LWN158:

PUBLIC

INTERNATIONAL LAW

WEEK 7:

INTERNATIONAL HUMANITARIAN LAW

WHAT IS IHL?

The law of armed conflict

Jus in bello (distinguished from jus ad bellum, week 6)

Rules which govern what States may and may not do during war.

Imposes obligations on States with respect to ◦ the sorts of weapons they can use;

◦ locations which can be legitimately targeted;

◦ the treatment of civilians, combatants, sick or wounded people, prisoners of war.

The Geneva Conventions codify the rules and customs of international humanitarian law

GENERAL PRINCIPLES

COMBATANTS:◦ “Combatants” = members of the armed forces, or

other equivalent authorised participants in armed conflict

◦ Combatants are entitled to take part in hostilities, and receive certain protections under law

◦ Combatants are legitimate targets of warfare.

◦ Combatants must be distinguished from civilians, who are not legitimate targets and are protected as long as they don’t join in hostilities

GENERAL PRINCIPLES:

WEAPONS:

1. No means or methods likely to cause unnecessary suffering or superfluous injury;

2. No means or methods which cannot be directed against a specific objective;

GOOD FAITH:

No treachery or perfidy in warfare – parties should follow rules in good faith.

WAR CRIMES

• Violations of the laws and customs of war which amount to ‘grave violations’ are war crimes

• These can be prosecuted by any State which is a party to the Geneva Conventions

• War crimes can also be prosecuted in the International Criminal Court (ICC), provided it has jurisdiction

The Geneva Conventions

• First Geneva Convention: protection of wounded soldiers on land during war

• Second Geneva Convention: protection of wounded and shipwrecked soldiers at sea during war

• Third Geneva Convention: protection of prisoners of war

• Fourth Geneva Convention: protection of civilians

• First Optional Protocol: protection of civilians

• Second Optional Protocol: non-international armed conflict

1949

1977

First Geneva Convention: Scope

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949).

Earlier iterations were silent as to the scope of the treaty’s application

Art 2: This treaty shall apply

◦ to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.

◦ to all cases of partial or total occupation of the territory of a High Contracting Party (even if occupation meets with no armed resistance)

Non-international armed conflict

In the case of armed conflict not of international character occurring in territory of one of High Contracting Parties certain minimum rules apply:

1. Persons taking no part in hostilities, including those who have laid down their arms and those placed hors de combat shall be treated humanely and without discrimination. The following acts shall be prohibited:

a) Violence to life and person

b) Taking of hostages

c) Outrages upon personal dignity

d) Passing of sentences or executions without proper judicial processes

2. The wounded and sick shall be collected and cared for.

Art 3:

This provision on non-international armed conflict is common to all four Geneva Conventions

GC 1, Ch 2: Wounded & Sick

Members of armed forces who are wounded or sick shall be treated humanely and cared for

◦ Applies to members of all sides of a conflict

◦ Only urgent medical reasons can justify priority in order of treatment

Basic rule, art 12:

Wounded & SickArt 13: clarifies scope of obligation – owed to members of armed forces or equivalent, and persons working with them:

◦ Militia and volunteer corps forming part of armed forces

◦ Other militia, volunteer corps or organised resistance movements provided they are under command of a superior, wear identifiable sign, carry arms openly, abide by laws and customs of war

◦ Inhabitants of non-occupied territory who spontaneously take up arms provided they carry arms openly and abide by laws and customs of war

◦ Persons accompanying armed forces, including civilian contractors, crews, correspondents

Wounded & Sick

• Art 14: If wounded person is a member of enemy armed forces, also to be regarded as prisoner of war.

• This brings with it additional protections, as set out in the Third Geneva Convention.

• Art 15 – obligation to take steps to search and care for all wounded

• Art 16 – obligation to keep records of sick, injured or dead under their control

• Art 17 - Provisions regarding burial or cremation

GC 1 Chs 3 & 4: Medical Units

First Geneva Convention also imposes obligations with regard to hospitals, medical units and personnel

◦ Chapter 3:

◦ Art 19 – fixed establishments and mobile medical units may not be attacked

◦ Art 20 – includes hospital ships

◦ Art 21 – protection may cease if the establishments are used to commit acts harmful to the enemy

◦ Chapter 4:

◦ Art 24 – medical personnel are to be protected in all circumstances

◦ Art 25 – members of armed forces trained to carry out medical duties are also protected while carrying out those duties.

Second Geneva Convention

Convention for the Amelioration of the Conditions of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949)

Provides for protection of wounded, sick and shipwrecked, hospital ships and personnel, medical transports

Arts 2 & 3 as for GC 1 (applies to declared war or armed conflict, occupation, with minimum standards which apply to non-international armed conflict)

Art 12 – treatment of wounded & sick - similar to art 12 GC1

Art 13 – applies to wounded or sick in categories similar to art 13 GC1

Third Geneva Convention

Convention Relative to the Treatment of Prisoners of War (1949)

Arts 2 & 3 as for GC 1 & 2 (applies to declared war or armed conflict, occupation, with minimum standards which apply to non-international armed conflict)

143 articles which explicitly describe treatment expected for prisoners of war.

Also broadens the category of persons entitled to prisoner of war status.

Definition of ‘POW’Art 4 – “prisoners of war” are members of the following categories who have fallen into the power of an enemy:

• armed forces, or militias or volunteer corps forming part of such armed forces

• other militias or volunteer corps, including organised resistance movements provided they are commanded by a superior, wear identifiable sign, carry arms openly and follow the laws and customs of war.

Definition cont/…

• persons who accompany the armed forces

• members of crews

• Inhabitants of non-occupied territory who spontaneously take up arms upon the approach of the enemy

Timeframe of protection

Art 4 – protections apply to these persons from the time they fall into the power of the enemy until their final release and repatriation.

Art 5 – where there is any doubt as to whether persons belong to any of these categories, they shall enjoy protection of the Convention until their status has been determined by a competent tribunal.

GC3 Part 2: General Protections for POWs

POWs must be humanely treated at all times◦ Any unlawful act or omission causing death or

endangering health is prohibited;

◦ Physical mutilation or medical/scientific experiments are prohibited;

◦ Must be protected against violence, intimidation, insults, public curiosity;

◦ No measures of reprisal permitted

Basic rule, art 3:

Protections cont/…Art 14 – POWs entitled to respect for their persons and their honour◦ POWs retain their full civil capacity and detaining

power must not restrict the exercise of civil capacity except as far as captivity requires.

Art 15 – all medical care to be provided free of charge

Art 16 – all POWs are to be treated equally, except in so far as required by other provisions of convention relating to sex or rank; or as necessary according to state of health, age or professional qualification.

Treatment during detention (GC3 Part 3)

Art 17 – when taken into captivity, POWs are required to give their name, rank, DOB & serial number◦ They should be questioned in a language they understand◦ They must not be tortured or otherwise coerced to give

information

Art 18 – POWs are entitled to retain their personal effects and equipment

Art 19 & 20 – POWs must be safely and humanely evacuated away from fighting zone

Treatment during detention cont/…

Art 21 – detaining power may put POWs in internment

Art 22 – internment should be on land, in conditions to assure health and hygiene, and with prisoners of same nationality, language and customs

Art 23 – POWs should have access to protections like bomb shelters (same as civilian population)

Art 25 – conditions should be as favourable as for detaining power’s own forces

◦ Space, bedding, blankets, heating, lighting

◦ Separate dormitories for men and women if in the same camp

Treatment during detention cont/…

Art 26 – food rations of sufficient quantity, quality and variety to keep POWs in good health and prevent weight loss or nutritional deficiencies.

Art 27 – clothing, underwear and footwear shall be supplied in sufficient quantities, appropriate to climate.

Art 28 – canteen shall be provided for sale of tobacco, soap and ordinary articles. ◦ Not to exceed local prices ◦ Profits used for benefit of prisoners

Treatment during detention cont/…

Art 29 – detaining power bound to take all sanitary measures necessary to ensure cleanliness and healthfulness of camps

Art 30 – every camp shall have adequate infirmary. If additional medical care is required POW should be transferred.

Art 31 – medical inspections should be carried out at least once a month

Treatment during detention cont/…

Arts 34-37: provision for religious freedoms of POWs

Art 38: encouragement of intellectual, educational and recreational pursuits, sports and games. Opportunities for physical exercise and for being out of doors.

Arts 49-67: provisions relating to using POWs for labour, working conditions, fair pay

Contact of POWs with Exterior and Authorities

Art 69: upon capture, must notify power on which POWs depend

Art 70: must permit POW to write to family within first week

Art 71: must be permitted to send and receive letters and cards

Art 72: must be allowed to receive care packages

Section VI ch 1: provision for POWs to make complaints about conditions

Ch 2: POWs can appoint representatives

Ch 3: penal and disciplinary sanctions of POWs

Fourth Geneva Convention

Convention Relative to the Protection of Civilian Persons in Time of War (1949)

Arts 2 & 3 as for GC 1, 2 & 3 (applies to declared war or armed conflict, occupation, with minimum standards which apply to non-international armed conflict)

Creates class of ‘protected persons’ who are entitled to minimum standards of treatment if they fall into the hands of a party to the conflict

Also provides protection for civilian population generally

General Protections of Civilian Populations (GC 4 Part II)

Scope (art 13): provisions of Part II apply to the whole of the population, without discrimination

Art 14: Parties may establish hospital and safety zones, and areas to protect wounded, sick, aged, children, expectant mothers.

Art 15: Parties can establish neutralized zones within areas where fighting is taking place intended to shelter:

(a) Wounded and sick combatants and non-combatants

(b) Civilians who take no part in hostilities and perform no work of a military character

Art 16: wounded and sick, expectant mothers shall enjoy particular protection and respect

General Protection of Civilians

Art 18: civilian hospitals shall at all times be respected and may in no circumstances be the object of attack. Hospitals should be marked with distinctive emblem.

Art 19: protection of hospitals will cease if they are used to commit acts harmful to the enemy.

Art 21-23: hospital vehicles, aircraft, convoys, consignments of medical equipment shall not be attacked, and shall be marked with distinctive emblem.

Art 24: protection of children under 15 who are orphaned or separated from their families.

Arts 25 & 26: provisions relating to the protection of civilian correspondence

Status and Treatment of “Protected Persons” (GC 4 Part III)

Defined in art 4:

◦ Persons who find themselves in the hands of a party to the conflict or occupying power of which they are not nationals

◦ Excluding persons who are protected under one of the other Conventions (ie POWs, sick, wounded etc).

Protected persons are entitled to respect for their persons, honour, rights, religious practices & customs.

Basic rule, art 27:

Protected Persons

Art 27:

◦ At all times they shall be humanely treated, and protected especially against violence, insults and public curiosity.

◦ Women shall be especially protected, in particular against rape, enforced prostitution or indecent assault.

◦ Parties may take such measures of control and security as may be necessary.

Art 28 – presence of a protected person may not be used to render certain points or areas immune from military operations.

Art 29 – the party to the conflict in whose hands the protected person is responsible for their treatment.

Status and Treatment of “Protected Persons” cont/…

Art 31 – no physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Art 32 –physical suffering or extermination of protected persons is specifically prohibited. ◦ Applies to murder, torture, corporal punishments,

mutilation and medical or scientific experiments

◦ And any other measures of brutality whether applied by civilian or military agents.

Status and Treatment of “Protected Persons” cont/…

Art 33 – no protected person may be punished for an offence he or she has not personally committed.◦ Pillage is prohibited◦ Reprisals against protected persons and their property are

prohibited.

Art 34 – taking of hostages is prohibited.

Art 40: protected persons may be compelled to work but only to the same extent as nationals of territory where conflict is located

Art 42: may intern or detain protected persons but only where absolutely necessary for security

Section IV: treatment of interned protected persons (very similar to protections of POWs in GC3).

Additional Protocol 1 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Affirms protections in other Conventions and expands protections of civilians

Applies to international armed conflict, but confirms that conflicts in which people are fighting against colonial domination or racist regimes are to be considered international conflicts (art 1(4))

Additional Protocol 1

Key duties:

• Parties to a conflict must distinguish between civilians and combatants.

• Combatants must take steps to minimise civilian casualties and damage to civilian objects

Methods and Means of Warfare (AP1, Part III)

1. The right of parties to choose the methods and means of warfare is not unlimited

2. Prohibited to employ weapons of a nature to cause superfluous injury or unnecessary suffering

3. Or which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

Basic rules, art 35:

Combatants (AP1, Part III)

“Combatants” are members of armed forces (art 43)

Combatants have the right to participate in hostilities.

A combatant who falls into the power of an adverse party shall be a POW (art 44(1))

Combatants must distinguish themselves from civilians (art 44(3))

Mercenaries do not have the right to be a combatant or a POW (art 47) ◦ “mercenary” = someone who takes part in hostilities and is motivated by

desire for private gain, who is not a national of a party to the conflict or a member of their armed forces.

Protection of the Civilian Population (AP1, Part IV)

Basic rule (art 48):

“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

Protection of the Civilian Population

Civilians shall enjoy general protection against dangers arising from military operations (art 51)

◦ Civilian population shall not be the object of attack (art 51(1))

◦ Civilians shall enjoy protection unless and until they take direct part in the hostilities (art 51(2))

Civilian objects shall not be the object of attack or reprisals (art 52(1))

◦ “civilian objects” = not military objective

◦ “military objective” = object which makes contribution to military action and whose total or partial destruction offers definite military advantage (art 52(2))

Prohibition on Indiscriminate Attacks

Art 51(4): indiscriminate attacks are prohibited, that is:

(a) Attacks which are not directed at a specific military objective;

(b) Attacks which employ a method or means which cannot be directed at a specific military object

(c) Attacks which employ a method or means the effect of which cannot be limited as required by this Protocol.

Prohibition on Indiscriminate Attacks cont/…

Art 51(5): in particular, these attacks are considered to be indiscriminate:

a) Bombardment which treats as a single military objective a number of clearly separated and distinct objectives located in a city, town, village or other area with similar concentration of civilians or civilian objects

b) Attack which may be expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be excessive in relation to the direct military advantage anticipated

Protection of Civilian Objects

Art 53: it is prohibited to:◦ Commit acts of hostility directed towards historic

monuments, works of art, places of workshop which constitute the cultural or spiritual heritage of peoples

◦ Use such objects in support of military effort

◦ Make such objects the object of reprisals

Art 54: objects indispensable for the survival of the civilian population are protected

Protection of Civilian Objects cont/…

Art 55 – protection of the natural environment

Art 56 – protection of works and installations containing dangerous forces (eg dams, dykes, nuclear power stations)

Art 57 – precautions shall be taken to protect civilians and civilian objects – ‘constant care shall be taken’

Art 58 – precautions against the effects of attacks

Additional Protocol 2

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977

Expands on the minimum protections for non-international conflict contained in common art 3 of the GCs

“Non-international armed conflict” – needs to be more than just civil unrest, armed resistance. Two relevant factors:

1. Intensity of violence

2. Degree of organisation of parties

Protection of Civilians in Non-International Armed Conflict

Protections for civilians, POWs, sick, wounded, shipwrecked, medical and religious personnel in non-international armed conflict (arts 4, 5, 7, 9)

Art 13 – civilian population and individual civilians shall enjoy general protection

Art 14 – protection of objects indispensable to survival

Art 15 – protection of works and installations containing dangerous forces

Art 16 - Protection of cultural objects and places of worship

Art 17 - Prohibition of forced movement of civilians