Ihl diu 2

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Ihl diu 2

  1. 1. OMAC Istituto Comprensivo Sant’Angelo in Vado 2008/2010INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS Doct. GIANLUIGI GULLI Instructor D.I.U. – Qualified Councillor FF.AA.
  2. 2. INTERNATIONAL HUMANITARIAN LAW FIELD OF THE PUBLIC INTERNATIONAL LAW, ESTABLISHING THE CONDUCT RULES OF COUNTRIES IN CASE OF WAR.IT SETS SOME LIMITS TO THE USE OF MEANS AND METHODS OF WAR AND IT TAKES CARE OF PEOPLE WHO DO NOT TAKE PART AND THOSE WHO ARE NO LONGER PARTICIPATING IN THE HOSTILITIES.
  3. 3. LET’S START FROM A QUESTION !IS WAR PROHIBITED?
  4. 4. 1945THE CHARTER OF THE UNITED NATIONS SI YES! THE MENACE OR THE USE OF FORCE AGAINST OTHER COUNTRIES IS UNLAWFUL
  5. 5. !IN THIS CASE, WHY SPEAK OF INTERNATIONAL HUMANITARIAN LAW?A.! THE COUNTRIES STILL HAVE THE RIGHT TO DEFEND THEMSELVES FROM ATTACKSB.! THE PROHIBITION DOESN’T CONCERN INLAND WARS AND CIVIL WARSC.! …ANYWAY, WARS EXIST!
  6. 6. Solferino battle 2nd Indepence War 24 June 1859!a little of history?40.000 victims between dead andwounded people
  7. 7. !a little of history ? Henry Dunant
  8. 8. ! Dunant’s project•! Establishment of permanent humanitarian rules, having a universal purpose•! Establishment of societes of assistance in all countries•! Neutrality of wounded and sick people whatever line-up they may belong to•! Neutrality of medical corps•! Establishment of a distinctive universal emblem
  9. 9. BANDIERA RED CROSS CONFEDERAZIONE ELVETICAEMBLEM OF NEUTRALITY AND PROTECTION
  10. 10. 22 AUGUST 1864 1st GENEVA CONVENTION•!For theamelioration ofthe conditions ofthe wounded adsick in ArmedForces in thefield.
  11. 11. 2nd GENEVA CONVENTION• For theamelioration of theconditions ofwounded, sick andshipwreckedmembers ArmedForces at sea
  12. 12. 3rd GENEVA CONVENTION• Relative tothe treatmentof prisonersof war
  13. 13. 19494th GENEVA CONVENTION•!Relative totheprotection ofcivilianpersons intime of war
  14. 14. DECLARATION OF ST PETERSBURG 1868.!THE ONLY RIGHT PURPOSE THE COUNTRIES HAVE TO INTEND IN WARTIME IS THEWEAKENING OF THE ENNEMY’S FORCED ARMS !THEY GO BEYOND THE PURPOSE ABOVE- MENTIONED IF THEY USE ARMS THAT WORSENUSELESSLY THE SUFFERINGS OF THE MEN WHOHAVE BEEN PUT OUT OF ACTION OR THEY MAKE THEIR DEATH INEVITABLE
  15. 15. WAR LAW DIRITTO DI GINEVRA DIRITTO DELL’AJA MODERN TEACHING NOWADAYS THETHINKS THE DIFFERENCE BETWEEN THE LAW Norme che Norme che mirano alla OF AJA AND GENEVA’S IS OLD FASHIONED. stabiliscono diritti e protezione e TODAY THE EXPRESSION INTERNATIONAL doveri dei belligeranti salvaguardia dei militari HUMANITARIAN LAW IS nella condotta delle posti fuoriUSED,BY THE INTERNATIONAL COMMUNITY, TO operazioni militari; combattimento e di tutte limitano laTHE WAR LAW le altre persone che non MEAN scelta dei ON THE WHOLE. “mezzi” e dei partecipano alle ostilità - “metodi” di POPOLAZIONE CIVILE combattimento
  16. 16. 8 JUNE 1977ADDITIONAL PROTOCOLS I and II TO THE GENEVA CONVENTIONS
  17. 17. INTERNATIONAL CONFLICTS CONFLICT BETWEEN SOLDIERS OF•! I, II, III, IV CONVENZIONE DI GINEVRA 1949 TWO OR MORE COUNTRIES•! I PROTOCOLLO AGGIUNTIVO 1977 NON-INTERNATIONAL CONFLICTS•! ART. 3 CONFLICT ON THE TERRITORY OF A COMUNE ALLE CONV. GINEVRA 1949 COUNTRY BETWEEN FORCED ARMS•! II PROTOCOLLO AGGIUNTIVOOR BETWEEN AND FORCED GROUPS 1977 FORCED GROUPS BETWEEN THEMSELVES!
  18. 18. 6 TREATES AND 600 ARTICLES !BUT, IN BRIEF: 1. PEOPLE WHO ARE NO LONGER PARTICIPATING IN THE HOSTILITIES,HAVE TO BE PROTECTED,RESPECTED AND TREATED WITH HUMANITY. 2.! THE REQUIRED TREATMENTS WILL BE ALWAYS ASSURED, WITHOUT ANY DISCRIMINATION
  19. 19. 6 TREATES and 600 ARTICLES !BUT, IN BRIEF:2. THE FIGHTERS CAPTURED AND PEOPLE WHO ARE, ANY WAY, IN POWER OF THEIR ADVERSARY, HAVE TO BE ALWAYS HANDLED WITH HUMANITY. THEY HAVE TO BE PROTEC- TED AGAINST VIOLENT ACTS, ESPECIALLY AGAINST THE TORTURE BOTH PHYSICAL AND PSYCHOLOGICAL. A RIGHT PROCESS HAS TO BE ASSURED TO PEOPLE WHO ARE SUBMITTED TO JUDGE- MENT.
  20. 20. 6 TREATES and 600 ARTICLES !BUT, IN BRIEF: 3.! BELLIGERANTS HAVE NO ILLIMITED RIGHT TO CHOOSE METHODS AND MEANS OF WARFARE. METHODS AND MEANS THAT CAUSE SUPERFLUOUS HARMS OR USELESS SUFFE- RINGS AS REGARDS THE CONCRETE MILITARY ADVANTAGE IN DEMAND WON’T BE USED.
  21. 21. 6 TREATES and 600 ARTICLES !BUT, IN BRIEF: DISTINCTION BETWEENCIVILIAN POPULATION AND COMBATANTS AND BETWEEN CIVILIAN OBJECTS AND MILITARY OBJECTIVES
  22. 22. INTERNATIONAL COURT OF JUSTICE - AJA Case Corfu“!elementary considerations of humanity” Case Nicaragua “!fundamental general principles of Humanitarian Law”
  23. 23. ART. 3 COMMON C.G.’49 THE “MINI-CONVENTION”IT OFFERS FUNDAMENTALGUARANTEES TO THE VICTIMS OFWARS THAT HAVE NOINTERNATIONAL CHARACTER.THESE GUARANTEES CONCERNTHE REGULATION OF BUSINESSINSIDE THE STATE.CONSEQUENTLY, THEY RESTRAINITS EXCLUSIVE SOVEREIGNITY.
  24. 24. GENERAL ASSEMBLY OF THE UNITED NATIONS 1948UNIVERSAL DECLARATION OF HUMAN RIGHTS
  25. 25. HUMAN RIGHTS According to Davidson: “!the phenomenon known as human rights is LEGISLAZIONE INTERNAZIONALE CHE HA relative not only to the protection of individuals PER SCOPO DI GARANTIRE AGLIgovernment from the ruling of States or of INDIVIDUI – authorities inTEMPO –periods of their life,but it IN OGNI certain LA POSSIBILITÀ DI GODERE DI DIRITTI E DI LIBERTÀ is also inclined to the creation of social FONDAMENTALIconditions by which each individual can develop LIMITANO his maximum potential” IL POTERE DELLO STATO SUGLI INDIVIDUI
  26. 26. INTERNATIONAL HUMANITARIAN LAW FIELD OF THE PUBLIC INTERNATIONAL LAW, ESTABLISHING THE CONDUCT RULES OF COUNTRIES IN CASE OF WAR. IT SETS SOME LIMITS TO THE USE OF MEANS AND WAYS OF WAR AND IT TAKES CARE OF PEOPLE WHO DO NOT TAKE PART AND THOSE WHO ARE NO LONGER PARTICIPATING IN THE HOSTILITIES.
  27. 27. BOTH OF THEM AIM AT RESTRAINING THE POWER OF GOVERNMENT AUTHORITIES TO PROTECT THE HUMAN BEING!ma allora DIU e DU sono la stessa cosa? BUT BUT!THEY PROTECT HIM IN DIFFERENT WAYS AND CIRCUMSTANCES
  28. 28. THEY ARE DISTINCT ANDCOMPLEMENTARY BRANCHES OF PUBLIC INTERNATIONAL LAW IHL HR•! IT IS APPLIED IF •! THEY ARE THERE IS A ALWAYS CONFLICT APPLIED•! IT CAN NEVER BE •! SOME OF THEM CAN DEROGATED BE INTERRUPTED IN EXCEPTIONAL CASES.
  29. 29. “HARD POINT”•! DIRITTO ALLA VITA•! DIVIETO DI TORTURA THAT ALL HUMAN RIGHTS•! DIVIETO DI PENE E TRATTAMENTI COUNTRIES HAVE TO INUMANI RESPECT IN ALL•! DIVIETO DI SCHIAVITU’ E SERVITU’ CIRCUMSTANCES•! PRINCIPIO DI LEGALITA’•! GIUSTO PROCESSO
  30. 30. MARTENS CLAUSE PREAMBLES AJA 1907 IV “….IN CASES NOT INCLUDED IN THEREGULATIONS ADOPTED, THE INHABITANTSAND THE BELLIGERENTS REMAIN UNDER THE PROTECTION AND THE RULE OF THE PRINCIPLES OF THE LAW OF NATIONS, AS THEY RESULT FROM THE USAGES ESTABLISHED AMONG CIVILIZED PEOPLES FROM THE LAWS OF HUMANITY AND THE DICTATES OF THE PUBLIC CONSCIENCE.”
  31. 31. ANY QUESTIONS?
  32. 32. !THANKS FOR YOURATTENTION
  33. 33. 6 TREATES and 600 ARTICLES !but, in brief: DISTINCTION between civilian population and combatants and betweencivilian objects and military objectives
  34. 34. MILITARY OBJECTIVE ART. 52 CO.2 I P.A. 1977 OBJECT WHICH BY ITS NATURE,LOCATION, PURPOSE OR USE MAKES ANEFFECTIVE CONTRIBUTION TO MILITARYACTION AND WHOSE TOTAL OR PARTIAL DESTRUCTION, CAPTURE OR NEUTRALIZATION IN THE CIRCUMSTANCES RULING THE TIME, OFFERS A DEFINITE MILITARY ADVANTAGE.
  35. 35. CIVILIANS ALL PEOPLE WHO DO NOT BELONG TO ONE OF THE CLASSES INDICATEDIN THE ART.4 LET.A III C.G.1949 AND ART.43 I P.A. 1977 CIVILIAN POPULATION ALL CIVILIANS AS A WHOLE
  36. 36. A CIVILIAN IS A CIVILIAN  If he doesn’t take part in the conflict in no way…  If he doesn’t behave in a hostile way…  If he is always and not occasionally a civilian person
  37. 37. CIVILIAN OBJECTS NO ATTACK NO RETALIATION ART.52 CO.1 I P.A. 1977ALL OBJECTS THAT ARE NOT MILITARY OBJECTIVES
  38. 38. DOUBTFUL CASES??? UN BENE CHE NORMALMENTE E’ COMPARATIVE DESTINATO AD USO CIVILE, COME PRESUMPTION ABITAZIONI, LUOGHI DI CULTO,SCUOLE, SI PRESUME CHE NON SIA SUSCEPTIBLE OF EVIDENCE “CONTRIBUIRE UTILIZZATO PER TO THE EFFICACEMENTE ALL’AZIONE CONTRARY MILITARE”
  39. 39. INDISCRIMINATE ATTACKS ART. 51 CO.4 I PA 1977•! Attacks which are not directed to a specific military objective•! Attacks which employ a method or means of combat which cannot be directed to a specific military objective THEY’RE•! Attacks which employ a method or means of combats PROHIBITED the effects of which cannot be limited as required by this Protocol and consequently , in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
  40. 40. !for example ART.51 CO.5 I P.A. 1977•! AN ATTACK BY BOMBARDMENT, BY ANY METHODS OR MEANS WHICH TREATES AS A SINGLE MILITARY OBJECTIVE A NUMBER OF CLEARLY SEPARATED AND DISTINCT MILITARY OBJECTIVES LOCATED IN A CITY,TOWN, VILLAGE OR OTHER AREA CONTAINING A SIMILAR CONCENTRATION OF CIVILIANS OR CIVILIAN OBJECTS•! AN ATTACK WHICH MAY BE EXPECTED TO CAUSE INCIDENTAL LOSS OF CIVILIAN LIFE, INJURY TO CIVILIANS, DAMAGE TO CIVILIAN OBJECTS OR A COMBINATION THEROF, WHICH WOULD BE EXCESSIVE IN RELATION TO THE CONCRETE AND DIRECT MILITARY ADVANTAGE ANTICIPATED. NOT PEREMPTORY
  41. 41. PRECAUTIONS IN ATTACK ART.57 I P.A. 1977 Those who plan or decide upon an attack shall:•! DO EVERYTHING FEASIBLE TO VERIFY THAT THE OBJECTIVES TO BE ATTACKED ARE NEITHER CIVIIAN NOR CIVILIAN OBJECTS AND ARE NOT SUBJECT TO SPECIAL PROTECTION BUT THEY ARE MILITARY OBJECTIVES EX ART. 52,2 AND IT IS NOT PROHIBITED BY THE PROVISIONS OF THIS PROTOCOL TO ATTACK THEM•! TAKE ALL POSSIBLE PRECAUTIONS IN THE CHOICE OFMEANS AND METHODS OF ATTACK, WITH A VIEW TO AVOIDING AND IN ANY EVENT TO MINIMIZING INCIDENTAL LOSS OR CIVILIAN LIFE, INJURY TO CIVILIANS AND DAMAGES TO CIVILIAN OBJECTS.
  42. 42. PRECAUTIONS IN ATTACK ART.57 I P.A. 1977 THOSE WHO PLAN OR DECIDE UPON AN ATTACK SHALL:•! REFRAIN FROM DECIDING TO LAUNCH ANY ATTACK WHICH MAY BE EXPECTED TO CAUSE INCIDENTAL LOSS OF CIVILIAN LIFE, DAMAGES TO CIVILIAN OBJECTS OR A COMBINATION THEROF, THAT WOULD BE EXCESSIVE IN RELATION TO THE CONCRETE AND DIRECT MILITARY ADVANTAGE ANTICIPATED. NO EXCESSIVE COLLATERAL DAMAGES
  43. 43. PRINCIPLE OF PROPORTIONALITYHUMAN LOSSES and COLLATERAL MILITARY DAMAGES ADVANTAGE THE PARTIES HAVE NO ILLIMITED RIGHT TO CHOOSE METHODS AND MEANS OF WAR
  44. 44. MILITARY NECESSITY CAUSE OF JUSTIFICATION WAR NECESSITY REASON OF WAR LIMIT TO THE WAR ACTION
  45. 45. MILITARY NECESSITY =THE REASON OF WAR PREVAILS ON THE RIGHT OF WAR !military necessity doesn’t justify the killing ofcivilian population and the destruction of towns in the occupied territories NUREMBERG COURT 1950 CASE “LIST AND OTHERS”
  46. 46. BREACH OF PRECAUTIONS =SERIOUS INFRACTION TO I.H.L. = WAR CRIME
  47. 47. !and therefore ART.57 I P.A. 1977•! AN ATTACK SHALL BE CANCELLED OR SUSPENDED IF IT BECOMES APPARENT THAT THE OBJECTIVE IS NOT A MILITARY ONE OR IS SUBJECT TO SPECIAL PROTECTION, OR THAT THE ATTACK MAY BE EXPECTED TO CAUSE INCIDENTAL LOSS OF CIVILIAN LIFE, INJURY TO CIVILIANS,DAMAGE TO CIVILIAN THAT OBJECTS OR A COMBINATION THEREOF, WHICH WOULD BE EXCESSIVE IN RELATION TO THE CONCRETE AND DIRECT MILITARY ADVANTAGE ANTICIPATED•! WHEN A CHOICE IS POSSIBLE BETWEEN SEVERAL OBJECTIVES FOR OBTAINING A SIMILAR MILITARY ADVANTAGE.•! THE OBJECTIVE TO BE SELECTED SHALL BE THAT THE ATTACK ON WHICH MAY BE EXPECTED TO CAUSE THE LEAST DANGER TO CIVILIAN LIVES AND TO CIVILIAN OBJECTS.
  48. 48. PRECAUTIONS AGAINST THE EFFECTS OF ATTACKS ART. 58 I P.A. 1977!THE PARTIES TO THE CONFLICT SHALL:•! ENDEAVOUR TO REMOVE THE CIVILIAN POPULATION, INDIVIDUAL CIVILIANS AND CIVILIAN OBJECTS UNDER THEIR CONTROL FROM THE VICINITY OF MILITARY OBJECTIVES•! AVOID LOCATING MILITARY OBJECTIVES WITHIN OR NEAR DENSELY POPULATED AREAS•! TAKE THE OTHER NECESSARY PRECAUTIONS TO PROTECT THE CIVILIAN POPULATION, INDIVIDUAL CIVILIANS AND CIVILIAN OBJECTS UNDER THEIR CONTROL AGAINST THE DANGERS RESULTING FROM MILITARY OPERATIONS.
  49. 49. PROTECTION OF OBJECTS INDISPENSABLE TOTHE SURVIVAL OF THE CIVILIAN POPULATION ART. 54 I P.A. 1977 IT IS PROHIBITED! • STARVATION OF CIVILIANS AS A METHOD OF WARFARE • TO ATTACK, DESTROY, REMOVE OR RENDER USE LESS OBJECTS INDISPENSABLE TO THE SURVIVAL OF THE CIVILIAN POPULATON ( SUCH AS FOOD-STUFFS, AGRICULTURAL AREAS FOR THE PRODUCTION OF FOOD-STUFFS,CROPS,LIVESTOCK, DRINKING WATER, INSTALLATIONS AND SUPPLIES AND IRRIGATION WORKS) FOR THE SPECIFIC PURPOSE OF DENYING THEM FOR THEIR SUSTENANCE VALUE TO THE CIVILIAN POPULATION OR THE ADVERSE PARTY, WHATEVER THE MOTIVE: WHETHER IN ORDER TO STARVE OUT CIVILIANS, TO CAUSE THEM TO MOVE AWAY OR ANY OTHER MOTIVE.
  50. 50. !unless THE OBJECTS ARE NOT USED BY AN ADVERSE PARTY:•! AS SUSTENANCE SOLELY FOR THE MEMBERS OF ITS FF.AA.•! IF NOT A SUSTENANCE , THEN IN DIRECT SUPPORT OF MILITARY ACTION!and however•! PROVIDED THAT IN NO EVENT SHALL ACTIONS AGAINST THESE OBJECTS BE TAKEN WHICH MAY BE EXPECTED TO LEAVE THE CIVILIAN POPULATION WITH SUCH INADEQUATE FOOD OR WATER AS TO CAUSE ITS STARVATION OR FORCE ITS MOVEMENT
  51. 51. CULTURAL OBJECTS AND PLACES OF WORSHIP ART. 53 I P.A. 1977 AJA CONVENTION 1954 + PROT. IT IS PROHIBITED •! TO COMMIT ANY ACTS OF HOSTILITY AGAINST THE HISTORIC MONUMENTS, WORKS OF ART OR PLACES OF WORSHIP WHICH CONSTITUTE THE CULTURAL OR SPIRITUAL HERITAGE •! OF PEOPLES •! TO MAKE SUCH OBJECTS THE OBJECT OF REPRISALS
  52. 52. CULTURAL OBJECTS AND PLACES OF WORSHIP ART. 53 I P.A. 1977 AJA CONVENTION 1954 + PROT. THEY CAN’T ! •! BE USED IN SUPPORT TO THE MILITARY EFFORT
  53. 53. WORKS AND INSTALLATIONS CONTAINING DANGEROUS FORCES ART. 56 I P.A. 1977 BUT THE PROTECTION SHALL CEASE IF THEY ARE USED FOR OTHER THAN ITS NORMAL FUNCTION AND FORNON POSSONO ESSERE OGGETTO DI ATTACCO REGULAR,SIGNIFICANT AND DIRECT ANCHE SE COSTITUISCONO OBIETTIVO SUPPORT OF MILITARY OPERATIONS MILITARE SE GLI ATTACCHI POSSONO AND IF PROVOCARE LA LIBERAZIONE DI TALI FORZE ESUCH ATTACKS ARE THEPERDITE TRA LA WAY TO CAUSARE GRAVI ONLY FEASIBLE TERMINATE SUCH SUPPORT POPOLAZIONE CIVILE
  54. 54. NATURAL ENVIRONMENT ART 35 N.3 AND ART 55 I PA 1977 1976 CONVENTION INSIEME DELLE CONDIZIONI ON THE PROHIBITION OF MILITARY FISICHE, CHIMICHE E BIOLOGICHE OR ANY HOSTILE USE OF CHE PERMETTONO E FAVORISCONO LA VITA DEGLI ENVIRONMENTAL ESSERI VIVENTI MODIFICATION TECHNIQUES RIS. 31/72 10 DECEMBER 1976 DIVIETO DI MEZZI O METODICHE PROVOCHINO DANNI ESTESI, DUREVOLI E GRAVI
  55. 55. CIVILIANS SUBJECT TO PARTICULAR PROTECTION •! PREGNANT WOMEN •! UNDER-SEVENS’ MOTHERS •! BOTH CIVILIAN AND MILITARY BLESSED AND SICK PEOPLE •! UNDER-FIFTEENS CHILDREN
  56. 56. CONCLUSION OF AGREEMENTS FOR THE EVACUATION OF BLESSED, SICK AND OLD PEOPLE, WOMEN, CHILDREN, HEALTH AND RELIGIOUS PERSONNEL CREATION OF SECURITY HEALTH FROM THE BESIEGED ZONES ZONES OR OF NEUTRALIZED ZONES•!TO RESPECT THE PRECISE GUARANTEES PROVIDED BY THE CONVENTIONS •!TO RESPECT AND PROTECT HOSPITALS •!TO LET HEALTH MATERIALS, PROVISIONS, CLOTHES FOR CIVILIANS GO BY FREELY•!TO MAKE THE CORRESPONDENCE EXCHANGE BETWEEN THE PROTECTED PEOPLE AND THEIR OWN FAMILIES EASIER •!TO SUPPORT THE REUNION OF THE FAMILIES
  57. 57. MARTENS CLAUSE PREAMBLES AJA 1907 IV“….IN CASES NOT INCLUDED IN THE REGULATIONSADOPTED, THE INHABITANTS AND THE BELLIGERENTSREMAIN UNDER THE PROTECTION AND THE RULE OFTHE PRINCIPLES OF THE LAW OF NATIONS, AS THEYRESULT FROM THE USAGES ESTABLISHED AMONGCIVILIZED PEOPLES FROM THE LAWS OF HUMANITYAND THE DICTATES OF THE PUBLIC CONSCIENCE.”
  58. 58. ANY QUESTIONS?
  59. 59. !Thanks for yourattention!

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