- Category: Humanitarian Law
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International Humanitarian Law and International Human Rights Law are so intertwined that it is quite essential to give a brief overview of their commonalities and differences so that one can distinguish the salient feature of each. What therefore becomes of much interest to us in this discussion is the question about how they differ since there are many things they share in common.
One of the major and important goals of the United Nations is the promotion of human rights and their observance by Member States. The Universal Declaration of Human Rights of 10 December 1948, the two International Covenants of 16 December 1966, one on Civil and Political rights, the other on Economic, Social and Cultural rights, and other treaties on specific aspects of human rights protection are the results to date of a major effort to strengthen the position of the individual in the face of State power.
Regional human rights agreements complete the picture of the efforts of affording safeguard to these fundamental rights. Human rights agreements and the relevant rules of customary law are also the ones intended to safeguard a series of individual rights from State abuse. The very important nature common to all those safeguards is that they are valid in all circumstances, at all times. Only in emergency situations and in strictly defined circumstances, known as situations of public emergency, do the different agreements allow for derogations from some of their provisions.
The treaties of humanitarian law, on the other hand, protect particularly vulnerable categories of persons from abuse of state power. Unlike human rights agreements which contain general rules applicable at all times, the protective rules and mechanisms of international humanitarian law are applicable only in time of war. That means, the application of international humanitarian law presupposes the occurrence of armed conflict and this makes its application to be limited to this exceptional circumstance. In this sense, it can be stated that international humanitarian law is that part of human rights law which is applicable in armed conflicts. In contrast, however, to the human rights or also referred to as named peacetime agreements, there can be no derogation under any circumstances from any of its provisions and will apply in almost all circumstances.
A further specificity of international humanitarian law is the fact that its provisions govern relations with the enemy. Members of the enemy armed inhabitants of a territory occupied by an enemy power are, for example, protected under the Fourth Geneva Convention, etc. Human rights agreements, however, affect above all the relationships between the authorities and citizens of the same State.
Owing to the fact that they are applied in different circumstances, international humanitarian law has not taken all the basic rights and freedoms guaranteed under human rights agreements and turned them into protective conditions in time of war. The protection of persons deprived of their liberty from torture and other inhuman treatment, for example, can be found in both branches of the law, for it constitutes an absolute right in the true sense of the words. International Humanitarian law does not, however, make provisions for the protection of the freedom of expression or movement, for example, since those freedoms have an entirely different meaning in a bellicose context. On the other hand, the treaties of humanitarian law contain sections which are foreign to human rights texts, such as the rules on the use of weapons.
Another possible difference is that international humanitarian law contains many more rules requiring the individual or the community to act than classic human rights law. This can be seen clearly in the 1864 Geneva Convention, Article 6, Paragraph 1 of which reads as follows: “Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for”. The law of
International humanitarian law is often mentioned in the same breath as refugee law, the provisions of which apply whenever a person flees his homeland seeking protection in another country out of justified fear of persecution. Refugees exist in peacetime and in time of war. The Geneva Conventions contain some provisions which govern the specific situation of refugees in time of war but do not weaken the protection provided under refugee agreements. Moreover, refugees are entitled to the same protection under humanitarian law as other civilians affected by the consequences of hostilities.
- Category: Humanitarian Law
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Philosophers such as Grotius, took an interest in the regulation of conflicts well before the first Geneva Convention of 1864 was adopted and developed. In the 18th century, Jean-Jacques Rousseasu made a major contribution by formulating the basic principle about the development of war between states as:
War is in no way a relationship of man with man but a relationship between states, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers (...). Since the object of war is to destroy the enemy state, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.
In 1899, Fyodor Martens laid down the following principle for cases not covered by humanitarian law: (...) civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience. This, also known as the Martens clause, was already considered a standard part of a customary law when it was incorporated in Article1, Paragraph 2, of Additional Protocol I of 1977.
While Rousseau and Martens established principles of humanity, the authors of the St. Petersburg Declaration formulated, both explicitly and implicitly, the principles of distinction, military necessity and prevention of unnecessary suffering, as follows:
Considering: (...) That the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men;
That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.
The Additional Protocols of 1977 reaffirmed and elaborated on these principles, in particular that of distinction: (...) 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. (Art. 48, Protocol I; see also Art. 1, Protocol II).
There are also established underlying principles of proportionality that seek to strike a balance between two diverging interests, one dictated by considerations of military need and the other by requirements of humanity when the rights or prohibitions are not absolute. Different writers follow different approach in describing these principles, and for the sake of making a brief explanation of the subject matter we have preferred the one that divides them into seven principles tin reviewing the rules in the past and present.
The first rule is that persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction. The second fundamental rule provides that it is forbidden to kill or injure an enemy who surrenders or who is hors de combat .The third one is the wounded and seek shall be collected and cared for by the party to the conflict which has them in his power. Protection also covers medical personnel, establishments, transport and material. The emblem of the Red Cross (Red Crescent, Red lion and sun) is a sign of such protection and must be respected.
The fourth rule reads: 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 be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief. And fifthly is provided that everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held 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.
The sixth one states that parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering. The seventh and the last fundamental rule provides that Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare the civilian population and property. Neither the civilian population nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.
- Category: Humanitarian Law
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The first and the main source of international humanitarian law is to be found in treaties. History tells that rules of International humanitarian Law, particularly rules on the treatment and exchange of prisoners and wounded, have since long been laid down in bilateral treaties. The systematic codification and progressive development of this branch in general multilateral treaty also started in the midst of the 19th century, which is relatively early as compared with other branches of international law.
A salient feature of the treaties of international humanitarian law is that most often a new set of treaties are supplemented or replaced with more details earlier ones after major wars taking into account new technological or military developments. Treaties of international humanitarian law have therefore been accused of being “one war behind reality”. This is however true for all law and it is only rarely has it been possible to regulate or even to outlaw a new means or method of warfare before it has been applied.
Today, international humanitarian law is not only one of the most codified branches of international law but its relatively few instruments are also rather well coordinated with each other.
Of all the treaties signed so far, the four Geneva Conventions of
These four Geneva Conventions have also been supplemented with the two Additional Protocols of 8 June 1977. One of which, Protocol I, is Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts; and Protocol II is Protocol Additional to Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts.
These treaties have the great advantage of putting their rules relatively beyond doubt and controversy, “in black and white”, ready to be applied by a soldier without needing first to make a doctoral research on practice. They, furthermore, legitimize their rules for the majority of “new states” which are able to influence them in the elaboration process and which can more easily agree to be bound by them in their frequently voluntarist approach.
The disadvantages of these treaties, as of all treaty law, are that they are technically unable to have a general effect-automatically to bind all states. Fortunately, most of the treaties of international humanitarian law are considered today among the most universally accepted treaties and only few states are not bound.
It has also been provided that however important the treaty rules of international humanitarian law may be even if they constitute obligations erga omnes, belong to jus cogens and if their respect is not subject to reciprocity- as treaty law they are only binding on states part to those treaties and, as far as international armed conflicts are concerned, only in their relation with other states parties to those treaties. The general law of treaties governs the conclusion, entry into force, reservations, application, interpretation, amendment, modification of international humanitarian law treaties and even their denunciation, which however, only takes effect after the end of an armed conflict in which the denunciating state is involved. The main exception to the general rules of the law of treaties for international humanitarian law treaty is provided by that same law of treaties; Once an international humanitarian law has become binding for a state, even a substantial breach of its provisions by another state, including by its enemy in an international armed conflict, does not permit the termination or suspension of the operation of that treaty as a consequence of that breach.
Although international humanitarian law is a branch widely codified in widely accepted multilateral conventions, customary rules remain important to protect victims on issues not covered by treaties, when non-parties to a treaty are involved in a conflict, where reservations have been made against the treaty rules and also because of the fact that international criminal tribunals prefer to apply customary rules, and because in some legal systems only customary rules are directly applicable in domestic law. Given the time consuming nature and other difficulties of treaty-making in an international society with more than 190 members and the rapidly evolving needs of war victims for protection against new technological and other inhumane phenomena, the importance of custom, redefined or not, may even increase in this field in the future. This, therefore, indicates the fact that customary law comes to be another source of international humanitarian law.
This, however, doesn’t mean that there aren’t any difficulties in defining a certain practice in terms of whether it is a customary rule or not. Those who follow a traditional theory of customary law and consider it to stem from the actual behavior of states in conformity with an alleged norm face particular difficulties in the field of international humanitarian law. First, for most rules this approach would limit practice to that of belligerents. And this comprises a few subjects whose practice is difficult to qualify as “general” and even more as “accepted as law.” Second, the actual practice of belligerents is difficult to identify, particularly as it often consists of omissions. There are also additional difficulties, e.g., war propaganda manipulates truth and secrecy makes it impossible to know which objectives were targeted and whether their destruction was deliberate. Finally, states are responsible for the behavior of individual soldiers even if the latter did not act in conformity with their instructions, but this does not imply that such behavior is also state practice constitutive of customary law. It is, therefore, particularly difficult to determine which acts of soldiers count as state practice.
Other factors must, therefore, also be considered when assessing whether or not a rule belongs to customary law: whether qualified as practice lato sensu or as evidence for opinio iuris, statements of belligerents, including accusations against the enemy of violations of international humanitarian law and justifications for their own behavior.
To identify “general” practice, statements of third states on the behavior of belligerents and on a claimed norm in diplomatic fora have to be similarly considered. Military manuals are even more important, because they contain instructions by states restraining their soldiers’ actions, which are somehow “statements against interest.” Too few States, generally Western States, have, however, sophisticated manuals available to the public to consider their contents as evidence for “general” practice in the contemporary international community.
It is also logically argued and even said to be totally uncontroversial that most, but clearly not all, rules of the two 1977 Additional Protocols today provide a formula for parallel rules of customary international law. Taking an overall view of all practice it can, for instance be found that a rule of the two 1977 Additional Protocols corresponds today to customary law binding on all states and belligerents, because it codified previously existing general international law, or because it translated a previously existing practice into a rule, because it combined, interpreted, or specified existing principles or rules, or because it concluded the development of a rule of customary international law or finally because it was a catalyst for the creation of a rule or of customary international law through subsequent practice and multiple consent of states to be bound by the treaty.
Custom, however, has also very serious disadvantages as a source of international law. It is very difficult to base uniform application of the law, military instruction and the repression of breaches on custom which by definition is in constant evolution, is difficult to formulate, and is always subject to controversy. The codification of international humanitarian law began 150 years ago precisely because the international community found the actual practice of belligerents unacceptable, while custom is, despite all modern theories, also based on the actual practice of belligerents.
- Category: Humanitarian Law
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The fundamental rule establishing the scope of application of international humanitarian law states that it is applicable in international armed conflicts. When there is an armed conflict, the international law of peace existing between the states concerned will largely be superseded by the rules of international humanitarian law. The international law of peace, however, will continue to be of great importance, particularly for the relationship between the parties to a conflict and neutral states.
If the application of international humanitarian law is dependent up on the existence of armed conflict, it becomes, therefore, essential to see what this phrase actually refers to. Traditional international law was based upon a rigid distinction between the state of peace and the state of war. Countries were judged as either in a state of peace or a state of war and there were no intermediate states, although there were cases in which it was difficult to tell whether the transition to a state of war has been made. So long as two countries were at peace, the law of peace – the normal rules of international law ---govern relations between them and if once they enter the state of war, the law of peace ceases to apply and their relations with one another become subject to the law of war, while their relations with other states not party to the dispute will be governed by the law of neutrality.
No such clear picture can be discovered today as since 1945, countries have rarely regarded themselves as being in a formal state of war. In response to this changing scenario, international humanitarian law now becomes applicable as soon as there is an international armed conflict without being subject to how the states party to the conflict define their status. There is also no sharp dichotomy between peace and armed conflict in international law such as used to exist between peace and war. A state of war usually presumed a complete a rupture of normal relation between the parties though today armed conflict between two countries does not necessarily mean that all non- hostile relations between them cease unlike what had been assumed widely in the past. Today neither an armed conflict nor a formal state of war has such an effect. Thus, diplomatic relations between the parties will not necessarily be terminated or suspended because there is armed conflict between them.
Coming back to our main concern, it is now well established that the application of international humanitarian law is not dependent upon the existence of a formal state of war, or indeed upon the existence of what has sometimes been called ‘war in the factual sense’. The Geneva Conventions that provide the applicability of the rules of international humanitarian law as governed by Common Art. 2 Para. I, provide that the conventions apply to all cases of declared war or another armed conflict which may arise between two or more of High Contacting parties even if the state of war is not recognized by one of them. Although the final phrase does not deal expressly with the situation in which neither party to an armed conflict admits that it is in a state of war, it is generally believed that the Conventions were intended to apply in such a case, so that the last phrase should be read as if it said even if the state of war is not recognized by one or both of them. That is certainly the way in which it was interpreted in practice in most conflicts since 1949 as neither side has admitted that it was in a state of war, yet they have treated the Geneva Conventions as applicable. The Conventions are also applicable in a case where a sate declares war but does not engage in actual hostilities as was the case with some Latin American states during World War II.
The Hague Conventions of 1907 and a number of other earlier treaties on humanitarian law are stated to apply only in time of war. In practice, however, the rules which they contain are treated as applicable in an international armed conflict, whether or not that conflict is regarded by the parties as a war or not.
The Geneva Conventions do not define armed conflict and this omission was said to be apparently deliberate, since it was hoped that this term would continue to be purely factual and not become laden with legal technicalities. The ICRC Commentary on the Geneva Conventions takes a very broad view of what constitutes an armed conflict. It provides that any difference arising between two states and leading to the intervention of the members of the armed forces is an armed conflict even if one of the parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. It will generally be stated therefore that when fighting reaches a level of intensity which exceeds that of isolated clashes it will be treated as an armed conflict to which the rules of international humanitarian law apply. And that in any event, only the use of force by the organs of a state, rather than by private persons, will constitute an armed conflict.
Generally speaking, the application of international humanitarian law is not dependent on a formal declaration of war that nowadays occur only occasionally. It has already been noted that international humanitarian law now becomes applicable in any international armed conflict, whether or not a state of war exists between the parties. It follows that a declaration of war is not necessary for the application of humanitarian law. In fact, there are cases in which declaration of war have been delivered by one state to another through diplomatic channels as was done in World War I and II. But in most cases the parties to a conflict had denied that they were in a state of war. There have, however, been cases in which states have expressed the view, by means other than a formal declaration, that they regarded themselves as being at war. Thus, in both 1948 and
It has also been established that it is irrelevant to the validity of international humanitarianly law whether the States and Governments involved in the conflict recognize each other as States. Because the applicability of the rules of international humanitarian law is not dependent upon whether the parties to a conflict recognize one another as states or not. Throughout the Arab-Israel conflict, for example, the Arab sates have not recognized
In addition, the application of humanitarian law in international armed conflicts does not depend on whether an armed conflict has been started in violation of a provision of international law, e.g. the prohibition against aggressive war. The victims of military aggression contrary to international law are also bound by the rules of international humanitarian law. Hence, the governing rule of international humanitarian law in this respect provides that it shall apply equally to all the parties to an armed conflict, irrespective of which state was responsible for starting the conflict and of whether that State was guilty of an act of aggression based on the rules of public international law.
Looking at the issue from a different perspective, there are cases in which the UN may resort to use force in its peace-keeping operations and other military operations. The issue that comes into picture in this case is whether this international humanitarian law shall be observed in peace keeping operations and other military operations of the United Nations or whether it is an exception. Although there was originally some doubt about the applicability of international humanitarian law to UN forces, it is now generally accepted that such forces are subject to humanitarian law, whether they were established as peace-keeping forces or for the purpose of engaging in enforcement action. Thus, the Institute de droit international has confirmed that the humanitarian rules of the law of armed conflict apply to the United Nations as of rights and they must be complied with in every circumstance by United Nations forces which are engaged in hostilities. A second Institute resolution maintains that this obligation also extends to those rules of the law of armed conflict which are not of a specifically humanitarian character. Given that this is the case when the UN establishes a force of its own, it is clear that the rules of humanitarian law are applicable to a force under national control which operates with the authority of the Security Council.
There are cases in which the armed conflict remains non-international when there is no other state involved in the conflict. An armed conflict is said to be non-international if it is a confrontation between the existing governmental authority and groups of persons subordinate to this authority and is carried out by force of arms within national territory and reaches the magnitude of an armed riot or a civil war. Now, the question is whether the scope of application of international humanitarian law also encompasses this kind of conflict.
In non-international armed conflict, each party shall be bound to apply, as a minimum, the fundamental humanitarian provisions of international law embodied in the four 1949 Geneva Conventions, the 1954 Cultural Property Convention, and the 1977 Additional Protocol II. German soldiers, for example, like their Allies, are required to comply with the rules of international humanitarian law in the conduct of military operations in all armed conflicts. However, such conflicts are characterized, i.e. irrespective of whether that conflict is characterized as internal or international.
This rule setting for the application of international humanitarian law to non-international armed conflicts was only embodied in treaty form for the first time in the 1949 Geneva Conventions. Today, there are two instruments which expressly apply to non-international armed conflicts. Common Art. 3 of the Geneva Conventions contains a series of rudimentary provisions dealing with minimum rights and duties, such as the requirements that those hors de combat be treated humanely and that the wounded and sick be collected and cared for, and the prohibition against murder, torture, hostage taking, humiliating and degrading treatment, and the passing of sentences and carrying out of executions without a fair trial. AP II is a far more detailed code for application in internal armed conflicts.
ICRC has provided a definition of humanitarian law in a more comprehensive manner enabling the reader to understand the scope of application of the law. It defines it as those international rules established by treaty of custom which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of the parties to a conflict to use methods and means of warfare of their choice or protect persons and property that are, or may be, affected by the conflict.
This definition, no doubt, requires some explanation. Therefore, we have to discuss it in brief. The aim of international humanitarian law is to protect the human being and to safeguard the dignity of man in the extreme situation of war. The provisions of international humanitarian law have always been tailored to fit human requirements. They are bound to the aspiration of the protection of man from the consequences of brute force. The duty to respect the individual takes on special significance when the perpetrator of the violence is the State. Clearly, therefore, international humanitarian law is a part of that branch of international law safeguarding human rights from abuse by State power.
As is the case with every rule of law, the provisions of international humanitarian law are the result of a compromise, i.e. the weighing of conflicting interests. International humanitarian law must make allowance for the phenomenon of war and legitimate military goals. We call this the criterion of military necessity. On the other hand, the individual who does not or no longer participate in the hostilities must be protected as best as possible. The conflicting interests of military necessity and humanitarian considerations can be death within rules which limit the use of force in war but do not prohibit it when such use is legitimate. In this case, only international humanitarian law can do the best possible and can even set forth absolute prohibitions in the cases of, for example, torture which is forbidden in all circumstances, without exception.
We can, therefore, infer that humanitarian law will only be endorsed by those responsible for using military force if it takes into account military considerations. In the real world, therefore, humanity must always take into consideration requirements of military necessity. In this, the law does not sanction the use of brute force; it reflects a desire to set realistic limits to the use of force which can be successfully applied. It is not the purpose of international humanitarian law to prohibit war or to adopt rules rendering war impossible. Rather, international humanitarian law must reckon with war, the better to keep the effects thereof within the boundaries of absolute military necessity.