International Humanitarian Law.
Development:
The law in this area developed from the middle of the nineteenth century. In 1864, as a result of the pioneering work of Henry Dunant, who had been appalled by the brutality of the battle of Solferino five years earlier, the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was adopted. This brief instrument was revised in 1906. In 1868 the Declaration of St Petersburg prohibited the use of small explosive or incendiary projectiles. The laws of war were codified at the Hague Conferences of 1899 and 1907. A series of conventions were adopted at these conferences concerning land and naval warfare, which still form the basis of the existing rules. It was emphasised that belligerents remained subject to the law of nations and the use of force against undefended villages and towns was forbidden. There were also provisions concerning the rights and duties of neutral states and persons.
However, there were inadequate means to implement and enforce such rules with the result that much appeared to depend on reciprocal behaviour, public opinion and the exigencies of morale. A number of conventions in the inter-war period dealt with rules concerning the wounded and sick in armies in the field and prisoners of war.
Such agreements were replaced by the Four Geneva 'Red Cross' Conventions of 1949 which dealt respectively with the amelioration of the condition of the wounded and sick in armed forces in the field, the amelioration of the condition of wounded, sick and shipwrecked members of the armed forces at sea, the treatment of prisoners of war and the protection of civilian persons in time of war. The Fourth Convention was an innovation and a significant attempt to protect civilians who, as a result of armed hostilities or occupation, were in the power of a state of which they were not nationals.
The foundation of the Geneva Conventions system is the principle that persons not actively engaged in warfare should be treated humanely.'
In 1977, two Additional Protocols to the 1949 Conventions were adopted. These built upon and developed the earlier Conventions. The International Court of Justice has noted that the 'Law of the Hague', dealing primarily with inter-state rules governing the use of force or the 'laws and customs of war', and the 'Law of Geneva', concerning the protection of persons from the effects of armed conflicts, 'have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law'.
The Scope of Protection under the Geneva Conventions system:
Common article 2 of geneva conventions provides that the Conventions '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 them.. . [and] to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance'. The rules contained in these Conventions cannot be renounced by those intended to benefit from them.
The First Geneva Convention concerns the Wounded and Sick on Land and emphasised that members of the armed forces and organised militias, including those accompanying them, 'shall be respected and protected in all circumstances'.They are to be treated humanely by the party to the conflict. Torture or biological experimentation is forbidden, nor are such persons to be wilfully left without medical assistance and care. The wounded and sick of a belligerent who fall into enemy hands are also to be treated as prisoners of war. The parties to the conflict are to record as soon as possible the details of any wounded, sick or dead persons of the adversary party and to transmit them to the other side through particular means. This Convention also includes provisions which restrict belligerents not to attack medical units of Red Cross and Red Crescent.
The Second Geneva Convention concerns the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea and is very similar to the First Convention. The Convention also provides that hospital ships may in no circumstances be attacked or captured but respected and protected. The provisions in these Conventions were reaffirmed in and supplemented by Protocol I, 1977, Parts I and II.
The Third Geneva Convention of 1949 is concerned with prisoners of war. The definition of prisoners of war in article 4, however, is of particular importance since it has been regarded as the elaboration of combatant status. The following person are to be considered combatants only: (a) being commanded by a person responsible for his subordinates; (b) having a fixed distinctive sign recognisable at a distance; (c) carrying arms openly; (d) conducting operations in accordance with the laws and customs of war.
But due to asymmetric warfare, pressures grew to expand the definition of combatants entitled to prisoner of war status. Because such persons to such rarely complied with the four conditions. Articles 43 and 44 of Protocol I, 1977, provide that combatants are members of the armed forces which is party to an international armed conflict. Such armed forces consist of all organised armed units under an effective command structure which enforces compliance with the rules of international law applicable in armed conflict.
Article 44(3) further notes that combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.
When an armed combatant cannot so distinguish himself, the status of combatant may be retained provided that arms are carried openly during each military engagement and during such time as the combatant is visible to the adversary while engaged in a military deployment preceding the launching of an attack. This formulation is clearly controversial and was the sub- ject of many declarations in the vote at the conference producing the draft. Note that by article 45 any person taking part in hostilities and falling into the hands of an adverse party shall be presumed to be a prisoner of war and thus protected by the Third Geneva Convention of 1949. Where a person is a mercenary, there is no right to combatant or prisoner ofwar status under article 47.
Article 5 also provides that where there is any doubt as to the status of any person committing a belligerent act and falling into the hands of the enemy, 'such person shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. This formulation was changed somewhat in article 45 of Protocol I. This provides that a person who takes part in hostilities and falls into the power of an adverse party 'shall be presumed to be a prisoner of war and therefore shall be protected by the Third Convention.
The framework of obligations covering prisoners of war is founded upon the following provisions. Article 13 provides that prisoners of war must at all times be humanely treated and must at all times be protected, particularly against acts of violence or intimidation and against 'insults and public curiosity'. This means that displaying prisoners of war on television in a humiliating fashion confessing to 'crimes' or criticising their own government must be regarded as a breach of the Convention. Measures of reprisal against prisoners of war are prohibited. Article 14 provides that prisoners of war are entitled in all circumstances to respect for their persons and their honour.
Prisoners of war are bound only to divulge their name, date of birth, rank and serial number. Article 17 provides that 'no physical or mental torture, nor any other form of coercion, may be inflicted to secure from them information of any kind whatever. while article 23 stipulates that 'no prisoner of war may at any time be sent to, or detained in, areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations. Prisoners of war are subject to the laws and orders of the state holding them. They may be punished for disciplinary offences and tried for offences committed before capture, for example for war crimes. Other provisions of this Convention deal with medical treatment, religious activities, discipline, labour and relations with the exterior. Article 118 provides that prisoners of war shall be released and repatriated without delay after the cessation of hostilities.
The Fourth Geneva Convention is concerned with the protection of civilians in time of war. Under article 50(1) of Protocol I, 1977, a civilian is defined as any person not a combatant, and in cases of doubt a person is to be considered a civilian. The Fourth Convention provides a highly developed set of rules for the protection of such civilians, including the right to respect for person, honour, convictions and religious practices and the prohibition of torture and other cruel, inhuman or degrading treatment, hostage-taking and reprisals.
The protection of civilians in occupied territories is covered in section III of Part III of the Fourth Geneva Convention," but what precisely occupied territory is maybe open to dispute. For example, Israel has argued that since the West Bank has never been recognised internationally as Jordanian territory, it cannot therefore be
regarded as its territory to which the Convention would apply. In other words, to recognise that the Convention applies would be tantamount to recognition of Jordanian sovereignty over the disputed land.
Article 70 provides that protectedpersons shall not be arrested.
The Conduct of Hostilities:
International law, in addition to seeking to protect victims of armed conflicts, also tries to constrain the conduct of military operations in a humanitarian fashion. As far as the civilian population is concerned during hostilities, the basic rule formulated in article 48 of Protocol I is that the parties to the conflict must at all times distinguish between such population and combatants and between civilian and military objectives and must direct their operations only against military objectives.
Military objectives are limited in article 52(2) to '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 neutralisation offers a definite military advantage.
Issues have arisen particularly with regard to so-called 'dual use' objects such as bridges, roads, power stations and so forth and care must be taken to interpret these so that not every object used by military forces becomes a military target, especially in view of the actual terms used in article 52(2) that such objects make 'an effective contribution' to military action and offer a 'definite military advantage'. Article 57 provides that in the conduct of military operations, 'constant care shall be taken to spare the civilian population, civilians and civilian objects'.
Atricle 54: Cultural objects and places of worship are also protected, as are objects deemed indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works, so long as they are not used as sustenance solely for the armed forces or in direct support of military action. Attacks are also prohibited against works or installations containing dangerous forces, namely dams, dykes and nuclear generating stations.
The right of the parties to an armed conflict to choose methods of warfare is not unconstrained according to article 48 of Protocol I. Article 22 of the Hague Regulations points out that the 'right of belligerents to adopt means of injuring the enemy is not unlimited, while article 23(e) stipulates that it is especially prohibited to 'employ arms, projectiles or material calculated to cause unnecessary sufferings.
A number of specific bans on particular weapons has been imposed. Examples would include small projectiles under the St Petersburg formula of 1868, dum-dum bullets under the Hague Declaration of 1899 and asphyxiating and deleterious gases under the Hague Declaration of 1899 and the 1925 Geneva protocol. Under the 1980 Conventional Weapons Treaty, Protocol I, it is prohibited to use weapons that cannot be detected by X-rays, while Protocol II (minimally amended in 1996) prohibits the use of mines and booby-traps against civilians, Protocol III the use of incendiary devices against civilians or against military objectives located within a concentration of civilians where the attack is by air-delivered incendiary weapons, and Protocol IV the use of blinding laser weapons. In 1997, the Ottawa Convention on the Prohibition of the Use, Stock- piling, Production and Transfer of Anti-Personnel Mines and on their Destruction was adopted.
Armed conflicts: international and internal:
The rules of international humanitarian law apply to armed conflicts. A distinction has historically been drawn between international and non- international armed conflicts, founded upon the difference between inter-state relations, which was the proper focus for international law, and intra-state matters which traditionally fell within the domestic jurisdiction of states and were thus in principle impervious to international legal regulation. However, this difference has been breaking down in recent decades. In the sphere of humanitarian law, this can be seen in the gradual application of such rules to internal armed conflicts.
In tadic case the court observed that:
an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.
In addition to this courts remarks, international community, because of globalized world, now more willing to demand the application of international humanitar- ian law to internal conflicts. In the TadiC case, the Appeals Chamber (in considering jurisdictional issues) concluded that article 3 of its Statute, which gave it jurisdiction over 'violations of the laws or customs of war' provided it with such jurisdiction 'regardless of whether they occurred within an internal or an international armed conflict.
Non-International Armed Conflict:
Although the 1949 Geneva Conventions were concerned with international armed conflicts, common article 3 did provide in cases of non- international armed conflicts occurring in the territory of one of the states.
Common article 3 lists the following as the minimum safeguards:
1. Persons taking no active part in hostilities to be treated humanely without any adverse distinction based on race, colour, religion or faith, sex, birth or wealth. To this end the following are prohibited:
a) violence to life and person, in particular murder, cruel treatment and torture;
b) hostage-taking;
c) outrages upon human dignity, in particular humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions in the absence of due process.
2. The wounded and the sick are to be cared for.
Common article 3 was developed by Protocol 11, 1977, which applies by virtue of article 1 to all non-international armed conflicts which take place in the territory of a state party between its armed forces and dissident armed force. The latter have to be under responsible command and exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and actually implement Protocol II. It does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, not being armed conflicts.
The Protocol lists a series of fundamental guarantees and other provisions calling for the protection of non-combatants. In particular, one may note the prohibitions on violence to the life, health and physical and mental well-being of persons.
The Appeals Chamber in its decision on jurisdiction in the Tadic case noted that international legal rules had developed to regulate internal armed conflict for a number of reasons, including the frequency of civil wars, the increasing cruelty of internal armed conflicts, the large-scale nature of civil strife making third-party involvement more likely and the growth of international human rights law. Thus the distinction be- tween inter-state and civil wars was losing its value so far as human beings were concerned.
Besides these laws, fundamental rights are not taken in case of armed conflict. General Assembly resolution 2675 (XXV) which emphasised that fundamental human rights 'continue to apply fully in situations of armed con- flict', while the European Commission on Human Rights in the Cyprus v. Turkey (First and Second Applications) case declared that in belligerent operations a state was bound to respect not only the humanitarian law laid down in the Geneva Conventions but also fundamental human rights.'''
Questions
1. What are the sources of international humanitarian law?
2.what is the importance of international humanitarian law?
3. What are the principles of international humanitarian law?
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