International Humanitarian Law [1]
Chapter One
Introductory Topics
Definition, Aims and Relationships
The rules of “Law of War” which govern the
resort to force in international relations (jus ad bellum) are intended
to prohibit, or at least, to restrict the resort to war (armed force) in
international relations. However,
because it is not possible to fully prevent war (the use of armed force),
attempts have been made to regulate the conducts of war in order to mitigate
its extent. The attempts have succeeded
in establishing rules to govern the actual conducts of war (jus in bello). These rules, to some legal scholars, are part
of the Law of War, thus they are referred to as rules related to “Law of
War”. However, to others they form a
separate law known as “International Humanitarian Law”.
Because the
prevailing view considers “International Humanitarian Law” to be a separate
law, it is reasonable to deal with this law in a separate course. Thus, the present course is endeavored to the
study of “International Humanitarian Law” (called also “Law of Armed
Conflicts”).
As it has
been apparent that prevention of war has not been possible, it has been
apparent that the rules formulated in “International Humanitarian Law” would not
be effective without attaching responsibilities in cases of their violations,
and without having a mechanism to prosecute violators. Thus, “International Criminal Law” has come
into existence, as a derivative of “International Humanitarian Law”. It deals with individual criminal
responsibility for violations of international law.
International
Criminal Law (ICL) is related to International Humanitarian Law (IHL) as well
as to International Human Rights Law (IHRL).
Indeed, both IHL and IHRL help in developing ICL and continue to
contribute to its interpretation and application.
“International Humanitarian Law” is the subject of this course, while
“International Criminal Law” is the subject of another course.
“International Humanitarian Law” (called also “Law of Armed Conflicts”)
is that branch of International Law which regulates the conduct of armed
conflicts (war).[2] It is inspired by a feeling for humanity and
is centered on the protection of human being in time of war (armed conflicts).[3] It seeks to mitigate the effects of armed
conflicts by limiting the choice of means and methods of conducting military
operations and providing protections to persons and civilian objects during
armed conflicts.[4]
International Humanitarian Law compiles those rules of International Law
which aim to protect persons, victims of the evils of armed conflicts, as well
as, by extension, objects not directly serving military purposes.[5]
Because
International Humanitarian Law as International Human Rights Law aims to
guarantee to persons the enjoyment of rights and freedom and to protect them
from evils, it is apparent that there is a relationship between them. [6]
The
relation between International Humanitarian Law and the International Human
Rights Law: International
Humanitarian Law (IHL) is
closely related to, but distinct from
International Human Rights Law (IHRL). They are closely
related because the substantive norms they contain are often similar or
related. They share a common concern: Protecting the individual against
unacceptable infringements. However, due
to their different historical roots both bodies of law are considered to
accommodate unlike situations and conceived to achieve their common goal with
different systematic approaches. The two laws are distinct because they
are regulated by legally separate frameworks, and usually operate in different
contexts and regulate different relationships.
Generally, IHRL regulates the relationship between states and
individuals in the context of ordinary life, while IHL regulates the actions of
belligerent States and those parties with which they come into contact, both
hostile and neutral, within the context of an
armed conflict. Specifically, the content of IHRL is
the protection
of all
persons within the jurisdiction of a State (regardless of citizenship) against abuse of power of
State authorities, or failure
by State authorities to ensure human rights, by guaranteeing rights to protect
citizens, while the content of IHL is the regulation of war-conducts (the means and methods of warfare) and the protection of individuals, combatants and
civilians, by imposing obligations and prohibitions on military personnel.
In
short, IHL applies only
in situations of armed conflict (in times of war) to protect
people who do not or are no longer taking part in hostilities, while IHRL
protects people in times of peace and war alike and does not deal with conduct
of hostilities. Accordingly, the
relationship between HR and HL was traditionally perceived as mutually
exclusive: With the outbreak of war, IHR would cease to apply and be ousted by
IHL.
How does “International Humanitarian
Law” emerge and develop? What are its
sources, scope and content? How is it
executed? Who can prosecute the violators
of its rules? These are the questions,
which are answered in the following chapters.
Chapter Two
The Codification and Development of
International Humanitarian Law
To protect
man against the evils of war and cruel treatments is not a new idea. It goes back to the dawn of history.[7] In a distant past, some military leaders used
to order their troops to spare the lives of enemy prisoners (soldiers and
civilians) and to treat them well. Often
upon the termination of war, the belligerent parties used to agree to exchange
the prisoners in their hands. Throughout
the history, such practices and likewise gradually evolved into a body of
customary rules regulating the conduct of war.
Because the
scope and content of the customary rules related to the conduct of war were
somewhat vague and uncertain, a movement was initiated during the Nineteenth
Century to embody such rules in binding international instruments.[8] In 1864, mainly as a result of the pioneering
effort of the Swiss businessman Henry Dunant, a diplomatic conference convened
in Geneva
The most
important principles introduced by the 1864 Geneva Convention were:
The neutrality of ambulances and military hospitals, as such, they are
protected and respected by the belligerents as long as they accommodate wounded
and sick; hospitals, ambulances and evacuation parties would be distinguished
by a uniform flag or armlet bearing “a red cross on a white ground”; the
exemption of hospital and ambulance personnel from being captured or being the
target of fire; wounded and sick combatants should be collected and cared for;
and civilians coming to the assistance of the wounded should be respected.[10] This Convention was accepted by all the then
independent States.
The 1864
Geneva Convention was the first modest step in the process of codifying rules
of International Humanitarian Law. This
step was followed by many other steps, before the “International Humanitarian
Law” reached its present scope and content.[11]
In 1868,
the “Declaration of St Petersburg” came to prohibit the use of explosive or
flammable bullets.[12] This Declaration, in fact, added strength to
the principle of the Law of War concerning the obligation of the belligerents
to limit the use of force in meeting a legitimate military objective.
At the
Hague Peace Conferences of 1899 and 1907, a series of conventions were adopted,
codifying the law of war.[13] The Conventions were intended to set legal
limits to means and methods of land and naval warfare; such legal limits still
form the basis of the existing rules.
The Conventions emphasized that belligerents remained subject to the
“Law of Nations.” They contained rules concerning the treatment
of prisoners of war; the conduct of military operations, particularly in regard
of means of injuring the enemy, sieges and bombardments, and occupied territory;
and the rights and duties of neutral States. Moreover, One of these
Conventions, namely the “1907 Hague Convention for the Adaptation to Maritime
Warfare of the Principles of Geneva Convention” (the Tenth 1907 Hague
Convention) expanded the protection of the 1906 Geneva Convention to the
victims of war at sea.[14]
The 1864
Geneva Convention was revised twice, before and after the First World War, in
order to adapt its provisions to new realities.[15] The first revision took place in 1906. The
major achievement of the “1906 Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armies in the Field”[16]
was the development of the provisions for application of the principles
formulated in the 1864 Convention, taking into account the changes in the
world, particularly the growing development of the means of destruction, in
order to make such principles more effective.
The second revision was made in 1929, taking into account the
experiences of the First World War, particularly those related to the treatment
of the wounded, the sick, and the prisoners of war. Two Conventions were concluded in 1929: the “1929 Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armies in the Field”;[17]
and the “1929 Geneva Convention Relative to the Treatment of Prisoners of War”.[18]
The two Conventions made important improvements to the old provisions of the
Law of Geneva. They formulated a clear
and complete set of rules and principles on capture and captivity of prisoners
of war, and on the treatment of the wounded and the sick. They introduced the ban on reprisals against
the prisoners of war, and the principle that application of the rules of the
Convention would be open to international scrutiny. Notably, in this 1929 Diplomatic Conference,
the “red crescent” was recognized as the symbol of Muslim countries in place of
the “red cross”.
The
atrocities of the Second World War provided the incentive for major revision
and further development of the law of Geneva Geneva
In 1977,
two Additional Protocols to the 1949 Conventions were adopted at the closing of
the 1974-1977 “Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts” which was held in Geneva
In addition
to the 1949 Geneva Conventions and the 1977 Additional Protocols, several
conventions related to the protection of persons and objects in time of war,
and related to the prohibition of certain weapons, were adopted in the years
after 1949.[25] Among these conventions are: The 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict; the 1972 Convention on the
Prohibition of the Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and Their destruction; the 1980 Convention on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to Excessively Injurious or to Have Indiscriminate Effects; and
the Chemical Weapons Treaty of 1993.
Chapter Three
Sources of International Humanitarian Law
The codification of the rules of International Humanitarian Law shows
that this law consists of two branches:
the Law of Geneva and the Law of The Hague. While the Law of Geneva has a precisely
defined subject area, which is the protection of persons against abuse of
force, the Law of The Hague covers all the other problems of the law of war. In addition to these two laws, there are also several conventions,
which constitute sources for International Humanitarian Law, that prohibit or
restrict the use of specific weapons, including anti-personnel mines, exploding
or expanding bullets, blinding laser weapons and cluster munitions. The conventions are:
- The Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May Be
Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (1980), which prohibits weapons
that produce non-detectable fragments, restricts (but does not eliminate)
the use of mines and booby-traps, prohibits attacking civilians
with incendiary
weapons,
prohibits blinding laser weapons, and requires the warring
parties to clear unexploded ordnance at the end of hostilities;
- The Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction
(1997), also called the Ottawa Treaty or the Mine Ban Treaty, which
completely bans the stockpiling (except to a limited degree, for training
purposes) and use of all anti-personnel land mines;
- The Optional Protocol on the
Involvement of Children in Armed Conflict (2000), an amendment to the
Convention on the Rights of the Child (1989), which forbids the enlistment
of anyone under the age of eighteen for armed conflict; and
- The Convention on Cluster Munitions (2008), which prohibits the use
of bombs that scatter bomb lets, many of which do not explode and remain
dangerous long after a conflict has ended.
A. The Law
of The Hague
The Law of The Hague, or the laws of war, concerns itself with the definition of combatants, determination of the
rights and duties of belligerents in the conduct of operations and establishment
of rules relating to the means and methods of warfare. It consists of the several
Conventions adopted at the Hague Peace Conferences of 1899 and 1907.[26]
The Hague Conventions regulates various aspects of the laws of war and
neutrality. Almost all these conventions
are still in force, although many of their provision have been overtaken by the
modern conditions of warfare. The
conventions regulates matters such as the opening of hostilities, the laws and
customs of war on land, the rights and duties of neutral powers and persons in
case of war on land, the status of enemy merchant ships at the outbreak of
hostilities, the conversions of merchant ships into warships, the laying of
automatic submarine contact mines, bombardment by naval force in time of war,
capture in naval war, and rights and duties of neutral powers in naval war.
B. The Law
of Geneva
The Law of
Geneva consists of four conventions of 1949 and the three additional protocols
of 1977 and 2005.[27] The conventions are:
-
The First Geneva Convention of 1949: Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field.
-
The Second Geneva Convention of 1949: Geneva Convention for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
-
The Third Geneva Convention of 1949: Geneva Convention relative to the Treatment
of Prisoners of War.
-
The Fourth Geneva Convention of 1949: Geneva Convention relative to the Protection
of Civilian Persons in Time of War.
The
additional protocols to the Geneva
-
Protocol I (1977):
Protocol Additional to the Geneva Conventions of 12 August 1949, and
Related to the Protection of Victims of International Armed Conflicts.
-
Protocol II (1977):
Protocol Additional to the Geneva Conventions of 12 August 1949, and
Related to the Protection of Victims of Non-International Armed Conflicts.
-
Protocol III
(2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and
Related to the Adoption of an Additional Distinctive Emblem.
The four Geneva Conventions and their
Additional Protocols contain the most important rules limiting the barbarity of
war. They are at the core of International Humanitarian Law. They specifically protect people who are not
taking part in the hostilities (civilians, health workers and aid workers) and
those who are no longer participating in the hostilities, such as wounded, sick
and shipwrecked soldiers and prisoners of war. They furthermore stipulate that
the parties to the conflict and individual combatants must not attack the civilian population or civilian objects and must conduct their military operations in conformity with the recognized rules of International Humanitarian Law. They
call for measures to be taken to prevent or put an end to all breaches. They
contain rules to deal with what are known as “grave breaches". Those responsible for grave breaches must be
sought, tried or extradited, whatever nationality they may hold.
The
First and Second Conventions provide protection for the
wounded, sick, and shipwrecked military personnel in the field and at sea
during war, also for medical and religious personnel. In addition, they provide protection for
medical units, medical material, medical building, hospitals, hospital ships
and medical transports. The sick, wounded and shipwrecked
must be cared for adequately. Belligerents must treat members of the enemy
force who are wounded, sick or shipwrecked as carefully they would their own. All
efforts should be made to collect the dead quickly; to confirm death by medical
examination; to identify bodies and protect them from robbery. Medical
equipment must not be intentionally destroyed and medical establishments and
vehicles must not be attacked, damaged or prevented from operating even if, for
the moment, they do not contain patients. They
also recognize the distinctive emblems of the Red Cross, the Red Crescent, the
Red lion and the Red Sun.
The
Third Convention provides protection to prisoners of war (members of the armed forces who fall
into enemy hands). They must be treated humanely with
respect for their persons and their honour. The conditions and
places of captivity are precisely defined, particularly with regard to the
labour of prisoners of war, their financial resources, the relief they receive,
and the judicial proceedings instituted against them. The Convention
establishes the principle that prisoners of war shall be released and
repatriated without delay after the cessation of active hostilities.
The Fourth Convention
deals with the status and treatment of protected persons, distinguishing
between the situation of foreigners on the territory of one of the parties to
the conflict and that of civilians in occupied territory. It provides protection to all individuals who do not belong to
the armed forces, take no part in the hostilities and find themselves in the
hands of a party to the conflict or occupying power of which they are not
nationals. Civilians must be treated
humanely at all times, respected for
their honour, family rights, religious convictions and practices, and their
manners and customs, and be protected against acts or threats of violence,
insults and public curiosity. The Convention spells out the obligations of the Occupying
Power vis-à-vis the civilian population and contains detailed provisions on
humanitarian relief for populations in occupied territory. It also contains a
specific regime for the treatment of civilian internees.
The rules set out in the four Geneva Conventions apply to international armed conflicts, i.e. the use of armed force between two or more States. Only one provision in the Geneva Conventions – Article 3 common to all four Conventions
– applies to non- international
armed conflicts, i.e. fighting between government
armed forces and armed
groups (or between armed
groups themselves) where the groups possess a certain degree of organization and the violence reaches
a certain level of intensity.
The Additional Protocols I & II extend
the protection set out by the
four Conventions to any person affected by an armed conflict, and to internal conflicts and armed
conflicts in which peoples are fighting against colonial domination, alien
occupation or racist regimes which are considered international conflicts.
Protocol I additional to the Geneva Conventions supplements the Conventions provisions regulating international armed conflicts and broadens the definition of those conflicts to include situations in which a people is exercising its right to self-determination by fighting against colonial domination, alien occupation or racist regimes.
Additional Protocol II specifically applies to certain non-international armed conflicts between State armed forces
and
organized armed groups that exercise such territorial control as to enable them to carry
out
sustained and concerted military operations and to implement the Protocol.
Additional Protocol III supplements the Geneva Conventions by permitting the use of
an additional distinctive emblem.
Chapter Four
The Scope of International
Humanitarian Law
A. The
Material Scope
All The Hague Conventions and the 1906 Geneva
Convention include the general participation clause (clause si omnes)
which states that the provisions of the Conventions shall be binding on the
contracting parties only in case of hostilities between two or more of them and
that those provisions shall cease to be binding if one of the belligerent
powers is not a signatory to the Convention.[28] Such a clause was generally accepted before
the First World War.[29]
However,
the four 1949 Geneva Conventions specifically rejected such a clause. They
state that the conventions shall be respected in all circumstances, and shall
apply to all cases of declared war or any other armed conflict which may arise
between two or more of the contracting parties, and that even if one of the
powers in conflict is not a party to the Conventions, the powers who are
parties to the Conventions shall remain bound by them in their mutual
relations, and they shall furthermore be bound by the Conventions in relation
to the said power, if the latter accepts and applies the provisions thereof.[30] Furthermore, they provide that neutral powers
shall apply by analogy the provisions of the Conventions to the concerned
persons received or interned in their territory.[31]
The Geneva
Conventions expands their application to cases not involving armed conflict and
cases of non-international armed conflict.
They state that they apply to all cases of partial and total occupation
of the territory of the contracting party even if the said occupation meets
with no armed resistance.[32]
They also apply to cases of armed conflict not of an international character
occurring in the territory of one of the contracting parties; in such cases,
each party to the conflict shall be bound to apply, as a minimum the specified
provisions of the Conventions which guarantee to the victims of this type of
armed conflict at least the minimum protection.[33] This position of the Geneva Conventions
regarding the non-international armed conflict occurring in the territory of a
contracting party constitutes derogation from the traditional principle of
International Law concerning the application of a convention only between the
contracting parties (sovereign States); such a position is reaffirmed in the
1977 Protocol II.
Protocol II
provides that it apply to armed conflicts not covered by Protocol I, and to
armed conflicts taken place in the territory of a contracting party between its
armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory
as to enable them to carry out sustained and concerted military operations and
to implement this Protocol.[34] In this sense, Protocol II does not apply to
situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence and other acts of similar nature, as not being armed
conflicts.[35]
The 1977
Protocol I extends the application of the 1949 Geneva Conventions to include
wars of national liberation. It provides
that it apply to cases of armed conflicts in which peoples are fighting against
colonial domination, alien domination and racist regimes in the exercise of their
right of self determination in accordance with the Charter of the United
Nations and the 1970 “Declaration on Principles of International Law….”[36]
It is thus
apparent from the above developments that the scope of International
Humanitarian Law was gradually enlarged.
Today this Law applies to all circumstances: in cases of armed conflicts
involving contracting parties as well as non-contracting parties; in cases
involving States as well as certain entities other than States; in cases of
international armed conflicts and wars of national liberation as well as
non-international armed conflicts (internal armed conflicts). This trend can be interpreted as modifying
certain traditional concepts of International Law, particularly those related
to the subjects of the Law.
Notably,
International Humanitarian Law recognizes two different categories of armed
conflicts, international armed conflicts and non-internal armed conflicts. International armed conflicts (known as Wars)
are those involve two or more States; wars of national liberation are
considered international armed conflicts.
Non-international (internal) armed conflicts (usually known as civil
wars) are those warlike hostilities which occur in the territory of a single
State.
B. The Subjective Scope
International Humanitarian Law aims to
protect persons as well as objects not directly serving military purposes.
I. The Persons Protected under International
Humanitarian Law
The main
aim of International Humanitarian Law is to protect persons, victims of the
evils of armed conflicts. To this end,
this Law formulates a set of protections to be provided to certain categories
of persons who are called “protected persons”.
Protected persons are those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands
of a party to the conflict or occupation power of which they are not nationals.[37] The protected persons to whom the protections
of International Humanitarian Law apply are the following:
1. The Wounded
and the Sick
Wounded and
sick are persons, whether military or civilian, who because of trauma, disease
or other physical or mental disorder or disability, are in need of medical
assistance or care and who refrain from any act of hostility.[38] They also include maternity cases, newborn
babies and other persons who may be in need of immediate medical assistance or
care, such as expectant mothers, and who refrain from any act of hostility.[39]
2. Shipwrecked
Shipwrecked
are persons, whether military or civilian, who are in peril at sea or in other
waters as a result of misfortune affecting them or the vessel or aircraft
carrying them and who refrain from any act of hostility.[40]
3. Medical Personal
Medical
personal are those persons, whether military or civilian, assigned, whether
permanently or temporary, by a party to the conflict, exclusively to the
medical purposes or to the administration of medical units or the operation or
administration of medical transports.[41] Medical purposes include the search for, the
collection, transport and treatment of the wounded and sick.[42]
Medical
personnel also include: the medical personnel of national Red Cross (Red
Crescent) societies and other national voluntary aid societies duly organized
and authorized by a party to a conflict; the medical personnel of a neutral or
of other State which is not a party to that conflict, or of a recognized and authorized
aid society of such a State; and the medical personnel of an impartial
international humanitarian organization.[43]
“Medical
units” means establishments and other units, whether military or civilian,
organized for medical purposes, namely the search for, collection,
transportation, diagnosis or treatments of the wounded, sick and shipwrecked or
for the prevention of disease.[44] This term includes hospitals and the likes,
and various medical centers.
“Medical
transports” means any means of transportation, such as vehicles, ships and
aircrafts, whether military or civilian, permanent or temporary, assigned
exclusively to medical transportation and under the control of a competent
authority of a party to the conflict.[45]
4. Religious
Personnel
Religious
personnel are military or civilian persons, such as chaplains, who are
exclusively engaged in the work of their ministry and attached to the armed
forces, medical units, medical transports, or civil defense organization of a
party to the conflict.[46] They also include: those assigned by a neutral or other State
which are not a party to that conflict, or by a recognized and authorized aid
society of such a State; and those assigned by an impartial international
humanitarian organization.[47]
5. Prisoners
of War
Prisoners
of war are combatants who have fallen into the hands of the enemy, the adverse
party to the conflict.[48] Combatants are members of the armed forces of
a party to a conflict other than medical and religious personnel.[49] The armed forces of a party to a conflict
consist of all organized armed forces, groups and units (militias or volunteer
corps forming part of such armed forces) which are under a command responsible
to that party for the conduct of its subordinates.[50] Combatants also include members of other
militias and members of other volunteer corps, including those of organized
resistance movements, belonging to a party to the conflicts and operating in or
outside their own territory, provided that such groups fulfill the conditions
specified in the Third Geneva Convention, which are: 1) They are commanded by a
person responsible for his subordinates; 2) They have a fixed distinctive sign
recognizable at a distance; 3) They carry arms openly; and 4) They conduct their
operations in accordance with the laws and customs of war.[51]
6. Civilians
and Civilian Population
Civilians
mean persons who are not members of the armed forces of a party to the
conflict, and not members of other militias and members of other volunteer
corps, referred to them as combatants.[52]
The civilian population comprises all persons who are civilians.[53]
Among
civilians, women and children (under fifteen years of age) are granted special
status in International Humanitarian Law, and consequently special protections.[54]
7. Other Protected
Persons
There are
certain categories of persons who have not appeared in situations of armed
conflicts until quite recently. Although
they are included within the meaning of civilians, they need special attention
because they are exposed, in case of armed conflict, to extreme danger. These persons are the personnel of civilian
defense organizations, and the journalists; Protocol I includes them within the
protection of the International Humanitarian Law.[55]
II. The Objects
Protected under International Humanitarian Law
The aim of
International Humanitarian Law is not limited to the protection of persons
only, but it is, by extension, aim to protect objects not directly serving
military purposes. The objects to which,
the protections of this Law apply are the following:
1. Objects
Serving Medical Purposes
All objects
serving medical purposes, whether civilian or military, are protected under
International Humanitarian Law. These
objects include: fixed or mobile medical establishments such as hospitals, the
likes, centers and units; and medical transports such as vehicles, trains,
ships and aircraft.
2. Civilian
Objects
Civilian
objects are those which are not used for any military purposes or objectives.[56] In addition, they are objects not used for medical
purposes; otherwise, they will be included within the meaning of medical
objects. Civilian objects include:
-
Objects which are indispensable to the survival of the
civilian population, such as foodstuffs, crops, livestock, and drinking water
installations and supplies.[57]
-
Civilian houses, schools and places of work.[58]
-
Undefended localities.[59]
-
Objects which constitute the cultural or spiritual
heritage of peoples, such as historic monuments, works of arts, and places of
worship.[60]
-
Works or installations containing dangerous forces,
namely dams, dykes and nuclear electrical generating stations.[61]
-
Natural environment.[62]
-
Neutral and demilitarized zones.[63]
Chapter Five
The Fundamental Principles and Protections of
International Humanitarian Law
The aim of
International Humanitarian Law is to protect the human being and safeguard his
dignity in time of armed conflicts. To
this end, a multitude of rules regulating the conduct of States in armed
conflicts, and which constitute the protections and guarantees to persons in
time of armed conflicts, are formulated in this Law. These rules are of two types: injunctions,
requiring the parties to the dispute thereto to act, and prohibitions,
requiring the parties to abstain from acting.
The rules
formulated in International Humanitarian Law do not come from a vacuum; they
are inspired by other principles and rules expressly stated in other
instruments of International Law or clearly implied from thereof, or are
derived from the customary international law.
The principles of the Law of Human Rights, such as the principle of
inviolability, the principle of non-discrimination and the principle of
security, inspire many rules and principles formulated in International
Humanitarian Law. The principles of
Human Law corollary to the Law of War, such as the principle of military
necessity and proportionality, the principle of distinction, and the principle
of humane treatment are also behind the rules and principles of International
Humanitarian Law. The principle of
neutrality provides the inspiration to the rules of International Humanitarian
Law, particularly those related to the immunity and protection of the medical
personnel and facilities.
Necessity and
proportionality are established principles in humanitarian law. Under IHL, a belligerent may apply only the
amount and kind of force necessary to defeat the enemy. Further, attacks on military objects must not
cause loss of civilian life considered excessive in relation to the direct
military advantage anticipated. Every
feasible precaution must be taken by commanders to avoid civilian casualties.
The principle of distinction protects
civilian persons and civilian objects from the effects of military operations. It requires parties to an armed conflict to
distinguish at all times, and under all circumstances, between combatants and
military objectives on the one hand, and civilians and civilian objects on the
other; and only to target the former. It
also provides that civilians lose such protection should they take a direct
part in hostilities.
The principle of
humane treatment requires that civilians be treated humanely at all times. It prohibits violence to life and person
(including cruel treatment and torture), the taking of hostages, humiliating
and degrading treatment, and execution without regular trial against
non-combatants, including persons hors de combat (wounded, sick and
shipwrecked). Civilians are entitled to
respect for their physical and mental integrity, their honour, family rights,
religious convictions and practices, and their manners and customs.
The principle of
non-discrimination is a core principle of IHL. Adverse distinction based on
race, nationality, religious belief or political opinion is prohibited in the
treatment of prisoners of war, civilians, and persons hors de combat. All protected persons shall be treated with
the same consideration by parties to the conflict, without distinction based on
race, religion, sex or political opinion. Each and every person affected by armed
conflict is entitled to his fundamental rights and guarantees, without
discrimination.
Based on
the above basic principles of IHL, the fundamental protections and guarantees
to persons under this law are the following:
1)
Persons taking no active part in hostilities,
including members of armed forces who have laid down their arms and those
placed hors de combat (out of combat) by sickness, wound, detention, or
any other cause, shall in all circumstances be protected and treated humanely,
without any adverse distinction founded on race, color, religion or faith, sex,
wealth, or any other similar criteria.
Their lives, and their physical and moral integrity shall be respected. Women
and children are granted preferential treatment, respect and protection.
Women shall be especially protected against any attack on
their honour, in particular against rape, enforced prostitution, or any form of
indecent assaults. Children under the
age of eighteen must not be permitted to take part in hostilities.
2)
The wounded, sick and shipwrecked shall be collected,
cared for, and protected by the party to the conflict who has them in its
power.
3)
Medical personnel, establishments, transports and
materials are protected. The emblems of
the Red Cross and the Red Crescent are the signs of such protection and must be
respected.
4)
It is forbidden to kill or injure an enemy who
surrenders or who is out of combat.
Captured combatants and civilians under the authority of an adverse
party are entitled to respect for their lives, dignity, personal rights and
convictions. They shall at all times
be humanely treated. They shall be
protected against all acts of violence and reprisals. They shall have the rights to correspond with
their families and receive relief.
5)
Every person shall be entitled to benefit from the
fundamental judicial guarantees. No one
shall be responsible for an act he has not committed. No one shall be subjected to physical or
mental torture, corporal punishment or cruel or degrading treatment.
6)
Individual or mass forcible transfers, as well as
deportations of persons from occupied territory to other territory are
prohibited regardless of their motive.
7)
Civilians and civilian population shall enjoy general
protection against dangers from military operations. They shall not be the object of attack. Acts or threats of violence to spread terror
among the civilian population are prohibited. Indiscriminate attacks are
prohibited. Reprisals are prohibited.
8)
Civilian objects shall not be the object of attack or
reprisals.
9)
Parties to a conflict and members of their armed
forces do not have an unlimited choice of methods and means of warfare. They
are prohibited from employing weapons or methods of warfare of the nature to
cause unnecessary losses or excessive suffering.
10)
Parties to a conflict shall at all times distinguish
between combatants and civilian population in order to spare the civilian
population. Attacks shall be directed
solely against military objectives.
Chapter Six
Execution of International
Humanitarian Law
The rules
of International Humanitarian Law, like any of other laws, are meaningless if
they are not executed. Since these rules
constitute obligations imposed upon sovereign States, States have to execute
its obligations. In executing its
obligations, the State will be fulfilling its obligations under International
Law, and consequently serving its own interests. Any breach of its obligations under
International Law, the State will subject itself to sanctions. Sanctions will be applied against the State
and individuals. Individuals may be prosecuted by the courts of their own
State, courts of other States or international tribunals.
International Humanitarian Law requires each State to execute its
obligations under it in all circumstances, in time of peace and in the event of
armed conflict. In addition, it
attributes to the protecting powers (States) and substitute organizations such
as the Red Cross societies, the authority to aid and assist in the execution of
its rules.
A. Execution
by States
In all the
Conventions and Protocols of International Humanitarian Law, States undertake
to respect and ensure respect for them in all circumstances.[64] States shall, therefore, take without delay
all the necessary measures for the execution of their obligations under them.[65] They also shall give orders and instruction
to ensure observance of them, and shall supervise their execution.[66]
States
undertake, in time of peace as in time of war, to disseminate the Texts of the
conventions as widely as possible in their respective countries.[67]
They undertake to include the study thereof in their military programmes and
civil instructions, so that the principles thereof may become known to the
entire population, in particular to the armed fighting forces, the medical
personnel and the chaplains.[68]
States
undertake to enact any legislation necessary to provide effective penal sanctions
for persons committing, or ordering to be committed, any of the grave breaches
of the Conventions defined thereof.[69] Each State is under the obligation to search
for persons alleged to have committed, or to have ordered to be committed, such
breaches, and shall bring such persons, regardless of their nationality, before
its own courts.[70] It may also, if it prefers, and in accordance
with the provisions of its own legislation, hand such persons over for trail to
another State concerned, provided such State has made out a prima facie
case.[71]
Each State
is under the obligation to take measures necessary for the suppression of all
acts contrary to the provisions of the Conventions other than the grave
breaches defined thereof.[72]
B. Protecting
Powers
During an
armed conflict, the execution of the provisions of the Conventions and the
Additional Protocols should be ensured, to a certain extent, with the aid of
the protecting powers entrusted to safeguard the interests of the parties to
the conflict. The first obligation of a
party to the conflict after the outbreak of armed conflict is to appoint a
protecting power.[73] “Protecting power” means a neutral or other
State not a party to the conflict which has been designed by a party to the
dispute and accepted by the adverse party and has agreed to carry out the
humanitarian functions assigned to a protecting power under the Conventions and
the Additional Protocols which aim to ensure protection and assistance to the
victims of armed conflicts.[74] In performing their functions, the protecting
powers also help in the implementation of International Humanitarian Law.
C. Red Cross
Societies
The protecting powers may be
substituted by the International Committee of the Red Cross (ICRC) or other
impartial humanitarian organizations which offer all guarantees of impartiality
and efficacy.[75] The ICRC is the only institution explicitly
named under International Humanitarian Law as a controlling authority. The legal mandate of the ICRC stems from the
four Geneva Conventions of 1949, as well as from its own Statutes. The International Committee of the Red Cross
(ICRC) is an impartial, neutral, and independent organization whose exclusively
humanitarian mission is to protect the lives and dignity of victims of war and
internal violence and to provide them with assistance.
In addition
to the humanitarian functions which the ICRC can perform in place of the
protecting powers, it is granted a sort of right of initiative in humanitarian activities. Among the numerous functions which the ICRC
can perform are the rights to visit all places where prisoners of war or
civilian internees are kept, and to interview these protected persons without
witnesses, personally or through an interpreter. Humanitarian functions can also be carried
out by National Red Cross or Red Crescent Societies, and by other duly
recognized and authorized charitable associations.
Chapter Seven
Prosecution of Violations of
International Humanitarian Law
War crimes
are serious violations of customary or treaty rules belonging to International
Humanitarian Law. They may be committed
in the course of either international or internal armed conflicts.[76] They may be committed by military personnel
against enemy servicemen or civilians, or by civilians against members of the
enemy armed forces or enemy civilians.[77]
The ICC
Statute provides that the Court shall have jurisdiction in respect of war
crimes in particular when committed as a part of a plan or policy or as part of
a large-scale commission of such crimes.[78] According to this Statute, “War crimes”
means:
(a) Grave breaches
of the 1949 Geneva Conventions, namely any of the acts against protected
persons or property such as willful killing, torture or inhumane treatment,
unlawful deportation or transfer or unlawful confinement, taking hostages, and
extensive destruction and appropriation of property not justified by military
necessary.[79]
(b) Serious violations of the laws and customs
applicable in international armed conflicts or in armed conflicts not of
international character, within the established framework of International Law,
namely such as acts committed against the life and dignity of persons;
intentionally directing attacks against civilians, civilian population,
civilian objects, or against personnel, installations, material, units or
vehicles involved in humanitarian assistance; killing or wounded a surrendering
combatant; or employing prohibited weapons.[80]
War crimes
are a type of international crimes. International
crimes are breaches of international rules entailing the personal criminal
liability of individuals concerned. [81]
They are crimes of concern to international community as a whole. The list of international crimes, acts which
are prohibited under International Law and which makes their authors criminally
liable, has come into being by gradual accretion.[82] Traditionally, in the Seventeenth to the
Nineteenth Centuries, piracy was considered an international crime. Apart of this traditional crime, initially,
in late Nineteenth Century only war crimes were considered international crimes
and were punishable.[83] It is only since the Second World War that
new categories of international crimes have developed.[84] The 1945 Statute of the International
Military Tribunal for the Major War Criminals at Nuremberg (IMT) and the 1946
Statutes of the International Military Tribunal for the Far East (IMTFE) added
new classes of international crimes to “war crimes”, namely “crimes against
humanity” and “crimes against peace”.
“Crime of genocide”, which was considered as a special subcategory of crimes
against humanity, became an autonomous class of crime in 1948, when the General
Assembly of the United Nations adopted the Genocide Convention. “Wars of aggression”, which were one of the
subcategories of the broad category of “crimes against peace”, themselves
became a category of international crimes replacing what was known as “crimes
against peace” when the G.A adopted its Resolution on the Definition of
Aggression in 1974.[85] Recently, acts of international terrorism
have been added as a distinct international crime.
The
contemporary list of international crimes is formulated in the 1998 Rome
Statute of the International Criminal Court (ICC). Article 5 of the Statute lists the international
crimes over which the Court has a jurisdiction as the following: (1) The crime of genocide; (2) Crimes against
humanity; (3) War crimes; and (4) The Crime of aggression.
The
Prosecution of individuals committing international crimes has undergone a
significant development throughout History; prosecution exclusively by national
courts to possible prosecution by international courts, whether ad hoc
or permanent.
A. Prosecution by National Courts to Prosecution by Ad Hoc International
Tribunals
Traditionally, individuals have been subject to the exclusive jurisdiction
of the State on whose territory they live.[86]
Their Violations of international rules were prosecuted and punished by the
competent authority of the State where the acts of violations had been
committed. However, such prosecution and
punishment were not possible unless the State was authorized to do so under its
own national law, and it was willing to proceed.[87] If no prosecution and punishment had
happened, then the State, victim of the violation or of which the victim had
its nationality, was entitled to international claim against the delinquent
State, which had either to punish the perpetrators or pay compensation. In such case, what was involved was the
responsibility of the State. State
responsibility was founded on its failure to prosecute and punish the
perpetrators.[88] Notably, it is necessary to mention that if a
wrongful act had been committed by a State official in his official capacity,
he was entitled abroad to immunity form jurisdiction (prosecution and
punishment).[89]
However, few
exceptions to the above tradition existed.
One of the exceptions was “piracy”, a practice which was widespread in
the Seventeenth and Eighteenth Centuries. “Piracy” was considered an
international crime. “Pirates” were
regarded as enemies of humanity because they hampered the freedom of the high
sea and infringed private property. So
all States were empowered to search for, prosecute and punish pirates,
regardless of the nationality of the victims and of whether the prosecuting
State had been affected by piracy.[90]
Another
exception was “war crimes”, which gradually emerged as international crimes in
the second half of the Nineteenth Century.[91] Traditionally such crimes were defined as
violations of the laws of warfare committed by combatants in wars
(international armed conflicts).
Individuals acting as State officials, chiefly low-ranking members of
the armed forces, could be prosecuted and punished for violations of the laws
of warfare. They could be prosecuted and
punished, not only by their own States, but also by the enemy State. Actually, the exceptional character of war
warranted this deviation from the traditional rule, namely the immunity of
State’s officials from the jurisdiction of foreign States. For many years adversary States prosecuted
and punished the alleged perpetrators of war crimes on the basis of the
principle of “passive nationality” (the nationality of the victim), which
entitles a State to exercise jurisdiction over crimes committed against its
nationals.[92]
After the First
World War, the Allied Powers prosecuted and punished those guilty of war crimes
either on the basis of the principle of territoriality that entitles the State
to exercise jurisdiction over crimes committed on its territory, or on the
basis of passive nationality; in this later basis it was sufficient for the
victim to have the nationality of any of the Allied Powers.[93]
The
creation of the International Military Tribunal for the Major War Criminals
(IMT) and the International Military Tribunal for the Far East (IMTFE) in 1945
and 1946 respectively, and the subsequent trails at Nuremburg and Tokyo of the
German and Japanese war criminals, marked a crucial turning point with regard
to international crimes.[94] Two new categories of international crimes were
emerged: crimes against peace and crimes against humanity. State senior officials, high ranking military
officers, politicians and high ranking administrators, who were until 1945
protected by State sovereignty, became personally responsible for their
wrongdoings. They could be prosecuted by
international tribunals as well as by foreign States who could also punish
them.
With the
adoption of the Geneva Conventions in 1949, further important advances occurred
as regards international criminal law.[95] New groups of war crimes were added, namely
“grave breaches of the Geneva Conventions”.
An advanced system for repressing violations by States was set up. The principle of universality of jurisdiction
was laid down, according to which a contracting State could prosecute an
accused person held in its custody regardless of his nationality, of the
nationality of the victim, and of the place where the alleged violations had
been committed.
With the
adoption of the Protocol II Additional to the 1949 Geneva Conventions in 1977,
and the creation of the two ad hoc international tribunals, the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994
respectively, a significant evolution of International Criminal Law took
place. The notion of war crimes was
extended to include serious violations of international humanitarian rules
governing internal armed conflicts. Violators of these rules could be
prosecuted by international tribunals.
A further
significant evolution of International Criminal Law finally took place with the
adoption of the Statute of the International Criminal Court (ICC) in 1998. The ICC was established as the permanent
international court for international criminal justice, and complementary to
national courts. An almost comprehensive
list of international crimes was formulated.
The
apparent feature of International Criminal Law today is the possibility of
prosecution of international crimes by national courts as well as by
international tribunals, whether ad hoc tribunals or the International
Criminal Court (ICC). In the following subsection, we will deal
with the prosecution by the ICC.
B. Prosecution
by the International Criminal Court (ICC)
The
attempts to establish a permanent international criminal court for the
prosecution of individuals committing international crimes succeeded when on 17
July 1998 the Statute of the International Criminal Court (ICC) was signed at Rome The
Hague in the Netherlands
The Statute
of the ICC provides that the Court shall have international legal personality,
and that it shall also have such legal capacity as may be necessary for the
exercise of its functions and the fulfillment of its purposes. The court may exercise its functions and
powers, as provided in its statute, on the territory of any state party and, by
special agreement, on the territory of any other State.[101]
According
to the Statute of the ICC, the Court is a permanent criminal court that has the
power to exercise jurisdiction over persons committing the most serious crimes
of concern to the international community as a whole, namely (a) The crimes of
genocide; (b) Crimes against humanity; (c) War crimes; and (d) The crime of
aggression.[102] The ICC is complementary to the national
criminal jurisdictions.[103] National courts enjoy priority in the
exercise of jurisdiction over persons committing international crimes except
under special circumstances, when the ICC is entitled to take over and assert
its jurisdiction. The ICC is barred from
exercising its jurisdiction over crimes whenever a national court assets its
jurisdiction over the same crime and (1) under its national law the State has
jurisdiction, (2) the case is being duly investigated or prosecuted by its
authorities or these authorities decided, in a proper manner, not to prosecute
the person concerned, and (3) the case is not of sufficient gravity to justify
action by the ICC.[104] In addition, the ICC may not prosecute a
person whom already been convicted of or acquitted for the same crimes, if the
trail was fair and proper.[105]
Nevertheless, the ICC is authorized to exercise its jurisdiction over a
crime even if a case concerning that crime is pending before national
authorities, and thus to override national criminal jurisdiction, whenever:
(1) the State is unable or unwilling to carry out the
investigation or prosecution the person concerned, and (2) the case is of
sufficient gravity to justify the exercise of the ICC jurisdiction.[106] A State is “unable” when, because of a total
or partial collapse of its judicial system, it is not in a position to detain
the accused person, or to carry out criminal proceedings.[107] A State may be considered as “unwilling”
when: (1) in fact the national authorities have undertaken proceedings for the
purpose of shielding the concerned person from criminal responsibility, (2)
there has been an unjustified delay in the proceedings showing that in fact the
authorities do not intend to bring the concerned person to justice, or (3) the
proceedings are not being conducted independently or impartially or in any case
in a manner showing the intend to bring the person to justice.[108]
The ICC may
exercise its jurisdiction with respect of any international crimes if such a
crime is referred to the Prosecutor of the ICC by a State Party to the Statute,
or by the security Council acting under Chapter VII of the Charter of the
United Nations, or if the Prosecutor has initiated an investigation in respect
of such a crime.[109] A State Party may refer to the Prosecutor a
situation in which one or more crimes within the jurisdiction of the Court
appear to have been committed requesting the Prosecutor to investigate the
situation for the purpose of determining whether one or more specific persons
should be charged with the commission of such crimes. The Prosecutor may initiate investigation
based on information on crimes within the jurisdiction of the Court.
According
to the Statute of the ICC, the Court has a jurisdiction over natural persons
who commit crimes within its jurisdiction.[110] A person shall be criminally responsible and
liable for punishment for a crime within the jurisdiction of the Court if that
person: commits such a crime; orders, solicits or induce the commission of such
a crime; facilitating the commission of such a crime; contributing in any way
to the commission or attempted commission of such a crime; or attempts to
commit such a crime.
Criminal
responsibility and liability under the Statute of the ICC shall be applied to
all persons without any distinction based on official capacity.[111] In particular, official capacity as a Head of
State or Government, a member of a Government or parliament, an elected
representatives or a government official shall in no case exempt a person from
criminal responsibility under the Statute, nor shall it, in and of itself,
constitute a ground for reduction of sentence.
Immunities or special procedural rules which may attach to the official
capacity of a person, whether under national or International Law, shall not
bar the Court from exercising its jurisdiction over such a person.
According
to its Statute, the ICC may impose the following penalties:
(a) Imprisonment for a specified number of years,
which may not exceed a maximum of 30 years, or (b) A term of life imprisonment.[112] In addition to imprisonment, the Court may
order: (a) A fine; or (b) A forfeiture of proceeds, property and assets derived
directly or indirectly from that crime.[113]
Table of Contents
Chapter One: Introductory Topics: Definition, Aims
and Relationships
…………………………………….. 1
Chapter Two: The Codification and Development of
International Humanitarian Law ………………… ….. 6
Chapter Three: Sources of International Humanitarian Law
…………. 12
A. The Law of The Hague ……………………………….. 14
B. The
Law of Geneva Chapter Four ……………………. 15
Chapter Four: The Scope of International Humanitarian Law
………. 21
A.
The Material Scope ………………………………….
21
B.
The Subjective Scope ………………………………...
24
I. The Persons Protected under International
Humanitarian Law
……………………………...... 24
II. The Objects Protected under International
Humanitarian
Law ………………………………… 30
Chapter Five: The Fundamental Principles and Protections
of
International
Humanitarian Law ……………………… 32
Chapter Six: Execution of International Humanitarian
Law ………… 37
A. Execution by States
…………………………………… 38
B. Protecting Powers ……………………………………… 39
C. Red Cross Societies ………………………………….... 40
Chapter Seven: Prosecution of Violations of International
Humanitarian
Law……………………………………….. ………… 42
A. Prosecution by National Courts to
Prosecution by
Ad Hoc
International Tribunals ………………………… 45
B.
Prosecution by the International Criminal Court (ICC) .... 49
[1] See generally H.P. Gasser,
International Humanitarian Law: A Introduction, Henry Dunant Institute, Haupt
(1993); J. Pictet, Development and Principles of International Humanitarian
Law, Henry Dunant Institute, Geneva (1985);
D. Schindler and J. Toman, The Laws of Armed Conflicts, Geneva
(1981); and M.N. Shaw, International Law, 5th ed., Cambridge (2003),
chapter 21.
[5] See S.E. Nahlik, A Brief Outline of
International Humanitarian Law, p. 7, (Extract from the International
Review of the Red Cross, July-August 1984) [Separate print].
[7] See generally, Pictet, pp. 5-58; and
F. Kalshoven, Constraints on the Waging of War, chapter II, 2nd
ed., ICRC, Geneva (1991).
[11] See
generally Gasser, pp. 8-15; Kalshoven, chapter II; Nahlik, pp. 9-15;
Pictet, chapter II; and Shaw, chapter 21.
[14] Text in
IRC Handbook (1953) p. 42.
[16] Text in
IRC Handbook (1953) p. 18.
[17] Text in
id. p. 59.
[18] Text in
id. p. 71.
[21] Text of
these four Conventions in The Geneva Conventions of August 12, 1949, ICRC.
[23] Text in
Protocols Additional to the Geneva Conventions of 12 August 1949, p. 3, ICRC,
Geneva (1977).
[24] Text in
Protocols Additional to the Geneva Conventions of 12 August 1949, p. 89, ICRC,
rev. ed., Geneva (1996).
[26] Texts
of relevant conventions in International Law Concerning the Conduct of
Hostilities: Collection of Hague Conventions and Some Other International
Instruments, rev. and updated ed., ICRC Geneva (1996).
[28] Nahlik,
p.16.
[30] Arts 1
& 2 common to the four 1949 Geneva Conventions.
[32] Art. 2
common to the four 1949 Geneva Conventions.
[33] Art. 3
common to the four 1949 Geneva Conventions.
[34]
Protocol II art. 1(1).
[36]
Protocol I art. 1(4).
[39]
Protocol I art. 8(a).
[41]
Protocol I arts. 8(c) & 12.
[46]
Protocol I art. 8(d).
[50]
Protocol I art. 43(1); 1st Convention art. 13; 2nd
Convention art. 13; and 3rd Convention art. 4.
[56]
Protocol I art. 52.
[58]
Protocol I art. 52(3).
[64] Art. 1
common to the four Geneva Convention; and Protocol I art. 1(1).
[65]
Protocol I art. 80(1).
[67] 1st
Convention art. 47; 2nd Convention art. 48; 3rd
Convention art. 127; 4th Convention art. 144; Protocol I art. 83;
and Protocol II art. 19.
[69] 1st
Convention art. 49; 2nd convention art. 50; 3rd
Convention art. 129; and 4th Convention art. 146.
[73]
Protocol I art. 5.
[78] ICC
Statute art. 7(1).
[80] ICC
Statute art. 8(2)(b).
[85] G.A.
Res. 3314 (XXIX), 29 GAOR Supp. 31, U.N. Doc. A/9631, at 142 (1974).
[86]
Cassese, p. 37.
[96] See
generally H. Fujita, Establishment of the International Criminal Court –
Historic Significance of the Rome Statute, 42 A.J.I.L. (1999) pp. 32-61.
[97] ICC
Statute arts. 1 & 5.
