Intro to international humanitarian law by icrc
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introduction to law of armed conflict, intl. humanitarian law
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Intro to international humanitarian law by icrc
- 2. International Humanitarian Law Also known as the Law of Armed Conflict, or the Law of War Is designed to regulate the excesses of armed conflict by: limiting the means and methods of warfare, and limiting the suffering caused by war Applies from the first act of hostilities, for the duration of an armed conflict
- 3. Purpose of IHL IHL protects those that have not, or are no longer, taking a direct part in hostilities: civilians wounded who give up fighting prisoners or detainees IMPORTANT!
- 4. Origin of IHL Customary rules of warfare drawn from Greek, Roman and Persian Society - protection of civilians - use of poison in wells - compassion shown to the wounded
- 5. ننننننن ننننن ننننن نن نن۔
- 7. Modern Development of IHL 1862 1859 1863 1864
- 8. HENRY DUNANT (1828 – 1910) Two Ideas To create an organization of trained volunteers ready to assist wounded in war in every country. To promote an international agreement protecting wounded soldiers in war and those who care for them. Two Ideas To create an organization of trained volunteers ready to assist wounded in war in every country. To promote an international agreement protecting wounded soldiers in war and those who care for them. INTERNATIONALCOMMITTEEOFTHEREDCROSS
- 9. Four Geneva Conventions of 12 August 1949 (197 States Party)
- 10. 1977 Protocols Additional to the GC (AP 1 - 169 states AP 2 - 165 states) AP3 – 2005 (AP 3 - 46 states) InternationalInternational Armed ConflictArmed Conflict Non-InternationalNon-International Armed ConflictArmed Conflict
- 11. Principles of IHL Limitation Distinction Proportionality Unnecessary suffering Military necessity These provide a "roadmap" for what is right and wrong in armed conflict IMPORTANT!
- 12. Limitation The means and methods of warfare are not unlimited
- 13. Distinction Combatants must at all times distinguish between combatants and civilians, and between military objectives and civilian objects.
- 14. Proportionality The principle of proportionality states that even if there is a clear military target, it may be attacked only if the risk of civilians or civilian property being harmed, or of civilians being killed, is not excessive in relation to the expected military advantage.
- 15. Unnecessary Suffering Don't inflict unnecessary suffering
- 16. Military Necessity Justifies the proportional use of military force against an enemy, to force him to submit Does not justify inhumane conduct Not an excuse for acts forbidden by IHL
- 17. Classifying Armed Conflict International Armed Conflict (two or more states) Non- international Armed Conflict (within a state) Internal violence (short of threshold of armed conflict)
- 18. InternationalInternational Armed ConflictArmed Conflict Internal DisturbancesInternal Disturbances Non-InternationalNon-International Armed ConflictArmed Conflict IHRL When do the Conventions and Additional Protocols Apply?
- 19. Other IHL Treaties 1899 Dum Dum bullets 1925 Geneva Convention – poison gases 1954 Hague Cultural Property 1976 Environmental Modification (ENMOD) 1980 Convention against Certain Conventional Weapons (CCW). Five Protocols: non-detectable fragments mines & booby traps incendiary weapons laser blinding weapons explosive remnants of war 1993 Chemical weapons 1997 Ottawa treaty – AP mines 1998 Rome statute – establishing the ICC
- 20. Pakistan and IHL Geneva Conventions of 1949 12 June 1951 Hague Cultural Property Convention 1954 27 March 1959 Certain Conventional Weapons (CCCW) 1980 01 April 1985 Chemical Weapons 1993 28 October 1997
- 21. Who Must Respect IHL? Everyone! States are bound by treaties they sign Non-State actors are bound by Customary International Humanitarian Law They all have to respect IHL!
- 22. Dealing with War Crimes ICRC does not, has never, will never, participate in the investigation or prosecution of war crimes dealing with War Crimes is a national responsibility (requiring national implementing legislation) Nuremberg and Tokyo war crimes tribunals - 1945 Ad hoc tribunals (established by/at the request of UNSC) ICTY (estb May 1993) – try crimes since 1991 ICTR (estb Nov 1994 – try crimes committed in 1994 Special Court for Sierra Leone (estb Jan 2002) – try crimes during civil war ICC (established by Rome statute) Darfur, northern Uganda, Central African Republic, Under examination - Colombia, Afghanistan, Georgia, Kenya, Cote D’Ivoire
- 23. Custodian of IHL ICRC sponsors IHL treaties and strives for a better understanding of IHL world-wide ICRC sponsors IHL treaties and strives for a better understanding of IHL world-wide
- 24. Conclusion – remember: Even wars have limits IHL protects those who do not, or no longer, take part in hostilities IHL is applicable during armed conflict All Parties are bound to respect IHL ICRC is mandated to be active in conflict situations and has a right of initiative to be present in situations of armed violence
Notas do Editor
- This presentation is in two parts: a historical look at the modern development of international humanitarian law, and a closer look at some of the rules that apply in armed conflict or situations of internal violence.
- International Humanitarian Law is also known as the law of war or the law of armed conflict. To military audiences it is usually called the law of war. It applies during situations of armed conflict, from the first act of hostilities, regardless of whether both parties agree that there is an armed conflict or not. International Humanitarian Law ceases to apply once an armistice has been signed. An armistice signals the cessation of hostilities. State responsibilities under IHL may not conclude at the time an armistice is signed. Activities like the repatriation of prisoners of war may not have been completed when an armistice is signed and so there are responsibilities to be met once an armed conflict is officially concluded, with the signing of an armistice.
- This is the key issue for this part of the presentation. IHL protects: - those that are not involved (civilians, medical and religious personnel who do not compromise their status), and - those who, having surrendered or who are wounded and who cease to fight, are therefore no longer involved. Civilians are protected unless they take an active part in hostilities. An active part in hostilities involves bearing arms against an enemy. Anything short of this (such as feeding or providing shelter or medical assistance to individuals) is not taking an active part in hostilities according to IHL. These acts may contravene national laws – but they are not enough to make a civilian forfeit his or her protection under IHL.
- Ancient Greek, Roman and Persian societies all had rules for dealing with civilians and those who were "out of combat" in armed conflict. These rules also appear in Islamic law related to armed conflict. The modern development of IHL only commenced in 1864. Many concepts related to protection of those not involved in armed conflict have their roots in customary rules of warfare.
- This is a quotation from the Holy Quran: Al-Baqara, verse 190: Fight in the way of Allah against those who fight against you, but begin not hostilities. Lo! Allah loveth not aggressors.
- This slide shows the cycle at the start of the modern development of IHL. Included are: 1859 - the Battle of Solferino ; one of the most bloody and brutal battles of the victory of the French over the Austrians left 40,000 wounded and dead. Dunant was horrified by the sight of thousands of soldiers from armies left to suffer without medical assistance. He could not forget what he had seen upon his return to Switzerland…. 1862 Dunant published a book entitled A Memory of Solferino, containing 2 proposals: that relief societies to be formed in peacetime, with nurses who would be ready to care for the wounded in wartime; and that those volunteers, who would be called upon to assist the army medical services, to be recognized and protected through an international agreement. Henry Dunant’s book was a huge success; it was translated into virtually all the European languages and read by the most influential people of his time. It led in 1863 to the creation of the Committee of Five. This committee was initially called the International Committee for Relief to the Wounded (in 1875 it became the International Committee of the Red Cross). In April 1863 the Leiber Code came into force. It was important because it marked the first attempt to codify the existing laws and customs of war. Unlike the first Geneva Convention (adopted a year later), the Code did not have the status of a treaty as it was intended solely for Union soldiers fighting in the American Civil War. 1864 – The Swiss government sent a letter of invitation for a Diplomatic conference to all the European governments and to the United States of America, Brazil and Mexico. On the 22nd of August 1864 the Diplomatic Conference signed the Geneva Convention for the Amelioration of the Condition of the wounded in the Armies in the Field. The modern development of international humanitarian law was born.
- The aid societies of each country eventually became the national Red Cross and Red Crescent societies that exist in 186 countries today.
- The 1st GC of 1864 – Protection of wounded and sick in the field. The 2nd GC of 1899 – Protection of the wounded, sick and shipwrecked at sea - adapted from the 1st GC. The 3rd GC of 1929 – Protection of Prisoners of War - followed the first war (WW1) in which large numbers of prisoners were taken and yet no codified rules existed for how prisoners of war were to be treated. The 4th GC of 1949 – Protection of the Civilian Population - followed the first war (WW2) in which the number of civilian deaths exceeded those of the military forces (60 million civilians died, as well as 50 million military personnel). As each additional Convention was added, the earlier Conventions were updated. The final revision of the GC was conducted in 1949, at the time that the 4th GC was produced.
- Do not use this slide to explain the qualification of armed conflict. After WW2 the majority of wars were "non-international" in nature, being mostly wars of liberation, or wars against foreign domination. IHL had always adapted to changes in the way wars were fought and it was obvious that IHL needed to be updated to cope with changes in the world. In 1970 the ICRC arranged teams of lawyers to draft the additional protocols to the Geneva Conventions. In 1977 two "Protocols additional to the Geneva Conventions" were concluded – AP 1 for international Armed Conflict; and AP 2 for non-international (internal) Armed Conflict. Why not just amend the GC? It was considered that states that were willing to ratify the GC in 1949 – with the memory of WW2 fresh in their minds – might not be so keen to re-sign an amended GC in 1977. Consequently the AP were produced. AP 3 was completed in 2005 to produce a third protective emblem – the red crystal. This was designed to allow states whose national societies did not use the Red Cross or Red Crescent emblems, to officially join the Movement. Before 2005 states whose "national societies" used other than either the Red Cross or Red Crescent (the only two approved emblems) were not allowed membership of the Movement. This paved the way for two states to join the Movement for the first time. They were Israel, which used the red Star of David, and Kazakstan which used both the Red Cross and Red Crescent emblem. Less states have ratified the AP than the GC, including many major nations. AP2 (non-international armed conflict) is a very short body of law – just 22 articles long. Some would suggest that this is so short compared to AP1 because it reflects what states would accept in terms of being told how they were to treat their own citizens in cases where conflict existed within a state's borders. In other words, states don't like to be told how to treat their own citizens.
- The principles of IHL are different from the Fundamental Principles of the RC/RC Movement and the two should not be explained in the same presentation because this inevitably creates a lot of confusion. The Principles of IHL are an excellent way to help people judge whether acts conducted in an armed conflict are consistent with IHL, or not. The principles of IHL are mostly drawn from the IVth Hague Convention of 1899. The Hague Conventions of 1899 and 1907 gave guidance to belligerents about how they should fight. (Much of this body of law is now outdated.) Hague Law covered the means and methods of warfare, as opposed to the Geneva Branch of the law which is more about protection of those who do not, or no longer take part in armed conflict.
- Limitation is defined on the slide – precisely as it is written in an article of the old Hague IV Convention of 1899. Simply put it means you can't just do what you like in a war – there are rules!
- Distinction is defined on the slide. This is a simple concept – some things are legitimate targets in a war – enemy combatants, their weapons and things that contribute to their capacity to fight; and all other things that make no contribution to the conflict are NOT legitimate targets – civilians, civilian objects, protected places, and essential infrastructure. The blue and white symbol marks cultural property – which is protected for so long as it is not used to gain a military advantage. The orange circles indicate works and installations which contain dangerous forces – things such as nuclear power stations which, if attacked, could unleash forces that could cause widespread devestation to the civilian population or natural environment. The Yellow and blue symbol denotes civil defence units which are designed to protect the civilian population in times natural or man-made disasters, and whose personnel and equipment is therefore protected unless they take a direct part in hostilities.
- This principle accepts that in every war there is already much suffering – and requires that those fighting do not inflict any unnecessary suffering.
- IHL does not ban armed conflict. The Charter of the United Nations indicates when states may use military force – principally in self defence. (Bush post 9/11 justifying the use of force: "We - the United States - have a right to defend ourselves.") IHL simply states the rules that apply once an armed conflict commences. In armed conflict a party is justified to use proportional military force to make an enemy submit. This force must be applied in accordance with the laws of war, and in as humane a manner as possible.
- International Armed Conflict is a war between two or more states (referred to in the GC as "High contracting parties.") e.g. the Iran/Iraq war in the 1980s. Non-international Armed Conflict is a war within the borders of a state. e.g. the war between the government of Sri Lanka and the Liberation Tigers of Tamil Elam (LTTE). Situations of internal violence usually refer to sporadic acts of violence short of an actual non-international armed conflict. These qualifications can become highly politicized – as is the case here in Pakistan where the fighting is referred to by the government as a "police action against terrorists." De facto, the government is stating that the IHL applicable to non-international armed conflict does not apply in Pakistan. Do not get into a public discussion about this! Understand that if IHL does not apply, it is the case that International Human Rights Law and the domestic laws of Pakistan still do apply – and this means that the army (technically) commit murder every time they take a life. Why? Because the sanction that allows the taking of a human life in armed conflict only applies in an armed conflict under IHL – and in every other case the appropriate "warnings before firing" and "minimum use of force" applicable under IHRL should be applied. These qualifications can also be complicated. The conflict in Afghanistan between the Afghan Taliban and the northern alliance was a non-international armed conflict. The conflict between the United States and its allies (sanction by the UN security council after 9/11) was an international armed conflict. This subsequently became a conflict between the Afghan government and the Taliban – a non-international armed conflict – but since the US and its allies were still involved it is referred to as "an internationalised non-international armed conflict." If you believe that the conflict in Pakistan is actually a non-international armed conflict (most do, and even senior government ministers refer to it as "conflict"), what imapct does US drone and other attacks on Pakistani territory have on the qualification? Is this also an internationalised non-international armed conflict? Let's leave this one to the lawyers. We need to explain the various qualifications of armed conflict only so that our audience understands what law is applicable to each type of conflict.
- A "Common Article" is one that appears unchanged in its wording, in all four GC. Read the first sentence of common article 2 in any of the GC. With the exception of common article 3, the four GC of 1949 and AP 1 apply to cases of international armed conflict. That's the bulk of the body of IHL. As common article 2 states, IHL applies from the first act of hostilities between two states – whether both states agree that an armed conflict exists or not. What about the torpedoing of a South Korean warship by North Korea recently? Is this an international armed conflict? In fact the Korean war has never ended because an armistice was never signed between the two countries. A state of international armed conflict still exists. The same applies between India and Pakistan over Kashmir – the armed conflict may be "frozen" but it is not over. Read the first sentence of common article 3 in any of the GC. Common article 3 of the GC and AP2 apply to non-international armed conflict. Article 1 of AP 2 states the threshold of non-international armed conflict that must exist before AP2 applies. This includes the following conditions for AP2 to apply: dissident armed forces acting against the state, controlling part of the territory of the state, under responsible command and capable of conducting sustained operations. Dissident armed forces often seek credibility by wearing a uniform with a "fixed distinctive sign." Customary international humanitarian law is the law drawn from older sources. Customary Law is, by definition: a regular, recurring practice between states, with the underlying belief of states, that the custom and its recurrence make it a rule. In other words – the things that we have always considered to be the rules for doing business, are actually rules even if they are not written down and signed by actors. Why is this important? Treaty law is signed by states and binds those that act on behalf of the state – i.e. the armed forces. Opposition groups are not bound by treaty law that they did not sign. However, almost all of what is written in the GC and much of what is written in the AP fit the definition of customary law – as does the rules that existed in ancient societies and the common rules found in Islamic law. By this we argue that the customary rules of IHL apply to everyone who takes up arms – including armed opposition groups who have not signed formal treaties. Those who break these rules can be charged with offences against "the laws and customs of war." The threshold of armed conflict is not actually defined in law – despite many efforts to do so. We consider that when you move above a situation of "sporadic acts of violence" to a state where there is more systematic armed violence against a government, that the threshold has probably been crossed. By the time you get to a point where the conditions of article 1 of AP 2 are met (see four conditions above), you are definitely considered to be in a state of non-international armed conflict. In addition, as indicated before, IHRL applies all the time – including in peacetime and during situations of armed conflict or internal violence – as does the national (domestic) law of Pakistan, which forbids most, if not all, of the violent actions undertaken by opposition groups. In cases of internal disturbance or armed violence short of actual armed conflict, the ICRC maintains a right of intervention based on the statutes of the Red Cross and Red Crescent Movement, which are already agreed by all states.
- Most of the modern IHL treaties are "Limitation" treaties – they limit the means and methods of warfare by restricting or prohibiting the use of certain types of weapons. They reflect the action of the international community to deal with weapon development. The 1899 ban on the use of "dum dum" bullets refers to the British ammunition factory at Dum Dum in India which produced bullets with a cross cut into the nickel jacket so that the bullet fragmented on contact with the body – thus making it virtually impossible for a victim struck with this bullet to have all the fragments removed, in which case they almost always died. Since this is not consistent with IHL – you need to stop a soldier fighting and do not need to kill him to do that – the bullets were considered to be inhumane and banned. The 1925 Geneva Protocol against poison gas was a result of the widespread use of poison gases in WW1. More modern treaties such as the treaty banning the use of cluster munitions was developed after it became obvious that cluster munitions do more harm to civilians during and after a war than they do to an enemy's armed forces. In this sense many of these treaties are reactive. ICRC needs to be careful to understand that there is a world of difference between prohibition and restriction. The 1980 UN sponsored Convention against Certain Conventional Weapons (1980 CCCW) restricts the use of landmines by stating conditions on how landmines have to be laid, recorded and marked – in order to avoid civilians unknowingly coming across these weapons and being killed or injured. This is not a prohibition on the use of landmines. The Ottawa Treaty relates to anti-personal landmines – not all landmines – some of which are designed to immobilize or destroy vehicles.
- The treaties to which the Pakistan government is a party are listed. ICRC is keen to assist the government to update or develop appropriate implementing legislation to ensure that IHL is respected in Pakistan. Governments of the 194 states that have ratified the Geneva Comventions are responsible for ensuring that the GC are enforced – not the ICRC. Common article 1 of the GC states that: the high contracting parties will respect and ensure respect for the treaty.
- As indicated earlier, all parties to a conflict are bound in one way or another to respect IHL. IHL treaty law, customary IHL and IHRL all have provisions to protect those that are not, or are no longer, taking part in armed conflict. Though parties sometimes act as though they are immune, there are no exceptions. In most countries domestic law also protects the life and dignity of all citizens. Arguably, this is not the case in Pakistan where laws such as the Frontier Crimes Regulations (FCR) allows collective punishment, including preventive detention of the family; and the Anti-Terrorism Act partly abolishes the presumption of innocence. The Prison Rules of 1898 also are not in accordance with international law - be it HRL or IHL. Since some national laws in Pakistan are not consistent with international law, this is not a subject that we would suggest that you discuss in any detail.
- Three things are necessary to ensure that those who breach IHL are brought to justice: there must be national laws enacted (based on IHL instruments) to collect evidence and charge those who prima facie breach IHL, the judiciary must be functional (it does not always exist in countries destroyed by war such as Somalia) and be competent to try cases of breaches of IHL, and there must be sufficient political will to ensure that those accused of breaches are charged and then brought before the courts. It is most often the lack of political will that allows those who breach IHL to escape justice. Having said that, there is a long and growing history of repression of breaches of IHL by bringing offenders to justice. This is the responsibility of the international community – not institutions such as the ICRC. The major actions taken to bring war criminals to justice are listed on the slide and are more or less self-explanatory. The so called "ad hoc tribunals" were raised by a resolution of the UN Security Council following the conflict in the former Yugoslavia and Rwanda. More by good luck than good management the end date written into the statutes of the ICTY was open-ended and so war crimes committed in Kosovo are also being considered by the ICTY. In contrast, the "start date" for consideration of crimes by the ICTR was listed well after the "incitement to commit genocide" occurred in that country – and thus some obvious offenders escaped justice because the ICTR had no jurisdiction to try cases for crimes that occurred before a certain date. The special court for Sierra Leone was established by initiative of the government of Sierra Leone with the assistance of the United Nations. The precedent where a government set up a court to try war crimes that were committed in its territory during a civil war is encouraging. Usually this kind of activity had to be forced upon a state as was the case when the UN Security Council established the ad hoc tribunals. The International Criminal Court is an international war crimes court established under the Rome Statute, and it has sought to try individuals who are believed to have committed war crimes as shown on the slide. You would be aware that this can be a highly politicized process and court warrants against some individuals (such as the Sudanese President) have been ignored by other signatories to the treaty within Africa. (Where is the international political will!!) Does the ICRC participate in this process? The ICRC is a neutral and independent humanitarian organization, mandated to promote respect for International Humanitarian Law. The ICRC does not, nor is it mandated to, launch investigations into war crimes allegedly committed by parties to a conflict. The ICRC's usual mode of action is to remind, confidentially, all parties to a conflict of their obligation to respect international law. The ICRC enjoys immunity against giving testimony before criminal tribunals, so it cannot be compelled to testify. Rules of Procedure and Evidence of the ICC (Rule 73) recognizes that information in the hands of the ICRC is not subject to disclosure, including by way of testimony. In short, we have never, and will never, participate in this process. It is not ICRC's responsibility – it is the responsibility of the international community.
- The idea to have a contemporary international humanitarian law and to create ICRC were born together at Solferino ICRC plays a major role to develop International Humanitarian Law. For example; the additional protocols of 1977 were drafted by ICRC lawyers and ICRC has sponsored, or co-sponsored, several limitation treaties in the past. In this sense the ICRC is regarded as being a custodian (and a promoter) of IHL. ICRC promotes IHL by: Disseminating and Advising, and Reminding parties in conflict of their obligations.