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TARPTAUTIN HUMANITARIN TEIS

INTERNATIONAL HUMANITARIAN LAW
(STUDIJ GAIRS/
STUDY GUIDELINES)
Prof. dr. Justinas ilinskas

Vilnius, 2010

CONTENT
TOPIC 1: DEFINITION AND SOURCES OF INTERNATIONAL HUMANITARIAN LAW.............................................3
TOPIC 2: THE HISTORY OF INTERNATIONAL HUMANITARIAN LAW.......................................................................4
TOPIC 3: BASIC DEFINITIONS IN INTERNATIONAL HUMANITARIAN LAW............................................................6
SUBTOPIC 1. ARMED CONFLICT. TYPES OF ARMED CONFLICT UNDER IHL.................................................................................6
CASE STUDY 1: DEFINITION OF ARMED CONFLICT....................................................................................................8
SUBTOPIC 3. PROTECTING POWER (PP).....................................................................................................................................14
SUBTOPIC 4. NEUTRALITY....................................................................................................................................................15
CASE STUDY 2: COMPLEX...............................................................................................................................................16
TOPIC 4: GENEVA LAW...........................................................................................................................................................17
SUBTOPIC 1: PROTECTION OF WOUNDED, SICK, SHIPWRECKED.................................................................................................17
CASE STUDY 3: PROTECTION OF WOUNDED AND SICK...........................................................................................18
CASE STUDY 4: PRISONERS OF WAR.............................................................................................................................22
SUBTOPIC 3: PROTECTION OF CIVILIANS..................................................................................................................................26
CASE STUDY 5: PROTECTION OF CIVILIANS...............................................................................................................27
TOPIC 5: BREACHES OF IHL AND INDIVIDUAL RESPONSIBILITY...........................................................................29
CASE STUDY 6: BREACHES OF IHL................................................................................................................................31
LITERATURE & SOURCES.....................................................................................................................................................32

ABBREVIATIONS
IHL International Humanitarian Law
IPL International Public Law
HCP High Contracting Party
HC Hague Convention
GC Geneva Convention
Protocol 1 - First Additional Protocol to the Geneva Conventions
Protocol 2 Second Additional Protocol to the Geneva Conventions
ICC International Criminal Court
IMT International Military Tribunal (Nuremberg)
ICTY International Criminal Tribunal for Former Yugoslavia
ICTR - International Criminal Tribunal for Rwanda

TOPIC 1: DEFINITION AND SOURCES OF INTERNATIONAL HUMANITARIAN LAW

1. War as social phenomena:

Aggression and its role in human behaviour

Transformation of the aggression into war. Social and sociological factors.

The role of war in the history of the mankind

The need for international humanitarian law

2. The scope of international humanitarian law:

Protection of war victims:

o Wounded, sick, shipwrecked
o Civilians, women, children
o Medical and religious personnel

Limitation of means and methods of combat

o Illegal weaponry
o Other means and methods

Responsibility for breaches of IHL

3. The relationship between IHL and other branches of law

International law, jus ad bellum

Law of war, law of armed conflict

Other branches of international law

4. Main sources of IHL

Customary principles:
o Military necessity
o Distinction
o Proportionality
o Humanity
o Unnecessary suffering

Martens Clause

Conventions and treaties:

o Law of Geneva
o Law of Hague

Decisions of International Tribunals

Reading list:
Constraints on the waging of war / Frits Kalshoven. - Geneva, 3rd Edition, 2001, p. 11 - 32.
The Contemporary Law of Armed Conflict / Leslie C. Green. Sec. Edition, Manchester Univ. Press, 2000,
p. 1-52.
TOPIC 2: THE HISTORY OF INTERNATIONAL HUMANITARIAN LAW
Main events in the development of modern international humanitarian law
1621 King of Sweden Gustavus Augustus proclaims
first military code

The principle that no one may order soldiers to act

unlawfully is established by the law for the first time.

1648 Peace of Westphalia

War is monopolised by the state.

1789 1799 Great French Revolution

Conscription invented

1854 Crimea War, 1861 - USA Civil War

War Reporters brings atrocities of war to the first pages.

New weaponry eradicates military culture of order. First
attempts to establish protection and care for wounded and
sick (Florence Nightingale)
Swiss entrepreneur Henry Dunant embarked on first
humanitarian mission after the battle and published his
experience in Souvenir de Solferino. A couple of year
later he established the Geneva Committee (International
Committee of the Red Cross)
A code of federal USA army to become the model code
for armies all over the world.
First international treaty designed to protect wounded,
sick and medical personnel in the battlefield
I RCC Convention baptised by fire. Overwhelming
positive effect from Prussian side.
The base for principles of distinction and unnecessary
suffering prevention is established.
Draft international declaration on laws and customs of war
Model code drafted by Institute of International Law in
Oxford Conference
II Convention on Laws and Customs of War on Land,
including regulation for prisoners of war;
III Convention on Application of Geneva Convention to
Naval War, etc.
Internment and Concentration Camps invented by Great
Britain.
New edition of 1864 RCC. Medical Personnel is not
referred to as neutral anymore, it is out of scope of any
military activities.
13 conventions, including Maritime War, Rights and
Duties of Neutrals, International Court of Prize, Opening
of Hostilities.
Orchestral warfare. Enourmous amounts of human
resources mobilised, prisoners of war taken, new
machinery and means of war (gas, aviation, submarines).
Enourmous numbers of victims.
Genocide of Armenians.
Intentions to prosecute Kaizer Vilhelm, few post-war

1859 - Battle of Solferino

1863 - Lieber Code

1864 Geneva Convention (I Red Cross Convention)
adopted
1866 Prussian Austrian War
1868 Declaration of Sanct. Petersburg
1874 Project of Brussels Declaration
1880 Oxford manual on the laws of war on land
1889 1st Hague Peace Conference

1899 1902 Boer War (South Africa)

1906 II RCC Convention
1907 2nd Hague Peace Conference
1914 First World War

1919 Treaty of Versailes

1925 Protocol for the Prohibition of the Use of

Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare. Geneva, 17 June
1925.
1929 III RCC edition, Convention relative to the
Treatment of Prisoners of War.
1930 - Treaty for the Limitation and Reduction of
Naval Armaments.
1935 Roerich Pact
1939 Second World War
1945 Treaty of London

1946 UN GA Resolution 95(1)

1948 Convention on Prevention and Punishment of
Genocide
1949 Geneva Conference
1954 Hague Convention on protection of cultural
propery + additional protocol
1963 Convention on prohibition of nuclear tests in
atmosphere and under water
1967 treaty on nuclear and other weapon of mass
destruction in space
1968 UN Convention on Non application of
statutory limitations
1972 - Convention on the Prohibition of the
Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and
on their Destruction.
1977 Geneva Conference

1980 - Convention on Prohibitions or Restrictions on

the Use of Certain Conventional Weapons
1993 / 1994
1997 Ottawa Convention
1998 / 2003 Rome Statute of International Criminal
Court
2001 2009

processes on war crimes (Leipzig Trials).

States declares obligation not to use this methods anymore

First specialised conventions for the POWs.

Submarine attacks against civilian ships are declared an
act of piracy. Ammended by 1936 process-verbal and
1937 Treaty of Nion.
First international treaty on protection on cultural heritage
(mainly by Pan Am organization)
Blietzkrieg, Holocaust, total war. Enormous disrespect
for IHL.
International Military Tribunal (Nuremberg) established.
11 major nazi war criminals prosecuted and punished.
Three main categories of international crimes established
(crimes for peace, war crimes, crimes against humanity)
Principles of Nuremberg Judgement affirmed as principles
of international law
The concept of genocide established. Later to become the
source of customary law
IV Geneva Conventions adopted: I, II, III amended and
new IV regarding protection of civilians adopted
First universal international treaty on protection of cultural
heritage during armed conflict.
The right to carry on nuclear tests underground remains
Prohibition to use space for nuclear and other weapons of
mass destruction
For crimes against peace, war crimes, crimes against
humanity and genocide statutory limitations are no more
applicable
General prohibition of this type of weapons.

First Additional Protocol on International Armed

Conflicts, including fight against occupation, alien
domination, racial discrimination.
Second Additional Protocol on non-international Armed
Conflict.
Prohibition of many type of weapons which may be
deemed to be excessively injurious or to have
indiscriminate effects.
Establishment of International Tribunals for Former
Yugoslavia and Rwanda
General prohibition of antipersonnel mines. Still in the
process of ratification.
First universal permanent international institution entitled
to implement international individual criminal
responsibility for most heinous crimes
9/11, Afghanistan, Iraq. War on Terror. Asymmetric
conflicts - main threat to IHL, open source insurgency.

Reading Assignment:
Sun Tzu The Art of War
Discussion: The reflections of humanitarian ideas in Sun Tzus The Art of War

TOPIC 3: BASIC DEFINITIONS IN INTERNATIONAL HUMANITARIAN LAW

Subtopic 1. Armed conflict. Types of armed conflict under IHL
Type of Armed
Conflict
Non-international

Non-international
(extended)

Description

Parties

Armed engagements in the

territory of High Contracting
Party (HCP) that cannot be
defined as sporadic acts of
violence, riots, etc. Protracted
armed violence between the
Government and organised
armed groups or between
such groups.
Armed conflicts which take
place in the territory of a HCP
between its armed forces
and dissident armed forces
or other organized armed
groups which,
a) under responsible
command,

Dissident
forces vs.
HCP
(state)

Decision on
application
HCP decides whether
the situation is an
armed conflict

Dissident
forces vs.
HCP
(state)

Objective criteria

HCP vs.
Dissident
s
supporte
d by
another
HCP

1. Nicaraqua test of
effective control third
state orders and
controls actions of
armed forces. (mere
support is not enough)
2. Tadic test overall
control. Armed forces
and resistance will be
unable to stand alone
without essential
support of third state
The very existence of
hostilities makes law
applicable.

Applicable law
Common article 3 of
Geneva Conventions
fundamental
guarantees. Rules are
obligatory for every
party to the conflict as
well as for every
natural or legal
person.
II Additional Protocol (if
applicable) and
Common Article 3

b) exercise such control

over a part of its territory
c) as to enable them to
carry out sustained and
concerted military
operations
Internationalized
armed conflict and
development of noninternational armed
conflict into
international one

International armed
conflict

d) and to implement II
Protocol.
Situation when third state
starts to support party to the
conflict (more often
dissidents) actively when such
situation amounts to the
qualification of armed attack
or internationalized character

1. Any difference arising

between two States and
leading to the actual
intervention of armed
forces*, or
2. Declaration of war or any
other formal instrument on
armed conflict; or
3. Occupation (including with
no armed resistance)
4. Armed conflicts in which
peoples are fighting against
colonial domination and alien
occupation and against racist
regimes in the exercise of
their right of selfdetermination, as enshrined in
the Charter of the United
Nations and the Declaration
on Principles of International
Law.

HCP vs.
HCP or
people in
the
sense of
right of
selfdetermin
ation

Geneva Conventions IIV, I Additional

Protocol, etc.

Geneva Conventions IIV, I Additional

Protocol, etc.

More complicate issue

definition of people
and international
recognition of individual
people struggle.

* - definition of military forces is decided by the legislation of individual state

Reading list:
Towards a single definition of armed conflict in international humanitarian law: A critique of
internationalized armed conflict // http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5PYAXX/
$File/irrc_850_Stewart.pdf
The wars of the 21st century //
http://www.icrc.org/web/eng/siteeng0.nsf/iwpList553/0B15A195650D60C3C1256D0B00435D32
The new conflicts: Back to the future? (in French) //
http://www.icrc.org/web/eng/siteeng0.nsf/iwpList553/1C4E14BB75D938C7C1256D0B0044EA66
4th generation war //
http://www.d-n-i.net/fcs/4th_gen_war_gazette.htm
Discussion:
What type of armed conflict is going on in Afghanistan / Iraq?

CASE STUDY 1: DEFINITION OF ARMED CONFLICT

GELAR: GOING ITS OWN WAY
Nostalgia of the colonial days has never been as high as in the Klysuk Sea region. Old and young
people alike, everyone remembers the good old time of the Japanese protectorate. Even though the
region has been endowed with huge quantities of natural resources and an industrious people, none of the
five governments has been able to overcome the nationalistic tensions and build a fruitful future for its
citizens.
The recent events in Alar illustrate how a delicate" situation can evolve into a total nightmare.
A HUMANITARIAN CRISIS
First, rice harvest has been particularly poor this year in the North East province of Gelar whose
people heavily rely on this crop for their survival. Indifference towards the humanitarian crisis from the
other Alars provinces and lack of will from the federal power to enforce the constitutional obligations
among federated powers led to a dramatic deterioration of the situation.
Neutral observers and representatives from international organizations generally agree that the
Alarian government has completely lost control on the events in the province of Gelar since beginning of
February. Children from all over the province were leading a protest marching on the provincial capital.
Some of them died and it has been reported that policemen might have opened fire against the marching
children.
This incident triggered a huge amount of violence against the police. And after a quickly set up
federal commission of inquiry had cleared the Gelars police forces from any accusation of misbehavior,
people started organizing themselves in resistance cells to fight against the genocidal intents of the
government. For many it was clear that Gelar people had been sacrificed due to their traditional close
links with neighboring Glozga.
These popular resistance cells are very different from one another: some strongly implement
Ghandis principles of nonviolent protestation while others openly resort to armed force against their
opponents. According to reliable sources of information close to the Ministry of Defense some of these
resistance cells (if not all) allegedly receive support from Glozga.
The anger of Gelar people against the federal government, their own provincial government and
their fellow countrymen, all of them refusing or delaying the humanitarian assistance the province so
desperately needs, reached its peak two weeks ago. Afraid that the situation might escape the control of
the provincial government (!!!) the Federal Chambers declared the state of emergency in Gelar and gave
extraordinary powers to Major General Smada, commander of the NorthEast Division, to restore peace
and order.
One should not forget that Smada has been repeatedly accused of having committed atrocities
during the 1957- 1961 civil war though later he received blank amnesty.
TERRORISTS WILL SOON BE CRUSHED!
As soon as he has been granted emergency powers, Major General Smada did not wait to step in the
conflict between provincial police forces and the popular resistance cells. In an interview to AlarTV, he
declared that the terrorists will soon be crushed. Ninety minutes after receiving his orders from the
President, more than one thousand soldiers (infantry, aviation and even tanks) were taking position in
Gabda capital city of Gelar to secure the main governmental installations: provincial parliament, radio
and television, power stations, etc. The border area with Glozga has also been reinforced.
Most Alarians were probably expecting that the mere deployment of the federal armed forces would
have cooled down the protests. They were disappointed. Smada was not! Events turned out to be just what
he likes and what hes good at. From 1998 to 2001, Smada was in charge of controlling the disputed
border area with Blashkha. His units main task was to crack down the mountainous rebels networks
9

which were assisting the Blashkhians during their incursions in Alarian territory. According to reports
from Human Rights Watch and OSCE, Smada promoted the use of special interrogation techniques. His
successes in Belar province got him his promotion as commander of the NorthEast division and it is
expected he will achieve in Gelar the same positive results as in Belar.
Upon their arrival in the main confrontation zones with the popular resistance cells, around the
suburbs of Gabda and in the border area, Smadas units started doing what they do best: massive arrests,
deportation of cells leaders, confiscation of properties from persons supporting the movement, etc. But
what looked at first as a giant police operation looks more and more like an armed confrontation.
TERRORISTS WILL SOON BE CRUSHED?
Yesterday (17 April), just before dawn, 17 soldiers were killed and more than 30 were made
prisoners in an ambush in the border area. There was a very heavy exchange of fire between the groups
that lasted for more then thirty minutes. Armed forces arrived in support to the police and many mortar
shots were heard. It has been said that despite the recent reinforcement of border from the side of Alar,
wounded and sick from the resistance cells were transported on Glozgian territory where they were
treated. Shocked by this unexpected event, the Minister of Defense declared that most probably the
resistance cells had received assistance from a foreign country. It is not possible to verify this allegation,
however, international media reported about secret large shipment of weapons to unknown destination
from Glozgas military factories.
Obviously, this is just the tip of the iceberg: using the power granted to him by emergency law,
Major General Smada has forbidden representatives of the mass media to enter the security perimeter
established in the Gelar province. Moreover, according to a report from Reporters Without Borders,
Alarian medias have been warned against publishing information from other sources than official ones.
Since the beginning of the protests, resistance cells were believed to be more or less pacifists
organizing manifestations to attract media attention on the cruel situation in the Gelar province. Those
who believed that will have to think again! As events show, these cells seem to be well organized, carry
all sorts of weapons, militarily trained and ready to engage federal troops. It is also reported that some of
these resistance cells has military instructors and experts of Glozgian descent though Glozga fiercely
denies any involvement of their militaries in the situation.
In an unexpected support to the resistance, the Gelar provincial parliament adopted a resolution
declaring its secession from Alar and requesting support from the international community to resist the
illegal attack against the sovereign people of Gelar.
Leaders of the resistance met in Ahod confirmed that the resistance cells were very active in
targeting federal troops, but also police forces and security troops from the Ministry of Interior. Our
action aims at two purposes: destroy the morale of the troops that are engaging their fellow countrymen
and countrywomen, destroy symbols of the federal oppression against Gelar people. Recent targets
include police stations, military compounds, tax offices, etc. They also expressed concern about the
strategy deployed by General Smada. According to a declaration published on the internet
(www.freegelar.gl) leaders of the resistance cells consider Smadas tactics amount to international
humanitarian crimes.
The fight goes on.
Tasks:
1. Define and discuss the threshold events when the situation in Gelar may be qualified as an armed
conflict.
2. Define and discuss the type of the conflict and the scope of applicable norms of IHL.

10

Subtopic 2. COMBATANTS

Only combatant may use military force or be an object of the attack (direct participation in
hostilities).
Combatant is not personally responsible for the use of armed force except in the case of war
crimes or other international crimes
Only combatant may be a prisoner of war

Development of the concept:

Ancient times: no clear definition.
Middle Ages: difference drawn between knights (law of arms) and infantry (national laws / codes)
Legal writings: soldiers must be listed in the sovereigns list and actually be a soldier. Difference
between conscripted and regular armies
End of XIX century and further on: Military culture is clearly based on distinction between
combatant / civilian. Classic 4 criteria (Brussels Declaration / Oxford manual).
1899 1907 Hague conventions on laws and customs of war on land. First internationally
established definition with classic 4 criteria.
Chapter I: 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:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. 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."
Art. 2. The population of a territory which has not been occupied who, on the
enemy's approach, spontaneously take up arms to resist the invading troops
without having time to organize themselves in accordance with Article 1, shall be
regarded as belligerent, if they respect the laws and customs of war.
Art. 3. The armed forces of the belligerent parties may consist of combatants and noncombatants. In case of capture by the enemy both have a right to be treated as
prisoners of war.

Status of resistance movements in occupied territories, guerrillas, etc. solved only by Martens Clause.
1949 Geneva Conventions. Extension of the definition.
(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,

11

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. (attached non-combatants)
(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. (attached non-combatants)
(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 carry arms openly and
respect the laws and customs of war.

Protocol I. Extension of 4 criteria test.

Article 43 - Armed forces
1. The armed forces of a Party to a conflict consist of all organized armed forces,
groups and units which are under a command responsible to that Party for the
conduct of its subordinates, even if that Party is represented by a government or an
authority not recognized by an adverse Party. Such armed forces shall be subject to
an internal disciplinary system which, ' inter alia ', shall enforce compliance with
the rules of international law applicable in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medical
personnel and chaplains covered by Article 33 of the Third Convention) are
combatants, that is to say, they have the right to participate directly in
hostilities.
3. Whenever a Party to a conflict incorporates a paramilitary or armed law
enforcement agency into its armed forces it shall so notify the other Parties to
the conflict.
Article 44 - Combatants and prisoners of war
1. Any combatant, as defined in Article 43, who falls into the power of an adverse
Party shall be a prisoner of war.
2. While all combatants are obliged to comply with the rules of international law
applicable in armed conflict, violations of these rules shall not deprive a
combatant of his right to be a combatant or, if he falls into the power of an
adverse Party, of his right to be a prisoner of war, except as provided in paragraphs
3 and 4.
3. In order to promote the protection of the civilian population from the effects of
hostilities, combatants are obliged to distinguish themselves from the civilian
population while they are engaged in an attack or in a military operation
preparatory to an attack. Recognizing, however, that there are situations in
armed conflicts where, owing to the nature of the hostilities an
armed
combatant cannot so distinguish himself, he shall retain his status as a
combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a
military deployment preceding the launching of an attack in which he is to
participate.
Acts which comply with the requirements of this paragraph shall not be considered
as perfidious within the meaning of Article 37, paragraph 1 (c.
4. A combatant who falls into the power of an adverse Party while failing to
meet the requirements set forth in the second sentence of paragraph 3 shall forfeit
his right to be a prisoner of war, but he shall, nevertheless, be given protections
equivalent in all respects to those accorded to prisoners of war by the Third
Convention and by this Protocol. This protection includes protections equivalent to
those accorded to prisoners of war by the Third Convention in the case where such
a person is tried and punished for any offences he has committed.
5. Any combatant who falls into the power of an adverse Party while not
engaged in an attack or in a military operation preparatory to an attack shall not

12

forfeit his rights to be a combatant and a prisoner of war by virtue of his prior
activities.
6. This Article is without prejudice to the right of any person to be a prisoner of
war pursuant to Article 4 of the Third Convention.
7. This Article is not intended to change the generally accepted practice of
States with respect to the wearing of the uniform by combatants assigned to the
regular, uniformed armed units of a Party to the conflict.
8. In addition to the categories of persons mentioned in Article 13 of the First
and Second Conventions, all members of the armed forces of a Party to the
conflict, as defined in Article 43 of this Protocol, shall be entitled to protection
under those Conventions if they are wounded or sick or, in the case of the Second
Convention, shipwrecked at sea or in other waters.

Persons deprived of combatants privilege

Spies
Protocol I. Article 46 -- Spies
1. Notwithstanding any other provision of the Conventions or of this Protocol, any
member of the armed forces of a Party to the conflict who falls into the power of an adverse
Party while engaging in espionage shall not have the right to the status of prisoner of war
and may be treated as a spy.
2. A member of the armed forces of a Party to the conflict who, on behalf of that Party
and in territory controlled by an adverse Party, gathers or attempts to gather information
shall not be considered as engaging in espionage if, while so acting, he is in the uniform
of his armed forces.
3. A member of the armed forces of a Party to the conflict who is a resident of territory
occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers
or attempts to gather information of military value within that territory shall not be
considered as engaging in espionage unless he does so through an act of false pretences
or deliberately in a clandestine manner. Moreover, such a resident shall not lose his right
to the status of prisoner of war and may not be treated as a spy unless he is captured while
engaging in espionage.
4. A member of the armed forces of a Party to the conflict who is not a resident of
territory occupied by an adverse Party and who has engaged in espionage in that territory
shall not lose his right to the status of prisoner of war and may not be treated as a spy
unless he is captured before he has rejoined the armed forces to which he belongs.

Mercenaries
Article 47 - Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain
and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation
substantially in excess of that promised or paid to combatants of similar ranks and functions
in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled
by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a
member of its armed forces.

13

Unpriviledged combatants
NB! Highly disputed status
Any person taking a direct part in hostilities without being entitled to do
so and who therefore cannot be classified as combatants due to various
reasons:
Does not belong to the armed forces of the party to the conflict (i.e.
group to which he belongs may not be a party to the conflict as well);
Disrespect laws and customs of war, etc. (terrorism).
Enjoys only minimal protection according to IV GC (Civilian) and I
Add. Protocol (art. 75).
May be held personally responsible for the use of armed force
according to national laws.
Should be judged on personal bases, not on collective responsibility
(e.g. Taliban fighters unprivileged?)
Reading list:
Combatants, Unprivileged Belligerents And Conflicts In The 21st Century //
http://www.ihlresearch.org/ihl/pdfs/Session2.pdf
Unprivileged Combatants and the Hostilities in Afghanistan //
http://asil.org/taskforce/goldman.pdf
Constraints on the waging of war / Frits Kalshoven. - Geneva, 3rd Edition, 2001.
The Contemporary Law of Armed Conflict / Leslie C. Green. Sec. Edition, Manchester Univ. Press, 2000,
p. 102-121.

Additional tasks to CASE STUDY 1:

1. Define the status of the persons involved in the Gelars crisis, namely:
1) popular resistance cells and its members
2) gen. Smada forces
3) Glozgian supporters

14

Subtopic 3. Protecting power (PP)

In public international law the origin of the concept Protecting Power goes back to the 16th century. The
nationals of medium-sized or small countries, when living abroad, were not protected in any way by their
country of origin. Certain great Powers, from motives of prestige and influence as well as interest,
claimed, and asserted by treaties concluded with the countries of residence, the right to take under the
protection of their Embassies foreign nationals without national representation of their own.
Emergency of PP in IHL. 1929 Convention relative to the treatment of prisoners of war. Righs of PP to
visit POWs camps, contact POWs, offer good offices to belligerent parties was established.
I-IV GC 1949 + AP 1977 shall be applied with the cooperation and under scrutiny of PP.
Nomination of PP:
Every party of GC has an obligation to offer itself as PP and to agree with functions of PP if
requested by the Party under the duty to apply protecting system from the beginning of hostilities.
Belligerent party has an obligation to nominate or accept PP a.s.a.p.
If no PP is not accepted or nominated by the Parties ICRC or other similar organisation is
authorised to offer its good offices
PP may act for one or more belligerent parties.
Personnel of PP:
PP may appoint members of consular and diplomatic staff for the task
as well as other its nationals or nationals of other neutrals.
Parties to GC in peacetime must train personnel in order to assume functions of PP if needed.
Each individual nominee shall be approved by the belligerents.
General rights and duties of PP:
PP plays crucial role in protection of POWs, civilians, etc. by controlling the actions of belligerent
party, providing humanitarian and other assistance;
The activities of PP may be restricted only on temporary and exceptional basis when
overwhelming military necessity demands.
PP must respect security of the party and must not exceed his mission under Conventions (i.e.
must not interfere with domain reserve of the party).
Substitution of PP:
The system of PP shall be continuous and protected persons shall not suffer because of
changes of PP
Parties of GC may at any time to agree to entrust functions of PP to effective and impartial
organisation
In case of ceasing of PP functions whatever the reason new PP must be appointed immediately
ICRC has priority to substitute PP.

15

Subtopic 4. NEUTRALITY
Types of neutrality in international law:
Permanent international (Switzerland, ex-Austria)
Permanent national (Finland)
Classical ad hoc neutrality (during an armed conflict)
Sources:
V, XIII Hague Convention 1907, GC I-IV + AP.
Rights and duties of neutrals:
Maintain diplomatic as well as economic relations with belligerent parties
Notify belligerent parties regarding or international community regarding neutrality if neutrality is
not of permanent basis
Perform functions of PP
To recognise the validity of any blockade or rules of contraband
To intern belligerent troops, wounded and sick as well as POWs if they by any circumstance
crossed into territory and must prevent them from taking any further part in the conflict
May permit medical transports carrying wounded and sick to cross the territory
May not allow belligerents to establish recruiting offices within territory though it is not a breach
if individuals or nationals of neutral party are crossing neutral territory in order to enlist if it is not
systematic or massive.
May not allow its military officers or persons on active service to be enlisted into belligerent
parties
Does not have to forbid the supply of war material or to stop passages of such goods unless there
is a resolution of Security Council, etc.
Any limits on freedom of national legal / natural persons to supply war materials must operate
towards all belligerents.
Neutral nationals in occupied territory are protected by IV GC. If neutral national commits hostile
act against belligerent he loses protection.
Duties and rights of belligerents towards neutrals:
Notify non-parties to the conflict that a state of war exists if it is not a matter of public notoriety
Respect neutral territory, including territorial sea and airspace
Exercise right of hot pursuit if neutrals are not able to perform their duties of internment, etc.
Additional reading:
The Contemporary Law of Armed Conflict / Leslie C. Green. Sec. Edition, Manchester Univ. Press, 2000,
p. 244-250, 268-276.

16

CASE STUDY 2: COMPLEX

AZER VS. BOGON: DESCRIPTION
The relationships between Azer Republic and Kingdom of Bogon are complicated for the last four decades. The
main difference between the two states concerns border city of Cintra. The problem started immediately after the
former Colonial Power separated territories of Azer and Bogon in 1963 by granting independence to both new
states, however, Colonial Power failed to reach peaceful solution regarding status of Cintra. Both new states
intended to annex Cintra and the problem was much more complicated by the fact that Cintra is inhabited by almost
equal number of persons of both ethnicities. Azer and Bogon had already fought two wars because of Cintra though
these wars had not changed the situation.
In 1990 after the Second Cintra War the agreement on Peace, Reconciliation and Friendly Relations had been
reached under the auspices of the United Nations. According to this agreement Cintra was finally recognised for the
Bogon with large autonomous rights for azerian ethnicity. Nevertheless, a year before today the situation became
tense again when the nationalistic government took power in Azer after a military coup.
On March 10 a border incident occurred. A small unit of Azer soldiers on training, presumably because of heavy
mist lost orientation and crossed the border into Bogon. They were stopped by the Bogon border guards who
wanted to arrest them. However, the commander of Azer soldiers refused to surrender and opened fire upon Bogon
border guards. After short but intensive exchange of fire, leaving 2 dead and 3 injured, Azer soldiers managed to
escape back to Azer.
On the next day Bogon requested Azer to give official apologies for the incident and to prosecute persons
responsible for it. Azer replied with the request to return the wounded and bodies of dead soldiers or at least grant
them a protective status under the norms of IHL. Bogon agreed to return bodies of fallen soldiers but strictly
objected any return or granting any status to the wounded. Bogon also declared that wounded soldiers would be
prosecuted for criminal offences of illegal crossing of the border and armed assault on Bogon border guards.
This incident contributed to the continuing rise of tensions between two countries and one after another they
declared the status of alert in their armed forces.
On March 15 the settlement in Bogon was attacked by ground-to-ground missiles fire from Azer territory resulting
in death of 12 civilians and many more injured. Responsibility for this act took the terrorist group Baham which
fights for the secession of Cintra from Bogon. On March 18 the Royal Navy of Bogon attacked bases and training
camps of Baham in the territory of Azer by cruise missiles.
Azer immediately qualified this act as an act of aggression and addressed one of the permanent members of UN
Security Council with request to call up a special session of the Council.
Fearing that situation may evolve into another war, the neighbouring Federation of Davoria offered its good offices
for the parties and now all three states agreed to start negotiations and not to resort to military force. It shall be
noted that Davoria had already played a role of Protecting Power for both countries in previous wars.
All the states in the situation are parties to UN Charter, Geneva Conventions of 1949 and Additional Protocols.

Handling the case study

The situation in the case study is to be dealt in the simulation of international negotiations hosted by the Regional
Delegation of ICRC. Students are divided into three groups, representing Republic of Azer, Kingdom of Bogon and
Federation of Davoria. Each group has individual task according to the memos attached. Lecturer acts for host.

17

Topic 4: Geneva Law

Subtopic 1: Protection of wounded, sick, shipwrecked
I II Geneva Conventions, Protocol 1, 2
Wounded and sick:

Combatants (Protocol 1 any person)

Despite of the cause (enemy, natural, etc.)

Refrain from hostile act.

Shipwrecked:

any person on sea / water

From ship, aircraft, etc.

Enemy act or any natural cause

Refrain from hostile act

Protection and care:

Collected and cared

Humane treatment (incl. rules for certain medical procedures, e.g. blood transfusion, etc.)

Non-discrimination (except positive discrimination on limited bases), non renunciation of rights.

Medical personnel, establishments and units:

Types of medical personnel and levels of protection

Medical transport

Hospital ships

Medical aircrafts

Zones of special protection (hospital zones, localities)

Deprivation of protection

Civilian Assistance

Protective Emblem

Reading list:
1. Leslie C. Green. The Contemporary Law of Armed Conflict. Sec. Edition, Manchester Univ. Press,
2000, p. 216-227.
2. Constraints on the waging of war / Frits Kalshoven. - Geneva, 3rd Edition, 2001.
3. The handbook of humanitarian law in armed conflicts / edited by Dieter Fleck, 1995

18

CASE STUDY 3: PROTECTION OF WOUNDED AND SICK

Individual case studies
Examine the situations according to the rules of IHL and be ready to comment on it.
1. A number of wounded and sick of state A were transported by medical aircraft. The aircraft flew over
neutral territory of state N when the malfunction of the engine was found. Aircraft requested emergency
landing in the airport of N. The officers of N accepted the request, the aircraft landed and the officials
detained wounded and sick found on board. These persons were put in the hospitals and N requested from
the power of detainees to pay the expenses for taking care of A wounded. A replied that for the time being
and because of difficult situation it has no funds to cover these expenses. Following the reply state N
transferred these wounded to the enemy of state A state B.
2. Medical aircraft was standing at the airport nearby a military transport plane. The wounded were being
carried from the military plane to the medical aircraft. There were still of wounded left in the military
plane when the radar-guided missile stroke military plane. Explosion killed all the wounded of board of
the plane, some of the wounded outside and seriously damaged medical aircraft.
3. After the sea battle a group of four shipwrecked sailors from the drowned warship were floating on the
rescue raft. When the enemys military boat came close to pick them, one of the sailors threw a grenade
into the boat. The grenade exploded on deck and killed three members of the crew. The sailors on the
rescue raft switched on the engine of the raft and tried to escape and to hide in the mist. The attacked boat
sent a radio dispatch to other military boats in the region containing information that it was attacked by
the rescue raft. Twenty minutes later another military boat located the rescue raft and came close. The
shipwrecked on the raft saw the boat and raised their hands in the signal of surrender. Nevertheless, the
soldiers in the boat opened fire and killed everyone on the raft.
4. State A had a large number of wounded from the state B. During the hostilities state B attacked village
of the state A and killed almost everyone civilian in the village. State A declared that if state B will
continue such type of attacks, it would execute one B wounded for one A civilian killed. State B attacked
another village of A and again killed a lot of civilians. State B started to execute wounded.
5. State A detained a number of Bs wounded and sick. Together with the wounded a chaplain was
detained. State A has not left chaplain with the wounded but transferred him to POWs camp. When the
chaplain tried to protest such actions of state A, it explained that it has a large number of POWs and they
have no chaplain at all.
6. During a sea battle the cruiser Invincible was drowned. After the drowning a lot of member of the
crew were left in the water. The hospital ship came near and started rescue of the shipwrecked. However,
soon the enemy battle ship commander requested the hospital ship to leave the territory immediately
because it stands on the way of artillery fire. The hospital ship replied that it has not finished the rescue of
shipwrecked and did not obey the order. The enemys battle ship opened fire upon hospital ship. Because
of this the hospital ship was damaged and forced to leave the rescue territory. Almost all shipwrecked,
wounded and sick drowned or died because of cold.

19

7. The medical aircraft of state A was summoned to land in the territory, controlled by B. Immediately
after the landing, the crew and the occupants of the aircraft were boarded on train and sent to the nearest
town, controlled by B for the inspection. Three days later B reported that during an inspection of aircraft
and its crew as well as wounded and sick that were carried on board it was found that:
1) This aircraft (board numbers, model and etc.) was not reported by A to be used as a medical aircraft
therefore it could not be protected as medical aircraft
2) One of the wounded had with him a videocamera. Inspection of the tape showed that a military objects
of B was filmed on it.
According to these results the aircraft was seized, the crew and wounded and sick taken as a prisoners of
war.
8. A unit of B soldiers were approaching civilian hospital. The commander of the unit had information
that the enemy snipers use hospital as a cover. The commander ordered to encircle the hospital,
established checkpoints in the entrance and issued an order for the personnel of the hospital to abandon
the building within an hour. Everyone leaving the hospital was thoroughly searched and released.
However, some of the medical personnel responded that they are not going to obey the order because they
cannot leave patients without care. After an hour soldiers entered the hospital. When they tried to take out
medical personnel by force, one of the personnel resisted and even opened fire by pistol. He was shot to
death. Other personnel were locked in one of the rooms while soldiers searched for snipers. No snipers
were found.
9. The medical aircraft was flying the zone of hostilities when it received a radio transmission with the
request to land in the A occupied territory immediately. It was also transmitted that if the aircraft will not
summon to this request, it will be attacked by A interceptors. Soon after transmission the medical aircraft
landed in the designated place. Militaries of the A seized the aircraft, freed wounded and sick of their
nationality and detained wounded and sick of the B. They actions were grounded on the statement, that it
is prohibited for medical aircraft to fly over occupied territory if not agreed otherwise and there were no
any special agreement for that between A and B.

20

Subtopic 2: Prisoners of War

Development of the institute:

Antiquity / non-civilised societies: POW personal war prize, enslavement, etc. Special status only for leaders and nobles.

Middle Ages: common to chivalry, still bad fate for infantry / non-nobles. Release on parol.

Since XVII age property of the state.

Hague Convention on laws and customs of war 1907 basic principles

WW I enormous numbers of POWs, new regulations needed. 1929 specialised convention on

POW.

1949 1929 Conventions revised.

POW: 2 cathegories: combatants in the hand of the enemy, persons that are supposed to be treated
as POW.

Presumption: person shall be treated as POW until his status will be determined by a properly
constituted tribunal.

Protection applies to the persons referred to in GIII Article 4 from the time they fall into the power of the
enemy and until their final release and repatriation.
Principles of General Protection of Prisoners of War

POW may not renounce its rights partially or in entirety.

Prisoners of war are in the hands of the enemy Power, but not of the individuals or military
units who have captured them. Irrespective of the individual responsibilities that may exist, the
Detaining Power is responsible for the treatment given them.

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the
Detaining Power causing death or seriously endangering the health of a prisoner of war in its
custody is prohibited, and will be regarded as a serious breach of the present Convention. In
particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific
experiments of any kind which are not justified by the medical, dental or hospital treatment of the
prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Prisoners of war are entitled in all circumstances to respect for their persons and their honour.
Women shall be treated with all the regard due to their sex and shall in all cases benefit by
treatment as favourable as that granted to men.

Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture.
The Detaining Power may not restrict the exercise, either within or without its own territory, of the
rights such capacity confers except in so far as the captivity requires.

21

The Power detaining prisoners of war shall be bound to provide free of charge for their
maintenance and for the medical attention required by their state of health.

Equality: relating to rank and sex, and subject to any privileged treatment which may be
accorded to them by reason of their state of health, age or professional qualifications, all
prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction
based on race, nationality, religious belief or political opinions, or any other distinction
founded on similar criteria.

CAPTIVITY:

Evacuation;

Internment: Requirements for POW camps

Requirements for clothing, food, hygiene, medical attention

Medical personnel;

Activities

Discipline

Labour
o Permitted / non-permitted
o Working conditions
o Dangerous work

Financial resources

Relations with the exterrior

Protection of rights role of PP, representatives of POW

Penal and disciplinary sanctions:

o Only military courts (exceptions)
o Essential guarantees
o Same penalties as for members of armed forces
o Limitations on capital punishment

End of captivity

Reading list:
1. Leslie C. Green. The Contemporary Law of Armed Conflict. Sec. Edition, Manchester Univ. Press,
2000, p. 196-214
2. Constraints on the waging of war / Frits Kalshoven. - Geneva, 3rd Edition, 2001.
3. The handbook of humanitarian law in armed conflicts / edited by Dieter Fleck, 1995

22

CASE STUDY 4: PRISONERS OF WAR

AZER VS. BOGON (2) : THE BATTLE FOR CINTRA
The peace talks between Azer and Bogon hosted by ICRC have succeeded only in delay of full-scale war,
nevertheless the tense situation between Azer and Bogon continues.
In the beginning of May Cintra region and city itself were rocked by the series of explosion attacks on
police offices, governmental buildings, etc. The responsibility for these actions took Cintras Azer
Army (CAA) - militant group that was successfully suppressed by Bogon security forces almost twenty
years ago. CAA militants declared that general Machmud Almein commands them. It shall be noted that
Machmud Almein title as general was self nominated. In fact, he was one of the spiritual leaders of
Azers resistance and in particular CAA, though after pacification of CAA he was captured and tried.
After serving a sentence for mutiny and terrorism Machmud Almein was deported from Bogon to Azer
ten years ago.
After attacks Bogon declared that so-called CAA consists only of sent from Azer or locally recruited by
Azerian agents mercenaries that are well paid for their liberation fight. Bogon also provided a number
of evidences showing that equipment and weaponry of CAA militants was mostly from Azer. Moreover,
ciphering methods of the radio communications used by CAA were common to Azer military forces.
Bogon also declared that captured CAA fighters would be tried and prosecuted as simple criminals and
terrorists.
On June 16 Bogon special forces with support of military forces started an intensive special operation
with the task to identify and to destroy CAA militants. Cintra city was closed, a lot of persons arrested.
There were also numbers of military clashes between military and special forces of Bogon and CAA
militants. On the night of the same day from the local azerian radio station an announcement containing
words Brothers, save us or they will kill all of us! was broadcasted.
On the next morning the military forces of Azer crossed the border and engaged in fighting with Bogon
MF. Battle for Cintra lasted for twenty-eight days. With the active help from CAA militants during the
first week Azer army managed to take over control of Cintra city, however after reinforcement from
reserves, Bogons army reconquested lost territory. Finally, UN Security Council intervened in the
conflict and ceasefire was agreed.
During the conflict Bogon took a significant number of POWs. ICRC took the role of Protecting Power.

23

Handling the case study: individual tasks for the students

1. Bogon has granted combatant status to the members of Azer MF as well as to the members of CAA
which fought together with Azer army and were captured by Bogon after June 16. However, the members
of CAA captured before June 16 were still denied of it.
Task: you are the lawyer of one of the CAA members, captured before June 16 and your client is indicted
with rebellion. Prepare motivated opinion why your client is entitled the status of prisoner of war and
shall not be prosecuted for his acts.
2. During the battle for Cintra, Azer soldier, dressed in civilian manner, has penetrated into the part of the
city controlled by Bogon. He met there one of the CAA militant, who was also dressed in civilian clothes.
Azer soldier provided militant with explosives. Later that day the insurgent mined two bars, which as far
as he knew were often visited by Bogon officers. Two explosions killed or injured 30 people. None of
them were of Bogon officers or soldiers. Later these two persons were captured. They were not granted
status of prisoners of war, however, tried and sentenced for terrorism. The lawyers of defendants filled an
appellation, requiring to recognise them as prisoners of war and to qualify their actions as a military
attack.
Task: you are the prosecutor of Bogon. Write a motivated answer to the lawyers request for the court.
3. A. Ch. was an Azer pop star. Azer actively promoted participation of celebrities in its military forces. A.
Ch. volunteered for the army, was sent to fight in Cintra and captured by Bogon. He was interned together
with other POWs in the POW camp. After the ceasefire, A. Ch. expressed a wish to organise a live show
for his inmates. Mass media of Bogon showed clear interest to get an interview from the star and even to
broadcast the show. They applied to the commander of POW camp with the request to organise the show
of A. Ch.
Task: you are the commander of POW camp. Give a motivated answer to your prisoner and media
representatives whether the show can be organised and/or broadcasted.
4. Before his service in Azer army B.C. was a member of international criminal group engaged in drugs
trafficking to Bogon and other countries. Bogon prosecutors office started his case long before the war.
During the fight for Cintra B.C. was capturede by Bogon. The case was renewed, moreover, the
Federation of Davoria asked to extradite B.C. to it because there he was charged with murder.
Task: You are the officer of Bogon responsible for this case. You have to explain for the commander of
POW camp why do you need his prisoner and to provide an answer for Davorias request.
5. Azer theocratic country with strict traditions. Most of the questions related to the status of women are
regulated by the religion, not the law. E.g. there is no such crime as rape in the criminal laws of Azer.
During the battle for Cintra one of the Azer soldiers has raped a woman. After the capture, the prosecutor
of Bogon has charged him with the rape. The lawyer representing the defendant objected the charge on
grounds that Azer criminal system has no such crime.
Task: You are the prosecutor of Bogon. Give a motivated answer to the lawyer.
6. Three POWs were sent to work at the factory of textile. On 3rd day of their job, POWs seized the
truck, broke the gates of the factory, run over the guard and escaped. Two days later they were arrested by
the officers of Bogon police on board of the plane of the Davorian air company ready to leave from

24

Bogon. Later the military court tried these POWs for the destruction of property and murder. All of them
were sentenced to long-term imprisonments.
Task: you are the representative of ICRC informed about the process. Give the comments whether the
actions of Bogon police and court process was in compliance with the norms of GC.
7. Two POWs were sent to work at the factory of Muro company that produces rural machinery
tractors, etc. However, the other factory of the same company is producing military machinery. POWs
complained to ICRC that their work is in breach of Geneva Law.
Task: you are the representative of ICRC. How would you reply to the POWs claim?
8. After the reconquest of Cintra, the army of Bogon held a victorious parade. Together with the Bogon
military forces 20 Azerian POWs also took part in it. POWs were dressed in their uniforms; their own
officer commanded them. POWs that participated in the parade received a lot of privileges: better food,
clothing, mitigation of regime and so on. Azer called this action humiliating and has applied for ICRC
in order to clarify whether the Bogon breached GC with such an actions.
Task: you are the representative of ICRC. What will be your reply to Azer?
9. Bogon is a democratic country, which respects human rights and other democratic values. Bogon has
initiated the educational programme for Azer POWs. This programme mostly consisted by the courses of
lectures to POWs on various political and social issues. During the lectures POWs were provided with
basic knowledge about human rights. It was also demonstrated that theocratic dictatorship is much worse
than democracy. POWs who attended those seminars were excused from work, after the courses they
received a number of other privilegies, including the mitigation of regime, some of them were even
released from the camps. Azer has expressed protest to ICRC stating that Bogon is acting unlawfully and
is instigating POWs against their own state. Azer issued a warning that every POW who will be identified
as a participant of these courses after repatriation will be punished.
Task: you are the representative of ICRC. Give comments on situation
10. A group of POWS were asked to remove mines in exchange of certain privileges for this job. 10
POWs volunteered for this task. However, one of the mine exploded during removal. 1 POW was killed, 3
others seriously injured. The investigation of the incident showed, that POWs had no specific
knowledge about the new type of the mines they were working with. The representative of POWs address
ICRC with the request to clarify, whether it was legal to give such task for POWs.
11. Abdul Amchar was a member of Azer MF and had a rank of major in his home country. He also was a
secret agent of Azer in Bogon and his task was to gather as much as possible valuable information on
Bogons MF. When the fighting for Cintra broke out he joined one of the units of CAA and engaged in
military operations. However, he was captured by Bogon, denied of POW status and put on trial for
spying.
Task: you are the lawyer of Abdul Amchar. What will you say in defence of your client?
12. Three POWs while returning from place of their work saw a drunken man. They beated him up,
removed from him all valuable things and a little bit late returned to the camp. Two days later the
investigators of police came to the camp and asked the commander of the camp to do questioning of all
POWs who worked outside the camp that day. The commander of the camp replied that only he and his
officers may do this function, because police is civil service and may not be engaged in criminal
prosecution of POWs. Task: give your comments on situation.
25

Subtopic 3: Protection of civilians

Civilian:

Under principle of distinction: anyone who is not regarded as combatant nor has any other status
afforded by IHL (medical personnel, illegal combatant (spy, mercenary). The problem of
unprivileged combatant and its relation with civilian remains.

If civilian is using military force or commits hostile act he looses part of civilian protection (e.g.
he may be an object of the attack) though he does not automatically becomes a combatant.
Sources: GC IV, AP 1
Limited protection under GC IV:
o Persons protected by the Convention are those who, at a given moment and in any manner
whatsoever find themselves in case of a conflict or occupation in the hands of a Party to the
conflict or Occupying Power of which they are not nationals.
o Persons of the third parties (states), non-parties to the conventions, neutrals are not protected
as long as they have normal diplomatic representation.
o Part II of the Convention applies to ALL civilian population, but the protection is limited to
the protection of medical establishments (hospitals, safety zones and localities, wounded and
sick, consignment of medical supplies, child welfare etc.)
o Other parts of the Conventions deals with:

Regime of belligerent occupation

Protection of interned civilian persons

Extended protection under Protocol 1:

o General protection of civilian population.

Principle of distinction

Presumption of civilian

Civilian population as collective entity

o General protection of civilian objects:

Definition of civilian object

Objects, indispensable for the survival of civilian population

Special protection of works and installations containing dangerous forces

o Precautionary measures (for the attacks)

o Localities and zones under special protection (non-defended localities, demilitarized zones)
o Civil Defence
o Relief in favour of civilian population
Reading list:
1. Leslie C. Green. The Contemporary Law of Armed Conflict. Sec. Edition, Manchester Univ.
Press, 2000, p. 229 243, 256 266.
26

2. The handbook of humanitarian law in armed conflicts / edited by Dieter Fleck, 1995

CASE STUDY 5: PROTECTION OF CIVILIANS

GELAR: GOING ITS OWN WAY (2) : CIVILIANS UNDER ATTACK
HELP IS COMING!
The resolution of Gelar provincial parliament was strongly supported by Glozga. The neighbouring
country pledged its loyalty to the heroic fight of the sovereign people of Gelar and promised immediate
and direct support for the resistance cells. It was also announced that Glozga would unconditionally grant
its citizenship to every person of Gelarian ethnicity, which applies for it.
On Apr. 20 the President of Alar addressed the nation. In his speech he called the decision of Glozga the
direct support to the extremists and terrorist and an open war against our homeland. In response to this
the Prime Minister of Glozga answered shortly: if it is the war they want, the war they will get!
On Apr. 22 Gen. Smada reported that his units are engaged in the battle with the Gelarian terrorists
supported by Glozgian intruders and mercenaries. A few hours later, the spokesman for Glozgas
Ministry of Defence confirmed that Glozgas military units are taking part in the battle with Alar special
forces in order to defend our cross-border friends and citizens. It was clarified that the battle started
when Gelar resistants directly asked for immediate Glozgas support in order to defend the Astamo village
that was targeted by gen. Smada units for cleaning up operation.
During the initian phase of the Astamo battle Alarian forces managed to capture a group of Gelarian
insurgents and one military instructor of Glozgian nationality. Nevertheless, Glozgian units managed to
throw back Alarians.
Gelar crisis was brought under consideration in the UN Security Council. On May 2nd Security Council
acting under Chapter VII of the UN Charter unanimously adopted resolution requiring for:
- immediate cease of hostilities by all parties;
- withdrawal of occupational forces commanded by gen. Smada and any Glozgian forces from Gelar;
- organisation of referendum in Gelar regarding its future status.
Alar called this resolution an intervention to its internal affairs and encouragement of separatism and
refused to perform it.
Handling the case study: individual tasks
Estimate the legality of actions:
1. On Apr. 27 gen. Smada announced that every Gelarian male who is above 14 must report to the special
camps established in order to protect peaceful inhabitants from anarchoterrorist threat and Glozgian
invasion. It was also announced that everyone who will disregard this order and will not appear in the
camps to the May 5, may blame it on himself and gen. Smadas forces would not be able to grant its
security in any circumstances due to difficult situation in the country. However, only small number of
Gelarians answered gen. Smadas call.
2. On May 6th Gen. Smada decided to start a massive operation against Gelar resistants. He ordered his
officers to evacuate from the possible zone of hostilities two villages (500 people) to the temporary
camps. He also asked ICRC to help with this evacuation. He asked ICRC to provide food, shelters, water
and other supplies for these people.
27

3. Gen. Smada officers started to form The National Militia of Gelar from those persons who have
answered to gen. Smadas call and appeared in the camps. The task of this militia would be to fight with
the rebels. Some of detainees refused to join the militia. They were transported to local jails and
imprisoned there, some of them shot for rebellion.
4. Gen. Smada security service has received an information that the priest of local church is going to give
his secret blessing for the wedding of one of the famous resistant fighter. Dressed in civilian Smadas
soldiers hid in the church. When priest, bride, groom and some of their friends arrived in the church,
soldiers tried to capture all of them.
5. Gelarian resistance fighters found out that if they will bring down the damn on the Alsay river, one of
Smadas military camps will be totally flooded. With low risk rebels may gain an extreme military
success. However, flood will also affect a large crop fields and a couple of villages that inhabitants
heavily depend on that crop.
6. Khani Waltin was one of the most famous and successful resistance leaders. Gen. Smada put a huge
effort to catch this man, however, all the attempts failed. Smadas secret service found out where the
relatives of Waltin are hiding. Smadas forces encircled the village and issued warning that if Khani
Waltin would not surrender personally to Smada within a day, the villages people will be driven out and
the village will be destroyed.
7. Gen. Smadas forces spotted a huge column people, mostly refugees, fleeing to Glozga. However,
armed people wearing the marks of Gelarian resistance escorted this column. Gen. Smada ordered the
attack of the column by two helicopters from the air.
8. One of the gen. Smadas commanders detained 40 women and forced them to do house keeping in their
military camp, such ash launderining of soldiers clothes, cleaning barracks. However, these women were
not locked or imprisoned they were left freely to leave the camp after the work, but were threaten that if
they will not appear they and their family will face unhappy consequences. For this job women were
provided with additional foodstuff products, sweets, better clothes, etc.
9. When the fight between Smadas forces and resistance militants increased and resulted in essential
numbers of casualties, Smada decided to close one of the last and best equipped hospitals in Gelar and use
it only for his forces medical needs. The director of the hospital protested this action, but he was arrested
and hospital was converted into military one.

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Topic 5: Breaches of IHL and individual responsibility

Corpus delicti of War Crimes and Crimes Against Humanity
War Crimes
TIME

Crimes Against Humanity

During an armed conflict:

International (IAC)
Non-international (NIAC)

Anytime, including peace time

PERPATRATOR
Anyone under legal age (differs according various legislations) and in capacity to evaluate his
conduct
Mens rea: intent and knowledge
POLICY ELEMENT
Possible, but not necessary

Directed attack
- military and non military character
- multiple comission
- minimal direction
- pursuant to or in futherance with the policy
(Perpatrator shall act de jure or de facto on
behalf of the state or organisation that de facto
controls territory)
AND
Widespread
- large number of victims
OR
Systematic
- similar pattern, inclusion of state mechanisms,
etc.

VICTIMS
Protected persons:
IAC: mostly enemy, neutral
nationals (combatans, pows, etc.)
NIAC persons taking no active
part in hostilities

Any civilians as collective entity, including

nationals of the state (organisation) perpatrator

SPECIFIC TYPES OF CRIMES

Grave Breaches of GC (IAC)

Breaches of Common Article 3 of GC
(NIAC)
Laws and Customs of War (Hague
regulations)

Various inhumane acts committed

according to the characteristics of CAH
Genocide
Apartheid

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GENOCIDE:
Victims national, ethnical, racial,
religious groups;
Special intent to destroy group in
whole or in part;
Specific inhumane acts.
Incitement
APARTHEID:
Institutionally established
System of racial discrimination
PRINCIPLE OF RESPONSIBILITY

Prosecution under national and international legislation;

Prosecution by national institutions (priority) or international institutions (subsidiarity, IMT,

ICTY, ICTR, ICC, etc.)

Aut dedere, aut judicare and universal jurisdiction (exception: war crimes in non
international armed conflict)

Individual responsibility (no necessary link with state responsibility under International
Law)

Responsibility for committing, ordering, abetting, soliciting, inducing the crime

Responsibility for committing pursuant to an order

Question of Official capacity

Command responsibility:
o De facto and de jure control of subordinates
o Act or failure to act
o Peculiarities of Mens Rea
o Non-prevention or non-prosecution

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CASE STUDY 6: BREACHES OF IHL

REBELLION IN BUJU
Buju was as a rebellious region of the State of Arat. There were many armed groups fighting with Arat federal
forces for independence, however these groups were not able to form unified resistance. Moreover, many of these
groups were directly involved into international drug trafficking process from neighbouring countries. Finally, in
2005 the peaceful solution was reached under auspices of UN. It was also included establishment of a special
international commission of Truth and Reconciliation (hereinafter Commission) for the investigation of crimes
and other acts committed during the last decade by the parties of the conflict. The Commission agreed to work
under the guidelines that in jurisdiction, applicable law, principles and corpus delicti matters are similar to the
Rome Statute of International Criminal Court (1998).
1. During the special operation military officers of Arat detained about six thousands men from Buju and put them
into concentration camps. The local government of Buju was officially authorised to manage these camps though
the staff of the camps consisted mostly from Arat military officers. The mayor of the local government of Buju
signed all the documents, concerning moving of prisoners, sanctions for prisoners, food rations, living conditions,
etc. The living conditions in the camps were very poor and 1/3 of detainees died from exhaustion. However, when
the Mayor tried to intervene and to grant release for one of the prisoner famous local priest military officers
have not obeyed Mayors order.
You are the legal assistant of the Commission and you have to answer whether the Mayor can be held responsible,
if so what type of crimes he committed
2. Den Sin was well-known novelist in Arat. He was also well known for his hard line political views. He wrote a
short story Truth of Fire where he described inhabitants of Buju as primitive, non-civilised and dangerous people
who shall be culturised by iron fist. He passed the draft of the story to his friend asking for his advice whether it
is good enough to be published. His friend without Den Sin acknowledgment passed the draft of the story to the
press and three central newspapers of Arat simultaneously published it. Soon after the publishing pogroms of
Bujians started, a lot of people were killed, humiliated, expelled from their home.
You are the legal assistant of the Commission and you have to answer whether the Den Sin and his associates
(friend, journalists) can be held responsible, if so what type of crime he committed.
3. Due to serious political tensions and undergoing unrest, many Bujians families refused to let their kids into
governmental schools. A lot of children have not received even primary education already for a decade. The
Government of Arat decided to institute a special programme aiming to increase education of Bujians children.
This programme also foresaw a compulsory forcible transfer of children from Buju to other regions of Arat. Such
children supposed to be accommodated in special schools. They will be free to return to their homes only during
summer season or after the completing the school. International human rights organisations expressed serious
doubts about this programme and one of the representative even commented that it might amount to international
crime.
You are the legal assistant of the Commission and you are asked to clarify this issue.
A. B. was in the group of Arat soldiers who were ordered to execute 3 Buju human right activists who were
previously convicted for treason and were given a capital punishment. However, A.B. refused to participate in the
execution, motivating that the trial was unfair; defendants had no right to defence, etc. A.Bs commander threatened
him, that if he would not comply with the order, he will be sacked from the army, his family will be denied of
pensions and other social support. After this threat A.B. decided to participate in the execution. Later the trials of
human rights activists were recognised as inconsistent with international law standards.
You are the legal assistant of the Commission and you have to answer whether A.B. can be held responsible for
participation in the execution.

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LITERATURE & SOURCES

1. Compendium of case studies of international humanitarian law / Horst Seibt. Geneva, 1994.
2. Customary international humanitarian law.Vol.1-3 / ed. by Jean-Marie Henckaerts, Louise DoswaldBeck; International Committee of the Red Cross, Cambridge : Cambridge University Press, 2005.
3. Dieter I. The Law of War, Cambridge : Cambridge University Press, 2000.
4. Dinstein, Y. The conduct of hostilities under the law of international armed conflict, Cambridge :
Cambridge University Press, 2004.
5. Dinstein, Yoram. The international law of belligerent occupation, Cambridge University Press, 2009.
6. Dinstein, Yoram. War, aggression, and self-defence, Cambridge University Press, 2005.
7. Humanitarian law / editor R.C. Hingorani. - New Delhi, 1991.
8. International humanitarian law : an introduction / Hans-Peter Gasser. - Berne, 1993.
9. Kalshoven, F., Zegveld, L. Constraints on the waging of war : an introduction to International
Humanitarian law, International Committee of the Red Cross, 2001
10. Leslie C. Green. The Contemporary Law of Armed Conflict. Sec. Edition, Manchester Univ. Press,
2000.
11. Rogers A.P.V Law on the battlefield /. -- 2nd ed. -New York (N.Y.) : Juris Publishing, 2004.

Manchester : Manchester University Press ;

12. Sassoli M., Bouvier A. How does law protect in war: cases, documents and teaching materials on
contemporary practice in international humanitarian law, Geneva : International Committee of the Red
Cross, 2006.
13. The handbook of humanitarian law in armed conflicts / edited by Dieter Fleck, 1995
14. The penal repression of violations of international humanitarian law applicable in non-international
armed conflicts / Denise Plattner. - Geneva, 1990.
15. The protection of women in international humanitarian law / Franoise Krill. Geneva, 1985.
Internet sites:
http://www.icrc.org/ihl - International Committee of the Red Cross
http://www.crimesofwar.org/ - War Crimes Project
http://www.hrea.org/index.php?base_id=151 Human Rights Education Association. IHL.
http://www.icc-cpi.int/menus/icc - International Criminal Court
http://www.icty.org ICTY
http://www.ictr.org ICTR

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