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PUBLIC INTERNATIONAL LAW BY FADHILAH ASAARI

PUBLIC INTERNATIONAL LAW BY FADHILAH ASAARI

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Take home test il Document Transcript

  • 1. NURUL FADHILAH BINTI ASARI / 2010182471 / GROUP F TAKE HOME TEST International humanitarian law refers to two different types of armed conflict such as international armed conflict and non-international (internal) armed conflicts. An international armed conflict usually refers to an inter-state armed conflict. Common Article 2 of the 1949 Geneva Conventions states that, in addition to the provision which shall be inplemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the high contracting parties, even if the State of war is not recognised by one of them. In Tadic case, an armed conflict exists whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Thus, it is generally agreed that an international armed conflict exists where force is directed by one State against another irrespective of duration or intensity. To apply, Logo and Polo are two neighbouring countries. Both countries are in armed conflict over territorial disputes. Since the disputes are between countries over territorial disputes, therefore it falls under international armed conflict. The first issue is on indiscriminate attack. A civillian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Geneva Convention III which define “prisoners of war” and in Article 43 of this Protocol which defined armed forces and combatants. In case of doubt whether a person is a civillian, that the person shall be considered a civillian. Attacks against civillians, are banned not only when they are direct and deliberate, but also when they are discriminate. According to Article 51(4) of the Protocol I, indiscriminate attack are prohibited. The article envisages two types of attack in particular as examples, a) the “first type” includes area bombardment, also known as “carpet bombing”. it is characteristic of such bombing that it destroys all life in a specific area and razes to the ground all buildings situated there. The second type refers to an attack which may be expected to cause incidental loss of civillian life, injury to civillians, damage to civillian objects, or a combination thereof, which would be excesssive in relation to the concrete and direct military advantage anticipated. Indiscriminate attacks differ from direct attack against civillians. There is no genuine difference between premeditated direct attack against civillians and a reckless disregard of the “principle of distinction”, they are equally forbidden. To apply,Polo claimed that they found evidence that Logo had indiscriminately attacked and destroyed a dam in Moto. This falls under second type of attack where it cause damage or loss to civillian or civillian objects which relating to the concrete and direct military advantage anticipated. Destroying a dam would cause major
  • 2. loss and damage to the civillians. Thus it would also give advantage to Logo. Therefore, Polo had breached the international humanitarian law due to the indiscriminate attack. The second issue is on illegal weapon. Though the object of an armed conflict is to achieve victory over the adverse party with the least possible expenditure of men, resources and money, principle of humanity remain relevant. The means of delivering even a lawful attack are restricted. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superflous injury or unnecessary suffering. For gas, chemical and bacteriological weapons, the most significant international agreement relating to a specific weapon is the 1925 Geneva Protocal for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare. In 1972, a Convention was adopted on the Prohibition of Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. However the Convention does not prohibit the use of these weapons. The lacuna in this Convention was remedied by the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. For mines, booby-traps and incendiaries, in 1980 a Convention on Prohibitions or Restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effect was adopted. The parties to the convention adopted three protocols. Protocol II prohibits the use of mines and booby-traps. When the Protocols was amended in 1996, further restrictions on the use of mines and booby-traps were improved. To apply, Logo’s military strategy involved the employment of chemical weapons and booby- traps which killed many lives. It is prohibited for a country to employ chemical weapons and booby-traps as it cause superflous injury and unnecessary suffering. Therefore the act of Logo employing such weapons had breached the international humanitarian law. The third issue is on military necessity and humanity. Military necessity is defined in the Leiber Code as “those measures which are indispensible for securing the ends of the war, and which are lawful according to the modern laws and usages of war”. Holland summarizes the concept in these words: “ Military necessity justifies a resort to all measures which are indispensable for securing the submission of the enemy provided that they are not inconsistent with the modern laws and usages of war”. In the US Air Force Manual, it is stated that the concept of military necessity has four basic elements: 1) that force is regulated, 2) that force is necessary to achieve as quickly as possible the partial or complete submission of the adversary, 3) that the force is no greater than needed to achieve this, 4) that it is not otherwise prohibited. In other words, it is not possible for military commanders to do anything they like in war. What they do must be justified in every case by military necesssity, that is, the military requirement to undertake the action in question. Oppenheim
  • 3. clarifies the rule thus: “in every case destruction must be imperatively demanded by the necessities of war, and must not merely be the outcome of a spirit of plunder or revenge. Furthermore, the preamble to Hague Convention IV of 1907, commonly known as the Martens clause, emphatically acknowledges the importance of the “laws of humanity”. Humanity is, therefore, a guiding principle that puts a brake on undertakings which might otherwise be justified by the principle of military necessity. For example, a military commander might say that military necessity requires him to put to death wounded enemy combatants in enemy-controlled hospitals on the ground that when they recovered they would be able to continue fighting. The principle of humanity however, intercedes on behalf of the wounded, recognising that those hors de combat do not pose an immediate threat and requiring their lives to be saved. They are of course protected under the Geneva Convention I, which specifically applies the “principle of humanity” to the treatment of the wounded. To apply, Polo also claimed that its nuclear reactor which was built to generate electricity power has been destroyed by Logo. The act of destroying the nuclear reactor did not fulfill the basic elements of necessity since it is not regulated to so such act, and there is no need to do such act as it is greater than needed.Furthermore, it did not comply with the laws of humanity since it is important for them to have nuclear reactor to generate electricity power. Therefore, Logo had breached the international humanitarian law. The fourth issue is on protection to woman and child. The protection of civillians is, from the humanitarian point of view, the most important aspect of the regulation of armed conflict because such persons include the weakest members of the community most in need of protection, such as women, children and the aged. However, rather circumscribed provision was made for civillian protection in 1949 Geneva Convention IV. The Convention only applies to civillians who, during conflict or occupation of territory, find themselves in the hands of or under the physical control of an adverse party or an occupying power. Those in their own territory are for the most part, only protected by the general rules limiting means and methods of warfare. However, Part 2 of the Convention dealing with the General Protection against certain consequence of war is of general application covering the “whole civillian populations of the countries in conflict”. As with other protected persons, civillians in enemy hands, whether national or occupied territory, are entitled to respect for their persons, honour, family rights, religious convictions and practices. They must be humanely treated and protected from violence, threats, and insults. Women must be protected against sexual attacks and must be treated without any discriminations. A civillian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Geneva Convention III which define “prisoners of war” and in Article 43 of this Protocol which defined armed forces and combatants. In case of doubt whether a person is a civillian,
  • 4. that the person shall be considered a civillian.The civillian population and individual civillians shall enjoy general protection against dangers arising from military operations. The civillians population as such, as well as individual civillians, shall not be the object of attack. Civillian shall enjoy the protection unless they take a direct part in hostilities. To apply, thousands of women in Polo were raped. Plus, young boys between the ages of 10 to 15 in Polo were kidnapped and recruited into Logo’s armed forces. Woman and the children are the civillians. They must be respected and humanely treated and protected from violence, threats and insults. Furthermore, woman must be protected against sexual attacks. However, logo had breaches all these when they treated the woman by raping them and kidnapped and recruiting the boys into armed forces. These had breached the international humanitarian law. The last issue is on prisoners of war. Off all the victims of armed conflict, prisoners of war are perhaps the most vulnerable. The basic standard of treatment of prisoners of war is enunciated in Article 13 of Convention III, which states that “prisoners of war must at all times be humanely treated”. Any unlawful act or omission by the detaining power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as serious breach of the convention. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisals against prisoners of war are prohibited. According to Article 109, parties to the conflict are bound to send back to their own country seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel. Once active hostilities have ceased, Geneva Convention III requires by Article 118 that “prisoners of war shall be repatriated without delay”. To apply, fifty thousand Polo armed forces were also captured and they were subjected to extreme torture in an isolated camp as part of Logo’s strategy to obtain Polo strategic military information. They were the prisoners of war. They must be treated humanely as in the Convention. It is prohibited to endanger the health of the prisoners as it would amount to breach of the Convention. They must be protected against violence, intimidation, insults and public curiosity. Logo had breach this Convention as they had treated the prisoners by subjecting them to extreme torture. This is in contrary with the Convention. In conclusion, based on the above issues, Logo had breached the international humanitarian law due to the prohibited acts done towards Polo.