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==Later Additions to International Humanitarian Law== |
==Later Additions to International Humanitarian Law== |
Revision as of 17:38, 28 January 2013
International humanitarian law (IHL), or the law of armed conflict, is the law that regulates the conduct of armed conflicts (jus in bello). It comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law."[1] It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.
Serious violations of international humanitarian law are called war crimes. International humanitarian law, jus in bello regulates the conduct of forces when engaged in war or armed conflict. It is distinct from jus ad bellum which regulates the conduct of engaging in war or armed conflict and includes crimes against peace and of war of aggression. Together the jus in bello and jus ad bellum comprise the two strands laws of war governing all aspects of international armed conflicts.
The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.
International humanitarian law operates on a strict division between rules applicable in international armed conflict and those relevant to armed conflicts not of an international nature. This dichotomy is widely criticized.[2]
Two historical streams: The Law of Geneva and The Law of The Hague
Modern International Humanitarian Law is made up of two historical streams: the law of The Hague referred to in the past as the law of war proper and the law of Geneva or humanitarian law.[3] The two streams take their names from a number of international conferences which drew up treaties relating to war and conflict, in particular the Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first which was drawn up in 1863. Both are branches of jus in bello, international law regarding acceptable practices while engaged in war and armed conflict.[4]
The Law of The Hague, or the Laws of War proper,"determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm."[5] In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives.[6]
Systematic attempts to limit the savagery of warfare only began to develop in the 19th century. Such concerns were able to build on the changing view of warfare by states influenced by the Age of Enlightenment. The purpose of warfare was to overcome the enemy state and this was obtainable by disabling the enemy combatants. Thus, "(t)he distinction between combatants and civilians, the requirement that wounded and captured enemy combatants must be treated humanely, and that quarter must be given, some of the pillars of modern humanitarian law, all follow from this principle."[7]
The Law of Geneva
The massacre of civilians in the midst of armed conflict has a long and dark history. Selected examples include: the massacres of the Kalingas by Ashoka in India, the massacre of some 100,000 Hindus by the Muslim troops of Timur (Tamerlane) or the Crusader massacres of Jews and Muslims in the Siege of Jerusalem (1099), to name a few examples drawn from a long list in history. Fritz Munch sums up historical military practice before 1800: "The essential points seem to be these: In battle and in towns taken by force, combatants and non-combatants were killed and property was destroyed or looted.[8] In the 17th century, the Dutch jurist Hugo Grotius wrote "Wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents."[9]
Humanitarian norms in history
However, even in the midst of the carnage of history, there were expressions of humanitarian norms to protect the victims of armed conflicts, i.e. the wounded, the sick and the shipwrecked which date back to ancient times.[10]
In the Old Testament, the King of Israel prevents the slaying of the captured following the prophet Elisha's admonition, to spare enemy prisoners: In answer to a question from the King, he said, "You shall not slay them. Would you slay those whom you have taken captive with your sword and with your bow? Set bread and water before them, that they may eat and drink and go to their master.”[11]
In ancient India there are records, for example the Laws of Manu, describing the types of weapons that should not be used. "When he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire."[12] There is also the command not to strike a eunuch nor the enemy "who folds his hands in supplication....Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight...".[13]
Islamic law states that "noncombatants who did not take part in fighting such as women, children, monks and hermits, the aged, blind, and insane" were not to be molested.[14] The first Caliph, Abu Bakr, proclaimed "Do not mutilate. Do not kill little children or old men or women. Do not cut off the heads of palm trees or burn them. Do not cut down fruit trees. Do not slaughter livestock except for food."[15] Islamic jurists have held that a prisoner should not be killed as he "cannot be held responsible for mere acts of belligerency."[16] Islamic law did not spare all non-combatants. In the case of those who refused to convert to Islam or pay an alternative tax, Muslims "were allowed in principle to kill any one of them, combatants or noncombatants, provided they were not killed treacherously and with mutilation."[17]
Codification of humanitarian norms
However, it was not till the second half of the 19th century that a more systematic approach was initiated. In the United States, a German immigrant, Francis Lieber, drew up a code of conduct in 1863, which came to be called the Lieber Code in his honor, for the Northern army. The Lieber Code included the humane treatment of civilian populations in the areas of conflict, and also forbade the execution of POWs. At the same time, the involvement of a number of individuals such as Florence Nightingale during the Crimean War and Henry Dunant, a Genevese businessman who had worked with wounded soldiers at the Battle of Solferino, led to more systematic efforts to prevent the suffering of war victims. Dunant wrote a book, which he titled A Memory of Solferino, and in which he described the horrors he had witnessed. His reports were so shocking that they led to the founding of the International Committee of the Red Cross (ICRC) in 1863 and the convening of a conference in Geneva in 1864 which drew up the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.[18]
The Law of Geneva is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the ICRC.[19] This focus can be found in the Geneva Conventions.
Geneva Conventions
![](http://upload.wikimedia.org/wikipedia/commons/thumb/d/d3/Original_Geneva_Conventions.jpg/220px-Original_Geneva_Conventions.jpg)
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The Geneva Conventions are the result of a process that developed in a number of stages between 1864 and 1949 which focused on the protection of civilians and those who can no longer fight in an armed conflict. As a result of World War II, all four conventions were revised based on previous revisions and partly on some of the 1907 Hague Conventions and readopted by the international community in 1949. Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars.
The Geneva Conventions are:
- First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949)
- Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague Convention X)
- Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949)
- Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the 1907 Hague Convention IV)
In addition, there are three additional amendment protocols to the Geneva Convention:
- Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries.
- Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries.
- Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by 17 countries and signed but not yet ratified by an additional 68 countries.
While the Geneva Conventions of 1949 can be seen as the result of a process which began in 1864, today, they have "achieved universal participation with 194 parties." This means that they apply to almost any international armed conflict.[20]
Historical convergence between IHL and the Laws of War
With the adoption of the 1977 Additional Protocols to the Geneva Conventions, the two strains of law began to converge, although provisions focusing on humanity could already be found in the Hague law (i.e. the protection of certain prisoners of war and civilians in occupied territories). However the 1977 Additional Protocols relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights provisions.[21]
Basic rules of IHL
- Persons hors de combat (outside of combat) and those not taking part in hostilities shall be protected and treated humanely.
- It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
- The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the "Red Cross," or of the "Red Crescent," shall be required to be respected as the sign of protection.
- Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
- No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
- Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
- Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.[22]
Examples
Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a Red cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that, being considered the flag of truce, indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or the white flag are expected to maintain neutrality, and they may not engage in warlike acts themselves; in fact, engaging in war activities under a white flag or a red cross is itself a violation of the laws of war.
These examples of the laws of war address declaration of war, (the UN charter (1945) Art 2, and some other Arts in the charter, curtails the right of member states to declare war; as does the older and toothless Kellogg-Briand Pact of 1928 for those nations who ratified it but used against Germany in the Nuremberg War Trials), acceptance of surrender and the treatment of prisoners of war; the avoidance of atrocities; the prohibition on deliberately attacking civilians; and the prohibition of certain inhumane weapons. It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform, and fighting in that uniform, is forbidden, as is the taking of hostages.
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Later Additions to International Humanitarian Law
International humanitarian law now includes several treaties that outlaw specific weapons. These conventions were largely created because these weapons cause deaths and injuries long after conflicts have ended. Unexploded land mines have caused up to 7,000 deaths a year; unexploded bombs, particularly from cluster bombs that scatter many small “bomblets,” have also killed many. An estimated 98% of the victims are civilian; farmers tilling their fields and children who find these explosives have been common victims. For these reasons, the following conventions have been adopted:
The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (1980) prohibits weapons that produce non-detectable fragments, restricts (but not eliminate) the uses of mines and booby-traps, prohibits attacking civilians with incendiary weapons, prohibits blinding laser weapons, and requires the warring parties to clear unexploded ordnance at the end of hostilities. As of December 2012, 109 states have ratified this convention or some of its provisions.
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997), also called the Ottawa Treaty or the Mine Ban Treaty, completely bans the stockpiling (except for a few for training purposes) and use of all anti-personnel land mines. By late 2012, 160 states had ratified it.
The Optional Protocol on the Involvement of Children in Armed Conflict (2000), an amendment to the Convention on the Rights of the Child (1989), forbids the enlistment of anyone under the age of 18 for armed conflict. It has been ratified by 150 states by December 2012.
The Convention on Cluster Munitions (2008) prohibits the use of bombs that scatter bomblets, many of which do not explode and remain dangerous long after a conflict has ended. By December 2012, 77 states had ratified it.
International Committee of the Red Cross
The ICRC is the only institution explicitly named under international humanitarian law as a controlling authority. The legal mandate of the ICRC stems from the four Geneva Conventions of 1949, as well as its own Statutes.
The International Committee of the Red Cross (ICRC) is an impartial, neutral, and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance.
— Mission of ICRC
Violations and punishment
During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.
Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5.
Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope.[citation needed] Spies may only be punished following a trial and if captured after rejoining their army must be treated as a prisoner of war.[23] Suspected terrorists who are captured during an armed conflict, without having participated in the hostilities, may be detained only in accordance with the GC IV and are entitled to a regular trial.[24] Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.
After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.
See also
- Customary international humanitarian law
- Graduate Institute of International and Development Studies
- Human rights
- Humanitarian education
- International law
- International human rights law
- Journal of International Law of Peace and Armed Conflict
- Just war
- Law of land warfare
- International Humanitarian Law (journal)
- Protective sign
- Roerich Pact
- Rule of Law in Armed Conflicts Project (RULAC)
- Right of Asylum
- Total war
- Vienna Declaration and Programme of Action
Notes
- ^ ICRC What is international humanitarian law?
- ^ Stewart, James (30). "Towards a Single Definition of Armed Conflict in International Humanitarian Law". International Review of the Red Cross. 850: 313–350.
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ignored (help) - ^ Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: Sijthoff. ISBN 90-286-0305-0. pp. 16-17
- ^ The Program for Humanitarian Policy and Conflict Research at Harvard University, "Brief Primer on IHL," Accessed at IHL.ihlresearch.or
- ^ Pictet, Jean (1985). Development and Principles of International Law. Dordrecht: Martinus Nijhoff. ISBN 90-247-3199-2. p.2
- ^ Kalshoven, Frits and Liesbeth Zegveld (2001). Constraints on the waging of war: An introduction to international humanitarian law. Geneva: ICRC.
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ignored (help) p.40 - ^ Christopher Greenwood in: Fleck, Dieter, ed. (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA. ISBN 0-19-923250-4.
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has generic name (help)CS1 maint: multiple names: authors list (link)p. 20. - ^ "Fritz Munch , History of the Laws of War, in: R. Bernhardt (ed.), Encyclopedia of Public International Law Volume IV (2000), pp. 1386-8.
- ^ Grotius, Book 3, Chapter 1:VI.
- ^ Bernhardt, Rudolf (1992). Encyclopedia of public international law. Amsterdam: North-Holland. ISBN 0-444-86245-5., Volume 2, pp. 933-936
- ^ II Kings 6:21-23
- ^ The Laws of Manu VII.90
- ^ The Laws of Manu VII.91-92 See also, Singh, Nagendra: "Armed conflicts and humanitarian laws of ancient India," in C. Swinarski (1985). Studies and Essays on International Humanitarian Law and Red Cross Principles. The Hague: Kluwer Law International. pp. 531–536. ISBN 90-247-3079-1.
- ^ Khadduri, Majid (2006). War And Peace in the Law of Islam. New York, NY: Lawbook Exchange. ISBN 1-58477-695-1.pp. 103-4.
- ^ Hashmi, Sohail H. (2002). Islamic political ethics: civil society, pluralism, and conflict. Princeton, N.J: Princeton University Press. ISBN 0-691-11310-6. p. 211
- ^ McCoubrey, Hilaire (1999). International Humanitarian Law. Aldershot, UK: Ashgate Publishing. ISBN 1-84014-012-7. pp. 8-13
- ^ Khadduri, Majid (2006). War And Peace in the Law of Islam. New York, NY: Lawbook Exchange. ISBN 1-58477-695-1.pp. 105-106.
- ^ Christopher Greenwood in: Fleck, Dieter, ed. (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA. ISBN 0-19-923250-4.
{{cite book}}
:|author=
has generic name (help)CS1 maint: multiple names: authors list (link)p. 22. - ^ Pictet (1985) p.2.
- ^ Christopher Greenwood in: Fleck, Dieter, ed. (2008). The Handbook of Humanitarian Law in Armed Conflicts. Oxford University Press, USA. ISBN 0-19-923250-4.
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has generic name (help)CS1 maint: multiple names: authors list (link)pp. 27-28. - ^ Kalshoven+Zegveld (2001) p. 34.
- ^ de Preux (1988). Basic rules of the Geneva Conventions and their Additional Protocols, 2nd edition. Geneva: ICRC. p. 1.
- ^ http://www.icrc.org/ihl.nsf/full/195 Articles 30 and 31
- ^ http://fpc.state.gov/documents/organization/7951.pdf CRS-15
References
- Carey, John; Dunlap, William (2003). International Humanitarian Law: Origins (International Humanitarian Law) (International Humanitarian Law). Dobbs Ferry, N.Y: Transnational Pub. ISBN 1-57105-264-X.
{{cite book}}
: CS1 maint: multiple names: authors list (link) - Gardam, Judith Gail (1999). Humanitarian Law (The Library of Essays in International Law). Ashgate Pub Ltd. ISBN 1-84014-400-9.
- Fleck, Dieter (2008). The Handbook of International Humanitarian Law. Second Edition. Oxford University Press, USA. ISBN 0-19-923250-4.
- Forsythe, David P. (2005). The humanitarians: the International Committee of the Red Cross. Cambridge, UK: Cambridge University Press. ISBN 0-521-84828-8.
- Mendis, Chinthaka [Edited by Hemamal Jayawardena] (2007). Application of International Humanitarian Law to United Nations Forces. USA: Zeilan Press. p. 108. ISBN 0-9793624-3-1.
{{cite book}}
:|author=
has generic name (help) - McCoubrey, Hilaire (1999). International Humanitarian Law. Aldershot, UK: Ashgate Publishing. ISBN 1-84014-012-7.
- Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: Sijthoff. ISBN 90-286-0305-0.
- Pictet, Jean (1985). Development and Principles of International Humanitarian Law. Dordrecht: Martinus Nijhoff. ISBN 90-247-3199-2.
- UNESCO Staff (1997). International Dimensions of Humanitarian Law. Berlin: Springer. ISBN 92-3-102371-3.
External links
- [1] - First website on IHL news.
- International humanitarian law- International Committee of the Red Cross website
- Customary international humanitarian law International Committee of the Red Cross
- International humanitarian law database- Treaties and States Parties
- Customary IHL Database
- UN Charter
- [2] James Stewart, Towards a Single Definition of Armed Conflict in International Humanitarian Law http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1946414
- Rule of Law in Armed Conflicts Project
- department, Graduate Institute of International and Development Studies
- Frits Kalshoven and Liesbeth Zegveld, An Introduction to International Humanitarian Law, ICRC, 2001 - Full Text provided by the eLibrary Project (eLib.at)
- International Legal Search Engine provides easy tri-lingual access to the international rules binding a specific country in the field of international human rights and humanitarian law.
- A Brief History Of The Laws Of War
- The Yearbook of International Humanitarian Law and a free Documentation Database of primary source materials.
- Crimes, Trials and Laws
- International Humanitarian Law Research Initiative
- Exploring Humanitarian Law Virtual Campus - Web-based resource center for teachers
- Survivor bashing - bias motivated hate crimes
- Bibliography of International Humanitarian Law by Ingrid Kost and Hans Thyssen
- Armed Conflict & the Law
- Human Rights in the US and the International Community - Humanitarian Law
- Introduction to International Humanitarian Law. Focus eLib.at (Faculty of Law, Vienna University, Austria), 2010.
- Human Rights First; Command’s Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan