1 Introduction to Humanitarian Law and Civil-Military Coordination Class Session 1 1.

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Introduction to Humanitarian Law and Civil-Military Coordination

Class Session 1

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Course Objectives

1. The student will know the mechanisms and processes for requesting military assistance

2. The student will be able to identify the strengthens and weakens of planning and exercise cycles between civil and military authorities

3. The student will be able to identify key areas of overlap and friction between civilian and military organizations.

4. The student will be able to identify the affects of phases and transitions during a disaster

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Course Assignments and Requirements

1. Two Small Group Presentations (15% each)2. A Critical Analysis of a selected topic (35%) 3. Final Exam (35%)4. Classroom etiquette5. Student &Professor Introductions

a. Name, Major, and Disaster experience b. Course Expectation's (Students &

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Introduction to Civil-Military Relations and Humanitarian Law

• Concepts• Red Cross/Red Crescent• Geneva Convention• Law of Armed Conflict• Oslo Guidelines

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IHL – Concepts

• Law – “[A] body of rules of action or conduct prescribed by controlling authority, and having binding legal force.” Black’s Law Dictionary, 5th ed.

• International Law – “[T]he body of rules governing relations between States.” ICRC

– Customary International Law – “State practice considered by them to be legally binding.” ICRC

– Treaties – “A formally concluded and ratified agreement between states.” Oxford Dictionary

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IHL – ConceptsInternational Law is composed of:• Human Rights Law – “A set of international rules…on the

basis of which individuals and groups can expect and/or claim certain behavior or benefits from governments.” ICRC

• Refugee Law – Law addressing rights of refugees & the obligations of States to protect those rights;

• International Humanitarian Law – “A set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict.” ICRC; &

• International Disaster Relief Laws – “The laws, rules and principles applicable to the access, facilitation, coordination, quality and accountability of international disaster response activities in times of non-conflict related disasters, which includes preparedness for imminent disaster and the conduct of rescue and humanitarian assistance activities.” IFRC

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IHL – Concepts

• Jus ad bellum – The law on the use of force or war.

• Jus contra bellum – The law on the prevention of force or war.

• Jus in bello – The law in war.

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International Humanitarian Law - Evolution

Battle of Solferino, 1859, A. Műller, Museum of Military History, Vienna

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International Humanitarian Civil-Military Evolution

Jean Henri Dunant, (1828-1910)

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International Humanitarian Landmark

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Int’ Law - Evolution

Red Cross / Red Crescent Movement:• International Committee of the Red

Cross – ICRC

• International Federation of Red Cross and Red Crescent Societies – IFRC

• National Red Cross / Red Crescent / Societies – ex.: American Red Cross

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IHL - Evolution

Signing of the First Geneva Convention, 22 August 1864, ICRC

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IHL - Objectives

Objectives: Describe and explain:• The basic concepts of international law;• The evolution of International Humanitarian

Law [“IHL”] & the Red Cross / Red Crescent Movement;

• When IHL applies;• The sources & controlling instruments of IHL;

&• The fundamental principles of IHL.

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IHL – Fundamental Principles

• Only during armed conflict:– International armed

conflict:• State vs. State• Wars of national

liberation;– Non-international

armed conflict• State vs. rebels• Rebels vs. rebels

• NOT applicable to:– Acts of sporadic

violence;– Times of peace.

When does Humanitarian Law apply?When does Humanitarian Law apply?

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IHL – Sources

Sources of International Humanitarian Law:

• Customary International Humanitarian Law; and

• Treaties.• “International Accords/Guidelines”

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Int’ Human’ Law – Sources: Customary Law

Customary International Humanitarian Law:• Derived from “a general practice accepted as

law” [ICRC]:• Often unwritten;• Sources:– Official accounts of military operations;– Military manuals;– National legislation; and– Case law.

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Customary Law

Customary International Humanitarian Law:• Requirement that States believe:– That the practice is legally binding on them as a member

of the community of nations;– That they must follow the practice; and– That they are not free to depart or deviate from the

practice.– “Opinio juris”

• Excludes:– Practices not widely followed by other nations; and– Practices followed solely because of policy or convenience.

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IHL – Sources: Customary Law

Customary International Humanitarian Law:• Applies in situations not covered by treaties:– Nations not party to a treaty; and– Non-international conflicts;– Acts not specifically mentioned in treaties;– Armed non-state actors.

• Grounds for prosecution for violations.

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IHL – Sources: Customary LawCustomary Law: The Nüremberg Trials

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IHL – Sources: Customary LawNüremberg Principles:Principle IAny person who commits an act which constitutes a crime under

international law is responsible therefor and liable to punishment.

Principle IIThe fact that internal law does not impose a penalty for an act

which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle IIIThe fact that a person who committed an act which constitutes a

crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

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IHL – Sources: Customary LawPrinciple IVThe fact that a person acted pursuant to order of his

Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle VAny person charged with a crime under international

law has the right to a fair trial on the facts and law. * * *

Principle VIIComplicity in the commission of a crime against peace,

a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.

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IHL – Sources: Customary LawPrinciple VIThe crimes hereinafter set out are punishable as crimes under; international

law: • Crimes against peace:

– Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

– Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

• War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

• Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

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IHL – Sources: Customary Law

Rome Statute – International Criminal Court [2002]:

2. For the purpose of this Statute, "war crimes" means:

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: …

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: …

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IHL – Sources: Customary LawCustomary International

Humanitarian LawICRC Codification• Begun in 1995, completed after 8

years• 2 volumes totaling over 5,000 pages• Identified 161 customary rules in

practice today– 159 apply to international armed

conflict– 149 apply to non-international armed

conflict

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IHL – Sources: Treaties

International Humanitarian Treaties:

• The “Hague Stream”; and

• The “Geneva Stream”.

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IHL – Sources: TreatiesIHL treaties:• The “Hague Stream” – Regulation of the means and

methods of warfare:– Convention on the Prohibition of the Development,

Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction [1972];

– 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].

– Protocol on Blinding Laser Weapons [1995];– Convention on the Prohibition of the Use, Stockpiling,

Production and Transfer of Anti-Personnel Mines and on their Destruction [1997].

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IHL – Sources - Treaties

IHL treaties:• The “Geneva Stream” – Provides

protection to non-combatants and civilians:–Geneva Conventions I – IV [1949]• Common Article 3 of the Conventions

–Protocols I & II [1977]–Protocol III [2005]

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IHL – Sources

Geneva Conventions of 1949:• Convention (I) for the Amelioration of the Condition

of the Wounded and Sick in Armed Forces in the Field;

• Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;

• Convention (III) relative to the Treatment of Prisoners of War; and

• Convention (IV) relative to the Protection of Civilian Persons in Time of War.

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IHL – Sources

Application of the Geneva Conventions:• Applies only to States who have signed the

Conventions:– Only Niue has not signed the Geneva Conventions;– Universal acceptance?

• Apply only in “international armed conflicts”;– Wars or conflicts between 2 or more nations and

wars of national liberation;• “Internationalized internal conflicts”?

– Exception: Common Art. 3 to the Conventions

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IHL – Sources“Art. 3. In the case of armed conflict not of an international character occurring in the territory of

one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;(c) outrages upon personal dignity, in particular humiliating and degrading treatment;(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.(2) The wounded and sick shall be collected and cared for.An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

“The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

“The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

Common Article 3Common Article 3

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IHL – SourcesCommon Article 3 - Application:• Applies in “case[s] of armed conflict not of an

international character…”;– Now, customary IHL;

• Binds each party to the conflict;• Sets out minimum standards for protection & care;• Calls for parties to adopt other provisions of the

Geneva Conventions Allows ICRC the right to offer its services;

• Does not affect legal status of the Parties.

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IHL – Sources

Protocols to the Geneva Conventions:• Protocol Additional to the Geneva Conventions

of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts [Protocol I, 1977];

• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts [Protocol II, 1977]; and

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IHL – Sources

Protocols to the Geneva Conventions:• Protocol additional to the Geneva

Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem [Protocol III, 2005].

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IHL – Fundamental PrinciplesFundamental Principles of IHL:1. Principle of non-derogation;2. Principle of Distinction;3. Collection and care for the sick, wounded &

shipwrecked;4. Prohibition on killing/wounding an enemy

surrendering or hors de combat;5. Respect & protection for persons hors de combat 7

those not taking part in hostilities;6. Right to judicial guarantees;7. Limitations on means and methods of war; 8. Respect for the Protected Emblems.

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Principle of Non-derogation:• Derogation: The partial repeal or abolition of

a law, as by a subsequent act which limits its scope or impairs its utility or force. Black’s Law Dictionary

• Allowed in Human Rights Law:– Limited and exceptional circumstances;

• Derogation is never allowed in IHL:– IHL applies only in exceptional circumstances –

armed conflict;– In armed conflict, all the rules apply all the time.

Derogation of…

Right to …..

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Principle of Distinction:• Parties to a conflict shall distinguish between

civilian populations and combatants:

– Civilians vs. combatants;

– Civilian objects vs. military objectives.

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Principle of Distinction [cont.]:• Parties to a conflict shall distinguish between

civilian populations and combatants;• Neither civilian populations nor civilian

persons shall be attacked;• Attacks shall be directed solely at military

objectives.

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Collection and caring for the sick, wounded and shipwrecked:

• Wounded & sick – Military or civilians in need of medical care and who refrain from any act of hostility.

• Shipwrecked – Military or civilians in peril at sea or other waters as a result of misfortune affecting them, their vessel or aircraft, and who refrain from any act of hostility.

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Collection and caring for the sick, wounded and shipwrecked [cont.]:

• Duty to search for and collect sick, wounded and shipwrecked;

• Duty to provide medical care;• Duty to not expose sick, wounded or

shipwrecked to infection or disease;• Non-discriminatory treatment.

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IHL – Fundamental PrinciplesCollection and caring for the sick, wounded and

shipwrecked – Protected of care-givers:• Medical & religious personnel:– Doctors, nurses, orderlies, stretcher-bearers, chaplains,

crews of hospital ships;– Military & civilian [Red Cross/Crescent, recognized

voluntary aid societies; medical personnel];• Medical units:– Hospitals, clinics, depots, stores, tents, hospital ships,

sickbays;– Stretchers, medicines, surgical apparatuses;– Protection may end with misuse of medical facilities.

• Medical transport:– Ambulances, lifeboats, air ambulances/medical aircraft.

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Prohibition on killing/wounding an enemy surrendering or hors de combat:

• “Hors de combat” – [fr.] “out of the fight”– Sick,– Wounded,– Shipwrecked,– Captured or clearly shown he intends to

surrender,– Otherwise laid down their arms and no longer an

active participant in the conflict.

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Prohibition on killing/wounding an enemy surrendering or hors de combat [cont.]:

Exercise:• Scenario: Two parachutists descending from

the sky: – One a pilot from a downed plane; – The other, a paratrooper.

• Question: Which one, if either, can you shoot?• Answer: The paratrooper.

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• Prohibited actions:– Murder;– Mutilations;– Cruel treatment;– Torture;– Taking of hostages;

– Humiliating and degrading treatment;

– Passing sentences / executions without a judgment from a regular court

Respect & protection for persons Respect & protection for persons hors de hors de combatcombat and and

not taking part in hostilities:not taking part in hostilities:

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Right to judicial guarantees:• No collective punishment;• No physical or mental torture;• No corporal punishment;• No cruel or degrading treatment;• Right to a fair trial;• POWs tried by military courts.

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IHL – Fundamental PrinciplesLimitations on means and methods of war:• Prohibition on use of weapons that cause

superfluous injury or unnecessary suffering;• Prohibition on means / methods to cause wide-

spread, long-term & severe environmental damage;

• Prohibition on attacking works with “dangerous forces”;

• Prohibition on attacking cultural objects & places of worship of a cultural or spiritual heritage to the people;

• Prohibition on use of starvation of civilians as a weapon.

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Respect for the Protected Emblems :Pre-1863 – No internationally protected

emblem;1863 & 1864 – Red Cross adopted.1876-78 – Red Crescent used.1929 – Red Crescent and Red Lion and Sun

also adopted.1980 – Red Lion and Sun no longer used.2005 – Red Crystal adopted.

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IHL – Fundamental PrinciplesRespect for the Protected Emblems [cont.]:• Protective vs. indicative use;• Authorized protective use:– Military medical personnel, units, transports &

religious personnel;– Civilian medical personnel, hospitals, transports &

religious personnel attached thereto, in time of war;

– National Red Cross/Crescent personnel;– IFRC and ICRC personnel.

• Misuse of the protected emblems, perfidy & war crimes.

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IHL – IHL & the War on Terrorism

• Does IHL define “terrorism”?

• Are acts traditionally used by terrorists prohibited in IHL?

• No IHL definition.

• Yes, prohibited acts include:– Targeting of civilians, – Indiscriminate attacks, – Taking hostages,– Acts to cause terror to

civilian populations.

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• Does IHL apply in the War on Terror?

• Were the acts committed in a “conflict”?– Do you have “parties

to a conflict”?– If yes, IHL applies –

ex.: Afghanistan;– If no, IHL does not

apply but domestic law applies. – ex.: London Bombings 7 July 2005.

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• Are captured terrorists entitled to IHL protection?

• International conflict – GC III & GC IV apply;

• Non-international conflict – Common Article 3 applies;

• Non-conflict situations:– IHL not applicable,

but;– Domestic and

international criminal law applies.

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Take away:

There are no Black Holesin terms of legal protection.

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International Humanitarian Law and Civil-Military Coordination

Questions?

1 Introduction to Humanitarian Law and Civil-Military Coordination Class Session 1 1.

Documents

Transcript of 1 Introduction to Humanitarian Law and Civil-Military Coordination Class Session 1 1.