Lecture 9 Flashcards
International humanitarian law
Description International humanitarian law (IHL)
- International humanitarian law (IHL) or the laws of armed conflict refers to the body of law which imposes rules on the conduct of armed conflict to mitigate its effects.
o A mix of customary IL and treaty-based law, though the latter is the dominant one today.
o Breaches of IHL are war crimes. - IHL has been controversial because it seeks to balance military necessity with humanity, but in the process humanizes warfare.
- IHL is the result of the merger of the law of the Hague and the law of Geneva
Law of the Hague
Traditionally known as the laws of war, these regulate the conduct of war proper, definition of combatants, conduct of military operations and use of certain types of weapons.
Law of Geneva
Regulates the protection and treatment of those not taking part (civilians) or unable (wounded soldiers, POW) to take part in the fighting.
Tradition and development IHL
- Though its modern iteration dates from the 19th century, many societies have historically had rules concerning the treatment of civilians and wounded and limits on means of war.
- Some of these traditional rules were embodied in treaties later, while others would constitute war crimes today.
- The development of these rules thus tracks not only changing ideas of morality, but also technological changes.
Geneva conventions
o Currently consists of 4 conventions concluded between 1864 and 1949 plus three additional protocols.
o Brainchild of Swiss businessman Henri Dunant in the aftermath of solferino.
o Every country is party to some of it, but not every country is party to all.
Every country is part of the core.
International committee of the red cross
o International NGO which plays an unique role in IHL as the watchdog of the Geneva conventions.
o Private body established under Swiss law and its members have to be Swiss.
o Each country/territory has an affiliate national red cross/crescent/crystal committee.
o Duties have ranged from POW tracking to protecting red cross symbol.
The Hague conventions
o 3 conventions and 3 declarations (1899).
o F14 conventions and declarations (1907).
o Not all of them concerned with IHL, 2 concern the PCA for example.
o Many of the Hague conventions either expired or have been superseded (IV 1 of 1899 on aerial bombardment -> expired and IV, 2 of 1899 on gas was superseded and mostly ignored anyway).
o Convention II of 1899 (convention with respect to the laws and customs of war on land) is the most important one today.
o To the above can be added a number of treaties, such as the chemical weapons convention and the Ottawa convention on landmines.
o Much of the content of these treaties is also mirrored in customary IL and thus binding for non-parties.
Common article 2 of the Geneva convention
Conventions apply to any inter-state war, declared or not, including wars of national liberation (protocol I), with the exception of when a belligerent is neither signatory to the convention nor accepts to abide by them-reciprocity no longer the principle.
Common article 3 of the Geneva convention
Provides for a limited set of protections to those taking no active part in hostilities when the hostilities aren’t of an international character.
Protection of wounded and sick military personnel (1&2 Geneva convention) - Hors combat
o Shall be respected and protected in all circumstances.
o To be treated humanely, on a non-discriminatory basis.
o Cannot be hurt, tortured, killed, left without medical care etc,
o Details have to be recorded and transmitted to the other side.
o Medical establishments must not be attacked, and status to be indicated by distinctive symbol.
Protection of POW (3rd Geneva protocols) - hors combat
o Tied to the definition of combatant status, have to be under effective command structure and distinguish themselves from civilians.
o If an illegal combatant, enjoys the minimum protections common to all but not the protections given to POWs.
o Essentially, POWs have to be kept alive, in good health, and in dignity.
o POWs cannot be mistreated, tortured, humiliated etc.
o They can be required to give basic information (name, rank, service number), but nothing else.
o Can be tried for war crimes or crimes against civil law and punished for offences against military discipline.
o Have to be released and repatriated after the end of hostilities.
Civilians who are protected persons - hors combat
o In the hands of a party to the conflict or occupying power of which they aren’t nationals doesn’t apply to third party nationals whose country isn’t at war with the other party.
o All the essential protections, plus prohibitions on deportations, forced enlistment destruction of property etc.
o Also lays rule for military occupations generally.
- Civilians have to be protected from the effect of hostilities.
Principle of distinction (additional protocol I)
o Parties to the conflict have to distinguish between civilians and combatants, and between civilian and military objectives, at all times.
Indiscriminate attacks
o Are prohibited, as are terror attacks and attacks on civilians (only if they are specifically targeted, that is).
o However, the killing of civilians in and of itself isn’t illegal, if they arise as a side-effect/consequence of an attack on a legitimate military target.
Principle of proportionality
o Harm caused to civilians and civilian property must not be excessive in relation to the concrete and direct military advantage anticipated by attack on military objective.
o Civilian casualties are often now known as collateral damage, a gulf war era euphemism.
