International Humanitarian Law: Questions, Answers and Debate

INTERNATIONAL HUMANITARIAN LAW 1. What is International Humanitarian Law? Rules which, in times of armed conict, seek to protect people who are not or are or no longer taking part in hostilities, and to restrict the methods and means of warfare employed 1. A set of rules which seek, for humanitarian reasons, to limit the effects of armed conict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare2. 2. What are the basic rules of International Humanitarian Law3? Conicting parties must, at all times, distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solely against military objectives. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the ghting. Neither the parties to the conict 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 conict 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 nd themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence and 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 ghting and people not actively involved in hostilities, i.e. civilians;

1 2 3

IHLAQ, 4. WIHL, 1.

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 give clearer denition of the basic rules.
4

IHLAQ, 4. 1

International Humanitarian Law: Questions, Answers and Debate

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 1977 7. 5. What is the International Criminal Court (ICC)? The International Criminal Court (ICC), governed by the Rome Statute, is the rst 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. 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 denitions 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 ghting;

5 6

IHLAQ, 7.

Friedrich Fromhold Martens (also Fyodor Fyodorovich Martens or Frederic Frommhold de Martens) (1845 1909) was a famous Estonian born international lawyer. He became an ofcial in the foreign ministry of Russia in 1868 and was professor of international law at the University of St. Petersburg from 1873 to 1907.Martens was a representative at many international conferences, including the Hague Conferences of 1899 and 1907, for which he helped lay the foundation. It was at the former where heformulatedthe famous savings clause that was included in the preamble of the Convention with Respect to the Laws and Customs of War on Land and has become known as the Martens 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. - The Martens Society
7

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. PAGC, 4.
8 9

The International Criminal Court. WIHL, 2.

International Humanitarian Law: Questions, Answers and Debate

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, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a denite military advantage. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. 8. Who are the parties11 to the International Criminal Court?12

Parties and Signatories of the Rome Statute

Asia (9) Africa (30)

Afghanistan, Bangladesh, Cambodia, Cook Islands, Japan, Jordan, Mongolia, South Korea, Tajikistan Benin, Botswana, Burkina Faso, Burundi, Central African Republic, 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

10 11 12

Additional Protocol I, Art 52(2) - PAGC, 37. Parties means have ratied or acceded UN Documentation, Amnesty International, International Criminal Court 3

International Humanitarian Law: Questions, Answers and Debate

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, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom 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, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, Venezuela Australia, East Timor, Fiji, Marshall Islands, Nauru, New Zealand, Samoa

Americas (25)

Oceania (7)

9. Who are the signatories 13 of the Rome Statute?14 15 Asia and Oceania (13) Africa (14) Bahrain, Iran, Israel, Kuwait, Kyrgyzstan, Oman, Philippines, Solomon Islands, Syria, Thailand, United Arab Emirates, Uzbekistan and Yemen. Algeria, Angola, Cameroon, Cape Verde, Cte d'Ivoire, Egypt, Eritrea, Guinea-Bissau, Morocco, Mozambique, So Tom and Prncipe, Seychelles, Sudan* and Zimbabwe Armenia, Moldova, Monaco, Russia and Ukraine Bahamas, Haiti, Jamaica, Saint Lucia and the United States

Europe (5) Americas (5)

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 unwilling16 or 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 prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

13 14 15

States which have signed the Rome Statute, but have not ratied it UN Documentation, Amnesty International, International Criminal Court

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 obligation arising from its signature on 8 September 2000.
16 17

Unwilling means the State is clearly shading someone from the responsibility for ICC crimes. ICC. Unable (genuinely) means the legal system of the state has collapsed. ICC.

International Humanitarian Law: Questions, Answers and Debate

(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 sufcient 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 complementary principle)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) War crimes; (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 harm to members of the group; (c) Deliberately inicting 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.

18 19

This is the principle of Ne bis in idem. Refer to Article 20 of the Rome Statute.

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 be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
20 21 22

ICC. EOC, 2 etc.

According to Elements of Crimes, elements to killing are: 1. The perpetrator killed (caused death) one or more persons 2. Such person or persons belonged to a particular national, ethical, racial or religious group 3. The perpetrator intended to destroy, in whole or in part, that national, ethical, racial or religious group, as such 4. 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 5

International Humanitarian Law: Questions, Answers and Debate

14. What constitutes Crimes against humanity?23 24 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 widespread or systematic attack directed against any civilian population 25, 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) Torture 29; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy 30, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution31 against any identiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, as dened 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;

23 24

EOC, 5 etc. 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 population 2. 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 a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, 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 iniction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.
27

According to Article 7, Paragraph 2, point (c), Enslavement means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafcking in persons, in particular women and children.
28

According to Article 7, Paragraph 2, point (d), Deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.
29

According to Article 7, Paragraph 2, point (e), Torture means the intentional iniction 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 sanctions.
30

According to Article 7, Paragraph 2, point (f), Forced pregnancy means the unlawful connement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This denition shall not in any way be interpreted as affecting national laws relating to pregnancy.
31

According to Article 7, Paragraph 2, point (g), Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. 6

International Humanitarian Law: Questions, Answers and Debate

(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?34 35 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) Torture 38 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 justied 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 connement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conict, within the established framework of international law, namely, any of the following acts:
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 a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
33

According to Article 7, Paragraph 2, point (h), The crime of apartheid means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.
34 35

EOC, 14 etc. 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 1949 2. 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 conict.

36

While this is on international armed conict, thus one other general principle applies: The conduct took place in the context of and was associated with an international armed conict. EOC, 14 etc.
37 38

Among them: Article 50, Geneva Conventions I/Article 130, Geneva Conventions III

One of the elements: The perpetrator inicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.
39

Among them: Article 50, Geneva Conventions I/Article 130, Geneva Conventions III 7

International Humanitarian Law: Questions, Answers and Debate

(i) (ii) (iii)

(iv)

(v) (vi) (vii)

(viii)

(ix)

(x)

(xi) (xii) (xiii) (xiv) (xv)

(xvi) (xvii)
8

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; 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 conict; 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; Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; Making improper use of a ag of truce, or the ag 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; 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; 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; Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientic experiments of any kind which are neither justied 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; Killing or wounding treacherously individuals belonging to the hostile nation or army; Declaring that no quarter will be given; Destroying or seizing the enemys property unless such destruction or seizure be imperatively demanded by the necessities of war; Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; 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; Pillaging a town or place, even when taken by assault; Employing poison or poisoned weapons;

International Humanitarian Law: Questions, Answers and Debate

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or atten 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 superuous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conict, 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 and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as dened 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 fteen years into the national armed forces or using them to participate actively in hostilities. (c) In the case of an armed conict not of an international character, serious violations 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 combat by 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.

International Humanitarian Law: Questions, Answers and Debate

(d) Paragraph 2 (c) applies to armed conicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conicts 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 as they are entitled to the protection given to civilians or civilian objects under the international law of armed conict; (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 dened 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 fteen 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 conict, 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 conict to physical mutilation or to medical or scientic experiments of any kind which are neither justied 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 conict; (f) Paragraph 2 (e) applies to armed conicts 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 conicts that take place in the territory of a State when there is protracted armed conict between governmental authorities and organized armed groups or between such groups.
10

International Humanitarian Law: Questions, Answers and Debate

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 inicted 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 inicted by or at the instigation of or with the consent or acquiescence of a public ofcial or other person acting in an ofcial capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions40. The intentional iniction 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 1949 42 and its Additional Protocols of 1977 18. What does the Geneva Conventions say about Terrorism? IHL - sometimes also called the Law of Armed Conict or the Law of War - does not provide a denition of terrorism, but prohibits most acts committed in armed conict that would commonly be considered "terrorist" if they were committed in peacetime 43. 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.

40 41 42 43

United Nations Convention Against Torture (CAT), Article 1 (1) Rome Statute of the International Criminal Court, Article 7, paragraph 2, point (e) Among them: Geneva Convention I, Article 4 (1)

International Committee of the Red Cross, International humanitarian law and terrorism: questions and answers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504
44 45

Which is, under armed conict, both international and non-international

International Committee of the Red Cross, International humanitarian law and terrorism: questions and answers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504 11

International Humanitarian Law: Questions, Answers and Debate

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?46 47 Specic aspects of the so-called "war on terrorism" launched after the attacks against the United States on 11 September 2001 amount to an armed conict as dened 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 conict, which involved the US-led coalition, 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 conict 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 their perpetrators, terrorist acts committed outside of armed conict 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 conict48. 21. What are types of armed conict?49 There are conicts called international armed conicts50, which is between states. Under Protocol I of 8 June 1977, wars of national liberation must also be treated as conicts of an international character. A war of national liberation is a conict in which a people is ghting against a colonial power, in the exercise of its right of self-determination.

46

International Committee of the Red Cross, International humanitarian law and terrorism: questions and answers 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 ght against terrorism rather than war against terrorism.
48

Measures such as intelligence gathering, police and judicial cooperation, extradition, criminal sanctions, nancial investigations, the freezing of assets or diplomatic and economic pressure on states accused of aiding suspected terrorists are not commonly considered acts of war.
49

International Committee of the Red Cross, International humanitarian law and the protection of war victims. 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 by such conicts. Protocol I deals exclusively with international armed conicts. 12

International Humanitarian Law: Questions, Answers and Debate

Franois Bugnion

There are conicts happen within the territory of a State, which are conicts of a non-international character51 52. 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 functions 53. Some of those emblems:

RED CROSS, RED CRESCENT RED CRYSTAL

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;

51

A common feature of many such internal armed conicts is the intervention of armed forces of another State, supporting the government or the insurgents.
52

The substantive rules of humanitarian law governing non-international armed conicts are much simpler than their counterparts governing international conicts. They are derived from one main source, namely Article 3 common to the four Geneva Conventions of 1949, which enjoins the parties to an internal conict to respect some basic principles of humanitarian behaviour already mentioned above. It is particularly important to 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 of more specic provisions. This is a welcome contribution to the strengthening of humanitarian protection in situations of internal armed conict. 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 54 55 56 57 58

Refer to, e.g. Article 44, Geneva Convention I Refer to, e.g. Article 44, Geneva Convention I Refer to, e.g. Article 44, Geneva Convention I Refer to Article 2 (2) of the Additional Protocol III Refer to Article 4 of the Additional Protocol I Refer to Article 4 (1) of the Statute of the International Committee of the Red Cross 13

International Humanitarian Law: Questions, Answers and Debate

to recognize any newly established or reconstituted National Society which fulls 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 conicts 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 conicts 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 conicts, to the training of medical personnel and 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 conicts 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 conict as well as members of militias or volunteer corps forming part of such armed forces.

59 60 61

ABCIHL, 38 Treating all rivals or disputants equally; fair and just - Oxford New American Dictionary

Dened as consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates. See CIHL I, 14. 14

International Humanitarian Law: Questions, Answers and Debate

Members of other militias of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conict 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, full the following conditions62: that of being commanded by a person responsible for his subordinates; that of having a xed 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 conict, who do not benet 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 dening armed forces. When they take part in hostilities and fulll the criteria of armed forces, they become such. In addition, Additional Protocol I65 requires a party to the conict to notify such incorporation to the other parties to the conict. 27. What are the cases being heard in the International Criminal Court?66
67

62 63 64 65 66 67

Article I of the Hague Regulations, CIHL, 15. Known as leve en masse. CWW, 40. CIHL, 17. Article 43 (3), Additional Protocol I International Criminal Court

This lists cases being taken into hearing, which the court has been commenced and hearings have started. Cases in which still at pre-trial hearings or arrest warrants (e.g. Omar al-Bashir of Sudan) are discounted from this list. 15

International Humanitarian Law: Questions, Answers and Debate

Case

Allegations
Allegedly responsible, as coperpetrator, of war crimes consisting of: Enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la libration du Congo [Patriotic Forces for the Liberation of Congo] (FPLC) and using them to participate actively in hostilities in the context of an international armed conict from early September 2002 to 2 June 2003 (punishable under article 8(2)(b)(xxvi) of the Rome Statute); Enlisting and conscripting children under the age of 15 years into the FPLC and using them to participate actively in hostilities in the context of an armed conict not of an international character from 2 June 2003 to 13 August 2003 (punishable under article 8(2)(e) (vii) of the Rome Statute). Allegedly jointly committed through other persons, within the meaning of article 25(3)(a) of the Statute: War crimes: 1. Using children under the age of fteen to take active part in the hostilities, under article 8(2)(b) (xxvi) of the Statute; 2. Directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute; 3. Wilful killings under article 8(2) (a)(i) of the Statute; 4. Destruction of property under article 8(2)(b)(xiii) of the Statute; 5. Pillaging under article 8(2)(b) (xvi) of the Statute; 6. Sexual slavery under article 8(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) of the Statute; 2. Rape under article 7(1)(g) of the Statute; 3. Sexual slavery under article 7(1)(g) of the Statute.

Verdict

none Court started January 2009 (under ICC custody)

Prosecutor v. Thomas Lubanga Dyilo DR Congo, 2006

none Court started November 2009 (under ICC custody)

Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui DR Congo, 2007

16

International Humanitarian Law: Questions, Answers and Debate

Case

Allegations
Allegedly responsible, as military commander, of Two counts of crimes against humanity: murder (article 7(1)(a) of the Statute) and rape (article 7(1)(g) of the Statute); Three counts of war crime: murder (article 8(2)(c)(i) of the Statute); rape (article 8(2)(e)(vi) of the Statute); and pillaging (article 8(2)(e)(v) of the Statute).

Verdict

none Court started June 2009 (under ICC custody)

Prosecutor v. Jean-Pierre Bemba Gombo Central African Republic, 2008

28. What organizations are humanitarian-focused?68 Organization Brief Information

Established under Switzerland national law to give aid to wounded victims in war, the International Committee of the Red Cross is now an international humanitarian organization which formulates and establishes the international humanitarian law. The ICRC is an independent, neutral organization ensuring humanitarian protection and assistance for victims of war and other situations of violence. The ICRC has a permanent mandate under international law to take impartial action for prisoners, the wounded and sick, and civilians affected by conict. promotion of International Humanitarian Law, helping victims of armed conicts

Focuses

INTERNATIONAL COMMITTEE OF THE RED CROSS COMITE INTERNATIONAL CROIX-ROUGE

MEDECINS SANS FRONTIERES DOCTORS WITHOUT BORDERS

Established in 1971, a humanitarian aid organization that provides emergency medical assistance to populations in danger in more than 70 countries.

awareness of crisis situations, witnessing populations in danger, alleviate human suffering, respect for human beings

An Islamic-based humanitarian aid organization, established by students in Indonesia in 1999. MEDICAL EMERGENCY RESCUE COMMITTEE

giving aid to persons and groups in need without discrimination, on the basis of urgency, to help the most vulnerable and neglected people

68

This list is not to be meant as an exhaustive list on humanitarian organizations. 17

International Humanitarian Law: Questions, Answers and Debate

Organization

Brief Information

Focuses

A humanitarian organization ghting global poverty, which is non-political and non-sectarian, operates in more than 65 countries in all continents. CARE INTERNATIONAL

tackling underlying causes of poverty, emergency relief for natural and manmade disasters

Food aid branch of the United Nations, formally established in 1963.

WORLD FOOD PROGRAMME

save lives in refugee and other emergency situations, improve the nutrition and quality of life of the most vulnerable people at critical times in their lives, help build assets and promote the self-reliance of poor people and communities, particularly through labour-intensive works programmes.

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 conict not of an international character is mentioned. In complete: In the case of armed conict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conict 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 conict. " The Parties to the conict should further endeavour to bring into force, by means " of special agreements, all or part of the other provisions of the present " Convention.
18

International Humanitarian Law: Questions, Answers and Debate

" "

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

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 dened by Convention on Cluster Munitions71: 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 ares, 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 selfdestruction mechanism; (V)Each explosive submunition is equipped with an electronic selfdeactivating feature.

69 70

Article 16-17, Annex I to Additional Protocol I

Cluster munitions were used regularly and on a large scale during the Vietnam War as well as in other Armed conicts. 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 effects since their impact is indiscriminate. Moreover, many submunitions do not explode, lie on the ground and are thus a long-term threat to the civilian population. In May 2008, in Dublin, an international convention was adopted prohibiting the manufacture, stockpiling, transfer and deployment of cluster munitions. The convention also provides for obligations on stockpile destruction, clearance and victim assistance. Cluster munitions are also a subject of negotiation in the framework of the 1980 Convention on Conventional Weapons, which involves major military powers not present at the adoption of the Convention on Cluster Munitions. ABCIHL, 12-13.
71

Article 2 19

International Humanitarian Law: Questions, Answers and Debate

32. How do cluster munitions banned72 ? Cluster munitions are banned through the Convention on Cluster Munitions.

COUNTRIES AND affected by cluster munitions?73 33. What countries have been TERRITORIES AFFECTED BY CLUSTER MUNITIONS

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 explode on impact. Afghanistan: 2001 2002 1,228 cluster munitions = 248,056 submunitions were used. 3 Croatia 4 Bosnia and Herzegovina 5 Serbia 6 Montenegro 7 Kosovo 8 Albania 9 Georgia 10 Chechnya 11 Azerbaijan 12 Tajikistan 13 Afghanistan 14 Lebanon 29 15 Israel 16 Syria 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 1975 296,680 cluster munitions = 96.9 million submunitions were used of which 4.9 to 29.1 million did not explode on impact. Cambodia: 1969 1973 80,173 cluster munitions = 26 million of submunitions were used of which 1.3 to 7.8 million did not explode on impact.

4 5 6 87 16

10 11 12

14 15

17

13 18

19

31 30 32

1 Grenada 28

20

22 21 23 24 25 17 Iraq 18 Kuwait 19 Saudi Arabia 20 Chad 21 Sudan 22 Eritrea 23 Ethiopia 24 Uganda 25 Democratic Republic of Congo 26 Zambia 27 Angola 28 Sierra Leone 29 Western Sahara (Morocco) 30 Laos 31 Vietnam 32 Cambodia

Lebanon: 2006 more than 4 million submunitions were used during the last 72 hours of the conflict. Over 1 million submunitions did not explode according to the UN.

27

26

"Handicap"International"0"Layout"NJmc

2 Falkland Islands (United Kingdom)

Sources: Human Rights Watch / Cluster Munition Coalition

34. What countries are currently stockpiling cluster munitions?74

COUNTRIES THAT STOCKPILE CLUSTER MUNITIONS (2009)

5 Sweden 6 Finland 7 Denmark

5 1

6 60 14

8 France 9 Portugal 10 Switzerland 11 Italy 12 Czech Republic 13 Poland 14 Estonia 15 Belarus 16 Ukraine 17 Moldova 18 Romania 19 Slovakia 20 Hungary 21 Slovenia 22 Croatia 23 Bosnia-Herzegovina 24 Serbia 25 Montenegro 26 Bulgaria 27 Greece 38 37

15 13 12 8
10
21

19

16
17

58

59

20
23 24
25

22

18 26 52 51
42 53 54

11
9

57 56 64 55 65
48
47

61 62

27

63 60 Russia 61 North Korea 62 South Korea 63 Japan 64 China 65 Pakistan 66 India 67 Sri Lanka 68 Thailand 69 Singapore 70 Indonesia

28

43

29

50 49

30

31

44

46

66 68

32 36 35 28 Morocco 29 Algeria 30 Libya 31 Egypt 32 Sudan 33 Eritrea 34 Ethiopia 35 Uganda 36 Nigeria 37 Guinea 38 Guinea-Bissau 39 Angola 40 Zimbabwe 41 South Africa

33

45 42 Israel 43 Jordan 67 44 Saudi Arabia 45 Yemen 46 Oman 47 United Arab Emirates 48 Qatar 49 Bahrein 50 Kuwait 51 Syria 52 Turkey 53 Georgia 54 Azerbaijan 55 Iran 56 Turkmenistan 57 Uzbekistan 58 Kazakhstan 59 Mongolia

34

1 United States 2 Cuba 3 Peru 4 Brazil 3 4

69 70

39 40

41

Argentina, Australia, Honduras, Iraq, Mali and Spain have completed the destruction of their stockpiles of cluster munitions.
"Handicap"International"0"Layout"NJmc

Austria, Belgium, Canada, Chile, Colombia, Germany, the Netherlands, Norway, and the United Kingdom are currently destroying their stockpiles of cluster munitions.

Sources: Human Rights Watch / Cluster Munition Coalition

72

Prohibiting the manufacture, stockpiling, transfer and deployment of cluster munitions, also provides obligations on stockpile destruction, clearance and victim assistance.
73 74

Cluster Munitions Coalition

Cluster Munitions Coalition/Human Rights Watch 20

June"2009

June"2009

International Humanitarian Law: Questions, Answers and Debate

35. What countries have used cluster munitions?75

COUNTRIES AND ARMED GROUPS THAT HAVE USED CLUSTER MUNITIONS

2 2 United Kingdom: Falkland Islands (1982) Iraq, Kuwait (1991) Serbia, Kosovo, Montenegro (1999) Iraq (2003 - 2006) 1 3 Netherlands: Serbia, Kosovo, Montenegro (1999) 4 France: Suspicions of use in Chad (1986) Iraq, Kuwait (1991)
NATO: Bosnia-Herzegovina (1995 -1999) Albania (1999)

4 5 7

8 15 14 9 6 Russia: Afghanistan (1979 - 1989) Chechnya (1994 - 1996, 1999) Georgia (august 2008) 7 Georgia: South Ossetia (2008)
Non-identified groups: Azerbaijan / Nagorno-Karabakh (1992 - 1994) Tajikistan (1992 - 1997) Northern Alliance (Afghanistan) Afghanistan (1996 - 2000)

11 Ethiopia: Eritrea (1990, 1998 - 2000) 12 Sudan: South Sudan (1995 - 2000)

12

10 11

13 Nigeria: Sierra Leone (1997)

Non-identified groups: Zambia (1970s) Dem. Rep of Congo (1998 - 2003)

1 United States:
Laos (1965 -1973) Vietnam (1965 -1975) Cambodia (1969 -1973) Grenada and Lebanon (1983) Iraq, Kuwait, Saudi Arabia (1991) Serbia, Kosovo, Montenegro (1999) Afghanistan (2001 - 2002) Iraq (1998, 2003 - 2006)

13

5 Serbia: Albania, Bosnia-Herzegovina, Croatia (1999)

Self-proclaimed Republic of Serbian Krajina: Croatia (1991-1995) Bosnian Serb militia: Bosnia-Herzegovina (1992 -1995)

14 Libya: Chad (1987) 15 Morocco: Western Sahara (1975 -1991)

8 Israel: Syria (1973) Lebanon (1978, 1982, 1996, 2006)

Hezbollah (Lebanon) : Israel (2006)

9 Saudi Arabia: Saudi Arabia (1991) 10 Eritrea: Ethiopia (1998)

Countries Non-state armed groups

"Handicap"International"0"Layout"NJmc

Sources: Human Rights Watch / Cluster Munition Coalition Circle of Impact: The Fatal Footprint of Cluster Munitions on People and Communities Handicap International May 2007

36. What is Civil Defence?76 Civil defence is the organisation of assistance and relief in situations of conict 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 identied by a blue triangle on an orange ground 77. 37. What weapons are considered prohibited under International Humanitarian Law? There are some weapons generally considered prohibited 78 79 under (customary) international humanitarian law 80. Namely: poison, nuclear weapons81, biological

75 76 77 78

Cluster Munitions Coalition/Human Rights Watch ABCIHL, 11. Look the entry on other distinctive signs.

The use of means and methods of warfare which are of a nature to cause superuous injury or unnecessary suffering is prohibited. CIHL I, 237
79 80 81

The use of weapons which are by nature indiscriminate is prohibited. CIHL I, 244 CIHL I, 237 etc.

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 by international law, they are affected by other bans on testing, manufacture, stockpiling, etc. According to a 996 advisory opinion of the International Court of Justice (ICJ), the use of nuclear weapons is usually a violation of international humanitarian law due to the scale of their impact, even though there is no comprehensive ban in > Customary international law, nor indeed in international treaty law. ABCIHL, 32. 21

June"2009

International Humanitarian Law: Questions, Answers and Debate

weapons82, chemical weapons83 (or atomic-biological-chemical, ABC), expanding bullets (also known as dum-dum84), exploding bullets, weapons primarily injuring by nondetectable fragments, bobby-traps, landmines, incendiary weapons, and blinding laser weapons. Weapons Explanatory notes
Prohibited under Rome Statute (Article 8 (2) (b) (xvii)) Denition, from adversary opinion of Nuclear Weapons case, ICJ stated that the terms poison and poisoned weapons have been well understood. Effects: to poison or to asphyxiate Mechanisms: poisoning wells, water supplies, food, etc. Advisory opinion by the International Court of Justice, dated July 8, 1996: There is neither customary nor conventional international law any specic authorization of threat or use of nuclear weapons; there is neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such; ... However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude denitively 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. Prohibited under Biological Weapons Convention and Geneva Gas Protocol No rst use: reservation that states retained the right to retaliate if an adverse party violated the terms of the Protocol (only Angola and 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, Rocky Mountain spotted fever, typhus, Psittacosis, yellow fever, Japanese B encephalitis, Rift Valley fever, and smallpox

POISON

NUCLEAR WEAPONS or ATOMIC WEAPONS

BIOLOGICAL WEAPONS

82

Biological Weapons are also known as bacteriological weapons. These are designed to cause disease and death. 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 of biological weapons has been prohibited since 1925. The Biological Weapons Convention of 1972 prohibits the development, production or stockpiling of weapons that contain microbiological and bacteriological agents 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 terrible consequences of chemical weapons in the First World War, the use of asphyxiating, poisonous and similar gases 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 rst used as ammunition for rearms at the end of the 19th century. On entering the body the bullet loses velocity, and unlike a conventional bullet the dumdum tears the body tissue and fragments bone. At the rst international peace conference in The Hague (1899) the use of dumdum bullets in Armed conict was prohibited on the grounds of cruelty and inhumanity. The bullet is named after a suburb of Kolkata (Calcutta), where it was invented. ABCIHL, 18 22

International Humanitarian Law: Questions, Answers and Debate

Weapons

Explanatory notes
Prohibited under, some of them, Geneva Gas Protocol, Chemical Weapons Convention, Rome Statute of the International Criminal Court Prohibition including retaliation of using chemical weapons (however Angola, Iraq, Israel, North Korea and Libya still feel that such retaliation permissible) Among such weapons are weapons employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices Prosecutor v. Tadic case, the ICTY there undisputedly emerged a general consensus in the international community on the principle 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)

CHEMICAL WEAPONS

Listed as war crime under the Rome Statute of the International Criminal Court (Article 8 (2) (b) (xix)) EXPANDING BULLET First mentioned in St. Petersburg Declaration (1868) to avoid inicting suffering which exceeded that needed to render a combatant hors de combat. The Declaration prohibits the use of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inammable substances. Related to the principles of distinctive and proportionality Denition (Protocol II CCW), any device or material which is designed, constructed or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently 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 specically designed and constructed to contain explosive material and to detonate when it is disturbed or approached, or (b) booby-traps which are in any way attached to or associated with: (i) internationally recognized protective emblems, signs or signals; (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 education of 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.

EXPLODING BULLET

BOOBY TRAPS

23

International Humanitarian Law: Questions, Answers and Debate

Weapons

Explanatory notes
Prohibited under Protocol II to the Convention on Certain Conventional 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 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 antihandling devices, are not considered anti-personnel mines as a result of being so equipped. (Ottawa Treaty) Purpose: to cause maximum re damage and ammable objects to illuminate Examples: napalm, white phosphorous, thermite, chlorine Prohibited under Protocol III to the Convention on Certain Conventional Weapons

LANDMINES

INCENDIARY WEAPONS

Prohibited under the Protocol on Blinding Laser Weapons, It is prohibited to employ laser weapons specically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices. BLINDING LASER WEAPONS

38. What is Perdy? Perdy is any form of deception designed to win the condence 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 condence. 85 Additional Protocol I of the Geneva Conventions (1977) prohibits perdy 86: 1. It is prohibited to kill, injure or capture an adversary by resort to perdy. Acts inviting the condence 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 conict, with intent to betray that condence, shall constitute perdy. The following acts are examples of perdy: (a) The feigning of an intent to negotiate under a ag 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 conict. 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 conict and which are not perdious because they do not invite the condence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouage, decoys, mock operations and misinformation.

85 86

ABCIHL, 34

Article 37, Additional Protocol I of the Geneva Conventions 24

International Humanitarian Law: Questions, Answers and Debate

39. What is Proportionality principle? The principle of proportionality applies to every aspect of the conduct of hostilities. It is prohibited for example to carry out attacks against a Military objective that would cause a disproportionate amount of harm to the civilian population, and against Civilian objectives. Before launching an attack there is an obligation to assess whether or not the impact on the civilian population is excessive in relation to the concrete and direct military advantage anticipated.87 40. What is Distinction principle? International humanitarian law protects the civilian population and prohibits attacks against Civilians and Civilian objects. One of its ground rules is the principle of distinction: the parties to a conict are obliged to conduct military operations exclusively against Military objectives and must therefore always distinguish between Civilians and Combatants as well as between Civilian objects and Military objectives. The principle of distinction imposes limits on means and methods of warfare: any Weapon or strategy that cannot be directed exclusively at a specic military objective is prohibited.88 41. What is the Nuremberg Military Tribunal(s)? Nuremberg Military Tribunals (or NMT) were a series of tribunals to try war crimes (or other crimes) upon German people after the end of World War II. It was divided into twelve trials, among them the Doctors Trial and Judges Trial. The most famous of all the trials was the Trial of the Major War Criminals (which was held before the 12 other trials) before the International Military Tribunal. The Trial of the Major War Criminals tried 24 accused criminals under four counts: Participation in a common plan or conspiracy for the accomplishment of a crime against peace Planning, initiating and waging wars of aggression and other crimes against peace War crimes Crimes against humanity To sum up, 12 defendants were sentenced to death. Criticisms on the NMT: Being a victors justice Defendants were not able to defend themselves Questioning the secret pact on the partition of Poland after 1939 invasion between the Nazi Germany and Soviet Union Retrospective laws being used 42. What are the attacks on humanitarian workers?89 June 4, 1996 (Burundi): three ICRC delegates were killed in an attack on two vehicles on the road between villages Rugombo and Mugina in the northern province of Cibitoke, resulting in withdrawal of ICRC from Burundi December 17, 1996 (Novye Atagi, Chechnya): six ICRC workers are killed in an attack onto the local hospital, resulting in withdrawal of ICRC
87 88 89

ABCIHL, 36 ABCIHL, 17 This is not an exhaustive list on the attacks on humanitarian workers. 25

International Humanitarian Law: Questions, Answers and Debate

June 10, 1998 (Central Sudan): three Sudanese UN staffs were killed and three other wounded, resulted from gunre 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): ve 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): ve 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 gunre January 28, 2008 (Kismayo, Somalia): three MSF staffs were killed

26