law of armed conflict 2 notes

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Nigel Buenaventura, Ung Han, Nathaniel Lumaad, Katrina Quejado

SEMIREL JUS IN BELLO



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Table of Contents

What is Jus in Bello (Laws of War)?, Why is there a need to Regulate Warfare? .................. 2

Marten’s Clause , What is the Difference between International Humanitarian Law and

Human rights Law? ......................................................................................................................... 3

Historical Background ......................................................................................................................... 4

Further Developments in International Humanitarian Law .............................................................. 5

Core Principles of International Humanitarian Law ................................................................. 6

What is the difference between Hague Law and Geneva Law? ...........................................8

Principles proper to the victims of conflicts (Law of Geneva) ............................................. 9

Principles proper to the law of war (Hague Law) ...................................................... 10

What are the Sources of International Humanitarian Law? .........................................12

Special Provisions within the Hague Convention of 1899 and 1907 in relation to the

customs and conduct of war ........................................................................................... 12 - 14

Geneva Conventions and Protocols, First Geneva Convention ............................ 15

Second and Third Geneva Convention ............................................................ 16 - 17

Fourth Geneva Convention ............................................................................................. 18

Common Articles .......................................................................................................... 19

Two Protocols Additional to the 1949 Conventions ...................................................... 20

Other Treaties that make up International Humanitarian Law ......................................... 23

Why is there a need to prohibit certain weapons? ...................................................................24

Weapons Conventions ................................................................................................... 24 - 25

How about Nuclear Weapons? ............................................................................................. 27

Who is bound by the Geneva Conventions? ...................................................................27

When does International Humanitarian Law Apply? ......................................................28

Crimes Under International Humanitarian Law ................................................................ 29 – 31

Enforcement ....................................................................................................................... 31

What is the Role of the ICRC? ............................................................................................. 32

Individual Criminal Responsibility and Jurisdiction ................................................................ 32

International Criminal Tribunal for the former Yugoslavia ......................................... 32 - 33

International Criminal Tribunal for Rwanda ................................................................... 34

Rome Statute and the International Criminal Court ............................................... 34 - 37



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WHAT IS JUS IN BELLO? (LAWS OF WAR)

- Also known “International Humanitarian Law ” they seek to regulate and place

restrictions on means and methods of warfare for Humanitarian reasons, not just

between Belligerents “Combatants” but also for non-combatants as well (civilians,

wounded and the prisoners of war)

- International Humanitarian Law is part of International Law, which is the body of rules

governing relations between states.

- International Humanitarian Law applies to armed conflict s but it does not regulate

whether a State may actually use force ; (Jus Ad Bello)

WHY IS THERE A NEED TO REGULATE WARFARE? (PREMISE)

- Since it is not possible to fully prevent War, The Methods (Attacks, Detention and

Capture of Persons and Property) and the Means of Warfare (any form of Weapons) plus

the exercise of violence (acts which causes injury or loss of life to other human beings)must at least be subject to certain regulations aimed to ensure the safety and dignity of

people and seeks to preserve a measure of humanity even in times of Conflict.

- Thus the rights of those participating in combat is not limited

Article 35 of Additional Protocol I

1.

In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is

not unlimited.

2.

It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to

cause superfluous injury or unnecessary suffering.

3.

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.

THE PRINCIPLE PROHIBITING UNNECESSARY SUFFERING.

Considering:

That the progress of civilization should have the effect of alleviating as much as possible the calamities of war;

That the only legitimate object which States should endeavor to accomplish during war is to weaken the

military forces of the enemy;

That for this purpose it is sufficient to disable the greatest possible number of men;

That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of

disabled men, or render their death inevitable;

That the employment of such arms would, therefore, be contrary to the laws of humanity;

- Preamble of 1868 St. Petersburg Declaration



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MARTEN’s CLAUSE

“ 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 the

protection and empire of the principles of international law, as they result from the usages established between

civilized nations, from the laws of humanity and the requirements of the public conscience.”

Recalling that, in cases not covered by the law in force, the human person remains under the protection of the

principles of humanity and the dictates of the public conscience - article 1 paragraph 2 of Protocol I

The Martens Clause is important because, through its reference to customary law, it stresses the

importance of customary norms in the regulation of armed conflicts. In addition, it refers to "

the principles of humanity " and " the dictates of the public conscience " . It is important to

understand the meaning of these terms. The expression " principles of humanity " is

synonymous with " laws of humanity " ; the earlier version of the Martens Clause (Preamble,

1899 Hague Convention II) refers to " laws of humanity " ; the later version (Additional Protocol

I) refers to " principles of humanity " . The principles of humanity are interpreted as prohibiting

means and methods of war which are not necessary for the attainment of a definite military

advantage 1

WHAT IS THE DIFFERENCE BETWEEN INTERNATIONAL HUMANITARIAN

LAW AND HUMAN RIGHTS LAW?

While these two sets of rights and obligations share superficial similarities, their sources,

purposes, applicability and content differ. International Human Rights Law recognizes rights forindividuals and Obligations for States, and Applies whether an armed conflict exists or not.

International Humanitarian Law establishes Rights for individual and Obligations for both states

and individuals, and applies where armed Conflict exists.2

The Purpose of Human Rights Law is to articulate the rights of humans, with an emphasis upon

individual rights, while International Humanitarian Law is to regulate behavior in armed conflict,

primarily International Humanitarian law seeks to regulate conflict rather than protect rights3

Humanitarian law aims to protect people who do not or are no longer taking part in hostilities.

The rules embodied in IHL impose duties on all parties to a conflict. Human rights, being

tailored primarily for peacetime, apply to everyone. Their principal goal is to protect individuals

from arbitrary behavior by their own governments. Human rights law does not deal with the

conduct of hostilities.4

1 http://www.icrc.org/eng/resources/documents/misc/57jnhy.htm

2

p.48 War Conflict and Human Rights3 P.54

4 P.36 International Humanitarian Law ; Answers to your question

http://en.wikipedia.org/wiki/Protocol_I

http://en.wikipedia.org/wiki/Protocol_I



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HISTORICAL BACKGROUND.

- Initially Rules of War were based on Customary Law, followed by Bilateral Treaties

(normally ratified during the end of a war).

18th

to 19 Century

- Abandonment of any attempt by International Law to Restrict the Rights of State to go

to War ; however it also saw the growth of rules regulating the way in which Wars should

be fought.

- Wars during these era were wars between Armed Forces, rather than between peoples

meaning it was easy for International Law to Protect Civilians

- Laws of War were designed to reduce unnecessary suffering (meaning suffering the

would not bring any form of military advantage) ; Violations of the Laws of War was

discouraged by Disadvantages such as Reprisals, Loss of Neutral Goodwill.

o

However the arbitrariness of "military advantage" remains arbitrary to the statethemselves.

o Example: The torture of prisoners is prohibited but it may allow the offending

state to gain very important information which can be considered as a military

advantage.

o Example: Freed prisoners of war might join the war effort again, thus treating

them inhumanely will gain (military advantage)

o 19th century wars are fought against armed forces or nation states and not

against ethnicities.

- During The Latter Half of the 19th Century States began to issue manuals of military law; containing a restatement of the laws of war, for use by their commanders in the field.

The most Famous being the Lieber Code (prepared by Dr. Francis Lieber of Columbia

University in 1863) as the “Instruction for the Government of Armies of the United

States in the Field”

Henry Dunant and the Battle of Solferino

- Henry Dunant a Swiss citizen witnessed the aftermath of the Battle of Solferino

(between French and Austrian Armies) in Northern Italy in June, 1859. He participated

with other volunteers in easing the suffering of the French and Austrian Wounded

-

He recounted his experience in his Book Souvenir de Solferino “Memories of Solferino”

in which he suggested that national Societies should be created to care for the sick and

wounded irrespective of their race, nationality or religion. He also proposed that States

should make a treaty of these Organization and guaranteeing better treatment for the

wounded

- With his Four Friends5, He set up the International Committee for Aid to the Wounded

(now known as the International Committee of the Red Cross)

- Geneva, 1864 : 14 States adopted the Convention for the Amelioration of the Condition

of the Wounded in Armies in the Field (now known as the First Geneva Convention)

5 Gustave Moynier, Louis Appia, Henry Dufuor, Theodore Maunior



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- The Convention formally laid the foundations of International Humanitarian Law.

- This marked the beginning for The Laws of War which has been traditionally derived

from Customary law to be codified and extended by Treaties.

SIGNIFICANCE of the 1864 Convention

- The convention provided written rules of universal scope to protect the victims of

conflicts

- Its multilateral nature, open to all states

- The Convention ensured Obligation to extend care without discrimination to wounded

and sick military personnel

- Respect for and marking of medical personnel, transport and equipment using an

emblem (The Red Cross)

Further Developments in INTERNATIONAL HUMANITARIAN LAW

World War 1 (1914 – 1918)

- The Means and Methods of Warfare were deployed on an unprecedented scale, involving

Millions of Individual, alongside the introduction of innovations such as Poison Gas,

Armored and Aerial Warfare, plus the capture of hundreds of thousands of prisoners of

War.

- The Treaties of 1925 and 1929 were signed in response to these developments (Geneva

Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other

gases and Bacteriological methods of Warfare, The Review and Development of the

1906 Geneva Convention and the Geneva Convention relating to the Treatment ofPrisoners of War also known as the 3rd Geneva Convention)

World War 2 (1939 – 1945) and the Geneva Conventions

- As a consequence of the Methods and Means utilized in the War Civilians suffered much

more significantly than all the previous Wars combined, highlighting the need to adapt

with the changing nature of Warfare

- In 1949 as a response to the Tragic Events of the Previous War The First ThreeConventions were revised and expanded coupled with the Introduction of a Fourth One

- The Fourth Geneva Convention (Geneva Convention relative to the Protection of

Civilian Persons in Time of War) was adopted in response to the events specially to

Civilians during World War 2

GENEVA CONVENTIONS OF 1949

- First Geneva Convention for the Amelioration of the Condition of the Wounded and

Sick in Armed Forces in the Field, 1864

- Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick

and Shipwrecked Members of Armed Forces at Sea, 1906

http://en.wikipedia.org/wiki/Second_Geneva_Convention

http://en.wikipedia.org/wiki/Second_Geneva_Convention



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- Third Geneva Convention relative to the Treatment of Prisoners of War, 1929

- Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of

War, 1949

1977 GENEVA PROTOCOLS

- Furthermore the Constant Changing Nature of the Conduct of Hostilities highlighted the

need to supplement the Original 1949 Conventions

CORE PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW

DISTINCTION between Combatant and Civilians

The Cornerstone of the 1977 Additional Protocols is the Principle of DISTINCTION. This

requires that parties to an armed conflict distinguish between civilians and combatants and alsobetween Civilian Objects and Military Targets

o .. the civilian population as such as well as individual, shall not be the subject to

attack… Article 51, Additional Protocol I

o 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 – Article 48

Additional Protocol 1

This Principle is Indispensable for securing the protection of civilians

Additional Protocols I and II prohibit

o Combatants from posing as civilians

o Indiscriminate attacks

o Acts of Violence – or threats to commit them whose primary purpose is to spread

terror

o The destruction of objects that are indispensable to the survival of communities

o Attacks on places of worship and on monuments

PROPORTIONALITY

To prevent Unnecessary suffering among civilians the 1977 Protocols also seeks to ensure

respect for the Principle of PROPORTIONALITY in all Military Operations

They require all those involved to take every possible precaution with respect to the means and

methods of warfare used so as to avoid or minimize incidental loss of life, injury to civilians and

damage to civilian targets

o 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

http://en.wikipedia.org/wiki/Third_Geneva_Convention

http://en.wikipedia.org/wiki/Fourth_Geneva_Convention





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excessive in relation to the concrete and direct military advantage anticipated is

considered as indiscriminate Article 5 (b) Additional Protocol 1

o An attack shall be cancelled or suspended if it becomes apparent.. that the attack

may be expected to cause incidental loss of civilian life, injury to civilians, damage to

civilian objects to a combination thereof, which would be excessive in relation to the

concrete and direct military advantage anticipated .. Article 57, para 3. Additional

Protocol I

DISTINCTIONS of attack

Supplements the general obligation to distinguish between combatants and civilians and between

civilian and military objectives

o In the conduct of military operations, constant care shall be taken to spare the

civilian population, civilians and civilian objects – Article 57 Para. 1 AdditionalProtocol 1

o The Parties to the conflict shall endeavor to remove the civilian population, individual

civilians and civilian objects under their control from the vicinity of military objectives

– Article 58 Additional Protocol 1

Measures of precaution during armed conflict

Location of military objectives

- Separate military objectives from civilian population

Choosing weapons and methods of warfare

- Verification of targets

Warnings

- Effective warning before the attack

- Warnings cannot justify the attack on civilians

Military Necessity

Military necessity is a legal concept used in international humanitarian law as part of the legal

justification for attacks on legitimate military targets that may have terrible, consequences for

civilians and civilian objects.



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PROTECTION

Those who are not taking part in an armed conflict must be respected, protected and treated

humanely,

-

The wounded and the sick both civilian and military must be collected and cared for, without discrimination

- Women and Children must be respected and protected from any form of indecent

assault

- Children and Adolescents must be granted special protection. Those under the age of 15

must not be recruited or authorized to take part in hostilities

- Family members who are separated by conflict should be reunited. People also have the

right to know the fate of missing relatives

COMBATANTS

Combatants are entitled to protection.

- Injuries and suffering inflicted on an opponent must not exceed that which is necessary

to achieve a legitimate military objective

- Combatants who are no longer capable of taking part in part in military operations may

not be attacked

- In international conflicts, combatants who are captured must be presumed to be

prisoners of war, and they must be protected as specified by the Geneva Conventions

- Prisoners of war who cannot be cared for must be freed

WHAT IS THE DIFFERENCE BETWEEN HAGUE LAW AND

GENEVA LAW?

International Humanitarian Law (IHL) has two branches

- The “Law of Geneva”, which is designed to safeguard military personnel who are no

longer taking part in the fighting and people are not actively involved in hostilities, i.e

civilians

- 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

However with the adoption of the Additional Protocols of 1977, which combine both branches

this distinction is now merely historical and didactic value6

Principles proper to the victims of conflicts (Law of Geneva)

A. Principle of Neutrality

Humanitarian assistance is never an interference in the conflict

6 p.3 International Humanitarian Law : Answers to your questions ICRC



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The Geneva Convention of 1864

- assistance given even to the enemy is legal and is never a hostile act in violation of

neutrality

Article 27 of the First Convention of 1949 & Article 64 of Protocol I

In no circumstances shall this activity be deemed to be an interference in the conflict

Article 70 of Protocol I

Offers of humanitarian and impartial relief actions shall not be regarded as interference in

the armed conflict or as unfriendly acts

Application

1. In exchange for the immunity granted to it, medical personnel must abstain from any hostile

act

1949 = only the personnel of civilian hospitals

1977 = included members of civil defense organizations and military medical personnel

2. Medical personnel are given protection as healers

The Occupying Power may not require that, in the performance of those functions, such personnel

shall give priority to the treatment of any person except on medical grounds (Article 15, paragraph 3

of Protocol I)

Persons engaged in medical activities shall not be compelled to perform acts or to carry out work

contrary to the rules of medical ethics (Article 16 paragraph 2 of Protocol I)

3. No one shall be compelled to give any information concerning the wounded and sick who are

or have been under his care if such information would in his opinion prove harmful to them or

to their families

4. No one shall be molested or convicted for having given treatment to the wounded or sick

B. Principle of Normality

Protected persons must be able to lead normal lives as far as possible

This idea arises from the general concept of the need for a reasonable compromise between

humanitarian aspirations and the necessities of war.

Application

Wartime capacity is not a punishment, but only a means of keeping an adversary from being in a

position to do harm.



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Any measure of going beyond that purpose is useless and reprehensible

C. Principle of Protection

The state must ensure the protection, both national and international, of persons fallen into its

power

Application

1. Prisoners are in the power of the enemy State, not of the individuals or troops who have

captured them

2. The enemy state is responsible for the condition and upkeep of persons of whom it has

the guard and, in occupied territory, for the maintenance of public order and services

3. The victims of conflicts shall be provided with an international protector once they no

longer have a natural protector

Principles proper to the law of war (Hague Law)

A. Principles of Limitation ratione personae

The civilian population and individual civilians shall enjoy general protection against

dangers arising from military operations

Application

The parties to the conflict shall at all times distinguish between the civilian population

and combatants, so as to spare the population and civilian objects.

The civilian population as such, as well as individual civilians, shall not be the object of

attack even by way of reprisals

Acts or threats of violence with the primary purpose of which is to spread terror among

the civilian population are prohibited

The parties to the conflict shall take all possible precautions to spare the civilian

population or, at least, to cause the least possible incidental injuries and damage Only members of the armed forces have the right to attack the enemy and to resist him

B. Principles of Limitation ratione loci

Attacks must be limited strictly to military objectives



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Application

It is prohibited to attack localities which are undefended

It is forbidden to commit any acts of hostility against buildings dedicated to science or

charity and against the historic monuments, works of art or places of worship which

constitute the cultural or spiritual heritage of peoples

It is forbidden to attack works and installations which may release forces dangerous to

the civilian population

The population shall not be used to shield military objectives from attacks

Civilian objects shall not be the object of attack or of reprisals. It is forbidden to destroy

or remove objects indispensable to the survival of the population

Pillage is prohibited

C. Principles of Limitation ratione conditionis

It is prohibited to employ against anyone, weapons and methods of warfare of a nature to

cause superfluous injury or unnecessary suffering

Indiscriminate attacks are prohibited

Attacks are forbidden which may be expected to cause loss and injury to civilians and

damage to civilian objects which would be excessive in relation to the concrete and direct

military advantage anticipated

Care shall be taken in warfare to protect the natural environment Starvation of civilians as a method of warfare is prohibited

Acts of war based on perfidy are prohibited



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WHAT ARE THE SOURCES OF INTERNATIONAL HUMANITARIAN

LAW?

SPECIAL PROVISIONS WITHIN THE HAGUE CONVENTIONS OF 1899 AND

1907 IN RELATION TO THE CUSTOMS AND CONDUCT OF WAR

On the Qualifications of Belligerents

Article 1

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfilling the

following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included

under the denomination "army."

Article 2

The population of a territory which has not been occupied who, on the enemy's approach, spontaneouslytake up arms to resist the invading troops without having time to organize themselves in accordance with

Article 1, shall be regarded a belligerent, if they respect the laws and customs of war.

Article 3

The armed forces of the belligerent parties may consist of combatants and non-combatants. In case of

capture by the enemy both have a right to be treated as prisoners of war.

Means of injuring the Enemy, Sieges, and Bombardments

Article 22

The right of belligerents to adopt means of injuring the enemy is not unlimited.

Article 23

Besides the prohibitions provided by special Conventions, it is especially prohibited:--

To employ poison or poisoned arms;

To kill or wound treacherously individuals belonging to the hostile nation or army;

To kill or wound an enemy who, having laid down arms, or having no longer means of defense, has

surrendered at discretion;



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To declare that no quarter will be given;

To employ arms, projectiles, or material of a nature to cause superfluous injury;

To make improper use of a flag of truce, the national flag, or military ensigns and the enemy's uniform, as

well as the distinctive badges of the Geneva Convention;

To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by

the necessities of war.

Article 24

Ruses of war (to fool) and the employment of methods necessary to obtain information about the enemy

and the country, are considered allowable.

Article 25

The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.

Article 26

The Commander of an attacking force, before commencing a bombardment, except in the case of an

assault, should do all he can to warn the authorities.

Article 27

In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices

devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected,

provided they are not used at the same time for military purposes.

The besieged should indicate these buildings or places by some particular and visible signs, which should

previously be notified to the assailants.

Article 28

The pillage of a town or place, even when taken by assault, is prohibited.

MILITARY AUTHORITY OVER THE TERRITORYOF THE HOSTILE STATE

Art. 42.

Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation extends only to the territory where such authority has been established and can be

exercised.



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Art. 43.

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall

take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while

respecting, unless absolutely prevented, the laws in force in the country.

Art. 44.

A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about

the army of the other belligerent, or about its means of defense.

Art. 45.

It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.

Art. 46.

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.

Private property cannot be confiscated.

Art. 47.

Pillage is formally forbidden.

Art. 48.

If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of theState, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence in force, and

shall in consequence be bound to defray the expenses of the administration of the occupied territory to the

same extent as the legitimate Government was so bound.

Art. 49.

If, in addition to the taxes mentioned in the above article, the occupant levies other money contributions

in the occupied territory, this shall only be for the needs of the army or of the administration of the territory in

question.

Art. 50.

No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts

of individuals for which they cannot be regarded as jointly and severally responsible .

All the articles above in relation to the customs and conduct of war are both found on

the 1899 and 1907 Hague Conventions. They are the vital parts in terms the

establishment of rights and obligations of the belligerents in the conduct of military

operations and the limits of inflicting harm on the enemy.

All parts of the 1899 and 1907 conventions are identical.

Only the section on Prisoners of wars is INCLUDED in the 1907 Hague Convention.



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GENEVA CONVENTIONS AND PROTOCOL

First Geneva Convention:

Amelioration of the Condition of Wounded in Armies in the Field

Article 9- Allows the ICRC or any other impartial humanitarian organization to provideprotection and relief to wounded and sick soldiers, as well as medical and religious

personnel.

Article 12 mandates that wounded and sick soldiers who are out of battle must be humanely

treated

Art. 12. Members of the armed forces and other persons mentioned in the following Article, who are wounded

or sick, shall be respected and protected in all circumstances.

They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, withoutany adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar

criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular,

they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not

wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or

infection be created.

Only urgent medical reasons will authorize priority in the order of treatment to be administered.

Women shall be treated with all consideration due to their sex.

The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far as military

considerations permit, leave with them a part of its medical personnel and material to assist in their care.

Article 15 Wounded and sick soldiers should be collected, and protected.

At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible

measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to

ensure their adequate care, and to search for the dead and prevent their being despoiled.

Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements

made, to permit the removal, exchange and transport of the wounded left on the battlefield.

Article 16- parties to the conflict should record the identity of the dead and wounded and

transmit this information to the opposing party

Article 24 – Medical Personnel shall be respected and protected in all circumstances

Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the

wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical

units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected

in all circumstances.



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Second Geneva Convention for the Amelioration of the Condition of Wounded , Sick and

Shipwrecked Members of Armed Forces at Sea.

The human dignity of all individuals must be respected at all times

Everything possible must be done, without any kind of discrimination, to reduce the

suffering of people who have been put out of action by sickness, wounds or captivity

If a member of the armed forces is wounded or sick, and therefore in no condition to

take an active part in the hostilities, he is no longer part of the fighting force and

becomes a vulnerable person in need of protection and care.

Belligerents must treat members of enemy forces who are wounded and sick and

shipwrecked as carefully their own

Medical equipment must not be intentionally destroyed and medical establishments and

vehicles must not be attacked, damaged or prevented from operating

Third Geneva Convention relative to the Treatment of Prisoners of War, 1929

What are the qualifications of a Prisoner of War?

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following

categories, who have fallen into the power of the enemy :

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps

forming part of such armed forces.

(2) Members of other militias and members 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 conditions:[

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war .

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by

the Detaining Power.

(4) 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, who shall provide them for that purpose with an identity card similar

to the annexed model.

(5) 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 other

provisions of international law.

(6) 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





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carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power

considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them

while hostilities were going on outside the territory it occupies, in particular where such persons have made anunsuccessful attempt to re-join the armed forces to which they belong and which are engaged in combat, or

where they fail to comply with a summons made to them with a view to internment.

What rights do the Prisoners of War Have?

- Prisoners of War must be treated humanely and at all times be protected , particularly

against acts of violence or intimidation and against “insults and public curiosity” (Art.13)

-

They are only bound only to divulge their name, date of birth, rank and serial number

(Art. 17)

- No physical or mental torture, nor any other form of coercion , may be inflicted on prisoners of war to

secure from them information of any kind whatever. Prisoners of war who refuse to answer may not

be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind .

- Art 18. All effects and articles of personal use, except arms, horses, military equipment and military

documents, shall remain in the possession of prisoners of war , likewise their metal helmets and gas

masks and like articles issued for personal protection. Effects and articles used for their clothing or

feeding shall likewise remain in their possession, even if such effects and articles belong to their

regulation military equipment.

-

Allowed to inform next of kin and International Red Cross of their capture (Art. 70)- Allowed to correspond regularly with relatives and to receive relief parcels (Art. 72)

- Provided with quarters not inferior to those of their captor's troops

- Given the medical care their state of health demands

- Paid for any work they do (Art. 62)

- Repatriated if certified seriously ill or wounded (but they must not resume active

military duties afterwards)

- Quickly released and repatriated when hostilities cease.

o

Art 118. Prisoners of war shall be released and repatriated without delay after the cessationof active hostilities.



Page 18 of 36

Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949

To whom does the Convention apply?

Art. 3. 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.

Art. 13. The provisions of Part II cover the whole of the populations of the countries in conflict, without any

adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to

alleviate the sufferings caused by war.

What rights do they have?

Article 23

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.

Article 24

The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are

orphaned or are separated from their families as a result of the war, are not left to their own resources , and

that their maintenance, the exercise of their religion and their education are facilitated in all circumstances.

Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.

- Enabled to exchange family news of a personal kind (Art . 25)

Article 27

Protected persons are entitled, in all circumstances , to respect for their persons, their honour, 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.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced

prostitutiOn, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be

treated with the same consideration by the Party to the conflict in whose power they are, without any adverse





Page 19 of 36

distinction based, in particular, on race, religion or political opinion.

Art. 47. Protected persons who are in occupied territory shall not be deprived , in any case or in any manner

whatsoever, of the benefits of the present Convention by any change introduced, as the result of the

occupation of a territory , into the institutions or government of the said territory, nor by any agreement

concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation

by the latter of the whole or part of the occupied territory.

COMMON ARTICLES

COMMON ARTICLE 1

Article 1 common to the four Geneva Conventions reads as follows:

“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all

circumstances”.

This provision was reiterated in Article 1, paragraph 4, of Additional Protocol I. As such, the

obligation to respect and ensure respect (which will also be referred to as common Article 1)

applies to international conflicts and, indeed, to non-international conflicts to the extent that

the latter are covered by common Article 3. While conflicts of a non-international character

as defined by Additional Protocol II are not explicitly covered by the obligation to respect

and to ensure respect, they can nonetheless be considered as indirectly falling within the

purview of the provision, insofar as Protocol II is merely an elaboration of common Article

3 of the four Geneva Conventions, a fact stated in its Article 1, paragraph 1.

COMMON ARTICLE 2

Art. 2. In addition to the provisions which shall be implemented in peace-time, the present Convention shall

apply to all cases of declared war or of any 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 Convention 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.

COMMON ARTICLE 3

Art. 3. 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 prohibitedat any time and in any place whatsoever with respect to the above-mentioned persons:



Page 20 of 36

(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 endeavor to bring into force, by means of special

agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the

conflict.

TWO PROTOCOLS ADDITIONAL TO THE FOUR 1949 GENEVA

CONVENTIONS

Two Additional Protocols were adopted in 1977: one covers international armed conflict and the

other international armed conflict, a third protocol established in 2003 establishes an additional

emblem, the red crystal, equal in status to the red cross and red crescent

PROTOCOL I

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the

Protection of Victims of International Armed Conflicts (PROTOCOL I), 8 June 1977

Additional Protocol I imposes limits on the ways wars may be fought and strengthens

protection for civilians, it also sets out the principle of proportionality, which requires that a

balance be struck between military necessity and the dictates of humanity

Protocol I adds explicit protections to outlaw attacks on civilians and civilian targets. Prohibits:

o attacking dams, houses of worship, food and water supplies

o Recruiting children under 15 into armed forces (Art. 77)

o bombing nuclear power stations and weapons which cause long term and severe

environmental damage

o use of weapons that “cause superfluous injury or unnecessary suffering

Art 10 Protection and care

1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected.

2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and



Page 22 of 36

PROTOCOL III relating to the Adoption of an Additional Distinctive Emblem.

Reason for the Adoption of the Additional Emblem

The Red Cross and Red Crescent emblems have sometimes been wrongly perceived as having

religious, cultural or political connotations. This has affected respect for the emblems and hasdiminished the protection the emblems offer to victims and to humanitarian and medical

personnel.

The emblems are used throughout the world to protect medical personnel, buildings andequipment in times of armed conflict and to identify national Red Cross and Red Crescentsocieties, the International Committee of the Red Cross (ICRC) and the International Federationof Red Cross and Red Crescent Societies.

The debate that led to the adoption of the Third Additional Protocol recognized the need toprovide protection in cases where neither the red cross nor the red crescent is respected as

neutral. The debate also considered the needs of those National Societies that were unable to join the

Movement because of their inability to use either the red cross or the red crescent. The adoption

of the Third Protocol and the incorporation of the red crystal into the Statutes of the Movement

makes it possible for those Societies to use the red crystal without endangering their own

traditions. Magen David Adom in Israel is the first National Society to use the red crystal

emblem.7

The Red Crystal

emblem approved by the

States party to the Geneva

Conventions

The Red Cross Symbol Red Crescent Emblem

Article 2 - Distinctive emblems

1. This Protocol recognizes an additional distinctive emblem in addition to, and for the same purposes as, the

distinctive emblems of the Geneva Conventions. The distinctive emblems shall enjoy equal status.

7 http://www.ifrc.org/en/who-we-are/the-movement/emblems/the-emblem-debate/



Page 23 of 36

2. This additional distinctive emblem, composed of a red frame in the shape of a square on edge on a white

ground, shall conform to the illustration in the Annex to this Protocol. This distinctive emblem is referred to in

this Protocol as the "third Protocol emblem".

3. The conditions for use of and respect for the third Protocol emblem are identical to those for the distinctiveemblems established by the Geneva Conventions and, where applicable, the 1977 Additional Protocols.

Other Treaties that make up International Humanitarian Law

Aside from the Geneva Conventions and their Additional Protocols, contemporary

Humanitarian Law has evolved in stages to meet the growing aid resulting from developments in

weaponry and new types of conflict. 8

1954 Hague Convention for the protection of cultural property in the event of armed conflict

Recognizing that cultural property has suffered grave damage during recent armed conflicts and that, by

reason of the developments in the technique of warfare, it is in increasing danger of destruction;

Being convinced that damage to cultural property belonging to any people whatsoever means damage to the

cultural heritage of all mankind, since each people makes its contribution to the culture of the world;

Article 1(a) of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflictdefines cultural property as covering irrespective of ownership

(a) movable or immovable property of great importance to the cultural heritage of every people, such as

monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of

buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other

objects of artistic, historical or archaeological interest; as well as scientific collections and important collections

of books or archives or of reproductions of the property defined above;

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined

in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to

shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);

(c) centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be

known as `centers containing monuments'.

8 p.10 International Humanitarian Law : Answers to your question , ICRC



Page 24 of 36

WHY IS THERE A NEED TO PROHIBIT CERTAIN WEAPONS?

Refer to Article 35 Protocol 1 p. 2 the principle of unnecessary suffering , Marten’s Clause p.3

1972 Convention on the prohibition of the development, production and stockpiling of

bacteriological (biological) and toxic weapons and on their destruction

Article 1

Each State Party to this Convention undertakes never in any circumstance to develop, produce, stockpile or

otherwise acquire or retain:

(1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in

quantities that have no justification for prophylactic, protective or other peaceful purposes;

(2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in

armed conflict.

1980 Convention on restrictions on the use of certain conventional weapons (CCW)

which may be deemed excessively injurious or to have indiscriminate effects which

includes

Protocol I on non-detectable fragments

It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human

body escape detection by X-rays.

Protocol II on prohibitions or restrictions on the use of mines, booby traps and other

devices

Definitions

For the purpose of this Protocol:

1. "Mine" means any munition placed under, on or near the ground or other surface area and designed to be

detonated or exploded by the presence, proximity or contact of a person or vehicle, and "remotely delivered

mine" means any mine so defined delivered by artillery, rocket, mortar or similar means or dropped from an

aircraft.

2. "Booby-trap" means any device or material which is designed, constructed or adapted to kill or injure andwhich functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs

an apparently safe act.

3. "Other devices" means manually-emplaced munitions and devices designed to kill, injure or damage and

which are actuated by remote control or automatically after a lapse of time.

Protocol III on prohibitions or restrictions on the use of incendiary weapons

Article 1

Definitions

For the purpose of this Protocol:



Page 25 of 36

1. "Incendiary weapon" means any weapon or munition which is primarily designed to set fire to objects or to

cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical

reaction of a substance delivered on the target. (a) Incendiary weapons can take the form of, for example,

flame throwers, fougasses, shells, rockets, grenades, mines, bombs and other containers of incendiary

substances.

Article 2

Protection of civilians and civilian objects

1. It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian

objects the object of attack by incendiary weapons.

2. It is prohibited in all circumstances to make any military objective located within a concentration of civilians

the object of attack by air-delivered incendiary weapons.

3. It is further prohibited to make any military objective located within a concentration of civilians the object of

attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military

objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a

view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing,

incidental loss of civilian life, injury to civilians and damage to civilian objects.

4. It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons

except when such natural elements are used to cover, conceal or camouflage combatants or other military

objectives, or are themselves military objectives.

1993 Convention on the prohibition of the development, production, stockpiling and use

of chemical weapons and on their destruction

For the purposes of this Convention:

1. "Chemical Weapons" means the following, together or separately:

(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this

Convention, as long as the types and quantities are consistent with such purposes;

(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of

those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of

such munitions and devices;

(c) Any equipment specifically designed for use directly in connection with the employment of munitions and

devices specified in subparagraph (b).

2. "Toxic Chemical" means:

Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or

permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their

method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.



Page 26 of 36

1997 Convention on the Prohibition of the use, stockpiling, production and transfer of

anti-personnel mines and on their destruction

Article 2

Definitions

1. "Anti-personnel mine" means a mine designed to be exploded by the presence, proximity or contact of a

person and that will incapacitate, injure or kill one or more persons. Mines designed to be detonated by the

presence, proximity or contact of a vehicle as opposed to a person that are equipped with anti-handling

devices, are not considered anti-personnel mines as a result of being so equipped.

2. "Mine" means a munition designed to be placed under, on or near the ground or other surface area and to

be exploded by the presence, proximity or contact of a person or a vehicle.

3. "Anti-handling device" means a device intended to protect a mine and which is part of, linked to, attached to

or placed under the mine and which activates when an attempt is made to tamper with or otherwise

intentionally disturb the mine.

4. "Transfer" involves, in addition to the physical movement of anti-personnel mines into or from national

territory, the transfer of title to and control over the mines, but does not involve the transfer of territory

containing emplaced anti-personnel mines.

5. "Mined area" means an area which is dangerous due to the presence or suspected presence of mines.

2008 Convention on Cluster Munitions (CCM)

Article 2Definitions

2. “Cluster munition” means a conventional munition that is designed to disperse or release explosive

submunitions 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 explosive submunition is equipped with an electronic self-destruction mechanism;

(v) Each explosive submunition is equipped with an electronic self-deactivating feature;



Page 27 of 36

How about Nuclear Weapons?

the legality of the use of nuclear weapons was brought before the International Court of Justiceon the basis of two requests for an advisory opinion, one filed by the World HealthOrganization.9

On 8 July 1996, the Court delivered its advisory opinions on both requests. The request made bythe WHO was dismissed (by eleven votes to three) with the reasoning that under the ‘principleof speciality which governs international organizations and limits their powers, the WHO had nocompetence to deal with the legality of the use of nuclear weapons, even in view of their healthand environmental effects. With regard to the request filed by the General Assembly, differentmajorities emerged among the judges concerning different steps of the decision. The Courtfound that there is neither in customary nor conventional law ‘any specific authorization of thethreat or use of nuclear weapons’ (unanimously), but also no ‘comprehensive and universalprohibition’ (by eleven votes to three). The Court further replied (unanimously) that ‘[a] threat oruse of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the

United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful’ andthat it ‘should also be compatible with the requirements of the international law applicable inarmed conflict, particularly those of the principles of international humanitarian law, as well as

with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons’. The most controversial finding (by seven votes to seven, by the President’s casting vote) is rather mysterious:10

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would

generally be contrary to the rules of international law applicable in armed conflict, and in particular

the principles and rules of humanitarian law. However, in view of the current state of international

law, and of the elements of fact at its disposal, the Court cannot conclude definitely whether the

threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

WHO IS BOUND BY THE GENEVA CONVENTIONS?

- Only States may become party to international treaties, and thus to the Geneva

Conventions and their Additional Protocols. However all parties to an armed conflict –

whether State or non-State actors – are bound by International Humanitarian Law

9 p. 347 Akehurst Modern Introduction to International Law

10 p. 347 Akehurst Modern Introduction to International Law



Page 28 of 36

WHEN DOES INTERNATIONAL HUMANITARIAN LAW APPLY?

- IHL concerns both International Armed Conflict (Conflicts involving at least two

countries) and Armed Conflicts that take place in a single country (such as those between

Government and Rebel Forces)

-

However there are distinctions to the applicability and obligations of parties between

International and Non-International Conflict

- IHL applies to all parties to a conflict regardless of who started it

Article 1 -- General principles and scope of application ; Additional Protocol I relating to

the Protection of Victims of International Armed Conflicts

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all

circumstances.

2. 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.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of

war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are

fighting against colonial domination and alien occupation and against racist régimes in the exercise

of their right of self-determination , as enshrined in the Charter of the United Nations and the

Declaration on Principles of International Law concerning Friendly Relations and Co-operation among

States in accordance with the Charter of the United Nations.

Article 1 -- Material field of application ; Additional Protocol II relating to the Protection

of Victims of Non-International Armed Conflicts

1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August

1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not

covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to

the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a

High Contracting Party 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 this protocol.



Page 29 of 36

Does IHL apply to other situations?

2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated andsporadic acts of violence and other acts of a similar nature, as not being armed conflicts

Crimes under International Humanitarian law

Grave Breaches

ARTICLE 50 First Geneva Convention

Grave breaches to which the preceding Article relates shall be those involving any of the following

acts, if committed against persons or property protected by the Convention: wilful killing, torture or

inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury

to body or health, and extensive destruction and appropriation of property, not justified by military

necessity and carried out unlawfully and wantonly.

Thus the Rights of those participating in Combat is not Limited

Crimes against Humanity

For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as

part of a widespread or systematic attack directed against any civilian population, with knowledge of theattack:

11

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of

international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other

form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectively on political, racial, national, ethnic,

cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized

11 Article 7 Rome Statute of International Criminal Court



Page 30 of 36

as impermissible under international law, in connection with any act referred to in this paragraph or

any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury

to body or to mental or physical health.

War Crimes

War crimes are understood to mean serious violations of international humanitarian law

committed during international or non-international armed conflicts. Several legal texts contain

definitions of war crimes, namely the Statute of the International Military Tribunal established

after the Second World War in Nuremberg, the Geneva Conventions and their AdditionalProtocols, the Statutes and case law of the International Criminal Tribunals for the former

Yugoslavia and Rwanda, and the Statute of the International Criminal Court. Definitions of the

notion of war crime are also given in the legislation and case law of various countries. It is

important to note that one single act may constitute a war crime.

The following acts are, among others, included in the definition

of war crimes:

o willful killing of a protected person (e.g. wounded or sick combatant, prisoner of war,

civilian);

o torture or inhuman treatment of a protected person;

o willfully causing great suffering to, or serious injury to the body or health of, a protected

person;

o attacking the civilian population;

o unlawful deportation or transfer;

o using prohibited weapons or methods of warfare;

o making improper use of the distinctive red cross or red crescent emblem or other

protective signs;

o

killing or wounding perfidiously individuals belonging to a hostile nation or army;o pillage of public or private property.

War criminals should be distinguished from “unprivileged belligerents” such as spies who are not

entitled to be treated as Prisoners of War and may be shot upon capture, provided that their

status as unprivileged belligerents is proved by a fair trial. But unprivileged belligerents, and the

states which employ them, are not guilty of violating the laws of war ; the state employing them

is under no obligation to pay compensation for their activities, as it would have been if those

activities had been contrary to international law.12

12 p. 354 Akehurst’s Modern Introduction to International Law



Page 31 of 36

Genocide

Article 4 of the Statute of the ICTY, defines Genocide by way of example.

2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a

national, ethnical, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to 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 births within the group;

(e) forcibly transferring children of the group to another group.

3. The following acts shall be punishable:

(a) genocide;

(b) conspiracy to commit genocide;

(c) direct and public incitement to commit genocide;

(d) attempt to commit genocide;

(e) complicity in genocide.

ENFORCEMENT

Parties to the 1949 Geneva Conventions and to Protocol I, 1977 undertake to respect and to

ensure respect for the instrument in question, (Common Article 1) and disseminate knowledge

of the principles there in. A variety of enforcements methods also exist, although the use of

reprisals has been prohibited. 13 (Article 20, 51 (6) Additional Protocol 1)

Reprisals are one of the main means of forcing states to obey the laws of war – and international law in general. AReprisal is an act which would normally be illegal but which is rendered lawful by a prior illegal act committed by the

state against which the reprisal is directed ; it is a form of retaliation against the prior illegal act. Reprisals may be

used only when other means of warning have failed.14

Another means of implementation is the concept of the Protecting Power, appointed to look

after the interest of a national of one party to a conflict under the control of the other, whether

as prisoners of war or occupied civilians. Such a power must ensure that compliance with the

relevant provisions has been effected and that the system acts as a form of guarantee for the

protected person as well as a channel of communication for him with the state which he is a

national, the drawback of this system is its dependence upon the consent of the parties involved.

Not only must the Protecting Power be prepared to act in that capacity but both the state of

which the protected person is a national and the state holding such persons must give their

consent for the system to operate15

Protocol I also provides for an International Fact-Finding Commission for competence to

inquire into grave breaches of the Geneva Conventions or other serious violations and to

13 p. 1199 Shaw International Law 6

th ed

14

p. 352 Akehurst’s Modern Introduction to International Law 15 p. 1199 Shaw International Law 6

th ed



Page 33 of 36

Conventions was emphasised. Under resolution 780 (1992), the Security Council established an

impartial Commission of Experts to examine and analyse information concerning evidence of

grave breaches of the Geneva Conventions and other violations of international humanitarian

law committed in the territory of the former Yugoslavia. The Commission produced a report in

early 1993 in which it concluded that grave breaches and other violations of international

humanitarian law had been committed in the territory of the former Yugoslavia, including wilful

killing, ‘ethnic cleansing’, mass killings, torture, rape, pillage and destruction of civilian

property, the destruction of cultural and religious property and arbitrary arrests

The Security Council then adopted resolution 808 (1993) calling for the establishment of an

international tribunal to prosecute ‘persons responsible for serious violations of international

humanitarian law committed in the territory of the former Yugoslavia since 1991.19 The

Secretary-General of the UN produced a report incorporating a draft statute and commentary,

which was adopted by the Security Council in resolution 827 (1993) acting under Chapter VII of

the UN Charter.

The Tribunal has the power to prosecute persons responsible for serious violations ofinternational humanitarian law committed in the territory of the former Yugoslavia since 1991(articles 1 and 8 of the Statute).

The Tribunal and national courts have concurrent jurisdiction with regard to the prosecution ofrelevant accused persons, but the Tribunal has primacy over national courts, so that the formermay request the latter to defer to its competence. States are obliged to co-operate with theInternational Tribunal in the investigation and prosecution of persons accused of committingserious violations of international humanitarian law and must comply without undue delay with

any request for assistance or an order issued by a Trial Chamber, including the identification andlocation of persons; the taking of testimony and the production of evidence; the arrest ordetention of persons; and the surrender or the transfer of the accused to the International

Tribunal.1 No person may be tried by a national court for acts constituting serious violations ofinternational humanitarian law under the Statute, for which he or she has already been tried bythe International Tribunal, but the Tribunal may try a person for relevant acts after trial by anational court where the act for which he or she was tried was characterised as an ordinarycrime; or where the national court proceedings were not impartial or independent, were designedto shield the accused from international criminal responsibility, or the case was not diligentlyprosecuted


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The International Criminal Tribunal for Rwanda (ICTR)

With the events following the death of Rwandan President Juvenal Habyarimana ethnic tensions

in the country escalated leading to a genocide in April 1994 during which 800,000 Tutsis and

moderate Hutus were killed. Outraged over the slaughter the international community demanded

prosecutions20

The Security Council decided in resolution 955 (1994) to establish an International Criminal

Tribunal for Rwanda, with the power to prosecute persons responsible for serious violations of

international humanitarian law.

The Tribunal has jurisdiction with regard to serious violations of international humanitarian law

committed in the territory of Rwanda and Rwandan citizens responsible for such violations

committed in the territory of neighboring states between 1 January 1994 and 31 December 1994.

As is the case with the ICTY, the ICTR has concurrent jurisdiction with national courts and hasprimacy over national courts of all states, while at any stage of the procedure, the Tribunal may

formally request national courts to defer to its competence. Similarly, no person may be tried

before a national court for acts constituting serious violations of international humanitarian law

under the present Statute, for which he or she has already been tried by the International

Criminal Tribunal for Rwanda, while a person who has been tried before a national court for acts

constituting serious violations of international humanitarian law may be subsequently tried by the

Tribunal only if either the act for which he or she was tried was characterised as an ordinary

crime; or the national court proceedings were not impartial or independent, were designed to

shield the accused from international criminal responsibility, or the case was not diligently

prosecuted21

Rome Statute and the International Criminal Court (ICC)

The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent,

treaty based, international criminal court established to help end impunity for the perpetrators of

the most serious crimes of concern to the international community. 22

Unlike the Two International Criminal Tribunals (Former Yugoslavia and Rwanda) the ICC is

not the product of a binding Security Council Resolution, but of an International Treaty. This

was essentially because states, while being prepared to accept the creation of geographically

limited and temporally constrained tribunals by Security Council action, were not willing to be so

bound by the establishment of a permanent International Criminal Court with much more

extensive jurisdiction without expressed consent 23

Article 5. Jurisdiction of the Court

20 p. 171 War, Conflict and Human Rights

21

p. 408 Shaw International Law 6

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1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international

community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following

crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

Article 25 Individual criminal responsibility

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and

liable for punishment in accordance with this Statute.

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a

crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person,

regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in

its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a

group of persons acting with a common purpose. Such contribution shall be intentional and shall

either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the

group, where such activity or purpose involves the commission of a crime within the

jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences its execution by means of a

substantial step, but the crime does not occur because of circumstances independent of the person's

intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the

completion of the crime shall not be liable for punishment under this Statute for the attempt to

commit that crime if that person completely and voluntarily gave up the criminal purpose.



4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of

States under international law.

A Key feature of the ICC, and one that distinguished it from the two international criminal

tribunals, is that it is founded upon the concept of complementarity, which means essentially

that the national courts have priority. A case will be inadmissible and the Court will be unable toexercise jurisdiction in a number of situations24

1) The Case is being investigated or prosecuted by a state which has jurisdiction over it,

unless the state is unwilling or unable genuinely to carry out the investigation or

prosecution

2) The case is being prosecuted by a state which has jurisdiction over it and the state has

decided not to prosecute the person concerned, unless the decision resulted from the

unwillingness or inability of the state genuinely to prosecute

3) The person concerned has already been tried for conduct which is the subject of the

complaint, unless the proceedings before the court other than the ICC were for thepurpose of shielding the person concerned from criminal responsibility for crimes withinthe jurisdiction of the ICC or where those proceedings were not conductedindependently or impartially.

The ICC has only Jurisdiction with respect to crimes after the Statute came into force and with

respect to states which have become parties to the Statute.

Structure of the Court

The Court consists of four organs. These are respectively the Presidency; an Appeals Division, a Trial Division and a Pre-Trial Division; the Office of the Prosecutor; and the Registry, The

eighteen judges elected must be independent and serve on a full-time basis have competence in

criminal law or in relevant areas of international law and must represent the principal legal

systems in the world, as well as reflect equitable geographical representation and the need for a

fair representation of male and female judges. The judges are elected by the Assembly of States

Parties using rather complicated voting rules. The Presidency, consisting of the President and the

First and Second Vice-Presidents, is responsible for the proper administration of the Court

(apart from the Office of the Prosecutor) while the Registry is responsible for the non-judicial

aspects of the administration and servicing of the Court. The Office of the Prosecutor acts

independently as a separate organ of the Court. It is responsible for receiving referrals and any

substantiated information on crimes within the jurisdiction of the Court, for examining them and

for conducting investigations and prosecutions before the Court. The Office is headed by the

Prosecutor who is elected by secret ballot by members of the Assembly of States Parties and

assisted by one or more Deputy Prosecutors.25

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