed force of a party to a conflict consist of all organized armed force, groups and units which are under a command responsible for that party – such armed force shall be subject to an internal disciplinary system which shall enforce compliance with the rules of international law applicable in armed conflict and that members of the armed force – are combatant Prisoners of War ; Article 44 of Protocol 1 1) Any combatants defined under Article 43 who falls into the power of an adverse party shall be POW 2) … 3) Combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack/ military operation – due to the situation of
  • 8. armed conflict, it is somehow not possible – so he shall retain his status as combatants provided that he carries his arm openly a) During each military engagement b) During such time, he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack General Protection of POW Article 13 Of Convention III – Prisoners of war must at all times be humanely treated Any unlawful act/omission by the detaining power, causing death /seriously endangering the health of POW – prohibited POW must at all times – be protected against act of violence/intimidation/insult and public curiosity Article 109 – parties to the conflict are bound to send back to their own country seriously wounded and sick prisoners of war after having cared for them until they are fit to travel Once active hostilities have ceased, Article 118 GC III requires POW to be repatriated without delay Civilians Women, child and aged Geneva Convention IV – no specific protection – only applies to civilians who during conflict/ occupation of territory, find themselves in the hand of / under physical control of an adverse party Those in their territory are only protected by the general rules limiting means and methods of warfare Entitled to respect for their persons, honor, family rights, religious conviction and practice, must be humanely treated and protected from violence, threats, insults Women must be treated against sexual attacks and must be treated without any discrimination Civilian properties are protected as well Civilians, civilian population and civilian objects Apply principle of distinction – both civilian and civilian objects Civilian immunity – individual shall enjoy general protection against dangers arising from military operations - unless he takes part In the hostility No reprisals against civilian
  • 9. Direct and deliberate attack ; Rome Statute of the International Criminal Court categorizes as a war crime an intentional directs attack against the civilian population (civilian and objects) The intention is crucial – no assurance that attacks against the combatants/military objectives will not result in casualties Indiscriminate attack Article 51 (4) of the Protocol I, indiscriminate attacks are prohibited and envisaged two types of attacks a) Area bombardment aka carpet bombing – characteristic of such bombing that it destroys all life in a specific area and razes to the ground all buildings situated there b) Refers to an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects / combination of both – which would be excessive to the concrete and direct military advantage anticipated Apply principle of proportionality Precaution in attack ; Protection of places of worship and cultural heritage Prohibited to commit any acts of hostility directed against the historic monument, works of art / places of worship which constitute the cultural / spiritual heritage of peoples Protection of objects indispensable to the survival of civilian population Article 54 of Protocol I – Starvation of civilians as method of warfare is prohibited Prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population (foodstuff, agricultural area for the production of foodstuff, livestock, drinking water installation) 4.0 The Conduct of Hostilities Illegal weaponry Though the object of an armed conflict is to achieve victory over the adverse party – principle of humanity remains relevant Weapons causing unnecessary suffering
  • 10. Prohibited to employ weapons, projectiles and materials and methods of warfare of a nature to cause unnecessary suffering Methods or means of warfare causing long term and severe damage to environment Article 35(3) of the Additional Protocol I – Prohibited to employ methods or means or warfare which is intended to cause widespread, long term and severe damages to the environment Nuclear weapons Advisory Opinion on Legality of the Threat/ Use of Nuclear Weapons, World Court held that – a threat / use of nuclear weapons that is contrary to Article 2 (4) of the UNC and fails to meet all the requirement of Article 51 (relating to self defence) Is unlawful – but cannot conclude whether the use of nuclear weapons in an extreme circumstances of self defence is justified or not Gas, chemical and bacteriological weapons Mines, booby traps and incendiaries 1980 a Convention on Prohibition or Restriction on the use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have indiscriminate Effect was adopted Parties to the convention adopted three Protocols – Protocol III prohibits the use of mines and booby traps – amended in 1996, further restriction on the use of mines and booby traps Poison and starvation Hague Regulation 23 (a) – forbidden to use starvation as a weapon against the civilian population Other methods and means of warfare Perfidy and ruses of war Article 23 of the Hague Regulations ; forbidden to kill or wound treacherously individuals belonging to hostile nation or army
  • 11. Article 37 (1) of Additional Protocol 1 – prohibited to kill, injure/ capture by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, obliged to accord, protection under IL applicable to armed conflict, with intent to betray that confidence – constitutes perfidy Perfidy is prohibited – but ruses of war are permitted ; measures taken to secure advantage over the adverse party Denial of quarter Hague Regulation 23 (4) – forbidden to declare that no quarter shall be given 5.0 Non International Armed Conflict IL may not intervene in domestic affairs of a state – the only provision applicable to non international armed conflict – Common Article 3 of Geneva Conventions 1949 Common Article 3 of Geneva Conventions 1949 – content (apply as a minimum, the stated provisions) Humanitarian principle – foundation of respect for human persons Article states clearly ‘each party to the conflict’ – not only the state party but also rebels, non state parties (numerous case of non compliance ; Rwanda and Bosnia – violation of basic humanitarian principle, Sri Lanka – prolonged hostilities resulted with numerous casualties) The application of Additional Protocol II Previously, Common Article 3 stood alone – governing the non international armed conflict – But Additional Protocol II 1977 provides more extensive provisions more non international armed conflict The parties to the conflict To come within the scope of Additional Protocol II – internal armed conflict must involve hostilities between the armed force of a contracting party and other groups of armed force or organized armed groups – does not apply where two or more organized armed groups confront each other in any state (no active part in hostilities by government troops)
  • 12. For AP to be applicable, following requirements must be satisfied 1) responsible command 2) control over a part of territory 3) willing and able to implement the protocol