Chapter 4

International Establishment
for Protection and Care under
Humanitarian Law

A. Introduction
The International law and the Humanitarian law, both
aims at peace and security of the mankind. The Humanitarian
law has its genesis in the Geneva Convention, concluded in the
year 1949. The conventions have been ratified by the states has
become customary rules of International law. As a part of jus
cogens the principles and rules are abided by Humanitarian
law. The role of International Committee of the Red Cross
(ICRC) have been endowed with the responsibility to overcome
situations of violence. Over the years the role and responsibility
of ICRC has grown by leaps and bounds to cover situations in
which human sufferings have called for action.
The ICRC which was associated with their visits to
detainees has been attached with great importance to the plight
of persons affected by violence outside prisons. Its effective
execution often catered the need and urgency of humanitarian
problems. The ICRC's activities are to examine and explain to
long-standing needs of the mankind. It aims to ensure help
and protection by accepted rules based on fundamental human
rights of the individuals are respected and not flouted.
Since its inception, ICRC has always helped to prevent
and alleviate suffering." Its mandate initially confined to
international armed conflicts, was soon extended to situations
of internal violence. The international armed contlicts and

1. The first of the seven Pundamental Principles of the International Red

Cross and Red Crescent Movement is humanity. Its purpose is to protect
life and health and to ensure respect for human beings.
26 International Humanitarian 1
La
internal disturbances against humanitarian aspects
Violence have made ICRC more fundamental over the year and
ars.
B. Origin of ICRC
ICRC was founded by five Swiss citizens, one of whe
was Henery Dunant. ICRC originated in 1863 because of
the
writings of Henry Dunant and Lieber Code. As an internationat
organization it deals with the protection to persons whethe
part of war or armed conflict. It has provided special protection
to the civilians, no military personal will attack civilians and
injure them. No nation can be allowed to attack the ambulance
that bears the sign of Red Cross. After 1863, legal protection
has been provided to the committee of Red Cross. Every nation
has to follow the conditions of ICRC.
C. Nature of ICRC under Humanitarian Aspect
The ICRC as a unique institution to secure and guard
humanity, deals with the consequences of violence in
humanitarian terms. It studies the impact of violence which
may be the result of lawful acts and niay be unlawful ICRC
claims its protection to the following:
injury, illness, disability or death
torture and ill-treatment
to terrorize the population
to keep captive at secret location
deprivation of freedom (ietention in a closed place)
the sufferings of individuals or communities.
Such acts of violence cause adverse effect on psychological
integrity of the victims and their families.
D. Special Nature of ICRC
During international armed conflicts, ICRC bases its work
on four Geneva Conventions of 1949 and Additional Protocol I
of 1977. ICRC and the National Red Cross and Red Crescent
Societies, together with International Freedom of Red Cross
combine to form the Red Cross movement. It is ICRC's right to
carry out certain activities such as bringing relief to wounded,
sick or shipwrecked military personnel, visiting prisoners
of war, aiding civilians and ensuring that those protected by
humanitarian law are treated accordingly.
During non-international armed conflicts, the ICRC bases
its work on Article 3 common to the four Geneva Conventions
International Establishment for Protection and Care ... 27
and Additional Protocol II. Article 3 also recognizes the ICRC's
right to offer its services to the working parties with a view
to engaging in relief action and visiting people detained in
connection with the conflict.
The violent situations not
amounting to an armed conflict
(internal violence and disturbance) ICRC bases its work on
Article 5 of the movement's statutes which sets out among other
things the ICRC's right of humanitarian initiative. That right
may also be invoked in international and non-international
armed conflict.
E. Role of the ICRC
The ICRC is both an operational organization and one
which safeguards respect for the intermational rules
in non-international armed conflicts. The statutes of
applicable
ICRC and
Red Crescent Movement 1equire the ICRC to assist the victims
of armed conflicts, no matter who
they are, and work towards
protection and care of the wounded and sick according to the
humanitarian law.' ICRC is present on the scene of almost every
internal conflict worldwide, although terms and conditions of
its activities naturally vary with the circumstances.
F. Functions of the ICRC
The functions of the ICRC are based
upon the need and
the urgency of the humanitarian needs,
legal status and the
potential need of the situation. The ICRC exercises its right
even during lesser violence when it is
convinced to overcome
the tension.
The mere fact that the ICRC offers its services in a nation
does not necessarily imply that serious humanitarian needs
have been observed there. The assessment of a situation from the
point of view of humanitarian needs and the potential benefits of
the services of a neutral and an
independent institution cannot
be govermed by rigid rules. The action of ICRC will
depend upon
the applicable law, during internal disturbances, problems of
non-international armed conflict, during internal disturbances
or outside such situations.

1. The statutes of International Red Cross and Red Crescent Movement,

adopted by the states and the Movement's components are members of
International Conference of the Red Cross and Red Crescent, require the
ICRC to work for the faithful application of the Humanitarian law and
to ensure the protection and assistance to military and civilian victims
of armed conflicts. The ICRC must honour the principle of impartiality.
Article 5 paras 2(c) and 2 (d).
 International Humanitarian La
28 AW
G. Legal Aspects of ICRC to solve Humanitarian probleme
humanitarian problems ar
Legal aspects of 1CRC to solve armed confi
are
non-internatiornal
(a) ICRC's role during a
with internal disturbance
(b) ICRC's role in connection
context of non-internationat
(c) ICRC's role outside the
internal disturbances.
armed conflict and
armed
non-international
ICRC's role during a
(a)
conflict-Article 1 para 1 of Protocol
II of 1977 sets out the
Protocol and defines non.
material field of application of the
are "all armed conflicts
international armed conflict. These
which are not covered by Article 1
of Protocol Additional to the
to the protection
Geneva Convention of 12 August 1949, relating
under responsible
of victims of International Armed Conflicts,
a part of its territory as to
command, exercise control over
enable them to carry sustained and military
operations".
The legal basis for ICRC intervention
in such conflicts is
Article 3, Para 2, common to 4 Geneva Conventions of 1949,
humanitariansuch as
body,
which asserts that "an impartial
Cross may offer its
the International Committee of the Red
above mentioned
services to the parties to the conflict. The
ICRC's offer of
Article 3 does not oblige States to accept the
services. They have a duty to examine them in good faith and to
services a s interference
reply. They may not consider an offer of
in their internal affairs.
In a non-international armed conflict the ICRC will take
to ensure that the parties comply with either
Article
steps
3 common to all four Geneva Conventions of 1949 alone or
both Article 3 and Protocol II together.' The other provisions

1. Article 3 common to all four Geneva Convention is the mainstay of the

ICRC action in non-international armed conflict.
In case of armed conflict, covering one the high contracting parties each
party shall be bound to apply, the following provisions
) 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 sickness wounds, detention, shall be in all circumstances be
created humanely.
i) The wounded and sick shall be collected and cared for.
An important humanitarian body such as ICRC may offer its services
to the parties to the conflict. The parties to the conflict should further
endeavour to bring into force, by means of special agreements, all or part
of the other provisions of the present convention. It shall not affect the
legal status of the parties to the conflict.
 Intrnational Establishment for Protection and Care 29
are also applicable by virtue of recognition of belligerence by
the govermment side, as a result of which the major part of
international humanitarian law becomes applicable or by
express or tacit agreement between the nations.
(b) ICRC's role in connection with internal
disturbances-Ihternal disturbances are marked by serious
disruption of domestic order resulting from the acts of violence
which do 1ot have the characteristic of armed conflict.
For any situation to qualify as one of internal
disturbances,
it is of n0 concern whether state
repression is involved or not,
whether the disturbances are lasting or in brief, whether it has
durable effects, whether only part of it or only part of national
territory 1s affected or whether the disturbances are religious,
ethnic, political or due to any other reason.
The legal basis for the ICRC intervention in situation
of internal strife are Article 5 para 2(d) of the statutes of
the movement referred to above. In situations of internal
disturbances, the rules of International Humanitarian law
can only be invoked by
analogy. Thus, the states may respect
certain universally acknowledged hunianitarian principles and
human rights parameters for which no derogation is permitted
even for any exceptional potential danger
H. ICRC's role outside the context of non-international
armed conflicts and internal disturbances
The role of ICRC outside non-international armed conflict
and internal disturbances is optional, without having any
obligation to do so. It tries to solve the problem of humanitarian
concern which it might help to solve by virtue of its special
character.
The right, it exercises to intervene to resolve humanitarian
problem, depends not on the situation prevailing in the
country, but on the principles of the ICRC itself. Thus, being an
independent, neutral and impartial institution, it does not take
part in hostilities or any domestic or international controversies
1. The application of law also includes the rules of customary law and the
convention for the Protection of Cultural Property in the rvent of Armed
Conflict, The Hague, 1954, Article 19 of which refers to non-internation
armed conflict.
2. A description of internal disturbances was given at the tirst session of the
Conference of Government Experts on Reaffirmation and Development of
Humanitarian Law in Armed Conflict, held in Geneva from 24 May to i2
June, 1971
 30 International Humanitarian La
aw
and will refrain from making any prejudice judgements. The
role of ICRC is practically inseparable from internations
humanitarian feature as it tries to resolve political or soci
tension, which may soon cause potentia threat to situation
of internal disturbances. For such cases of national securit
ICRC can refer to the universally acknowledged humanitarian
principle and wherever necessary,
invoke the inalienable
tension.
human rights to gauge the risk of further
Features of the ICRC
1. It is an institution which caters to the need of
securing mankind and humanity, by the application
of Humanitarian law.
2. It is an organization that acts as a control mechanism
to guard the principal of humanity.
3 It is an impartial, neutraland independent organization
that tries to reconcile the situations of tensio.by
medical aid and assistance to the contracting parties.
Principles of ICRC
1. ICRC is applicable with its humanitarian norms
during the state of war or armed conflict.
2. Soldiers who are detained or captured have to
be treated with humanity and their execution be
performed by fair trial or regular trial.
3.
3. To put an end to escalation of violence and promote
public security, the institution takes an impartial look
at any problems of humanitarian nature.
ICRC Principle of Humanity
fa) Secures inalienable hu- (a) Protection from inhuman
manman rights activities.
(b) Promotes and protects (b) Endeavours to help solve|
mankind problems of humanitar-
ian nature
c) Implementation of the (c) Security from sufferings
Humanitarian law inflicted as atrocities and
unlawful activities.
I. Role of ICRC in the Development of IHL
The ICRC gave way to the development of Humanitarian
elements through its humanistic approach to the laws of war
International Establishment for Protection and Care... 31
and armed conflict. The 1CRC had to cope with increasingly
varied humanitarian needs, where internal tensions in a n¡tion
are uncompromising, where population is the object of the
struggle and where all methods of repression are used. The
ICRC as an institu*ion of securing humanitarian elements have
done phenomenal work towards preserving and protecting the
mankind. It has evolved the new concepts of fundamental
humanitarian law and studied distinction between combatants
and civilians and duty to spare the latter.
It undertakes a wide range of activities to
develop
International Humanitarian law, by taking measures to
protect civilians in areas affected by strife or conflict, tracing
of missing persons, provision of food and medical assistance.
It has always abided by its duty to respect and acknowledge
the humanitarian principles. Some of its role performed in the
development of Humanitarian law has been enumerated below:
) The ICRC plays the role of catalyst in the development
of humanitarian law by organizing or participating, in
consultations on the possibility of adopting new rules.
(i) The ICRC may also organize consultations with a view
to clarify existing rules.
(ii) The 1CRC is mandated by states through the Geneva
Convention and their Additional Protocol, the statutes
of International Red Cross to promote and act as
guardian of IHL.
(iv) Thisencompasses the ratification oftreatiesmonitoring
compliance, dissemination and contributing to the
development of IHL.

(v) The ICRC has had to cope with increasingly varied

humanitarian needs, in countries where authority has
often been eroded and enabling the forces involved to
reach a humanitarian agreement which they will have
a duty to respect.
 Chapter 11
International Criminal Court

A. Introduction
The International law has carved out new dimensionsof
social justice by establishing international forum for grievanc
redressal. The U.N. General Assembly in 1989 requested
International Law Commission to address the question of havins
an international criminal court. The draft statute was prepared
by the Commission. The Rome Conference - UN Diplomatic

Conference of Plenipotentiaries in Italy, adopted the statute

known as the "Rome Statute of the International Criminal
Court" on 17th July, 1998. The Conference was attended by
162 countries.
(i) Contents of the Structure-Besides the preamble,
there are 128 Articles in the statute, divided into 13 parts.
According to Article 126, the statute shall come into force on 1
day of the month. Earlier an International Tribunal for Protection
of Humanitarian Law in Former Yugoslavia was established in
1993 by the Security Council. It had the jurisdiction to decide
the war crimes i.e. to prosecute for the acts against humanity.
Later on Rawanda International Tribunal was established in
1994 under Chapter VII of the UN Chapter by the Security
Council for the purpose of prosecuting persons responsible 1or
genocide.
(ii) Evolution-The establishment of ICC' provides that
it shall be a permanent institution and shall have power
exercise jurisdiction over persons for the "most serious crimes
of international concern. The ICC will entertain cases on
when the national judiciary as unwilling, reluctant or prejua
or prosecute crimes mentioned in the statute of ICC.

1. Article 1.
 International Crimina: Court
103
Jurisdiction-The court has
(iii)
rdancee with jurisdiction in
with the statute with respect to crimes
such as:
lcrimes against humanity
ii) war crimes

i i ) genocide

crime of aggression.!
(iv)
court has jurisdiction only with
after the entry into force respect to crimes
Committed
of the statute. The states
ich becomes part of the statute are presumed to accept the
sdiction of the court with respect to these crimes.
vl Application of the Law-The court shall apply the
te and
statute
its rules of procedure and evidence, applicable
solutions, treaties and principle of International law. The
olutions, trea
court also takes intoconsideration the general principles of law
derived by court irom national laws and legal principles of the
states who has the jurisdiction to exercise over the crimne.
The courts have to abide by the principles and rules of
law as has been interpreted in its previous decisions. These
rules of law should be consistent with the internationally
recognized "human rights". The laws cannot be applied based
on the distinction founded on grounds such as gender, race,
colour, langage, religion, political opinion, ethnic, social origin
and other status.
The court cannot make a person criminally responsible
under the statute, unless any such act committed is a crime
within the court's jurisdiction." The laws cannot be magnified
to include persons without their fault. In case of ambiguity,
there shall be the interpretation in favour of persons being
of
nvestigated, prosecuted or convicted. The person guilty of the
ie crime shall be punished according to the provisions
Statute.
founded
Court-The Court has been
Features of the
and crimes that are
h e issue of resolving disputesrefiects the awareness

derogatory to the "human rights". It the massive

within
the International community against
in the past century.
e S committed around the world
Article 5.
Article 11.
Article 12.
uluim Crimen sine lege (Article 22).
ulla poena sine
lege (Article 23).
 International Humanitarian Lay
104
court to evaluate.
Such crimes are recognized by the
mankind. Ciimes
that threatend
the impact on
of the world requires e f e
understand
and well-being
peace, security on those ste
are binding only
prosecution. Such provisions such provisio
and to be bound by ons.
that are party to it agree
of the Court-The

(vi) Compositioneracted to prosecute crimes commi

Internationon
Criminal court has been
of- (a) The presidenc
during armed confiict. It is composed
trial division (c)
(d the
office of the prosecutor
Appeal division /
Registry. Nomination of
The court 18 judges.
is composed of
court may be made by any stata
candidates for election to the
hold office for a term ofa
to the statute. The judges shall
party
elected shall be selected to serve
ve
years. At first 1/3Td of judges
term of 6 years, remainder for
for 3 years. 1/3 to serve for a
be the seat of the
of 9 The "place of trial shall
a
term years.
Court.2
for the crime committed,
lays down penalties
The statute
of 30 years or a term of life
imprisonment upto a maximum
extreme gravity of the
imprisonment when justified by the
crime and individual circumstances. The court has the power
to order a fine, a forfeiture of proceeds, property and assets
derived directly or indirectly from that crime withhout prejudice
to the rights of the bonafide third parties.
(a) Appeal
A decision may be appealed in accordance
with the Rules
of Procedure and Evidence (Article 81). The convicted person or
his spouse children, etc. may apply to the Appeals' Chamber
to revise the final judgement of conviction /
sentence on the

grounds specified in the statute."

B. Special Protection provided by ICC
The International Criminal Court possess jurisdiction
concurrent with the National Courts with respect to prosecuting
serious violations of International Humanitarian law, but it has
primacy over municipal courts when they defer the jurisdiction.
courts have established to saíeguard the
Criminal been
interest of the mankind by the nations respectively.

Crime against humanity, war crimes, genocide, crime of aggression an

inhuman activities.
2. Article 36.
3. Article 84.
hternational Crin Criminal Court
(4) nctrine
Doctrine of
of
"Unlvereal 105
for the wrong for
ofpunishing for
the Jurlsdietion"-in
Jurisdiction"-in
terms
violati
f International|
tata at accountability
Humanitarian Law of serious
Human Rights the
domestic level, and
jurisdiction is evolved the
concept
International
ofuniversal
gards heinous ffences, which
ern,
have been
condemned Such have received universal
conc

based upon universal cases of crime

manity are against
hu Definition fCrime--Crime under
(ii)
jurisdiction.
ed as th
explained those acts which
as International law is
are done against the
the mankind.
It includes all those activities such aswell-being of
and crime against humanity which leads to barbaricwar crimes end.
C. Critical Appraisal
The Rome Statute has created
drestrict the war crimes and crimessafety
a
value to regulate
against humanity. Yet,
for securing mankind in uture it needs to
include crimes of
hiiacking' and terrorism'. These are the crimes that are
havoc and social unrest internationally.
causing
The court does not ascertains
liability of the states,
as the statute prescribes the jurisdictionof the states over
"Crime against humanity" during armed conflict. It will have
jurisdiction against state and non-state actors.
Further, the prosecution of those who commit crime
should not be based on the extent of the crime committed.
The liability should be for both the minor or mass scale crimes
committed and persecution should be accordingly guided.
D. Conclusion
The court helps to secure the basic principles of mankind.
It enables the prosecution for heinous crimes.
The International Criminal Court safeguards the interest
Dy providing punishment for the crime of genocide, the crime
gainst humanity and have an effective control over the nations.