international humanitarian law faq
TRANSCRIPT
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INTERNATIONAL HUMANITARIAN LAW
1. What is International Humanitarian Law?
Rules which, in times of armed conflict, seek to protect people who are notor are
or no longertaking part in hostilities, and to restrictthe methods and means of
warfare employed1.
A set of rules which seek, for humanitarian reasons, to limit the effects of armed
conflict. It protects persons who are notor are no longerparticipating in the
hostilities and restricts the means and methods of warfare2.
2. What are the basicrules of International Humanitarian Law3?
Conflicting parties must, at all times, distinguish between the civilianpopulation
and combatantsin order to sparethe civilian populationandcivilian property.
Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solelyagainst military objectives.
People who do not or can no longertake part in the hostilities are entitled to
respect for their lives and for their physical and mental integrity.
It is forbidden to killor woundan adversary who surrendersor who can no longer
take partin the fighting.
Neither the parties to the conflict nor members of their armed forces have an
unlimited right to choose methods and means of warfare.
It is forbidden to use weapons or methods of warfare that are likely to cause
unnecessary losses or excessive suffering.
The wounded and sick must be collected and cared for by the party to the conflict
which has them in its power.
Medical personnel and medical establishments, transports and equipment must be
spared.
The red cross or red crescent on a white background is the distinctive sign
indicating that such persons and objects must be respected.
Captured combatants and civilians who find themselves under the authority of the
adverse party are entitled to respectfor their lives, their dignity, their personalrights and their political, religious and other convictions.
They must be protected against all acts of violenceand reprisals.
3. What are The Law of Geneva and The Law of the Hague?4
The Law of Geneva designed to safeguard military personnel who are no longer
taking part in the fighting and people not actively involvedin hostilities, i.e.
civilians;
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1 IHLAQ, 4.
2 WIHL, 1.
3 IHLAQ, 6. This number is a wide elaboration of some basic rules of the International Humanitarian Law.While maybe, commonly there are only several of them, the elaboration here, hopefully, can help to giveclearer definition of the basic rules.
4 IHLAQ, 4.
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The Law of the Hague, which establishes the rights and obligations of
belligerents in the conduct of military operations, and limits the means of harming
the enemy.
4. What is the Martens Clause?5
The principle, laid down in 1899 by Fyodor Martens6, which said, ... 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. This principle was already considered as a standard part of customary
law when it was incorporated in Article 1, paragraph 2, of Additional Protocol I of 19777.
5. What is the International Criminal Court (ICC)?
The International Criminal Court (ICC), governed by the Rome
Statute, is the first permanent, treaty based, internationalcriminal court established to help end impunity for the
perpetrators of the most serious crimes of concern to the
international community. The ICC is an independent
international organization, and is not part of the United
Nations system. Its seat is at The Hague in the Netherlands.
Although the Courts expenses are funded primarily by States
Parties, it also receives voluntary contributions from governments,
international organizations, individuals, corporations and other entities. The international
community has long aspired to the creation of a permanent international court, and, in the
20th century, it reached consensus on definitions of genocide, crimes against humanity
and war crimes. The Nuremberg and Tokyo trials addressed war crimes, crimes against
peace, and crimes against humanity committed during the Second World War.8
6. What does International Humanitarian Law cover?9
The protection of those who are not, or no longer, taking part in fighting;
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5 IHLAQ, 7.
6 Friedrich Fromhold Martens (also Fyodor Fyodorovich Martens or Frederic Frommhold de Martens) (18451909) was a famous Estonian born international lawyer.He became an official in the foreign ministry of Russia in 1868 and was professor of international law at theUniversity of St. Petersburg from 1873 to 1907.Martens was a representative at many internationalconferences, including the Hague Conferences of 1899 and 1907, for which he helped lay the foundation. Itwas at the former where heformulatedthe famous savings clause that was included in the preamble of theConvention with Respect to the Laws and Customs of War on Land and has become known as the MartensClause:Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare
that in cases not included in the Regulations adopted by them, populations and belligerents remain under theprotection and empire of the principles of international law, as they result from the usages establishedbetween civilized nations, from the laws of humanity, and therequirements of the public conscience.- The Martens Society
7 In cases not covered by this Protocol or by other international agreements, civilians and combatantsremain under the protection and authority of the principles of international law derived from establishedcustom, from the principles of humanity and from the dictates of public conscience. PAGC, 4.
8 The International Criminal Court.
9 WIHL, 2.
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Restrictions on the means of warfare - in particular weapons - and the methods of
warfare, such as military tactics.
7. What are military objectives?10
Objects which by their nature, location, purposeor usemake an effective
contribution to military actionand whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military
advantage.
In case of doubtwhether 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.
8. Who are the parties11
to the International Criminal Court?12
Parties and Signatories of the Rome Statute
Asia (9) Afghanistan, Bangladesh, Cambodia, Cook Islands, Japan,
Jordan, Mongolia, South Korea, Tajikistan
Africa (30) Benin, Botswana, Burkina Faso, Burundi, Central AfricanRepublic, Chad, Congo, Democratic Republic of the Congo,Comoros, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya,Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius,Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa,Tanzania, Uganda, Zambia
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10 Additional Protocol I, Art 52(2) - PAGC, 37.
11 Parties means have ratifiedor acceded
12 UN Documentation, Amnesty International, International Criminal Court
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Europe (40) Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina,Bulgaria, Croatia, Cyprus, Czech Republic, Denmark,Estonia, Finland, France, Georgia, Germany, Greece,Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein,Lithuania, Luxembourg, Macedonia, Malta, Montenegro,Netherlands, Norway, Poland, Portugal, Romania, SanMarino, Serbia, Slovakia, Slovenia, Spain, Sweden,Switzerland, United Kingdom
Americas (25) Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia,Brazil, Canada, Chile, Colombia, Costa Rica, Dominica,Dominican Republic, Ecuador, Guyana, Honduras, Mexico,Panama, Paraguay, Peru, Saint Kitts and Nevis, SaintVincent and the Grenadines, Suriname, Trinidad and Tobago,Uruguay, Venezuela
Oceania (7) Australia, East Timor, Fiji, Marshall Islands, Nauru, NewZealand, Samoa
9. Who are the signatories13 of the Rome Statute?1415
Asia and Oceania(13)
Bahrain, Iran, Israel, Kuwait, Kyrgyzstan, Oman, Philippines,Solomon Islands, Syria, Thailand, United Arab Emirates,Uzbekistan and Yemen.
Africa (14) Algeria, Angola, Cameroon, Cape Verde, Cte d'Ivoire,Egypt, Eritrea, Guinea-Bissau, Morocco, Mozambique, So
Tom and Prncipe, Seychelles, Sudan*and Zimbabwe
Europe (5) Armenia, Moldova, Monaco, Russia and Ukraine
Americas (5) Bahamas, Haiti, Jamaica, Saint Lucia and the United States
10. What is ICCs Complementary principle?
This means, ICC is the court of last resort. However, ICC shall determine that a case is
inadmissible when the following requirements are met (refer to the Article 17 of the Rome
Statute):(a) The case is being investigated or prosecuted by a State which has jurisdiction
over it, unless the State is unwilling16or unable17 genuinely to carry out the
investigation or prosecution;
(b)The case has been investigated by a State which has jurisdiction over it and the
State has decided not to prosecutethe person concerned, unless the decision
resulted from the unwillingness or inability of the State genuinely to prosecute;
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13 States which have signedthe Rome Statute, but have not ratifiedit
14 UN Documentation, Amnesty International, International Criminal Court
15 Sudan should have been exempted of this list, since in a letter to the Secretary-General of the UN, .....,Sudan does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligationarising from its signature on 8 September 2000.
16 Unwilling means the State is clearly shadingsomeone from the responsibility for ICC crimes. ICC.
17 Unable (genuinely) means the legal system of the state has collapsed. ICC.
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(c) The person concerned has already been tried for conduct which is the subject of
the complaint18, and a trial by the Court is not permitted under article 20,
paragraph 319;
(d)The case is not of sufficient gravity to justify further action by the Court.
11. Who can initiate proceedings in the ICC?
State parties, the Prosecutor of the ICC, or the United Nations Security Council (without
forgetting the complementaryprinciple)20.
12. What crimes are under the jurisdiction of the ICC?
According to Article 5, Paragraph 1 of the Rome Statute, there are four crimes within the
jurisdiction of the Court:
(a) The crime of genocide;
(b)Crimes against humanity;(c) Warcrimes;
(d)The crime of aggression.
13. What constitutes Genocide?21
According to Article 6 of the Rome Statute, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethical, racial, or religious
group, as such:
(a) Killing22 members of the group;
(b)Causing serious bodily or mental harmto members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent birthswithin the group;
(e) Forcibly transferring childrenof the group to another group.
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18 This is the principle of Ne bis in idem. Refer to Article 20 of the Rome Statute.
19 Article 20 paragraph 3 of the Rome Statute:No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall betried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shieldingthe person concerned from criminal responsibility for crimeswithin the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of dueprocess recognized by international law and were conducted in a manner which, in thecircumstances, was inconsistent with an intent to bring the person concerned to justice.
20 ICC.
21 EOC, 2etc.
22 According to Elements of Crimes, elements to killing are:1. The perpetrator killed (caused death) one or more persons2. Such person or persons belonged to a particular national, ethical, racial or religious group3. The perpetrator intended to destroy, in whole or in part, that national, ethical, racial or religious
group, as such4. The conduct took place in the context of a manifest pattern of similar conduct directed against that
group or was conduct that could itself effect such destruction.- EOC, 2
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14. What constitutes Crimes against humanity?2324
According to Article 7, Paragraph 1 of the Rome Statute, crime against humanity means
any of the (following) acts when committed as part of a widespreador systematicattack
directed against any civilian population25, with knowledge of the attack:
(a) Murder;
(b)Extermination26;
(c) Enslavement27;
(d)Deportation or forcible transfer of population28 ;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture29;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy30, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h)Persecution31
against any identifiable group or collectivity on political, racial,national, ethnic, cultural, religious, gender, as defined in paragraph 3, or other
grounds that are universally recognized as impermissible under international law,
in connection with any act referred to in this paragraph or any crime within the
jurisdiction of the Court;
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23 EOC, 5etc.
24 The general elements of Crimes against humanity can be summed up into the points:1. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population2. The perpetrator knew that the conduct was part of or intended the conduct to be part of
widespread or systematic attack directed against a civilian population
25 According to Article 7, Paragraph 2, point (a), Attack directed against any civilian population means acourse of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilianpopulation, pursuant to or in furtherance of a State or organizational policy to commit such attack.
26 According to Article 7, Paragraph 2, point (b), Extermination includes the intentional infliction of conditionsof life, inter aliathe deprivation of access to food and medicine, calculated to bring about the destruction ofpart of a population.
27 According to Article 7, Paragraph 2, point (c), Enslavement means the exercise of any or all of the powersattaching to the right of ownership over a person and includes the exercise of such power in the course oftrafficking in persons, in particular women and children.
28 According to Article 7, Paragraph 2, point (d), Deportation or forcible transfer of population means forceddisplacement of the persons concerned by expulsion or other coercive acts from the area in which they arelawfully present, without grounds permitted under international law.
29 According to Article 7, Paragraph 2, point (e), Torture means the intentional infliction of severe pain orsuffering, whether physical or mental, upon a person in the custody or under the control of the accused;except thattorture shall not include pain or suffering arising only from, inherent in or incidental to, lawfulsanctions.
30 According to Article 7, Paragraph 2, point (f), Forced pregnancy means the unlawful confinement of awoman forcibly made pregnant, with the intent of affecting the ethnic composition of any population orcarrying out other grave violations of international law. This definition shall not in any way be interpreted asaffecting national laws relating to pregnancy.
31 According to Article 7, Paragraph 2, point (g), Persecution means the intentional and severe deprivation offundamental rights contrary to international law by reason of the identity of the group or collectivity.
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(i) Enforced disappearance of persons32;
(j) The crime of apartheid33;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.
15. What constitutes War crimes?3435
According to Article 8, Paragraph 1 of the Rome Statute, the ICC shall have jurisdiction in
respect of war crimes in particular when committed as part of a plan or policy or as part of
a large-scale commission of such crimes.
To further specify, in Article 8, Paragraph 2 of the Rome Statute, war crimes means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of
the following acts against persons or property protected under the provisions of
the relevant Geneva Convention36 :
(i) Wilful killing37
;(ii) Torture38 or inhuman treatment, including biological experiments39;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b)Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law, namely, any of the
following acts:
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32 According to Article 7, Paragraph 2, point (i), Enforced disappearance of persons means the arrest,detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or apolitical organization, followed by a refusal to acknowledge that deprivation of freedom or to give informationon the fate or whereabouts of those persons, with the intention of removing them from the protection of thelaw for a prolonged period of time.
33 According to Article 7, Paragraph 2, point (h), The crime of apartheid means inhumane acts of a charactersimilar to those referred to in paragraph 1, committed in the context of an institutionalized regime ofsystematic oppression and domination by one racial group over any other racial group or groups andcommitted with the intention of maintaining that regime.
34 EOC, 14etc.
35 The general elements of War crimes can be summed up into the points:1. Such person or persons were protected under one or more of the Geneva Conventions of 19492. The perpetrator was aware of the factual circumstances that established that protected status.3. The perpetrator was aware of factual circumstances that established the existence of an armed
conflict.
36 While this is on international armed conflict, thus one other general principle applies: The conduct tookplace in the context of and was associated with an international armed conflict. EOC, 14etc.
37 Among them: Article 50, Geneva Conventions I/Article 130, Geneva Conventions III
38 One of the elements: The perpetrator inflicted the pain or suffering for such purposes as: obtaininginformation or a confession, punishment, intimidation or coercion or for any reason based on discriminationof any kind.
39 Among them: Article 50, Geneva Conventions I/Article 130, Geneva Conventions III
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(i) Intentionally directing attacks against the civilian population as such or
against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects
which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material,
units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long as
they are entitled to the protection given to civilians or civilian objects
under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilians
objects or widespread, long-term and severe damage to the natural
environment which would be clearly excessive in relation to the concrete
and direct overall military advantage anticipated;(v) Attacking or bombarding, by whatever means, towns, villages, dwellings
or buildings which are undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or
having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, or the flag of the military insignia
and uniform of the enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions, resulting in death of
serious personal injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its
own civilian population into the territory it occupies, or the deportation or
transfer of all or parts of the population of the occupied territory within or
outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected,
provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse party to physicalmutilation or to medical or scientific experiments of any kind which are
neither justified by the medical, dental or hospital treatment of the
person concerned nor carried out in his or her interest, and which cause
death to or seriously endanger the health of such person or persons;
(xi) Killing or wounding treacherously individuals belonging to the hostile
nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemys property unless such destruction or
seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country, even if they were in
the belligerents service before the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
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(xviii) Employing asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover the
core or is pierced with incisions;
(xx) Employing weapons, projectiles and material and methods of warfare
which are of a nature to cause superfluous injury or unnecessary
suffering or which are inherently indiscriminate in violation of the
international law of armed conflict, provided that such weapons,
projectiles and material and methods of warfare are the subject of a
comprehensive prohibition and are included in an annex to this Statute,
by an amendment in accordance with the relevant provisions set forth in
articles 121 and 123;
(xxi) Committing outrages upon personal dignity, in particular humiliating anddegrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,
or any other form of sexual violence also constituting a grave breach of
the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other protected person to render
certain points, areas or military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units
and transport, and personnel using the distinctive emblems of the
Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including
wilfully impeding relief supplies as provided for under the Geneva
Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen yearsinto the
national armed forces or using them to participate actively in hostilities.
(c) In the case of an armed conflict not of an international character, seriousviolations of article 3 common to the four Geneva Conventions of 12 August 1949,
namely, any of the following acts committed against persons taking no active part
in the hostilities, including members of armed forces who have laid down their
arms and those placed hors de combatby sickness, wounds, detention or any
other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and
degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court,
affording all judicial guarantees which are generally recognized as
indispensable.
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(d)Paragraph 2 (c) applies to armed conflicts not of an international character and
thus does not applyto situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not
of an international character, within the established framework of international law,
namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or
against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical units
and transport, and personnel using the distinctive emblems of the
Geneva Conventions in conformity with the international law;
(iii) Intentionally directing attacks against personnel, installations, material,
units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long asthey are entitled to the protection given to civilians or civilian objects
under the international law of armed conflict;
(iv) Intentionally directing attacks against buildings dedicated to religion,
education, art, science, or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected,
provided they are not military objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,
and any other form of sexual violence also constituting a serious
violation of article 3 common to the four Geneva Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in hostilities;
(viii) Ordering the displacement of the civilian population for reasons related
to the conflict, unless the security of the civilians involved or imperative
military reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the conflict
to physical mutilation or to medical or scientific experiments of any kind
which are neither justified by the medical, dental or hospital treatment of
the person concerned nor carried out in his or her interest, and which
cause death to or seriously endanger the health of such person or
persons;
(xii) Destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities of
the conflict;
(f) Paragraph 2 (e) applies to armed conflicts not of an international character and
thus does not apply to situations of international disturbances and tensions, such
as riots, isolated and sporadic acts of violence or other acts of a similar nature. It
applies to armed conflicts that take place in the territory of a State when there is
protracted armed conflict between governmental authorities and organized armed
groups or between such groups.
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Article 8 states further,
Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to
maintain or re-establish law and order in the State or to defend the unity and territorial
integrity of the State, by all legitimate means.
16. What is torture?
Any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
third person, information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in orincidental to lawful sanctions40.
The intentional infliction of severe pain or suffering, whether physical or mental,
upon a person in the custody or under the control of the accused; except that
torture shall not include pain or suffering arising only from, inherent in or incidental
to, lawful sanctions41.
17. How is torture banned?
Torture is banned, among several:
United Nations Convention Against Torture (CAT)
Rome Statute of the International Criminal Court (considered crime against
humanity)
The Geneva Conventions of 194942 and its Additional Protocols of 1977
18. What does the Geneva Conventions say about Terrorism?
IHL - sometimes also called the Law of Armed Conflict or the Law of War - does not
provide a definition of terrorism, but prohibits most acts committed in armed conflict that
would commonly be considered "terrorist" if they were committed in peacetime43
.
19. Does the IHL mention Terrorism?
IHL, under the situation in which it applies44, does prohibit measures of terrorism and
acts of terrorism45. Among them:
Article 33, Geneva Convention IV, Collective penalties and likewise all measures
of intimidation or of terrorism are prohibited.
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40
United Nations Convention Against Torture (CAT), Article 1 (1)41 Rome Statute of the International Criminal Court, Article 7, paragraph 2, point (e)
42 Among them: Geneva Convention I, Article 4 (1)
43 International Committee of the Red Cross, International humanitarian law and terrorism: questions andanswers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504
44 Which is, under armed conflict, both international and non-international
45 International Committee of the Red Cross, International humanitarian law and terrorism: questions andanswers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504
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Article 4 (2), Additional Protocol II
Article 51 (2), Additional Protocol I, 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.
Article 13 (2), Additional Protocol II
20. Does the International Humanitarian Law apply in the so-called War Against
Terrorism?4647
Specific aspects of the so-called "war on terrorism" launched after the attacks against the
United States on 11 September 2001 amount to an armed conflict as defined under IHL.
The war waged by the US-led coalition in Afghanistan that started in October 2001 is an
example. The 1949 Geneva Conventions and the rules of customary international law
were fully applicable to that international armed conflict, which involved the US-ledcoalition, on the one side, and Afghanistan, on the other side.
However,much of the ongoing violence taking place in other parts of the world that is
usually described as "terrorist" is perpetrated by loosely organized groups(networks), or
individuals that, at best, share a common ideology. On the basis of currently available
factual evidence it is doubtful whether these groups and networks can be characterized as
a "party" to a conflict within the meaning of IHL.
Even if IHL does not apply to such acts they are still subject to law. Irrespective of the
motives of theirperpetrators, terrorist acts committed outside of armed conflict should be
addressed by means of domestic or international law enforcement, but not by application
of the laws of war.
Most of the measures taken by states to prevent or suppress terrorist acts do not amount
to armed conflict48.
21. What are types of armed conflict?49
There are conflicts called international armed conflicts50, which is between states.
Under Protocol I of 8 June 1977, wars of national liberationmust also be treated
as conflicts of an international character. A war of national liberation is a conflict inwhich a people is fighting against a colonial power, in the exercise of its right of
self-determination.
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46 International Committee of the Red Cross, International humanitarian law and terrorism: questions andanswers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504
47 The ICRC believes that it is more appropriate to use the term fight against terrorism rather than waragainst terrorism.
48 Measures such as intelligence gathering, police and judicial cooperation, extradition, criminal sanctions,financial investigations, the freezing of assets or diplomatic and economic pressure on states accused ofaiding suspected terrorists are not commonly considered acts of war.
49 International Committee of the Red Cross, International humanitarian law and the protection of warvictims. http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jm93?opendocument
50 The four 1949 Geneva Conventions and Protocol I deal extensively with the humanitarian issues raised bysuch conflicts. Protocol I deals exclusively with international armed conflicts.
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There are conflicts happen within the territory of a State, which are conflicts of a
non-international character5152.
22. What are the distinctive emblems?
Throughout the history, the Geneva Conventions (esp. Additional Protocol III, 2005)
recognizes several emblems in its protective and indicative functions53. Some of those
emblems:
Left to right: Red Cross54, Red Crescent55, and Red Crystal56
Moreover, the Additional Protocol I also recognizes:
Red Lion and Sun57
23. What are the roles of the International Committee of the Red Cross?58
to maintain and disseminate the Fundamental Principles of the Movement, namely
humanity, impartiality, neutrality, independence, voluntary service, unity and
universality;
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51 A common feature of many such internal armed conflicts is the intervention of armed forces of anotherState, supporting the government or the insurgents.
52 The substantive rules of humanitarian law governing non-international armed conflicts are much simplerthan their counterparts governing international conflicts. They are derived from one main source, namelyArticle 3 common to the four Geneva Conventions of 1949, which enjoins the parties to an internal conflict torespect some basic principles of humanitarian behaviour already mentioned above. It is particularly importantto note that common Article 3 is binding not only on governments but also on insurgents, without, however,conferring any special status upon them.
Additional Protocol II of 1977 supplements Article 3 common to the Geneva Conventions with a number ofmore specific provisions. This is a welcome contribution to the strengthening of humanitarian protection insituations of internal armed conflict. Protocol II has, however, a narrower scope of application than common
Article 3. It applies only if the insurgent party controls part of the national territory.
53 Refer to, e.g. Article 44, Geneva Convention I
54 Refer to, e.g. Article 44, Geneva Convention I
55 Refer to, e.g. Article 44, Geneva Convention I
56 Refer to Article 2 (2) of the Additional Protocol III
57 Refer to Article 4 of the Additional Protocol I
58 Refer to Article 4 (1) of the Statute of the International Committee of the Red Cross
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to recognize any newly established or reconstituted National Society which fulfils
the conditions for recognition set out in the Statutes of the Movement, and to notify
other National Societies of such recognition;
to undertake the tasks incumbent upon it under the Geneva Conventions, to work
for the faithful application of international humanitarian law applicable in armed
conflicts and to take cognizance of any complaints based on alleged breaches of
that law;
to endeavour at all times as a neutral institution whose humanitarian work is
carried out particularly in time of international and other armed conflicts or internal
strife to ensure the protection of and assistance to military and civilian victims of
such events and of their direct results;
to ensure the operation of the Central Tracing Agency as provided in the Geneva
Conventions;
to contribute, in anticipation of armed conflicts, to the training of medical personneland the preparation of medical equipment, in cooperation with the National
Societies, the military and civilian medical services and other competent
authorities;
to work for the understanding and dissemination of knowledge of international
humanitarian law applicable in armed conflicts and to prepare any development
thereof;
to carry out mandates entrusted to it by the International Conference of the Red
Cross and Red Crescent (the International Conference).
24. What are the Fundamental Principles of the International Committee of the Red
Cross?59
Humanity: human suffering is prevented or alleviated, life and health protected
and human dignity respected
Impartiality60: discrimination of any kind is prohibited
Neutrality: the movement is neutral with respect to the military situation, politics,
ethnicity, ideology and religion
Independence: the movement is independent with respect to the military situation,politics, ideology, religion and economic interests
Voluntary service: relief is provided on a voluntary and disinterested basis
Unity: in each country there is only one Red Cross society
Universality: the movement is present worldwide
25. Who are the Combatants which enjoy protections provided by the Geneva
Conventions?
Article 13 of the Geneva Convention I provides a list of protected persons, i.e. combatants:
Members of the armed forces61 of a Party to the conflict as well as members of
militiasor volunteer corpsforming part of such armed forces.
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59 ABCIHL, 38
60 Treating all rivals or disputants equally; fair and just - Oxford New American Dictionary
61 Defined as consist of all organized armed forces, groups and units which are under a commandresponsible to that party for the conduct of its subordinates. See CIHL I, 14.
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Members of other militias of other volunteer corps, including those of organized
resistance movements, belonging to a Party to the conflict and operating in or
outside their own territory, even if this territory is occupied, provided that such
militias or volunteer corps, including such organized resistance movements, fulfil
the following conditions62:
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance;
that of carrying arms openly;
that of conducting their operations in accordance with the laws and
customs of war.
Members of regular armed forces who profess allegiance to a Government or an
authority not recognized by the Detaining Power.
Persons who accompany the armed forces without actually being members
thereof, such as civilian members of military aircraft crews, war correspondents,supply contractors, members of labour units or of services responsible for the
welfare of the armed forces, provided that they have received authorization from
the armed forces which they accompany.
Members of crews including masters, pilots and apprentices of the merchant
marine and the crews of civil aircraft of the Parties to the conflict, who do not
benefit by more favourable treatment under any provisions in international law.
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, provided they carry arms openly and
respect the laws and customs of war63 .
26. How about incorporating paramilitary or armed law enforcement agencies into
armed forces?64
Such incorporation needs formal act, e.g. act of parliament. In absence of that, the status
of such groups will be judged on the facts and in the light of the criteria for defining armed
forces. When they take part in hostilities and fulfill the criteria of armed forces, they
become such. In addition, Additional Protocol I65
requires a party to the conflict to notifysuch incorporation to the other parties to the conflict.
27. What are the cases being heard in the International Criminal Court?6667
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62
Article I of the Hague Regulations, CIHL, 15.63 Known as leve en masse. CWW, 40.
64 CIHL, 17.
65 Article 43 (3), Additional Protocol I
66 International Criminal Court
67 This lists cases being taken into hearing, which the court has been commenced and hearings havestarted. Cases in which still at pre-trial hearings or arrest warrants (e.g. Omar al-Bashir of Sudan) arediscounted from this list.
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Case Allegations Verdict
Prosecutor v.
Thomas Lubanga DyiloDR Congo, 2006
Allegedly responsible, as co-perpetrator, of war crimesconsisting of:
Enlisting and conscripting ofchildren under the age of 15years into the Forces patriotiquespour la libration du Congo[Patriotic Forces for theLiberation of Congo] (FPLC) andusing them to participate activelyin hostilities in the context of aninternational armed conflict fromearly September 2002 to 2 June2003 (punishable under article8(2)(b)(xxvi) of the RomeStatute);
Enlisting and conscriptingchildren under the age of 15years into the FPLC and usingthem to participate actively inhostilities in the context of anarmed conflict not of aninternational character from 2June 2003 to 13 August 2003(punishable under article 8(2)(e)
none
Court started January 2009(under ICC custody)
Prosecutor v.Germain Katanga &
Mathieu Ngudjolo Chui
DR Congo, 2007
Allegedly jointly committed
through other persons, within themeaning of article 25(3)(a) of theStatute:
War crimes:1. Using children under the ageof fifteen to take active part in thehostilities, under article 8(2)(b)(xxvi) of the Statute;2. Directing an attack against acivilian population as such oragainst individual civilians nottaking direct part in hostilities
under article 8(2)(b)(i) of theStatute;3. Wilful killings under article 8(2)(a)(i) of the Statute;4. Destruction of property underarticle 8(2)(b)(xiii) of the Statute;5. Pillaging under article 8(2)(b)(xvi) of the Statute;6. Sexual slavery under article8(2)(b)(xxii) of the Statute;7. Rape under article 8(2)(b)(xxii)of the Statute
Crimes against Humanity:1. Murder under article 7(1)(a) ofthe Statute;2. Rape under article 7(1)(g) ofthe Statute;3. Sexual slavery under article7(1)(g) of the Statute.
none
Court started November 2009(under ICC custody)
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Case Allegations Verdict
Prosecutor v.Jean-Pierre Bemba Gombo
Central African Republic, 2008
Allegedly responsible, as militarycommander, of
Two counts of crimes againsthumanity: murder (article 7(1)(a)of the Statute) and rape (article7(1)(g) of the Statute);
Three counts of war crime:murder (article 8(2)(c)(i) of theStatute); rape (article 8(2)(e)(vi)of the Statute); and pillaging(article 8(2)(e)(v) of the Statute).
none
Court started June 2009(under ICC custody)
28. What organizations are humanitarian-focused?68
Organization Brief Information Focuses
INTERNATIONAL COMMITTEEOF THE RED CROSS
COMITE INTERNATIONALCROIX-ROUGE
Established under Switzerlandnational law to give aid towounded victims in war, theInternational Committee of theRed Cross is now aninternational humanitarianorganization which formulatesand establishes the internationalhumanitarian law.
The ICRC is an independent,neutral organization ensuringhumanitarian protection andassistance for victims of war andother situations of violence.
The ICRC has a permanentmandate under international lawto take impartial action forprisoners, the wounded and sick,and civilians affected by conflict.
promotion of InternationalHumanitarian Law,helping victims of armed conflicts
MEDECINS SANS FRONTIERESDOCTORS WITHOUT BORDERS
Established in 1971, ahumanitarian aid organizationthat provides emergency medicalassistance to populations indanger in more than 70countries.
awareness of crisis situations,witnessing populations in danger,alleviate human suffering,respect for human beings
MEDICAL EMERGENCYRESCUE COMMITTEE
An Islamic-based humanitarian
aid organization, established bystudents in Indonesia in 1999.
giving aid to persons and groupsin need without discrimination, on
the basis of urgency, to help themost vulnerable and neglectedpeople
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68 This list is not to be meant as an exhaustive list on humanitarian organizations.
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Organization Brief Information Focuses
CARE INTERNATIONAL
A humanitarian organizationfighting global poverty, which is
non-political and non-sectarian,operates in more than 65countries in all continents.
tackling underlying causes ofpoverty,emergency relief for natural andmanmade disasters
WORLD FOOD PROGRAMME
Food aid branch of the UnitedNations, formally established in
1963.
save lives in refugee and otheremergency situations,improve the nutrition and qualityof life of the most vulnerablepeople at critical times in theirlives,
help build assets and promotethe self-reliance of poor peopleand communities, particularlythrough labour-intensive worksprogrammes.
29. What is the Common Article 3 of the Geneva Conventions?
Often called mini convention, the Common Article 3 is the part of the Geneva
Conventions where the conflict not of an international characteris mentioned. In complete:
In the case of armed conflict not of an international character occurring in the territory of
one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a
minimum, the following provisions:
1. 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, colour, religion or
faith, sex, birth or wealth, or any other similar criteria.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:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
(d) 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.
2. The wounded and sick shall be collected and cared for.
" An impartial humanitarian body, such as the International Committee of the Red" Cross, 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.
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" The application of the preceding provisions shall not affect the legal status of the" Parties to the conflict.30. What any other distinctive symbols?69
Left: blue triangle on a orange background, for civil defence
Right: three orange circles, for installations containing dangerous forces
31. What are cluster munitions?70
Cluster munitions, as defined by Convention on Cluster
Munitions71:
Cluster munition means a conventional munition that is designed
to disperse or release explosivesubmunitions each weighing less
than 20 kilograms, and includes those explosive submunitions. It
does not mean the following:
(a)A munition or submunition designed to dispense flares, smoke,
pyrotechnics or chaff; or a munition designed exclusively for an air
defence role;
(b)A munition or submunition designed to produce electrical or
electronic effects;
(c)A munition that, in order to avoid indiscriminate area effects and the risks posed
by unexploded submunitions, has all of the following characteristics:
(I) Each munition contains fewer than ten explosive submunitions;
(II)Each explosive submunition weighs more than four kilograms;
(III)Each explosive submunition is designed to detect and engage a single
target object;(IV)Each explosivesubmunition is equipped with an electronic self-
destruction mechanism;
(V)Each explosivesubmunition is equipped with an electronic self-
deactivating feature.
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69 Article 16-17, Annex I to Additional Protocol I
70Cluster munitions were used regularly and on a large scale during the Vietnam War as well as in otherArmed conflicts. They consist of a hollow shell containing from a dozen to many hundreds of bomblets(submunitions) which are released over a wide area. Cluster munitions can have grave humanitarian effectssince their impact is indiscriminate. Moreover, many submunitions do not explode, lie on the ground and arethus a long-term threat to the civilian population. In May 2008, in Dublin, an international convention wasadopted prohibiting the manufacture, stockpiling, transfer and deployment of cluster munitions. Theconvention also provides for obligations on stockpile destruction, clearance and victim assistance. Clustermunitions are also a subject of negotiation in the framework of the 1980 Convention on ConventionalWeapons, which involves major military powers not present at the adoption of the Convention on ClusterMunitions. ABCIHL, 12-13.
71 Article 2
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32. How do cluster munitions banned72?
Cluster munitions are banned through the Convention on Cluster Munitions.
33. What countries have been affected by cluster munitions?73
"
"
ternational0
LayoutNJmc
"
2 Falkland Islands(United Kingdom)
3 Croatia
4 Bosnia and Herzegovina5 Serbia
6 Montenegro
7 Kosovo8 Albania
9 Georgia
10 Chechnya11 Azerbaijan
12 Tajikistan
13 Afghanistan14 Lebanon
15 Israel
16 Syria
1 Grenada
17 Iraq18 Kuwait
19 Saudi Arabia
20 Chad21 Sudan
22 Eritrea23 Ethiopia
24 Uganda
25 Democratic Republic of Congo26 Zambia
27 Angola
28 Sierra Leone29 WesternSahara (Morocco)
30 Laos
31 Vietnam32 Cambodia
39
12
13
1110
3130
32
1416
17 18
19
22
23
2120
28
29
25
24
27 26
15
5
6 78
4
Laos:1965 1973
414,920 cluster munitions =260 million submunitions were used
of which 13 to 78 million did not explode
on impact.
Vietnam:1965 1975296,680 cluster munitions =
96.9 million submunitions were used
of which 4.9 to 29.1 million did not ex plodeon impact.
Cambodia:1969 197380,173 cluster munitions =
26 million of submunitions were used
of which 1.3 to 7.8 million did not explodeon impact.
Afghanistan:2001 2002
1,228 cluster munitions =
248,056 submunitions were used.
Lebanon: 2006more than 4 million submunitions were
used during the last 72 hours of the conflict.
Over 1 million submunitions did notexplode according to the UN.
Serbia Montenegro Kosovo: March June 1999
1,392 cluster munitions =289,536 submunitions were used in Kosovo.(Number dropped in Serbia and Montenegro is unknown).
Iraq:1991 2006
50 million submunitions were used,
of which 2.6 to 6 million did not explodeon impact.
34. What countries are currently stockpiling cluster munitions?74
"
"
"0
"
"
5 Sweden6 Finland7 Denmark
8 France9 Portugal10 Switzerland11 Italy12 Czech Republic13 Poland14 Estonia15 Belarus16 Ukraine17 Moldova18 Romania19 Slovakia20 Hungary21 Slovenia22 Croatia23 Bosnia-Herzegovina24 Serbia25 Montenegro26 Bulgaria27 Greece
28 Morocco29 Algeria30 Libya31 Egypt32 Sudan33 Eritrea34 Ethiopia35 Uganda36 Nigeria37 Guinea38 Guinea-Bissau39 Angola40 Zimbabwe41 South Africa
42 Israel43 Jordan44 Saudi Ar
abia45 Yemen46 Oman47 United Arab Emirates48 Qatar49 Bahrein50 Kuwait51 Syria52 Turkey53 Georgia54 Azerbaijan55 Iran56 Turkmenistan57 Uzbekistan58 Kazakhstan59 Mongolia
60 Russia61 North Korea62 South Korea63 Japan64 China65 Pakistan66 India67 Sri Lanka68 Thailand69 Singapore70 Indonesia
1 United States2 Cuba3 Peru4 Brazil
1
1
2
5 6
7
8
9
10
11
2829
30 31 44
55
56
57
58 59
64
65
66
67
68
69
70
63
61
62
60
52
53
54
51
45
4647
48
5049
3233
3436
35
12
13
15
14
16
17
18
26
27
2022
25
23 24
4243
19
21
34
3738
39
40
41
Argentina,Australia, Honduras,Iraq, Mali and Spain havecompleted the destruction of their stockpiles of clustermunitions.
Austria, Belgium, Canada, Chile, Colombia, Germany,the Netherlands, Norway, and the United Kingdom are
currently destroying their stockpiles of cluster munitions.
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72 Prohibiting the manufacture, stockpiling, transfer and deployment of cluster munitions, also providesobligations on stockpile destruction, clearance and victim assistance.
73 Cluster Munitions Coalition
74 Cluster Munitions Coalition/Human Rights Watch
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35. What countries have used cluster munitions?75
"
"
"0
"
"
1 United States:Laos(1965-1973)Vietnam (1965-1975)Cambodia(1969 -1973)Grenadaand Lebanon (1983)
Iraq,Kuwait,Saudi Arabia(1991)Serbia,Kosovo,Montenegro(1999)Afghanistan (2001-2002)
Iraq (1998,2003-2006)
1
1
2 3
4
15
13
14
12
11
10
9
8
6
57
2 United Kingdom:
Falkland Islands(1982)Iraq,Kuwait (1991)Serbia,Kosovo,Montenegro(1999)Iraq (2003- 2006)
3 Netherlands:
Serbia,Kosovo,Montenegro(1999)
4 France:SuspicionsofuseinChad (1986)Iraq,Kuwait (1991)
5 Serbia:Albania,Bosnia-Herzegovina,Croatia(1999)
NorthernAlliance(Afghanistan)
Afghanistan (1996-2000)
Non-identified groups:Azerbaijan /Nagorno-Karabakh (1992- 1994)Tajikistan (1992- 1997)
Hezbollah (Lebanon) : Israel(2006)
11 Ethiopia:
Eritrea(1990,1998- 2000)
12 Sudan:South Sudan (1995 - 2000)
14 Libya:Chad (1987)
15 Morocco:Western Sahara(1975 -1991)
Non-identified groups:Zambia(1970s)Dem.Rep ofCongo(1998- 2003)
Self-proclaimed Republic
ofSerbian Krajina:Croatia(1991-1995)Bosnian Serbmilitia:Bosnia-Herzegovina(1992-1995)
6 Russia:Afghanistan (1979-1989)Chechnya(1994 -1996,1999)
Georgia(august 2008)
7 Georgia:South Ossetia(2008)
8 Israel:Syria(1973)Lebanon (1978,1982,1996,2006)
10 Eritrea:Ethiopia(1998)
9 Saudi Arabia:
SaudiArabia (1991)
13 Nigeria:SierraLeone (1997)
NATO:Bosnia-Herzegovina(1995-1999)Albania(1999)
Countries
Non-state armed groups
36. What is Civil Defence?76
Civil defence is the organisation of assistance and relief in situations of conflict and major
disasters to protect and ensure the survival of civilian populations and to limit damage to
Civilian objects as much as possible. It is prohibited to attack members of the civil defence
service, who are identified by a blue triangle on an orange ground77.
37. What weapons are considered prohibited under International Humanitarian Law?
There are some weapons generally considered prohibited7879 under (customary)
international humanitarian law80. Namely: poison, nuclear weapons81, biological
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75 Cluster Munitions Coalition/Human Rights Watch
76 ABCIHL, 11.
77 Look the entry on other distinctive signs.
78 The use of means and methods of warfare which are of a nature to cause superfluous injury or
unnecessary suffering is prohibited. CIHL I, 237
79 The use of weapons which are by nature indiscriminate is prohibited. CIHL I, 244
80 CIHL I, 237etc.
81 This category of weapon includes atomic bombs, hydrogen bombs (thermonuclear) and neutron bombs.While atomic bombs such as those dropped on Hiroshima and Nagasaki in 1945 are not banned as such byinternational law, they are affected by other bans on testing, manufacture, stockpiling, etc. According to a996 advisory opinion of the International Court of Justice (ICJ), the use of nuclear weapons is usually aviolation of international humanitarian law due to the scale of their impact, even though there is nocomprehensive ban in > Customary international law, nor indeed in international treaty law. ABCIHL, 32.
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weapons82, chemical weapons83 (or atomic-biological-chemical, ABC), expanding bullets
(also known asdum-dum84), exploding bullets, weapons primarily injuring by non-
detectable fragments, bobby-traps, landmines, incendiary weapons, and blinding laser
weapons.
Weapons Explanatory notes
POISON
Prohibited under Rome Statute (Article 8 (2) (b) (xvii)) Definition, from adversary opinion of Nuclear Weapons case, ICJ
stated that the terms poison and poisoned weapons have beenwell understood.
Effects: to poison or to asphyxiate Mechanisms: poisoning wells, water supplies, food, etc.
NUCLEAR WEAPONSor ATOMIC WEAPONS
Advisory opinion by the International Court of Justice, dated July
8, 1996: There is neither customary nor conventionalinternational law any specific authorization of threat or use ofnuclear weapons; there is neither customary nor conventionalinternational law any comprehensive and universal prohibition ofthe threat or use of nuclear weapons as such; ... However, inview of the current state of international law, and of the elementsof fact at its disposal, the Court cannot conclude definitivelywhether the threat or use of nuclear weapons would be lawful orunlawful in an extreme circumstance of self-defence, in which thevery survival of a State would be at stake.
BIOLOGICAL WEAPONS
Prohibited under Biological Weapons Convention and GenevaGas Protocol
No first use: reservation that states retained the right to retaliateif an adverse party violated the terms of the Protocol (only Angolaand Israel are currently with such reservation)
Examples: anthrax, ebola, Marburg virus, plague, cholera,tularemia, brucellosis, Q fever, Bolivian hemorrhagic fever,Coccidioides mycosis, glanders, Melioidosis, Shigella, RockyMountain spotted fever, typhus, Psittacosis, yellow fever,Japanese B encephalitis, Rift Valley fever, and smallpox
International Humanitarian Law: Questions, Answers and Debate
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82 Biological Weapons are also known as bacteriological weapons. These are designed to cause disease anddeath. Biological weapons contain living organisms that reproduce and release toxins dangerous to humans,animals and plants. As well as endangering health they cause damage to the environment. The use ofbiological weapons has been prohibited since 1925. The Biological Weapons Convention of 1972 prohibitsthe development, production or stockpiling of weapons that contain microbiological and bacteriologicalagents and toxins, as well as their means of delivery. It also recommends the destruction of such weapons.ABCIHL, 9
83 Chemical Weapons contain chemical substances that are a danger to health, can cause death to humans
and animals, or render them temporarily incapable of resistance (hors de combat) or cause lasting damage.These substances can also contaminate foodstuffs, drinks and other materials. As a result of the terribleconsequences of chemical weapons in the First World War, the use of asphyxiating, poisonous and similargases was prohibited in 1925. In 1993 an international convention went further, prohibiting the development,production, stockpiling or use of chemical weapons and recommending their destruction. ABCIHL, 12
84 Dumdum bullets were first used as ammunition for firearms at the end of the 19th century. On entering thebody the bullet loses velocity, and unlike a conventional bullet the dumdum tears the body tissue andfragments bone.At the first international peace conference in The Hague (1899) the use of dumdum bullets in Armed conflictwas prohibited on the grounds of cruelty and inhumanity. The bullet is named after a suburb of Kolkata(Calcutta), where it was invented. ABCIHL, 18
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Weapons Explanatory notes
CHEMICAL WEAPONS
Prohibited under, some of them, Geneva Gas Protocol, ChemicalWeapons Convention, Rome Statute of the International CriminalCourt
Prohibition including retaliation of using chemical weapons(however Angola, Iraq, Israel, North Korea and Libya still feel thatsuch retaliation permissible)
Among such weapons are weapons employing asphyxiating,poisonous or other gases, and all analogous liquids, materials ordevices
Prosecutor v. Tadic case, the ICTY there undisputedly emergeda general consensus in the international community on theprinciple that the use of [chemical] weapons is also prohibited...
Uses of riot-control agents as a method of warfare is prohibited Under many circumstances, herbicides is prohibited as method
of warfare (CIHL, 265)
EXPANDING BULLET
Listed as war crime under the Rome Statute of the InternationalCriminal Court (Article 8 (2) (b) (xix))
EXPLODING BULLET
First mentioned in St. Petersburg Declaration (1868) to avoidinflicting suffering which exceeded that needed to render acombatant hors de combat. The Declaration prohibits the use ofany projectile of a weight below 400 grammes, which is eitherexplosive or charged with fulminating or inflammablesubstances.
BOOBY TRAPS
Related to the principles of distinctive and proportionality Definition (Protocol II CCW), any device or material which is
designed, constructed or adapted to kill or injure and whichfunctions unexpectedly when a person disturbs or approaches anapparently harmless object or performs an apparently safe act.
Kinds of booby traps: (a) any booby-trap in the form of an apparently harmless portable
object which is specifically designed and constructed to containexplosive material and to detonate when it is disturbed orapproached, or (b) booby-traps which are in any way attached to
or associated with: (i) internationally recognized protective emblems, signs orsignals;
(ii) sick, wounded or dead persons; (iii) burial or cremation sites or graves; (iv) medical facilities, medical equipment, medical supplies or
medical transportation; (v) children's toys or other portable objects or products specially
designed for the feeding, health, hygiene, clothing or educationof children;
(vi) food or drink; (vii) kitchen utensils or appliances except in military
establishments, military locations or military supply depots;
(viii) objects clearly of a religious nature; (ix) historic monuments, works of art or places or worship which
constitute the cultural or spiritual heritage of peoples; (x) animals or their carcasses.
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Weapons Explanatory notes
LANDMINES
Prohibited under Protocol II to the Convention on CertainConventional Weapons
Aim of prohibition: minimizing indiscriminate effects Any placement of landmines should be recorded Anti-personnel mine: a mine designed to be exploded by the
presence, proximity or contact of a person and that willincapacitate, injure or kill one or more persons. Mines designedto be detonated by the presence, proximity or contact of aVehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as aresult of being so equipped. (Ottawa Treaty)
INCENDIARY WEAPONS
Purpose: to cause maximum fire damage and flammable objectsto illuminate
Examples: napalm, white phosphorous, thermite, chlorine Prohibited under Protocol III to the Convention on Certain
Conventional Weapons
BLINDING LASER WEAPONS
Prohibited under the Protocol on Blinding Laser Weapons, It isprohibited to employ laser weapons specifically designed, astheir sole combat function or as one of their combat functions, tocause permanent blindness to unenhanced vision, that is to thenaked eye or to the eye with corrective eyesight devices.
38. What is Perfidy?
Perfidy is any form of deception designed to win the confidence of an adversary and lead
him to believe that he is entitled or obliged to accord protection under the rules of
international humanitarian law, with the intention of betraying that confidence.85
Additional Protocol I of the Geneva Conventions (1977) prohibits perfidy 86:
1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts
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, shall constitute perfidy. Thefollowing 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.
2. Ruses of war are not prohibited. Such ruses 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. The following are examples of such ruses: the use of
camouflage, decoys, mock operations and misinformation.
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85 ABCIHL, 34
86 Article 37, Additional Protocol I of the Geneva Conventions
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June 10, 1998 (Central Sudan): three Sudanese UN staffs were killed and three
other wounded, resulted from gunfire on the UN vehicle
July 10, 1998 (Arua, Rwanda): Ugandan driver for the UN World Food Programme
(WFP) was killed by rebels
July 24, 1998 (Bujumbura, Burundi): one Italian WFP staff member was killed in
the capital
January 4, 1999 (South Sudan): four ICRC staffs were killed by the SFLA
January 3, 2000 (Balad, Somalia): one local CARE staff was shot dead in an
ambush
September 6, 2000 (Atambua, East Timor): five UNHCR staff members and two
Indonesians were killed by local militia
March 27, 2001 (Mogadishu, Somalia): MSF compound was attacked by gunmen
March 24, 2003 (Kandahar, Afghanistan): ICRC staff member Ricardo Munguia
was shot and killed in an ambush north of Kandahar October 27, 2003 (Baghdad, Iraq): an attack on the ICRC building killed at least 12
people
June 2, 2004 (Badghis, Afghanistan): five staffs for Medecins Sans Frontieres
were killed, resulting in withdrawal of MSF from Afghanistan (Hlne de Beir,
Willem Kwint, Egil Tynaes, Fasil Ahmad, Besmillah)
June 3, 2007 (Colombo, Sri Lanka): two Red Cross workers were abducted and
murdered in Sri Lanka
June 11, 2007 (El Bared, Lebanon): two Lebanese Red Cross workers were killed,
the third was wounded
July, 2007 (Central African Republic): an MSF volunteer logistician was killed by
gunfire
January 28, 2008 (Kismayo, Somalia): three MSF staffs were killed
International Humanitarian Law: Questions, Answers and Debate