International Humanitarian Law by Francis Goingo

7/31/2019 International Humanitarian Law by Francis Goingo

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International Humanitarian law

Basic Concepts

Scope and ApplicationRights and Obligations


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Basic Concepts and Principles

Military Necessity

Necessity and Proportionality

Distinction


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Principle of Military Necessity

Military necessity is a legal concept used ininternational humanitarian law (article 52, IAP) aspart of the legal justification for attacks on

legitimate military targets that may have terribleconsequences for civilians and civilian objects.

Even under the laws of war, winning the war orbattle is a legitimate consideration, though it

must be put alongside other considerations ofIHL. Military necessity does, however, not givethe armed forces the freedom to do what theywant.


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Principle of Necessity and

Proportionality

It states that even if there is a clear militarytarget it is not possible to attack it if theharm to civilians or civilian property is

excessive to the expected military advantage. For example, a TV or a radio station can be a

legitimate military target if used as a militarycommand or communication center but if it isused for civilian purposes only it cannot betargeted.


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Principle of Distinction

It prohibits all means and methods that

cannotmake a distinction between those who

do take part in hostilities, and are therefore

considered combatants, and those who do not

and are therefore protected (Article 48 IAP).

The sick and wounded, medical personnel,

civilians and prisoners of war (POWs) are allcalled protected persons.


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Armed Forces

Armed forces of a party to the conflict consist

of all organized armed groups which are under

a command responsible to that for the

conduct of its subordinates.

All persons who fight on behalf of a party to a

conflict and who subordinate themselves to its

command.


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Combatants Combatants are members of armed forces or groups that

may be considered POWs if captured. Armed groups that are not part of the armed forces need

to followfour conditions (to be considered combatants): Commanded by a person responsible for his subordinates.

Having a fixed distinctive emblem recognizable at a distance.Article 44(3) of the First Additional Protocol (IAP) sets anexception to this rule when the nature of the hostilitiesprevents the combatant from distinguishing himself or herself.There is an ongoing legal debate about the scope of adistinctive sign which combatants of non-regular armed forcesneed to wear.

Carrying arms openly.

Conducting their operations in accordance with the laws andcustoms of war.


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Combatants

In case of doubt, a person should be considered aPOW until a competent court decides otherwise.

Members of groups that do not follow these

conditions, and individuals that are not part ofarmed groups that take direct part in thehostilities (violent resistance) are not regarded ascombatants and do not enjoy the status of POWs.

They are therefore protected civilians and losetheir immunity only for such time as they takedirect part in hostilities.


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Civilians

Who are CIVILIANS?

Persons who are not members of the armed

forces. Civilians must not be attacked. They do not

take part in the hostilities and should be

protected and respected.


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Principle of Precautions of Attack

Whenever civilians are present, the parties to

an armed conflict must:

Take precaution during military operations to

spare the civilian population and civilian objects

(article 57 of the First Additional Protocol IAP).

Take precaution to protect the civilian population

and civilian objects, which are under their owncontrol, against the effects of military attacks

(article 58 IAP).


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Other Precautions

Location of military objectives (separate civiliansunder its control from military objectives)

Choosing weapons and methods of warfare

(verify military targets, consider that whichcauses the least danger to civilians)

Warnings (The parties to armed conflict must, asmuch as possible, give effective warnings before

an attack. Warnings increase the chance forcivilians to protect themselves from any possibleharm caused by the war)


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THE SPECIFICS OF IHL

Personal Scope and Application

Material Scope and Application

Rights and Obligations

Method of Warfare

Protected Persons


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Personal Scope and Application

States (parties to conflict and to IHL)

Non-state armed groups (parties to the

conflict) Individuals (members of parties to the

conflict, e.g. civilians and combatants)


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The Rules of IHL apply to situations of ARMEDCONFLICT International Armed Conflict Armed conflicts between two or more states

Total/partial military occupation

Non-International Armed Conflict Prolonged conflict between governmental authorities and

armed organized groups or between such groups within aState. Generally, onlyCommon Article 3 of the GenevaConvention applies, BUT there has been a trend ofapplying rules applicable to international armed conflict,except


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In IACs, the parties to the conflict are (at least) two equal sovereigns.Lawful participants in the hostilities who in effect represent thosesovereigns thereby have combatant status, and enjoy the privilegeof belligerency. They cannot be prosecuted by the other party fortheir mere participation in the hostilities, but solely for violations

of IHL.

In NIACs, however, the parties are fundamentally different mostcommonly a government and a rebellious non-state actor. Becausegovernments have every right to suppress rebellions against them,

no combatant status or privilege exists in NIACs. A rebel can beprosecuted for the mere fact that he is a rebel, even if he has beencompletely observant of the rules of IHL. Thus, for example, thegovernment of Afghanistan has every right to imprison a Talibansoldier, even if that soldier committed no war crime.


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Common Article 3 of the Geneva

Conventions

Persons taking no active part in hostilities

including military persons who have

ceased to be active as a result ofsickness, injury, or detention, should be

treated humanely and that the following

acts are prohibited:


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Common Article 3 of the Geneva

Conventions

Prohibited:1. Violence to life and person, in particular murder of

all kinds, mutilation, cruel treatment, and torture

2. Taking of hostages

3. Outrages upon personal dignity, in particularhumiliating and degrading treatment

4. The passing of sentences and the carrying out ofexecutions without previous judgment pronouncedby a regularly constituted court, affording all thejudicial guarantees which are recognized asindispensable by civilized peoples

The wounded and sick shall be collected andcared for.


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Internationalized Armed Conflict

Conflicts that initially begin as a non-international armedconflict but develop into an international armed conflict.

If a state intervenes with its armed forces on the side ofanother state in a non-international armed conflict, it isgenerally agreed that this does not change the qualification of

the conflict. The situation would give rise to bothinternational (the state versus the intervening state), andnon-international (the state versus the rebel group) conflicts.

Where a state intervenes indirectly without the use of itsarmed forces in a non-international armed conflict on the side

of the rebels, the Tadi case, decided by the InternationalCriminal Tribunal for the former Yugoslavia (ICTY), concludedthat overall control of a rebel group would be sufficient tointernationalize the conflict


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Exclusion to IHL

The RULES of IHL do not apply in situations of

internal disturbances and tensions, e.g. riots,

isolated and sporadic acts of violence and

other acts of a similar nature.


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RIGHTS and OBLIGATIONS

Methods and Means of war

Protected Persons

Sick and wounded on land (GCI)

Sick and wounded at sea (GCII)

Prisoners of War POW (GC III)

Civilian Persons (GC IV)

Other protected persons


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Methods and Means of War

International humanitarian law (IHL) limits the

means and methods of warfare. IHL covers the

conduct of military operation by stating what

weapons and military tactics can be used inarmed conflict. The only legitimate object

during war is to weaken the military forces of

the enemy. Civilians can never be legitimatetargets of attack.


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Means and Methods of War Weapons that cause superfluous injury or unnecessary

suffering They are PROHIBITED under IHL.

The use, production, stock-piling, and transfer ofanti-personellandmines are prohibited according to the Ottawa Treaty of 1997.

The 1980 Convention on Certain Conventional Weapons (CCW)includes five protocols covering landmines, incendiary weapons(weapons that set fire to objects or cause burn injuries to persons),blinding laser weapons, and explosive remnants (weapons andammunition left behind after war), undetectable fragments (weaponswith the effect to injure by fragments that are non-detectable by x-ray).

These treaties are binding on states that have signed and ratified

them. Biological and Chemical weapons are PROHIBITED as well,

specifically by the 1952 Geneva Protocol. This is bindingon any state regardless of whether they signed or not.

Note: Cultural property and Natural environment


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The First Geneva Convention

The WOUNDED and SICK in the Armed

Forces

The terms woundedand sickapply to persons who

as the result of trauma, suffer from disease orother physical or mental illness or disability, and

who require medical treatment while abstaining

from any hostile acts. (Article 8(a) Additional

Protocol I to the Geneva Conventions)

Protects soldiers who are hors de combat (out of

the battle)


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The First Geneva Convention

Protection specifically accorded to:

Wounded and sick soldiers.

Medical personnel, facilities, and equipment

Wounded and sick civilian support personnelaccompanying the armed forces

Military chaplains.

Civilians who spontaneously take up arms to repel an

invasion.


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Relevant Specific Provisions:

Be respected and protected without discrimination on the basis of sex,race, nationality, religion, political beliefs, or other criteria. (Art. 12)

Not be murdered, exterminated, or subjected to torture or biologicalexperiments. (Art. 12)

Receive adequate care. (Art. 15)

Be protected against pillage and ill-treatment (Art. 15) All parties in a conflict must search for and collect the wounded and

sick, especially after battle, and provide the information to the CentralTracing Agency of the International Committee of the Red Cross (Art15-16)

This Convention, like the others, recognizes the right of the ICRC toassist the wounded and sick. Red Cross and Red Crescent nationalsocieties, other authorized impartial relief organizations, and neutralgovernments may also provide humanitarian service. Local civiliansmay be asked to care for the wounded and sick. (Art. 9)


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Second Geneva Convention

Adapts the protections of the First Geneva Convention toreflect conditions at sea

Protects wounded and sick combatants while on board shipor at sea.

ShipwreckedIt covers those persons who findthemselves in a perilous situation at sea or in other watersdue to misfortune affecting them or affecting the vessel oraircraft carrying them, and who refrain from committingany hostile acts.

Specifically, the Second Geneva Convention applies to: Armed forces members who are wounded, sick, or shipwrecked.

Hospital ships and medical personnel.

Civilians who accompany the armed forces.


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Relevant Provisions

This Convention mandates that parties in battle take all possiblemeasures to search for, collect, and care for the wounded, sick, andshipwrecked. Shipwrecked refers to anyone who is adrift for anyreason, including those forced to land at sea or to parachute fromaircraft. (Arts. 12, 18)

Appeals can be made to neutral vessels, including merchant ships andyachts, to help collect and care for the wounded, sick, andshipwrecked. Those who agree to help cannot be captured as long asthey remain neutral. (Art. 21)

Religious, medical, and hospital personnel serving on combat shipsmust be respected and protected. If captured, they are to be sent backto their side as soon as possible. (Art. 36-37)

Hospital ships cannot be used for any military purpose. They cannot be

attacked or captured. The names and descriptions of hospital shipsmust be conveyed to all parties in the conflict. (Art 22)

While a warship cannot capture a hospital ships medical staff, it canhold the wounded, sick, and shipwrecked as prisoners of war,providing they can be safely moved and that the warship has thefacilities to care for them. (Art. 14)


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Third Geneva Convention

Sets out specific rules for Prisoners of War.

Who is a prisoner of war?Any person captured orinterned by a belligerent power during war. In the

strictest sense it is applied only to members ofregularly organized armed forces, but by broaderdefinition it has also included guerrillas, civilianswho take up arms against an enemy openly, or

noncombatants associated with a military force. Relevant Provisions of the Third Geneva

Convention:


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Prisoners of war must be:

Treated humanely with respect for their persons and their honour.

Enabled to inform their next of kin and the Central Prisoners of WarAgency (ICRC, the International Red Cross) of their capture.

Allowed to correspond regularly with relatives and to receive relief

parcels. Allowed to keep their clothes, feeding utensils and personal effects.

Supplied with adequate food and clothing.

Provided with quarters not inferior to those of their captor's troops.

Given the medical care their state of health demands.

Paid for any work they do.

Repatriated if certified seriously ill or wounded, (but they must notresume active military duties afterwards).


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Prisoners of war must NOT be:

Compelled to give any information other than their name,age, rank and service number.

Deprived of money or valuables without a receipt (and

these must be returned at the time of release).

Given individual privileges other than for reasons of health,

sex, age, military rank or professional qualifications.

Held in close confinement except for breaches of the law,

although their liberty can be restricted for security reasons.

Compelled to do military work, nor work which is

dangerous, unhealthy or degrading.


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Fourth Geneva Convention

Protects Civilians in areas of armed conflict

and occupied territories.

Covers all individuals "who do not belong to

the armed forces, take no part in the

hostilities and find themselves in the hands of

the Enemy or an Occupying Power"

Relevant provisions of the Fourth Geneva

Convention


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Protected civilians must be:

Treated humanely at all times and protected against acts or threatsof violence, insults and public curiosity.

Entitled to respect for their honour, family rights, religiousconvictions and practices, and their manners and customs.

Specially protected, for example in safety zones, if wounded, sick,old, children under 15, expectant mothers or mothers of children

under 7. Enabled to exchange family news of a personal kind. - Helped to

secure news of family members dispersed by the conflict

Allowed to practise their religion with ministers of their own faith.Civilians who are interned have the same rights as prisoners of war.

They may also ask to have their children interned with them, andwherever possible families should be housed together and providedwith the facilities to continue normal family life. Wounded or sickcivilians, civilian hospitals and staff, and hospital transport by land,sea or air must be specially respected and may be placed underprotection of the red cross/crescent emblem.


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Protected Civilians must NOT be:

Discriminated against because of race, religion

or political opinion. - Forced to give

information.

Used to shield military operations or make an

area immune from military operations.

Punished for an offence he or she has not

personally committed. - Women must not be

indecently assaulted, raped, or forced into

prostitution.

International Humanitarian Law by Francis Goingo

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