PIL Chapter14

- Public International Law Bar Reviewer -
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Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Chapter XIV
INTERNATIONAL HUMANITARIAN LAW (IHL)
Q. What is International Humanitarian Law?
A. International humanitarian law is a set of rules which seek, for
humanitarian reasons, to limit the effects of armed conflict. It
protects persons who are not or are no longer participating in the
hostilities and restricts the means and methods of warfare. (ICRC
Fact Sheet, What is International Humanitarian Law?)
Q. Where did IHL originate?
A. International humanitarian law is rooted in the rules of ancient
civilizations and religions warfare has always been subject to
certain principles and customs. Universal codification of
International Humanitarian Law began in the 19
th
century. Since
then, States have agreed to a series of practical rules, based on the
bitter experience of modern warfare. These rules strike a careful
balance between humanitarian concerns and the military
requirements of States.
As the international community has grown, an increasing number of
States have contributed to the development of those rules.
International humanitarian law forms today a universal body of law.
(Id.)
Q. What are the sources of IHL?
A. A major part of International Humanitarian Law is contained in the
four Geneva Conventions of 1949. Nearly every State in the world
has agreed to be bound by them. The Conventions have been
developed and supplemented by two further agreements: the
Additional Protocols of 1977 relating to the protection of victims of
armed conflicts.
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Other agreements prohibit the use of certain weapons and military
tactics and protect certain categories of people and goods. These
agreements include:
a) the 1954 Convention for the Protection of Cultural Property in
the Event of Armed Conflict, plus its two protocols;
b) the 1972 Biological Weapons Convention;
c) the 1980 Conventional Weapons Convention and its five
protocols;
d) the 1993 Chemical Weapons Convention;
e) the 1997 Ottawa Convention on anti-personnel mines;
f) the 2000 Optional Protocol to the Convention on the Rights of
the Child on the involvement of children in armed conflict.
Many provisions of International Humanitarian Law are now
accepted as customary law that is, as general rules by which all
States are bound. (Id.)
Q. Does IHL concern itself with the legality of the commencement
of hostilities or justification of war or of the armed conflict?
A. No, the legality of the war or the justification for the commencement
of the hostilities is irrelevant in IHL. IHL deals with jus in bello
(justice in war), not with jus ad bellum (justice of war). The
Preamble of Protocol I states that the provisions of the Geneva
Conventions and of this Protocol must be fully applied in all
circumstances to all persons who are protected by those instruments,
without any adverse distinction based on the nature or origin of the
armed conflict or on the causes espoused by or attributed to the
Parties to the conflict.
Q. Distinguish IHL from International Human Rights Law.
A. International humanitarian law and international human rights law
are two distinct but complementary bodies of law. Both seek to
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protect the individual from arbitrary action and abuse, with a view to
safeguarding the fundamental rights of the individual.
Human rights law achieves this objective in a comprehensive way
insofar as they cover almost all aspects of life. Their rules must be
applied to all persons and be respected in all circumstances, except
in emergency cases where derogation from rights is allowed.
Humanitarian law, however, is a specialized body of human rights
law, fine tuned for times of armed conflict. Its provisions are
formulated in such a way as to take into account the special
circumstances of warfare. They may not be abrogated under any
circumstances. Usually they apply across the front line, i.e. the
armed forces have to respect humanitarian law in their dealings with
the enemy (and not in the relations with their own nationals). Some
of its provisions have no equivalent in human rights law, in
particular the rules on the conduct of hostilities or on the use of
weapons.
A. THE GENEVA CONVENTIONS AND THE
ADDITIONAL PROTOCOLS
Q. What are the Geneva Conventions?
A. The Geneva Conventions are four treaties adopted in 1949 that set
the standards for the humanitarian law in armed conflicts. They
consist of the following:
a) Geneva Convention I for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field;
b) Geneva Convention II for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea;
c) Geneva Convention III relative to the Treatment of
Prisoners of War; and
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d) Geneva Convention IV relative to the Protection of Civilian
Persons in Time of War
Q. What are the 3 Protocols additional to the 1949 Geneva
Conventions?
a) Protocol I of 1977 relating to the Protection of Victims of
International Armed Conflicts;
b) Protocol II of 1977 relating to the Protection of Victims of
Non-International Armed Conflicts;
c) Protocol III of 2005 relating to the Adoption of an Additional
Distinctive Emblem.
Q. Give the seven fundamental rules which are the basis of the
Geneva Conventions and the Additional Protocols.
a) Persons hors de combat (out of combat / out of the fight) and
those who do not take a direct part in hostilities are entitled to
respect for their lives and their moral and physical integrity.
They shall in all circumstances be protected and treated
humanely without any adverse distinction.
b) It is forbidden to kill or injure an enemy who surrenders or who
is hors de combat.
c) The wounded and sick shall be collected and cared for by the
party to the conflict which has them in its power. Protection
also covers medical personnel, establishments, transports and
equipment. The emblem of the Red Cross or the Red Crescent
is the sign of such protection and must be respected
d) 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.
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e) 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.
f) 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.
g) Parties to a conflict shall at all times distinguish between the
civilian population and combatants in order to spare civilian
population and property. Neither the civilian population as
such nor civilian persons shall be the object of attack. Attacks
shall be directed solely against military objectives.
Q. What is the Martens Clause?
A. The Martens Clause was first included in The Hague Convention II
with Respect to the Laws and Customs of War on Land of 1899 and
which has proved to be an effective means of addressing the rapid
evolution of military technology.
A modern version of the clause is to be found in Article 1, paragraph
2, of Additional Protocol I of 1977, which reads as follows:
In cases not covered by this Protocol or by other international
agreements, 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.
1. TYPES OF CONFLICTS COVERED
Q. When do the Geneva Conventions apply?
A. Common Article 2 of the Geneva Conventions provides that in
addition to the provisions which shall be implemented in peacetime,
the Conventions shall apply to all cases of declared war or of any
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other armed conflict which may arise between two or more of the
High Contracting Parties, even if the state of war is not recognized
by one of them.
The Conventions shall also apply to all cases of partial or total
occupation of the territory of a High Contracting Party, even if the
said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the
present Convention, the Powers who are parties thereto shall remain
bound by it in their mutual relations. They shall furthermore be
bound by the Convention in relation to the said Power, if the latter
accepts and applies the provisions thereof.
Q. What kind of armed conflicts are governed by IHL?
A. International humanitarian law applies to two kinds of armed
conflicts:
a) International armed conflicts are those in which at least two
States are involved. The Common Article 2 of the Geneva
Conventions defines an international armed conflict as
including all cases of declared war or of any other armed
conflict which may arise between two or more states which are
parties to the Conventions, even if the state of war is not
recognized by one of them and all cases of partial or total
occupation of the territory of a State Party, even if the said
occupation meets with no armed resistance. International
armed conflicts are governed by the Geneva Conventions and
Additional Protocol I;
b) Non-international armed conflicts are those restricted to the
territory of a single State, involving either regular armed forces
fighting groups of armed dissidents, or armed groups fighting
each other. They are governed by the common Article 3 to the
four Geneva Conventions as well as by the Additional Protocol
II.
Q. What is a war of national liberation?
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A. A war of national liberation is a conflict in which peoples are
fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-
determination, as enshrined in the U.N. Charter and the Declaration
on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the U.N. Charter.
(Protocol I, Art. 1[4])
Q. How would you classify a war of national liberation?
A. Under Article 1(4) of Addition Protocol I of 8 J une 1977, a war of
national liberation must also be treated as a conflict of an
international character.
Q. Discuss the test for determining the existence of an internal
armed conflict?
A. The test for determining the existence of an internal armed conflict is
whether there is a resort to armed force between States or
protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State.
(Tadic Jurisdiction Decision, ICTY-IT-94-1-AR72, 2 October 1995)
Under this test, in establishing the existence of an armed conflict of
an internal character, two criteria must be assessed:
a) the intensity of the conflict consider factors such as the
seriousness of attacks and whether there has been an increase
in armed clashes, the spread of clashes over territory and over a
period of time, any increase in the number of government
forces and mobilization and the distribution of weapons among
both parties to the conflict, as well as whether the conflict has
attracted the attention of the U.N. Security Council, and,
whether any resolutions on the matter have been passed;
b) the organization of the parties. take into account factors
including the existence of headquarters, designated zones of
operation, and the ability to procure, transport, and distribute
arms.
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These criteria are used solely for the purpose, as a minimum, of
distinguishing an armed conflict from banditry, unorganized and
short-lived insurrections, or terrorist activities, which are not subject
to International Humanitarian Law. (Prosecutor v. Limaj, ICTY-IT-
03-66-T, November 30, 2005)
Article 8 of the Rome Statute of the International Criminal Court
adopts a test similar to the test formulated in the Tadic J urisdiction
Decision. It defines an internal armed conflict by the same two
characteristics, protracted armed conflict and organized armed
groups, without including further conditions. The Rome Statute
further clarifies that it does not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of
violence or other acts of a similar nature.
Q. Does IHL govern non-international (internal) armed conflicts?
A. Yes. The common Article 3 to the four Geneva Conventions of 1949
enjoins the parties to an internal or a non-international armed
conflict to apply certain minimum humanitarian principles which
constitute the foundation of respect for the human person.
Common Article 3 is binding not only on governments but also on
insurgents. However, it shall not affect the legal status of the Parties
to the conflict.
Additional Protocol II of 1977 supplements the Common Article 3
with a number of more specific provisions.
Q. Who are bound by IHL?
A. International humanitarian law lays down rules that are applicable to
both state and non-state actors. It binds all actors to an armed
conflict:
a) in international conflicts, it binds the states involved; and
b) in internal conflicts, it binds the government, as well the groups
fighting against it or among themselves.
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Q. Are individuals also bound by IHL?
A. Yes, International Humanitarian Law imposes obligations on
individuals. Individuals may be held criminally responsible for
grave breaches of the Geneva Conventions and of Additional
Protocol I, and for other serious violations of the laws and customs
of war (war crimes). International humanitarian law further
establishes universal jurisdiction over persons suspected of having
committed all such acts. With the entry into force of the International
Criminal Court, individuals will also be accountable for war crimes
committed in non-international armed conflict.
2. PROTECTIONS
Q. Who are protected persons in IHL?
A. International humanitarian law is intended principally for the parties
to the conflict and protects every individual or category of
individuals not or no longer actively involved in the conflict, i.e.:
a) Under Geneva Convention I, the wounded or sick military
personnel in land warfare, and members of the armed forces
medical services;
b) Under Geneva Convention II, the wounded, sick or
shipwrecked military personnel in naval warfare, and members
of the naval forces medical services;
c) Under Geneva Convention III, prisoners of war;
d) Under Geneva Convention IV, the civilian population, for
example:
1. foreign civilians on the territory of parties to the conflict,
including refugees;
2. civilians in occupied territories;
3. civilian detainees and internees;
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4. medical and religious personnel or civil defense units.
Q. What are the basic protections under IHL?
A. International humanitarian law protects those who do not take part in
the fighting, such as civilians and medical and religious military
personnel. It also protects those who have ceased to take part, such
as wounded, shipwrecked and sick combatants, and prisoners of war.
These categories of person are entitled to respect for their lives and
for their physical and mental integrity. They also enjoy legal
guarantees. They must be protected and treated humanely in all
circumstances, with no adverse distinction.
More specifically: it is forbidden to kill or wound an enemy who
surrenders or is unable to fight; the sick and wounded must be
collected and cared for by the party in whose power they find
themselves. Medical personnel, supplies, hospitals and ambulances
must all be protected. There are also detailed rules governing the
conditions of detention for prisoners of war and the way in which
civilians are to be treated when under the authority of an enemy
power. This includes the provision of food, shelter and medical care,
and the right to exchange messages with their families. (ICRC Fact
Sheet, What is International Humanitarian Law?)
a. Combatants
Q. Who are combatants?
A. Combatants are individuals who are legally entitled to take part in
hostilities. Combatants include not only members of the armed
forces of a state involved in a conflict, but also citizens who rise in a
levee en masse and members of organized resistance groups who
fulfill the criteria of being commanded by a responsible superior,
wearing some type of uniform, carrying firearm openly, and obeying
the laws and customs of war. (Malone, 155)
Q. Are combatants subject to attack?
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A. Yes. Under the law of armed conflict, an active combatant is subject
to attack at any time.
Q. What protections, if any, are afforded to combatants under
IHL?
A. The only protections given to combatants under International
Humanitarian Law consist in the limitations on weapons and tactics.
However, when a combatant is wounded, sick or has surrendered,
they may not be subjected to further attack. Moreover, he must also
be provided with medical care. These protections are covered by The
Hague Convention IV, and the Geneva Conventions I and II.
Q. When is a person considered hors de combat (out of combat)?
A. A person is hors de combat if:
a) he is in the power of an adverse Party;
b) he clearly expresses an intention to surrender; or
c) he has been rendered unconscious or is otherwise incapacitated
by wounds or sickness, and therefore is incapable of defending
himself;
provided that in any of these cases he abstains from any hostile act
and does not attempt to escape. (Protocol I, Art. 41)
Q. What are the safeguards of an enemy hors de combat?
A. A person who is recognized or who, in the circumstances, should be
recognized to be hors de combat shall not be made the object of
attack. (Protocol I, Art. 41[1])
b. Wounded, Sick and Shipwrecked
Q. What does wounded and sick mean?
A. Wounded and sick mean persons, whether military or civilian,
who, because of trauma, disease or other physical or mental disorder
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or disability, are in need of medical assistance or care and who
refrain from any act of hostility. These terms also cover maternity
cases, new-born babies and other persons who may be in need of
immediate medical assistance or care, such as the infirm or expectant
mothers, and who refrain from any act of hostility. (Protocol I, Art.
8[a])
Q. What does shipwrecked mean?
A. Shipwrecked means persons, whether military or civilian, who are
in peril at sea or in other waters as a result of misfortune affecting
them or the vessel or aircraft carrying them and who refrain from
any act of hostility. These persons, provided that they continue to
refrain from any act of hostility, shall continue to be considered
shipwrecked during their rescue until they acquire another status
under the Conventions or under Protocol I. (Protocol I, Art. 8[b])
Q. What are the basic protections given to the wounded, sick and
shipwrecked?
A. All the wounded, sick and shipwrecked, to whichever Party they
belong, shall be respected and protected. In all circumstances they
shall be treated humanely and shall receive, to the fullest extent
practicable and with the least possible delay, the medical care and
attention required by their condition. There shall be no distinction
among them founded on any grounds other than medical ones.
(Protocol I, Art. 10)
c. Prisoners of War
Q. Who are prisoners of war?
A. Prisoners of war are lawful combatants who have fallen into the
power of the enemy.
Q. Soldiers of an army in battle shed their uniforms, concealed
their weapons, put on civilian clothes, mixed with the civilian
population in the area occupied by the enemy, and once having
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succeeded in infiltrating across the enemy lines in numbers,
suddenly produced their hidden weapons and attacked the
enemy at the rear. When caught prisoners, will they be entitled
to treatment as prisoners of war? May they be shot without
trial? (Bar 1950)
A. No, the soldiers will not be entitled to treatment as prisoners of war.
While as a general rule, violations of the rules of International Law
applicable in armed conflict shall not deprive combatants of their
right to be combatants or, if they fall into the power of an adverse
Party, of their right to be a prisoners of war. (Protocol I, Art. 44[2])
However, combatants who failed to distinguish themselves from the
civilian population while they are engaged in an attack or in a
military operation preparatory to an attack will not be entitled to
treatment as prisoners of war when they fall in enemy hands. (Id.,
Art. 44[3])
However, the soldiers may not be shot without trial. Their failure to
distinguish themselves from civilians during the attack and to carry
their weapons openly results only in the forfeiture of their right to be
prisoners of war, but they would still be given protections equivalent
in all respects to those accorded to prisoners of war under the Third
Geneva Convention and by the Additional Protocol I. These
protections include those accorded to prisoners of war by the Third
Geneva Convention in the case where such a person is tried and
punished for any offences he has committed. (Id., Art. 44[4])
Q. Are members of militias or volunteer groups entitled to
prisoner-of-war status when captured by the enemy?
A. Yes. Members of militias or volunteer corps are entitled to prisoner-
of-war status when they fall in enemy hands if:
a) they form part of such armed forces of the state; or
b) they fulfill the following conditions:
1. they are being commanded by a person responsible
superior;
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2. they have a fixed distinctive sign recognizable at a
distance;
3. they carry arms openly;
4. they conduct their operations in accordance with the laws
and customs of war. (Geneva Convention III, Art. 4(A.1, 2))
Q. Is guerilla warfare recognized under International Law and may
a captured guerilla demand treatment afforded a prisoner of
war under the 1949 Geneva Convention? (Bar 1982)
A. Yes, guerilla warfare is recognized under International Law and a
captured guerilla or other members of organized resistance
movement may demand treatment as a prisoner of war under the
Geneva Conventions, provided that: they are being commanded by a
person responsible superior; they have a fixed distinctive sign
recognizable at a distance; they carry arms openly; and they conduct
their operations in accordance with the laws and customs of war.
(Geneva Convention III, Art. 4(A.1, 2))
Q. Are persons who accompany the armed forces without actually
being members thereof entitled to prisoner-of-war status when
they fall in enemy hands?
A. Yes, persons who accompany the armed forces without actually
being members thereof, such as civilian members of military aircraft
crews, and war correspondents, shall be entitled to prisoner-of-war
status when they fall in enemy hands. (Geneva Convention III, Art.
4(A.4))
Q. What is the status of journalists who are engaged in dangerous
professional missions in areas of armed conflict under IHL?
A. J ournalists engaged in dangerous professional missions in areas of
armed conflict shall be considered as civilians. They shall be
protected as such under the Convention IV and Protocol I, provided
that they take no action adversely affecting their status as civilians,
and without prejudice to the right of war correspondents accredited
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to the armed forces to the prisoner-of-war status under the
Convention III when they fall in enemy hands. (Protocol I, Art. 79)
Q. A newspaper correspondent following an army was caught by
the enemy while trying to send reports of a battle to his home
office. Is he entitled to treatment as a prisoner of war or may he
be treated as a spy? (Bar 1950)
A. He is entitled to treatment as a prisoner of war. Under Article
4(A)(4) of the 3
rd
Geneva Convention, persons who accompany the
armed forces without actually being members thereof, such as war
correspondents, shall be entitled to prisoner-of-war status when they
fall in enemy hands.
Q. What is the status of the inhabitants of a non-occupied territory
under IHL, who on the approach of the enemy spontaneously
take up arms to resist the invading force?
A. They shall be entitled to prisoner-of-war status, provided they carry
arms openly and respect the laws and customs of war. (Geneva
Convention III, Art. 4(A.6)
Q. Are spies entitled to prisoner-of-war status when captured by
the enemy?
A. No. Any member of the armed forces of a Party to the conflict who
falls into the power of an adverse Party while engaging in espionage
shall not have the right to the status of prisoner of war and may be
treated as a spy.
However, the following acts of gathering or attempting to gather
information shall not be considered as acts of espionage:
a) When made by a member of the armed forces who is in
uniform;
b) When made by a member of the armed forces who is a resident
of territory occupied by an adverse who does so but not
through an act of false pretences or deliberately in a clandestine
manner. (Protocol I, Art. 46)
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Q. Who is a mercenary? Do they have the right to be a combatant
or a prisoner of war?
A. A mercenary is any person who:
a) is specially recruited locally or abroad in order to fight in an
armed conflict;
b) does, in fact, take a direct part in the hostilities;
c) is motivated to take part in the hostilities essentially by the
desire for private gain and, in fact, is promised, by or on behalf
of a Party to the conflict, material compensation substantially
in excess of that promised or paid to combatants of similar
ranks and functions in the armed forces of that Party;
d) is neither a national of a Party to the conflict nor a resident of
territory controlled by a Party to the conflict;
e) is not a member of the armed forces of a Party to the conflict;
and
f) has not been sent by a State which is not a Party to the conflict
on official duty as a member of its armed forces.
A mercenary shall not have the right to be a combatant or a prisoner
of war. (Protocol I, Art. 47)
Q. What are the basic protections given to prisoners of war?
A. Prisoners of war are entitled to the following basic protections:
a) They may only be transferred by the Detaining Power to a
Power which is also a party to the Geneva Convention III.
(Geneva Convention III, Art. 12);
b) They must at all times be humanely treated. Any unlawful act
or omission by the Detaining Power causing death or seriously
endangering the health of a prisoner of war in its custody is
prohibited, and will be regarded as a serious breach of
Convention III. In particular, no prisoner of war may be
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subjected to physical mutilation or to medical or scientific
experiments of any kind which are not justified by the medical,
dental or hospital treatment of the prisoner concerned and
carried out in his interest. (Id., Art. 13)
c) They must at all times be protected, particularly against acts of
violence or intimidation and against insults and public
curiosity. Measures of reprisal against prisoners of war are
prohibited. (Id.)
d) They shall be provided free of charge for their maintenance and
for the medical attention required by their state of health. (Id.,
Art. 15)
e) They shall be treated alike by the Detaining Power, without
any adverse distinction based on race, nationality, religious
belief or political opinions, or any other distinction founded on
similar criteria. (Id., Art. 16)
f) Women shall be treated with all the regard due to their sex and
shall in all cases benefit by treatment as favorable as that
granted to men. (Id., Art. 14)
g) Women shall be held in quarters separated from mens
quarters. They shall be under the immediate supervision of
women. Nevertheless, in cases where families are detained or
interned, they shall, whenever possible, be held in the same
place and accommodated as family units. (Protocol I, Art.
75[5])
Q. In 2004, allegations regarding the mistreatment of Iraqi
detainees by U.S. Coalition Forces particularly as regards the
Abu Ghraib prison in Baghdad began to be reported in the
media. Graphic photos depicting U.S. soldiers abusing Iraqi
prisoners in various ways were aired by CBS on 60 Minutes II on
Wednesday, April 28, 2004. Major General Antonio Taguba was
appointed to conduct an informal investigation. The Taguba
report describes incidents of sadistic, blatant, and wanton
criminal abuses inflicted on several detainees which were
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systemic and illegal. The report presents a catalog of offenses
including, inter alia, physical abuse, videotaping and
photographing naked male and female detainees, posing
detainees in various sexually explicit positions for
photographing, forcing detainees to remove their clothing and
remain naked for several days at a time, a male MP guard
having sex with a female detainee and using military working
dogs, without muzzles, to intimidate and frighten detainees, and
in at least one case biting and severely injuring a detainee.
a) Are the U.S. Coalition Forces subject to International
Humanitarian Law?
b) Are the Geneva Conventions of 1949 applicable to the
conflict? If yes, then cite some specific rules of the Geneva
Conventions that apply.
A. a) Yes, the U.S. Coalition Forces in Iraq are subject to International
Humanitarian Law. U.N. Security Council Resolution 1483 (May
22, 2003) called upon all States to observe their obligations
under the Geneva Conventions of 1949 and the Hague
Regulations of 1907, and the Taguba Report notes that all Enemy
Prisoners of War (EPWs) and Civilian Internees should receive
the full protection of the Geneva Conventions, unless the denial
of these protections is due to specifically articulated military
necessity.
b) Yes, both Geneva Convention III (Relative to Prisoners of War)
and Geneva Convention IV (Relative to the Protection of
Civilian Persons in Time of War) are applicable to the conflict.
The following principles of the Geneva Conventions III shall
apply:
a) Prisoners of war must at all times be humanely treated
Likewise, prisoners of war must at all times be protected,
particularly against acts of violence or intimidation and
against insults and public curiosity. (Art. 13)
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b) Outrages upon personal dignity, and humiliating and
degrading treatment are prohibited. (Common Article 3)
The following principles of the Geneva Convention IV shall
apply:
a) Civilians are entitled, in all circumstances, to respect for their
persons, their honor, their family rights, their religious
convictions and practices, and their manners and customs.
They shall at all times be humanely treated, and shall be
protected especially against all acts of violence or threats
thereof and against insults and public curiosity. (Art. 27)
b) In each case, such persons shall nevertheless be treated with
humanity and, in case of trial, shall not be deprived of the
rights of fair and regular trial prescribed by the present
Convention. They shall also be granted the full rights and
privileges of a protected person under the present Convention
at the earliest date consistent with the security of the State or
Occupying Power, as the case may be. (Art. 5)
c) No physical or moral coercion shall be exercised against
protected persons, in particular to obtain information from
them or from third parties. (Art. 31)
d) Murder, torture, corporal punishments, mutilation and
medical or scientific experiments, and any other measures of
brutality whether applied by civilian or military agents are
prohibited. (Art. 32)
d. Civilians
Q. Who is a civilian?
A. A civilian is any person who does not belong to armed force and
who is not a combatant. In case of doubt whether a person is a
civilian, that person shall be considered to be a civilian. (Protocol I,
Art. 50)
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Q. What does the civilian population comprise?
A. The civilian population comprises all persons who are civilians. The
presence within the civilian population of individuals who do not
come within the definition of civilians does not deprive the
population of its civilian character. (Id.)
Q. What are the basic protections for civilians and the civilian
population?
A. The civilian population and individual civilians shall enjoy general
protection against dangers arising from military operations. To give
effect to this protection, the following rules, which are additional to
other applicable rules of International Law, shall be observed in all
circumstances.
a) The civilian population as such, as well as individual civilians,
shall not be the object of attack. Acts or threats of violence the
primary purpose of which is to spread terror among the civilian
population are prohibited;
b) Attacks against the civilian population or civilians by way of
reprisals are prohibited. (Protocol I, Art. 51)
Q. Reden, Jolan and Andy, Filipino tourists, were in Bosnia-
Herzegovina when hostilities erupted between the Serbs and the
Moslems. Penniless and caught in the crossfire, Reden, Jolan
and Andy, being retired generals, offered their services to the
Moslems for a handsome salary, which offer was accepted.
When the Serbian National Guard approached Sarajevo, the
Moslem civilian population spontaneously took up arms to resist
the invading troops. Not finding time to organize, the Moslems
wore armbands to identify themselves, vowing to observe the
laws and customs of war. The three Filipinos fought side by side
with the Moslems. The Serbs prevailed resulting to the capture
of Reden, Jolan and Andy, and part of the civilian fighting force.
c) Are Reden, Jolan and Andy considered to be combatants
thus entitled to treatment as prisoners of war?
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d) Are the captured civilians likewise prisoners of war? (Bar
1993)
A. a) No, Reden, J olan and Andy are mercenaries. Therefore, they shall
not have the right to be a combatant or a prisoner of war.
(Protocol I, Art. 47)
Reden, J olan and Andy are mercenaries because they are neither
a national of a Party to the conflict nor a resident of territory
controlled by a Party to the conflict as they were mere tourists,
they are not a member of the armed forces of a Party to the
conflict, they actually took a direct party in the hostilities after
having been recruited to fight in the armed conflict, and they
were motivated to take part therein essentially by the desire for
private gain.
b) Yes, the captured civilians are prisoner of war and they should be
treated as such Article 4(A)(6) of the Vienna Convention III
states that inhabitants of a non-occupied territory, who on the
approach of the enemy spontaneously take up arms to resist the
invading forces, without having had time to form themselves into
regular armed units, and who carry arms openly and respect the
laws and customs of war shall be considered as prisoners of war
when they fall in the power of the enemy.
Q. What are civilian objects?
A. Civilian objects are all objects which are not military objectives. In
so far as objects are concerned, military objectives are limited to
those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at
the time, offers a definite military advantage.
In case of doubt whether an object which is normally dedicated to
civilian purposes, such as a place of worship, a house or other
dwelling or a school, is being used to make an effective contribution
to military action, it shall be presumed not to be so used. (Protocol I,
Art. 52)
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Q. What protections are provided, if any, to the natural
environment?
A. Care shall be taken in warfare to protect the natural environment
against widespread, long-term and severe damage. This protection
includes a prohibition of the use of methods or means of warfare
which are intended or may be expected to cause such damage to the
natural environment and thereby to prejudice the health or survival
of the population. Attacks against the natural environment by way of
reprisals are also prohibited. (Protocol I, Art. 55)
3. COMMON ARTICLE 3
Q. What is Common Article 3 of the Geneva Conventions of 1949?
A. Common Article 3 to the Geneva Conventions of 1949 enjoins the
parties to an internal or a non-international armed conflict to apply
certain minimum humanitarian principles which constitute the
foundation of respect for the human person in cases of armed
conflict not of an international character.
Q. What is the scope of the Common Article 3?
A. Article 3, which is common to all the four Geneva Conventions of
1949, is applicable in case of armed conflict not of international
character occurring in the territory of one of the contracting parties
to the 1949 Conventions. It also applies to a situation where the
conflict is within the State, between the Government and the rebel
forces or between the rebel forces themselves. Article 3 offers an
international minimum protection to persons taking no active part in
hostilities, including members of armed forces in certain situations
specifically stated in the article.
Q. How is Protocol II related to Common Article 3?
A. Protocol II is supplementary to Common Article 3. It expands the
material field of application of the Common Article 3 to all armed
conflicts which are not of an international character and which take
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place in the territory of a State Party to the Geneva Conventions
between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to
implement the Protocol. (Protocol II, Art. 1[1])
Q. Are the provisions of Common Article 3 and Protocol II
applicable to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and other
acts of a similar nature?
A. No. Article 1(2) of Additional Protocol II of 1977 to the Geneva
Conventions of 1949, which applies to non-international armed
conflict, states its provisions shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed
conflicts.
Q. Are terrorist activities subject to IHL?
A. No. Banditry, unorganized and short-lived insurrections, and terrorist
activities are not subject to International Humanitarian Law.
(Prosecutor v. Limaj, et al., ICTY- IT-03-66-T, November 30, 2005)
Q. What are the minimum protections that each party to an
internal armed conflict has to observe under the Common
Article 3?
A. Article 3 provides that in the case of armed conflict not of an
international character, each party to the conflict shall be bound to
apply, as a minimum, the following provisions:
a) Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention, or
any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, color, religion
or faith, sex, birth or wealth, or any other similar criteria.
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To this end, the following acts are and shall remain prohibited
at any time and in any place whatsoever with respect to the
above-mentioned persons:
b) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
c) taking of hostages;
d) outrages upon personal dignity, in particular humiliating and
degrading treatment;
e) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.
f) The wounded and sick shall be collected and cared for.
Q. Does Common Article 3 impose individual criminal
responsibility?
A. Yes, violations of Common Article 3 entails individual criminal
responsibility for war crimes. Principles and rules of humanitarian
law reflect elementary considerations of humanity widely
recognized as the mandatory minimum for conduct in armed
conflicts of any kind. No one can doubt the gravity of the acts at
issue or the interest of the international community in their
prohibition. While the Common Article 3 of the Geneva
Conventions contains no explicit reference to criminal liability for
violation of its provisions, the International Military Tribunal at
Nuremberg concluded that a finding of individual criminal
responsibility is not barred by the absence of treaty provisions on
punishment of breaches. (ICTY Judgement, Prosecutor v. Tadic,
Appeals Chamber, October 2, 1995, pars. 128-129)
Q. Has Common Article 3 acquired the status of customary law?
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A. Yes, it is now well established that Common Article 3 has acquired
the status of customary international law. (Prosecutor v. Naletilic,
ICTY-IT-98-34-T, March 31, 2003)
Q. Is Common Article 3 applicable to international armed
conflicts?
A. Yes. It is both legally and morally untenable that the rules contained
in Common Article 3, which constitute mandatory minimum rules
applicable to internal conflicts, in which rules are less developed
than in respect of international conflicts, would not be applicable to
conflicts of an international character. It is logical that this minimum
be applicable to international conflicts as the substance of these core
rules is identical. Something which is prohibited in internal conflicts
is necessarily outlawed in an international conflict where the scope
of the rules is broader. (ICTY Judgement, Prosecutor v. Mucic et al.,
Appeals Chamber, February 20, 2001, pars. 140-150)
4. LIMITATIONS ON THE MEANS AND METHODS OF
WARFARE
Q. Give the basic rules on the means and methods of warfare.
A. The Basic rules on the means and methods of warfare are:
a) In any armed conflict, the right of the Parties to the conflict to
choose methods or means of warfare is not unlimited.
b) It is prohibited to employ weapons, projectiles and material and
methods of warfare of a nature to cause superfluous injury or
unnecessary suffering.
c) It is prohibited to employ methods or means of warfare which
are intended, or may be expected, to cause widespread, long-
term and severe damage to the natural environment. (Protocol
1, Art. 35)
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Humanitarian law therefore bans the use of many weapons,
including exploding bullets, chemical and biological weapons,
blinding laser weapons and anti-personnel mines.
Q. What is the principle of discrimination?
A. Article 48 of Protocol I embodies the basic on discrimination. It
states that 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.
The civilian population as such, as well as individual civilians, shall
not be the object of attack. (Protocol I, Art. 51[2])
Q. What are indiscriminate attacks? Are they prohibited?
A. Yes, International Humanitarian Law prohibits indiscriminate
attacks. Indiscriminate attacks strike military objectives and civilians
or civilian objects without distinction. They are not directed at a
specific military objective or they employ a method or means of
combat which cannot be directed at a specific military objective.
(Protocol I, Art. 51[2])
Among others, the following types of attacks are to be considered as
indiscriminate:
a) an attack by bombardment by any methods or means which
treats as a single military objective a number of clearly
separated and distinct military objectives located in a city,
town, village or other area containing a similar concentration of
civilians or civilian objects; and
b) an attack which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to
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the concrete and direct military advantage anticipated. (Id., Art.
51[5])
Q. Will the presence of civilians render a military target immune
from attack?
A. No. The presence or movements of the civilian population or
individual civilians shall not be used to render certain points or areas
immune from military operations, in particular in attempts to shield
military objectives from attacks or to shield, favor or impede
military operations. The Parties to the conflict shall not direct the
movement of the civilian population or individual civilians in order
to attempt to shield military objectives from attacks or to shield
military operations. (Protocol I, Art. 51[7])
Q. Define military objective?
A. Article 52(2) of Protocol I defines military objectives, incorporating
the principle of necessity:
Military objectives are limited to those objects which by their
nature, location, purpose or use make an effective contribution to
military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a
definite military advantage.
Q. What is the Principle of Proportionality?
A. The principle of proportionality prohibits attacking a military
objective if doing so will result in a loss of civilian life, damage to
civilian property or damage to the natural environment that
outweighs the value of the objective. Any use of force, to be lawful,
must be proportionate.
The principle is a sub-component of the broader prohibition against
indiscriminate attacks. It is embodied in Article 51(5)(b) of the 1977
Protocol I to the 1949 Geneva Conventions and it is actually one
type of prohibited indiscriminate attacks. An indiscriminate violating
the principle of proportionality is one which may be expected to
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cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive
in relation to the concrete and direct military advantage anticipated.
Proportionality is best understood as an imputed indiscriminate
attack. When an attack on an otherwise lawful military objective
inflicts excessive collateral damage or incidental injury, it is treated
for purposes of the law of armed conflict as indiscriminate, and
therefore prohibited. Note that the key term in this analysis is not
disproportionate, but instead excessive. (Corn)
Q. Cite some prohibited methods and tactics of warfare.
A. The Hague Regulations Respecting the Laws and Customs of War on
Land (Annex to Hague Convention IV, October 18, 1907) provides
that the following methods and tactics are forbidden:
a) To kill or wound treacherously individuals belonging to the
hostile nation or army;
b) To kill or wound an enemy who, having laid down his arms, or
having no longer means of defence, has surrendered at
discretion;
c) To declare that no quarter will be given;
d) To make improper use of a flag of truce, of the national flag or
of the military insignia and uniform of the enemy, as well as
the distinctive badges of the Geneva Convention;
e) To destroy or seize the enemy's property, unless such
destruction or seizure be imperatively demanded by the
necessities of war;
f) To declare abolished, suspended, or inadmissible in a court of
law the rights and actions of the nationals of the hostile party;
g) To compel the nationals of the hostile party to take part in the
operations of war directed against their own country, even if
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they were in the belligerent's service before the commencement
of the war. (Art. 23)
Q. What constitutes perfidy? Is it prohibited? Give examples.
A. Perfidy consists of acts is inviting the confidence of an adversary to
lead him to believe that he is entitled to, or is obliged to accord,
protection under the rules of International Law applicable in armed
conflict, with intent to betray that confidence. (Protocol I, Art.
37[1])
Yes, it is prohibited to kill, injure or capture an adversary by resort
to perfidy. (Id.)
The following acts are examples of perfidy:
a) The feigning of an intent to negotiate under a flag of truce or of
a surrender;
b) The feigning of an incapacitation by wounds or sickness;
c) The feigning of civilian, non-combatant status; and
d) The feigning of protected status by the use of signs, emblems
or uniforms of the United Nations or of neutral or other States
not Parties to the conflict.
Q. What are ruses of war? Are they prohibited? Give examples.
A. Ruses of war are acts which are intended to mislead an adversary or
to induce him to act recklessly but which infringe no rule of
International Law applicable in armed conflict and which are not
perfidious because they do not invite the confidence of an adversary
with respect to protection under that law. (Protocol I, Art. 37[2])
No, ruses of war are not prohibited. (Id.)
The following are examples of ruses of war:
a) The use of camouflage;
b) Decoys;
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c) Mock operations;
d) Misinformation.
Q. Cite some prohibitions on the types of weaponry.
A. The following are some of the prohibited types of weaponry:
a) Explosive Projectiles under 400 grams (St. Petersburg Treaty
of 1868)
b) Poison or poisoned weapons (Hague Regulations of 1907,
Annex to Hague IV, Art. 23[a])
c) Arms, projectiles, or material calculated to cause unnecessary
suffering (Id., Art. 23[e])
d) Expanding (dum-dum) bullets or projectiles (Third Hague
Declarations of 1899)
e) Chemical and bacteriological weapons, including poisonous
and asphyxiating gases (Geneva Protocol of 1925);
f) Nuclear weapons (Treaty on the Non-Proliferation of Nuclear
Weapons (NPT), extended indefinitely in 1995)
Q. What are the three pillars of the Nuclear Non-Proliferation
Treaty (NPT or NNPT)?
A. The Nuclear Non-Proliferation Treaty which entered into force in
1970 is often summarized in three pillars:
a) Non-proliferation,
Art. I. Each nuclear-weapon State Party to the Treaty
undertakes not to transfer to any recipient whatsoever
nuclear weapons or other nuclear explosive devices or
control over such weapons or explosive devices directly, or
indirectly; and not in any way to assist, encourage, or
induce any non-nuclear-weapon State to manufacture or
otherwise acquire nuclear weapons or other nuclear
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explosive devices, or control over such weapons or
explosive devices.
Art. II. Each non-nuclear-weapon State Party to the Treaty
undertakes not to receive the transfer from any transferor
whatsoever of nuclear weapons or other nuclear explosive
devices or of control over such weapons or explosive
devices directly, or indirectly; not to manufacture or
otherwise acquire nuclear weapons or other nuclear
explosive devices; and not to seek or receive any assistance
in the manufacture of nuclear weapons or other nuclear
explosive devices.
b) Disarmament, and
Art. VI. Each of the Parties to the Treaty undertakes to
pursue negotiations in good faith on effective measures
relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on general
and complete disarmament under strict and effective
international control.
c) The right to peacefully use nuclear technology,
Art. IV. Nothing in this Treaty shall be interpreted as
affecting the inalienable right of all the Parties to the Treaty
to develop research, production and use of nuclear energy
for peaceful purposes without discrimination and in
conformity with Articles I and II of this Treaty.
Q. Name the Nuclear-Weapon States under the NPT?
A. The nuclear-weapon states (NWS) are those which have
manufactured and exploded a nuclear weapon or other nuclear
explosive device prior to 1 J anuary 1967. They are permitted under
the NPT to own nuclear weapons, but they undertake not to transfer
nuclear weapons to non-nuclear weapons states (non-NWS), not to
help non-NWS acquire them, and to pursue nuclear disarmament.
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The NWS are also the five permanent members of the U.N. Security
Council: France (signed 1992), the People's Republic of China
(1992), the Soviet Union (1968; obligations and rights now assumed
by Russia), the United Kingdom (1968), and the United States
(1968).
Q. Discuss whether the threat or use of nuclear weapons in any
circumstances is prohibited under International Law?
A. In the Legality of the Threat or Use of Nuclear Weapons (ICJ
Advisory Opinion, July 8, 1996), the following arguments were
raised to establish that the use of nuclear weapons is prohibited
under International Law:
a) The use of nuclear weapons violates the right to life as
guaranteed in Article 6 of the International Covenant on Civil
and Political Rights (ICCPR), which provides as follows:
Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily
deprived of his life.
b) The use of nuclear weapons constitutes genocide because the
number of deaths occasioned by the use of nuclear weapons
would be enormous; that the victims could, in certain cases,
include persons of a particular national, ethnic, racial or
religious group; and that the intention to destroy such groups
could be inferred from the fact that the user of the nuclear
weapon would have omitted to take account of the well-known
effects of the use of such weapons;
c) The use of nuclear weapons constitutes a violation of the
several treaties and instruments that protect the
environment. These include:
1. Article 35 of Additional Protocol I of 1977, which prohibits
the employment of methods or means of warfare which
are intended, or may be expected, to cause widespread,
long-term and severe damage to the natural environment;
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2. Article 1 of the 1977 Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental
Modification Techniques, which prohibits the use of
weapons which have widespread, long-lasting or severe
effects on the environment.
3. Principle 21 of the 1972 Stockholm Declaration on the
Human Environment and Principle 2 of the Rio Declaration
of 1992 which express the common conviction of the States
concerned that they have a duty to ensure that activities
within their jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the
limits of national jurisdiction.
d) The use of nuclear weapons violates the U.N. Charters
provisions relating to the threat and use of force,
particularly Art. II, paragraph 4 which states:
All Members shall refrain in their international relations
from the threat or use of force against the territorial
integrity or political independence of any State, or in any
other manner inconsistent with the Purposes of the United
Nations.
e) Nuclear weapons should be treated in the same way as
poisoned weapons, which should be prohibited under several
treaties limiting the types of weaponry, particularly:
a) The Second Hague Declaration of 1899, which prohibits
he use of projectiles the object of which is the diffusion of
asphyxiating or deleterious gases
b) Article 23 (a) of the Regulations respecting the laws and
customs of war on land annexed to The Hague Convention
IV of 18 October 1907, whereby t is especially forbidden:
...to employ poison or poisoned weapons and
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c) The Geneva Protocol of 1925 which prohibits the use in
war of asphyxiating, poisonous or other gases, and of all
analogous liquids, materials or devices.
f) The use of nuclear weapons violates IHL because:
1. IHL is aimed at the protection of the civilian population
and civilian objects and establishes the distinction between
combatants and non-combatants;
2. States must never make civilians the object of attack and
must consequently never use weapons that are incapable of
distinguishing between civilian and military targets.
As to the above arguments, the International Court of J ustice made
the following observations and rendered its Opinion as follows:
a) As to whether the use of nuclear weapons violates Art. 6 of
the ICCPR, the Court observes that whether a particular loss
of life, through the use of a certain weapon in warfare, is to be
considered an arbitrary deprivation of life contrary to Article 6
of the Covenant, can only be decided by reference to the law
applicable in armed conflict and not deduced from the terms of
the Covenant itself.
b) As to whether the use of nuclear weapons would constitute
genocide, the Court pointed out that the prohibition of
genocide would be pertinent if the recourse to nuclear weapons
did indeed entail the element of intent, towards a group as
such, required by the provision quoted above. In the view of
the Court, it would only be possible to arrive at such a
conclusion after having taken due account of the circumstances
specific to each case.
c) As to whether the use of nuclear weapons would constitute
a violation of the several treaties and instruments that
protect the environment, the Court recognized that the
environment is under daily threat and that the use of nuclear
weapons could constitute a catastrophe for the environment.
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However, the issue is whether the obligations stemming from
these treaties were intended to be obligations of total restraint
during military conflict.
The Court does not consider that the treaties in question could
have intended to deprive a State of the exercise of its right of
self-defense under International Law because of its obligations
to protect the environment. Nonetheless, States must take
environmental considerations into account when assessing
what is necessary and proportionate in the pursuit of legitimate
military objectives.
d) As to whether the use of nuclear weapons violates the U.N.
Charters provisions relating to the threat or use of force,
the Court noted that these provisions do not refer to specific
weapons. They apply to any use of force, regardless of the
weapons employed. The Charter neither expressly prohibits,
nor permits, the use of any specific weapon, including nuclear
weapons. A weapon that is already unlawful per se, whether by
treaty or custom, does not become lawful by reason of its being
used for a legitimate purpose under the Charter.
e) As to whether nuclear weapons should be treated as
poisoned weapons which are prohibited under certain treaties
limiting the types of weaponry, the Court observed said treaties
neither define poisoned weapons not specify the meaning of
the term analogous materials or devices. The terms have
been understood, in the practice of States, in their ordinary
sense as covering weapons whose prime, or even exclusive,
effect is to poison or asphyxiate. This practice is clear, and the
parties to those instruments have not treated them as referring
to nuclear weapons.
f) As to whether the use of nuclear weapons violates IHL, the
Court noted that in conformity with the aforementioned
principles, humanitarian law, at a very early stage, prohibited
certain types of weapons either because of their indiscriminate
effect on combatants and civilians or because of the
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unnecessary suffering caused to combatants, that is to say, a
harm greater than that unavoidable to achieve legitimate
military objectives. If an envisaged use of weapons would not
meet the requirements of humanitarian law, a threat to engage
in such use would also be contrary to that law.
Q. Cite some areas with special protections.
A. Attacks or bombardment, by whatever means, of the following is
prohibited:
a) Undefended towns, villages, dwellings, or buildings. (Hague
Regulations of 1907, Annex to Hague IV, Art. 25)
b) Buildings dedicated to religion, art, science, or charitable
purposes, historic monuments, hospitals, and places where the
sick and wounded are collected, provided they are not being
used at the time for military purposes. (Id., Art. 27)
c) Hospital and safety zones and localities so organized as to
protect from the effects of war, wounded, sick and aged
persons, children under fifteen, expectant mothers and mothers
of children under seven. (Geneva Convention IV, Art. 14)
d) Neutralized zones intended to shelter from the effects of war
the following persons, without distinction: (a) wounded and
sick combatants or non-combatants; (b) civilian persons who
take no part in hostilities, and who, while they reside in the
zones, perform no work of a military character. (Id., Art. 15)

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