The Geneva Conventions taken direct part in the conflict.

The Geneva Conventions are international treaties binding on all States which have The First Protocol extends the Conventions, taking into consideration modern means of
accepted them. warfare and transport and aiming to give further protection to civilians. The Second
Protocol provides a code of minimum protection for the combatants and the civilian
population during civil wars.
HISTORICAL BACKGROUND
Summary of main points
In 1859 Henry Dunant, a Swiss citizen, witnessed the aftermath of the Battle of Solferino
and was horrified by the sight of thousands of wounded soldiers lying helpless and
The distinctive emblems defined in the Geneva Conventions are the red cross or the red
abandoned with no one to care for them.
crescent on a white background. In order to retain their protective status in wartime, these
This experience led him to suggest the setting up of voluntary relief societies who could
emblems may not be used either in peace or war except to indicate or to protect the medical
be trained, during peacetime, to care for the wounded in time of war.
He also called for an international agreement to be drawn up to protect the wounded, and personnel, establishments and material protected by the Conventions. (National Societies
those who looked after them, from further attack. may, in accordance with their national legislation, make use of the emblem for their other
peacetime activities.) In wartime they must not use the emblem to signify that 'protection'
In 1863 Henri Dunant arranged an unofficial international conference at which it was
is conferred by it, unless specifically authorised to do by their governments: in this way
agreed that each country should form a relief organisation capable of assisting the Army
the sign of the red cross or red crescent is itself protected from abuse.
Medical Services in wartime.
This was how the Red Cross began.
The first Geneva Convention ("for the Amelioration of the Wounded and Sick in Armed
In 1864 governments were invited to send representatives to a diplomatic conference. As Forces and Field") and the second Geneva Convention ("for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea") are
a result 12 European nations signed a treaty stating that in future wars they would care for
similar, covering land and sea respectively. They embody the main idea which led to the
all sick and wounded military personnel, regardless of nationality. They would also
founding of the Red Cross: if a member of the armed forces is wounded or sick, and
recognise the neutrality of medical personnel, hospitals and ambulances identified by the
therefore in no condition to take an active part in the hostilities, he is no longer part of the
emblem of a red cross on a white background.
The treaty was called the Geneva Convention. This Convention was concerned only with fighting force and becomes a vulnerable person in need of protection and care.
soldiers wounded on the battlefield. Over the years, however, it has been expanded to
The main points of these two Conventions are: The sick, wounded and shipwrecked must
cover everyone caught up in conflicts but not actually taking an active part in the fighting.
be cared for adequately. Belligerents must treat members of the enemy force who are
wounded, sick or shipwrecked as carefully they would their own. All efforts should be
There are now four Geneva Conventions, which were drawn up in 1949. They cover armed
forces on land and at sea, prisoners of war, and civilians. And all of them have now been made to collect the dead quickly; to confirm death by medical examination; to identify
accepted by virtually every State in the world. Britain ratified the four Conventions in bodies and protect them from robbery. Medical equipment must not be intentionally
destroyed and medical establishments and vehicles must not be attacked, damaged or
1957.
prevented from operating even if, for the moment, they do not contain patients.
In addition, two new Protocols (a Protocol is an addition or amendment to a Convention)
The third Geneva Convention ("Relative to the Treatment of Prisoners of War") covers
were drawn up in 1977 at a diplomatic conference (attended by Britain).
members of the armed forces who fall into enemy hands. They are in the power of the
enemy State, not of the individuals or troops who have captured them
CONTENT
Prisoners of war MUST be:
The Conventions are long and complicated, but they are essentially a series of 'do's' and
'don'ts' to apply during conflict to protect vulnerable and defenceless individuals. Their - Treated humanely with respect for their persons and their honour.
underlying principles can be simply stated. - Enabled to inform their next of kin and the Central Prisoners of War Agency (ICRC, the
International Red Cross) of their capture.
The human dignity of all individuals must be respected at all times. Everything possible - Allowed to correspond regularly with relatives and to receive relief parcels.
must be done, without any kind of discrimination, to reduce the suffering of people who - Allowed to keep their clothes, feeding utensils and personal effects.
have been put out of action by sickness, wounds or captivity whether or not they have
Page 1 of 12
- Supplied with adequate food and clothing. The Hague Conventions of 1899 and 1907
- Provided with quarters not inferior to those of their captor's troops.
- Given the medical care their state of health demands. The Hague Conventions of 1899 and 1907 are a series of international treaties and
- Paid for any work they do. declarations negotiated at two international peace conferences at The Hague in the
- Repatriated if certified seriously ill or wounded, (but they must not resume active Netherlands. The First Hague Conference was held in 1899 and the Second Hague
military duties afterwards). Conference in 1907. Along with the Geneva Conventions, the Hague Conventions were
- Quickly released and repatriated when hostilities cease. among the first formal statements of the laws of war and war crimes in the body of secular
international law. A third conference was planned for 1914 and later rescheduled for 1915,
Prisoners of war must NOT be: but it did not take place due to the start of World War I.
-Compelled to give any information other than their name, age, rank and service number.
- Deprived of money or valuables without a receipt (and these must be returned at the time
History
of release).
- Given individual privileges other than for reasons of health, sex, age, military rank or
professional qualifications. The Hague Conventions of 1899 and 1907 were the first multilateral treaties that
- Held in close confinement except for breaches of the law, although their liberty can be addressed the conduct of warfare and were largely based on the Lieber Code, which was
restricted for security reasons. signed and issued by U.S. President Abraham Lincoln to the Union Forces of the United
- Compelled to do military work, nor work which is dangerous, unhealthy or degrading. States on 24 April 1863, during the American Civil War. The Lieber Code was the first
official comprehensive codified law that set out regulations for behavior in times of
The fourth Geneva Convention ("Relative to the Protection of Civilian Persons in Time martial law; protection of civilians and civilian property and punishment of transgression;
of War") covers all individuals "who do not belong to the armed forces, take no part in the deserters, prisoners of war, hostages, and pillaging; partisans; spies; truces and prisoner
hostilities and find themselves in the hands of the Enemy or an Occupying Power". exchange; parole of former rebel troops; the conditions of any armistice, and respect for
human life; assassination and murder of soldiers or citizens in hostile territory; and the
status of individuals engaged in a state of civil war against the government. As such, the
Protected civilians MUST be: codes were widely regarded as the best summary of the first customary laws and customs
- Treated humanely at all times and protected against acts or threats of violence, insults of war in the 19th century and were welcomed and adopted by military establishments of
and public curiosity. other nations. The 1874 Brussels Declaration (which was never adopted by all major
- Entitled to respect for their honour, family rights, religious convictions and practices, nations) listed 56 articles that drew inspiration from the Lieber Code.[1][2] Much of the
and their manners and customs. regulations in the Hague Conventions were borrowed heavily from the Lieber Code.
- Specially protected, for example in safety zones, if wounded, sick, old, children under
15, expectant mothers or mothers of children under 7. Subject matter
- Enabled to exchange family news of a personal kind. - Helped to secure news of family
members dispersed by the conflict Both conferences included negotiations concerning disarmament, the laws of war and war
- Allowed to practise their religion with ministers of their own faith. Civilians who are crimes. A major effort in both conferences was the creation of a binding international
interned have the same rights as prisoners of war. They may also ask to have their children court for compulsory arbitration to settle international disputes, which was considered
interned with them, and wherever possible families should be housed together and necessary to replace the institution of war. This effort, however, failed at both conferences;
provided with the facilities to continue normal family life. Wounded or sick civilians, instead a voluntary forum for arbitration, the Permanent Court of Arbitration, was
civilian hospitals and staff, and hospital transport by land, sea or air must be specially established. Most of the countries present, including the United States, the United
respected and may be placed under protection of the red cross/crescent emblem. Kingdom, Russia, France, China, and Persia, favored a process for binding international
arbitration, but the provision was vetoed by a few countries, led by Germany
Protected civilians must NOT be:
- Discriminated against because of race, religion or political opinion. - Forced to give Hague Convention of 1899
information.
- Used to shield military operations or make an area immune from military operations.
Nicholas II of Russia
- Punished for an offence he or she has not personally committed. - Women must not be
indecently assaulted, raped, or forced into prostitution.
The peace conference was proposed on 24 August 1898 by Russian Tsar Nicholas II.[8]
Nicholas and Count Mikhail Nikolayevich Muravyov, his foreign minister, were
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instrumental in initiating the conference. The conference opened on 18 May 1899, the
Tsar's birthday. The treaties, declarations, and final act of the conference were signed on
29 July of that year, and they entered into force on 4 September 1900. What is referred to
as the Hague Convention of 1899 consisted of three main treaties and three additional
declarations:
(I): Convention for the Pacific Settlement of International Disputes[9]
This convention included the creation of the Permanent Court of Arbitration, which exists
to this day. The section was ratified by all major powers and many smaller powers - 26
signatories in all, including Germany, Austria-Hungary, Belgium, China, Denmark,
Spain, United States of America, Mexico, France, Great Britain and Ireland, Greece, Italy,
Japan, Luxembourg, Montenegro, the Netherlands, Persia, Portugal, Romania, Russia,
Serbia, Siam, Sweden and Norway, Switzerland, Turkey and Bulgaria.[10]
(II): Convention with respect to the Laws and Customs of War on Land
This voluminous convention contains the laws to be used in all wars on land between
signatories. It specifies the treatment of prisoners of war, includes the provisions of the
Geneva Convention of 1864 for the treatment of the wounded, and forbids the use of
poisons, the killing of enemy combatants who have surrendered, looting of a town or
place, and the attack or bombardment of undefended towns or habitations. Inhabitants of
occupied territories may not be forced into military service against their own country and
collective punishment is forbidden. The section was ratified by all major powers
mentioned above.[11]
(III): Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention of 22 August 1864
This convention provides for the protection of marked hospital ships and requires them to
treat the wounded and shipwrecked sailors of all belligerent parties. It too was ratified by
all major powers.[12]
(IV,1): Declaration concerning the Prohibition of the Discharge of Projectiles and
Explosives from Balloons or by Other New Analogous Methods
This declaration provides that, for a period of five years, in any war between signatory
powers, no projectiles or explosives would be launched from balloons, "or by other new
methods of a similar nature." The declaration was ratified by all the major powers
mentioned above, except the United Kingdom and the United States.[13]
(IV,2): Declaration concerning the Prohibition of the Use of Projectiles with the Sole
Object to Spread Asphyxiating Poisonous Gases
This declaration states that, in any war between signatory powers, the parties will abstain
from using projectiles "the sole object of which is the diffusion of asphyxiating or
deleterious gases." Ratified by all major powers, except the United States.[14]
(IV,3): Declaration concerning the Prohibition of the Use of Bullets which can Easily
Expand or Change their Form inside the Human Body such as Bullets with a Hard
Covering which does not Completely Cover the Core, or containing Indentations
This declaration states that, in any war between signatory powers, the parties will abstain
from using "bullets which expand or flatten easily in the human body." This directly
banned soft-point bullets (which had a partial metal jacket and an exposed tip) and "cross-
tipped" bullets (which had a cross-shaped incision in their tip to aid in expansion,
nicknamed "Dum Dums" from the Dum Dum Arsenal in India). It was ratified by all major
powers, except the United States.[15]
Hague Convention of 1907
Commemorative medal of the 1907 convention
Theodore Roosevelt
Parties to Convention number IV: Convention respecting the laws and customs of war on
land
The second conference, in 1907, resulted in conventions containing only few major
advancements from the 1899 Convention. However, the meeting of major powers did
prefigure later 20th-century attempts at international cooperation.
The second conference was called at the suggestion of U.S. President Theodore Roosevelt
in 1904, but it was postponed because of the war between Russia and Japan. The Second
Peace Conference was held from 15 June to 18 October 1907. The intent of the conference
was to expand upon the 1899 Hague Convention by modifying some parts and adding new
topics; in particular, the 1907 conference had an increased focus on naval warfare. The
British attempted to secure limitation of armaments, but these efforts were defeated by the
other powers, led by Germany, which feared a British attempt to stop the growth of the
German fleet. Germany also rejected proposals for compulsory arbitration. However, the
conference did enlarge the machinery for voluntary arbitration and established
conventions regulating the collection of debts, rules of war, and the rights and obligations
of neutrals.
The treaties, declarations, and final act of the Second Conference were signed on 18
October 1907; they entered into force on 26 January 1910. The 1907 Convention consists
of thirteen treatiesof which twelve were ratified and entered into forceand one
declaration:
Page 3 of 12

(I): Convention for the Pacific Settlement of International Disputes[16]
This convention confirms and expands on Convention (I) of 1899. As of February 2017,
this convention is in force for 102 states,[17] and 116 states have ratified one or both of
the 1907 Convention (I) and the 1899 Convention (I), which together are the founding
documents of the Permanent Court of Arbitration.[18]
(II): Convention respecting the Limitation of the Employment of Force for Recovery of
Contract Debts[19]
(III): Convention relative to the Opening of Hostilities[20]
This convention sets out the accepted procedure for a state making a declaration of war.
(IV): Convention respecting the Laws and Customs of War on Land
This convention confirms, with minor modifications, the provisions of Convention (II) of
1899. All major powers ratified it.[21]
(V): Convention relative to the Rights and Duties of Neutral Powers and Persons in case
of War on Land[22]
(VI): Convention relative to the Legal Position of Enemy Merchant Ships at the Start of
Hostilities[23]
(VII): Convention relative to the Conversion of Merchant Ships into War-ships[24]
(VIII): Convention relative to the Laying of Automatic Submarine Contact Mines[25]
(IX): Convention concerning Bombardment by Naval Forces in Time of War[26]
(X): Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention (of 6 July 1906)
This convention updated Convention (III) of 1899 to reflect the amendments that had been
made to the 1864 Geneva Convention. Convention (X) was ratified by all major states
except the United Kingdom.[27] It was subsequently superseded by Second Geneva
Convention.
(XI): Convention relative to Certain Restrictions with regard to the Exercise of the Right
of Capture in Naval War[28]
(XII): Convention relative to the Establishment of an International Prize Court
This convention would have established the International Prize Court for the resolution of
conflicting claims relating to captured ships during wartime. It is the one convention that
never came into force. It was ratified only by Nicaragua.[29]
(XIII): Convention concerning the Rights and Duties of Neutral Powers in Naval War[30]
(XIV): Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons
This declaration extended the provisions of Declaration (IV,1) of 1899 to the close of the
planned Third Peace Conference (which never took place). Among the major powers, this
was ratified only by China, United Kingdom, and the United States.[31]
Participants
The Brazilian delegation was led by Ruy Barbosa, whose contributions are seen today by
some analysts as essential for the defense of the principle of legal equality of nations.[32]
The British delegation included Sir Edward Fry, Sir Ernest Satow, the 11th Lord Reay
(Donald James Mackay) and Sir Henry Howard as delegates, and Eyre Crowe as a
technical delegate.[33] The Russian delegation was led by Fyodor Martens. The
Uruguayan delegation was led by Jos Batlle y Ordez, a defender of the idea of
compulsory arbitration.[citation needed] Paul Henri d'Estournelles de Constant was a
member of the French delegation for both the 1899 and 1907 delegations. He later won
the Nobel Peace Prize in 1909 for his efforts.
Korea made a futile effort to take part in the conference, in an incident known as the Hague
Secret Emissary Affair. Emperor Gojong dispatched Yi Jun, Yi Sang-Seol and Yi Wi-
Jong as envoys to the second peace conference, to argue that the Eulsa Treaty was unjust
and the Japanese Empire had used force to absorb the Korean peninsula; the Korean
diplomats sought help from the international society to recover Korea's diplomatic
sovereignty. An American missionary, Homer Hulbert, also travelled to The Hague to
argue against the treaty. All four men were denied entry by Japanese and British
forces.[34]
Geneva Protocol to Hague Conventions
Main article: Geneva Protocol
Though not negotiated in The Hague, the Geneva Protocol to the Hague Conventions is
considered an addition to the Conventions. Signed on 17 June 1925 and entering into force
on 8 February 1928, its single article permanently bans the use of all forms of chemical
and biological warfare. The protocol grew out of the increasing public outcry against
chemical warfare following the use of mustard gas and similar agents in World War I, and
Page 4 of 12
fears that chemical and biological warfare could lead to horrific consequences in any
future war. The protocol has since been augmented by the Biological Weapons
Convention (1972) and the Chemical Weapons Convention (1993).
Legacy
Many of the rules laid down at the Hague Conventions were violated in World War I. The
German invasion of Belgium, for instance, was a violation of Convention (III) of 1907,
which states that hostilities must not commence without explicit warning.[35] Poison gas
was introduced by Germany and used by all major belligerents throughout the war, in
violation of the Declaration (IV, 2) of 1899 and Convention (IV) of 1907, which explicitly
forbade the use of "poison or poisoned weapons".[36]
Writing in 1918, the German international law scholar and neo-Kantian pacifist Walther
Schcking called the assemblies the "international union of Hague conferences".
Schcking saw the Hague conferences as a nucleus of a future international federation that
was to meet at regular intervals to administer justice and develop international law
procedures for the peaceful settlement of disputes, asserting that "a definite political union
of the states of the world has been created with the First and Second Conferences".[37]
After World War II, the judges of the military tribunal of the Trial of German Major War
Criminals at Nuremberg Trials found that by 1939, the rules laid down in the 1907 Hague
Convention were recognised by all civilised nations and were regarded as declaratory of
the laws and customs of war. Under this post-war decision, a country did not have to have
ratified the 1907 Hague Convention in order to be bound by them.[38]
Although their contents have largely been superseded by other treaties,[citation needed]
the Hague Conventions of 1899 and 1907 continue to stand as symbols of the need for
restrictions on war and the desirability of avoiding it altogether. Since 2000, Convention
(I) of 1907 on the Pacific Settlement of International Disputes has been ratified by 20
additional states.[17]
The International Committee of the Red Cross (ICRC)
The ICRC's mandate and mission
The work of the ICRC is based on the Geneva Conventions of 1949, their Additional
Protocols, its Statutes and those of the International Red Cross and Red Crescent
Movement and the resolutions of the International Conferences of the Red Cross and
Red Crescent. The ICRC is an independent, neutral organization ensuring humanitarian
protection and assistance for victims of armed conflict and other situations of violence. It
takes action in response to emergencies and at the same time promotes respect for
international humanitarian law and its implementation in national law.
It was on the ICRCs initiative that States adopted the original Geneva Convention of
1864. Since then, the ICRC, with the support of the entire Red Cross and Red Crescent
Movement, has constantly urged governments to adapt international humanitarian law to
changing circumstances, in particular to modern developments in the means and methods
of warfare, so as to provide more effective protection and assistance for conflict victims.
Today, all States are bound by the four Geneva Conventions of 1949 which, in times of
armed conflict, protect wounded, sick and shipwrecked members of the armed forces,
prisoners of war and civilians.
Over three-quarters of all States are currently party to the two 1977 Protocols additional
to the Conventions. Protocol I protects the victims of international armed conflicts,
Protocol II the victims of non-international armed conflicts. In particular, these treaties
have codified the rules protecting the civilian population against the effects of hostilities.
Additional Protocol III of 2005 allows for the use of an additional emblem the Red
Crystal by national societies in the Movement.
The legal bases of any action undertaken by the ICRC are as follows:
The four Geneva Conventions and Additional Protocol I confer on the ICRC a specific
mandate to act in the event of international armed conflict. In particular, the ICRC has the
right to visit prisoners of war and civilian internees. The Conventions also give the ICRC
a broad right of initiative.
In non-international armed conflicts, the ICRC enjoys a right of humanitarian initiative
recognized by the international community and enshrined in Article 3 common to the four
Geneva Conventions.
In the event of internal disturbances and tensions, and in any other situation that warrants
humanitarian action, the ICRC also enjoys a right of initiative, which is recognized in the
Statutes of the International Red Cross and Red Crescent Movement. Thus, wherever
international humanitarian law does not apply, the ICRC may offer its services to
governments without that offer constituting interference in the internal affairs of the State
concerned.
The ICRC's mission statement
The International Committee of the Red Cross (ICRC) is an impartial, neutral and
independent organization whose exclusively humanitarian mission is to protect the lives
and dignity of victims of armed conflict and other situations of violence and to provide
them with assistance.
The ICRC also endeavours to prevent suffering by promoting and strengthening
humanitarian law and universal humanitarian principles.
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Established in 1863, the ICRC is at the origin of the Geneva Conventions and the
International Red Cross and Red Crescent Movement. It directs and coordinates the
international activities conducted by the Movement in armed conflicts and other situations
of violence.
The Principle of Distinction between Civilians and Combatants
Rule 1. The parties to the conflict must at all times distinguish between civilians and
combatants. Attacks may only be directed against combatants. Attacks must not be
directed against civilians.
Summary
State practice establishes this rule as a norm of customary international law applicable in
both international and non-international armed conflicts. The three components of this
rule are interrelated and the practice pertaining to each of them reinforces the validity of
the others. The term combatant in this rule is used in its generic meaning, indicating
persons who do not enjoy the protection against attack accorded to civilians, but does not
imply a right to combatant status or prisoner-of-war status (see Chapter 33).This rule has
to be read in conjunction with the prohibition to attack persons recognized to be hors de
combat (see Rule 47) and with the rule that civilians are protected against attack unless
and for such time as they take a direct part in hostilities (see Rule 6). Belligerent reprisals
against civilians are discussed in Chapter 41.
International armed conflicts
The principle of distinction between civilians and combatants was first set forth in the St.
Petersburg Declaration, which states that the only legitimate object which States should
endeavour to accomplish during war is to weaken the military forces of the enemy.[1]
The Hague Regulations do not as such specify that a distinction must be made between
civilians and combatants, but Article 25, which prohibits the attack or bombardment, by
whatever means, of towns, villages, dwellings, or buildings which are undefended, is
based on this principle.[2] The principle of distinction is now codified in Articles 48,
51(2) and 52(2) of Additional Protocol I, to which no reservations have been made.[3]
According to Additional Protocol I, attacks means acts of violence against the
adversary, whether in offence or in defence.[4]
At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico
stated that Articles 51 and 52 of Additional Protocol I were so essential that they cannot
be the subject of any reservations whatsoever since these would be inconsistent with the
aim and purpose of Protocol I and undermine its basis.[5] Also at the Diplomatic
Conference, the United Kingdom stated that Article 51(2) was a valuable reaffirmation
of an existing rule of customary international law.[6]
The prohibition on directing attacks against civilians is also laid down in Protocol II,
Amended Protocol II and Protocol III to the Convention on Certain Conventional
Weapons and in the Ottawa Convention banning anti-personnel landmines.[7] In addition,
under the Statute of the International Criminal Court, intentionally directing attacks
against the civilian population as such or against individual civilians not taking direct part
in hostilities constitutes a war crime in international armed conflicts.[8]
Numerous military manuals, including those of States not, or not at the time, party to
Additional Protocol I, stipulate that a distinction must be made between civilians and
combatants and that it is prohibited to direct attacks against civilians.[9] Swedens IHL
Manual identifies the principle of distinction as laid down in Article 48 of Additional
Protocol I as a rule of customary international law.[10] In addition, there are numerous
examples of national legislation which make it a criminal offence to direct attacks against
civilians, including the legislation of States not, or not at the time, party to Additional
Protocol I.[11]
In the Kassem case in 1969, Israels Military Court at Ramallah recognized the immunity
of civilians from direct attack as one of the basic rules of international humanitarian
law.[12] There are, moreover, many official statements which invoke the rule, including
by States not, or not at the time, party to Additional Protocol I.[13] The rule has also been
invoked by parties to Additional Protocol I against non-parties.[14]
In their pleadings before the International Court of Justice in the Nuclear Weapons case,
many States invoked the principle of distinction.[15] In its advisory opinion in the
Nuclear Weapons case, the Court stated that the principle of distinction was one of the
cardinal principles of international humanitarian law and one of the intransgressible
principles of international customary law.[16]
When the ICRC appealed to the parties to the conflict in the Middle East in October 1973,
i.e., before the adoption of Additional Protocol I, to respect the distinction between
combatants and civilians, the States concerned (Egypt, Iraq, Israel and Syria) replied
favourably.[17]
Non-international armed conflicts
Article 13(2) of Additional Protocol II prohibits making the civilian population as such,
as well as individual civilians, the object of attack.[18] The prohibition on directing
attacks against civilians is also contained in Amended Protocol II to the Convention on
Certain Conventional Weapons.[19] It is also set forth in Protocol III to the Convention
on Certain Conventional Weapons, which has been made applicable in non-international
armed conflicts pursuant to an amendment of Article 1 of the Convention adopted by
consensus in 2001.[20] The Ottawa Convention banning anti-personnel landmines states
that the Convention is based, inter alia, on the principle that a distinction must be made
between civilians and combatants.[21]
Page 6 of 12
Under the Statute of the International Criminal Court, intentionally directing attacks
against the civilian population as such or against individual civilians not taking direct part
in hostilities constitutes a war crime in non-international armed conflicts.[22] In
addition, this rule is included in other instruments pertaining also to non-international
armed conflicts.[23]
Military manuals which are applicable in or have been applied in non-international armed
conflicts specify that a distinction must be made between combatants and civilians to the
effect that only the former may be targeted.[24] To direct attacks against civilians in any
armed conflict is an offence under the legislation of numerous States.[25] There are also
a number of official statements pertaining to non-international armed conflicts invoking
the principle of distinction and condemning attacks directed against civilians.[26] States
submissions to the International Court of Justice in the Nuclear Weapons case referred to
above were couched in general terms applicable in all armed conflicts.
No official contrary practice was found with respect to either international or non-
international armed conflicts. This rule is sometimes expressed in other terms, in particular
as the principle of distinction between combatants and non-combatants, whereby civilians
who do not take a direct part in hostilities are included in the category of non-
combatants.[27]
Alleged violations of this rule have generally been condemned by States, irrespective of
whether the conflict was international or non-international.[28] Similarly, the UN
Security Council has condemned or called for an end to alleged attacks against civilians
in the context of numerous conflicts, both international and non-international, including
in Afghanistan, Angola, Azerbaijan, Burundi, Georgia, Lebanon, Liberia, Rwanda, Sierra
Leone, Somalia, Tajikistan, the former Yugoslavia and the territories occupied by
Israel.[29]
As early as 1938, the Assembly of the League of Nations stated that the intentional
bombing of civilian populations is illegal.[30] The 20th International Conference of the
Red Cross in 1965 solemnly declared that governments and other authorities responsible
for action in all armed conflicts should conform to the prohibition on launching attacks
against a civilian population.[31] Subsequently, a UN General Assembly resolution on
respect for human rights in armed conflicts, adopted in 1968, declared the principle of
distinction to be applicable in all armed conflicts.[32] The Plan of Action for the years
20002003, adopted by the 27th International Conference of the Red Cross and Red
Crescent in 1999, requires that all parties to an armed conflict respect the total ban on
directing attacks against the civilian population as such or against civilians not taking a
direct part in hostilities.[33] In a resolution adopted in 2000 on protection of civilians in
armed conflicts, the UN Security Council reaffirmed its strong condemnation of the
deliberate targeting of civilians in all situations of armed conflict.[34]
The jurisprudence of the International Court of Justice in the Nuclear Weapons case, of
the International Criminal Tribunal for the Former Yugoslavia, in particular in the Tadi
case, Marti case and Kupreki case, and of the Inter-American Commission on Human
Rights in the case relative to the events at La Tablada in Argentina provides further
evidence that the obligation to make a distinction between civilians and combatants is
customary in both international and non-international armed conflicts.[35]
The ICRC has called on parties to both international and non-international armed conflicts
to respect the distinction between combatants and civilians.[36]
Basic principles of IHL
The principle of distinction between civilians and combatants
The principle of distinction underpinning many rules of IHL is that only fighters may be
directly targeted. This is a necessary compromise that IHL provides for in order to protect
civilians in armed conflict. Without the principle of distinction, they would be no
limitation on the methods of warfare.
The specific rules where the principle of distinction is set out concerns Article 48 and 52
of Additional Protocal 1 to the Geneva Conventions. This defines who is a combatant and
a military object that can be lawfully attacked. Any direct attack against a civilian or
civilian object is not only a violation of IHL but also a grave breach. Direct attacks against
civilians and/or civilians objects are categorised as war crimes. Additionally, any weapon
which is incapable of distinguishing between civilians/civilian objects and
fighters/military objects is also prohibited under IHL. The principle is also a rule of
customary international law, binding on all states.
The prohibition of attacks against those hors de combat
The prohibition to attack any person hors de combat (those who are sick and wounded,
prisoners of war) is a fundamental rule under IHL. For example, while a solider could be
targeted lawfully under normal circumstances, if that soldiers surrenders or is wounded
and no longer poses a threat, then it is prohibited to attack that person. Additionally, they
may be entitled to extensive protections if they meet the criteria of being a Prisoner of
War.
The prohibition on the infliction of unnecessary suffering
While IHL does permit violence, it prohibits the infliction of unnecessary suffering and
superfluous injury. While the meaning of such terms is unclear and the protection may as
such be limited, even fighters who may be lawfully attacked, are provided protection by
this prohibition. One rule that has been established based on this principle is the
prohibition on the use of blinding laser weapons.
The principle of proportionality
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The principle of proportionality limits and protects potential harm to civilians by
demanding that the least amount of harm is caused to civilians, and when harm to civilians
must occur it needs be proportional to the military advantage. The article where
proportionality is most prevalent is in Article 51(5) (b) of API concerning the conduct of
hostilities which prohibits attacks when the civilian harm would be excessive in relation
to the military advantage sought. This is an area of hostilities where we often hear the term
collateral damage.
The principle cannot be applied to override specific protections, or create exceptions to
rules where the text itself does not provide for one. As with the principle of necessity, the
principle of proportionality itself is to be found within the rules of IHL themselves. For
example, direct attacks against civilians are prohibited and hence a proportionality
assessment is not a relevant legal assessment as any direct attack against even a single
civilian who is not taking part in hostilities is a clear violation of IHL. Proportionality is
only applied when a strike is made against a lawful military target.
The notion of necessity
A dominant notion within the framework of IHL is military necessity, often the principle
which clashes most with humanitarian protection. Military necessity permits armed forces
to engage in conduct that will result in destruction and harm being inflicted. The concept
of military necessity acknowledges that under the laws of war, winning the war or battle
is a legitimate consideration.
However the concept of military necessity does not give the armed forces the freedom to
ignore humanitarian considerations altogether and do what they want. It must be
interpreted in the context of specific prohibitions and in accordance with the other
principles of IHL.
It is important to note that the notion itself is to be found within the rules of IHL. For
example, Article 52 of Addition Protocol I lists those objects that can be subject to lawful
attacks. The notion cannot be applied to override specific protections, or create exceptions
to rules where the text itself does not provide for one.
The principle of humanity
The principle of humanity, and its absence during the battle of Solferino of 1859, was the
central notion that inspired the founder of the International Committee of the Red Cross
(ICRC), Henry Dunant. The principle stipulates that all humans have the capacity and
ability to show respect and care for all, even their sworn enemies. The notion of humanity
is central to the human condition and separates humans from animals.
IHL, the principles of which can be found in all major religions and cultures, set out only
basic protections, but ones which look to demonstrate that even during armed conflict
there is some common sense of and respect for humanity. Modern IHL is not naive and
accepts that harm, destruction and death can be lawful during armed conflict. IHL simply
looks to limit the harm, and the principle of humanity is very much at the heart of this
ambition. Many rules of IHL are inspired by this notion, specifically those setting out
protections for the wounded and sick.
Humane Treatment
Rule 87. Civilians and persons hors de combat must be treated humanely.
Summary
State practice establishes this rule as a norm of customary international law applicable in
both international and non-international armed conflicts.
International and non-international armed conflicts
The obligation to treat prisoners of war humanely was already recognized in the Lieber
Code, the Brussels Declaration and the Oxford Manual and was codified in the Hague
Regulations.[1] The requirement of humane treatment for civilians and persons hors de
combat is set forth in common Article 3 of the Geneva Conventions, as well as in specific
provisions of all four Conventions.[2] This requirement is recognized as a fundamental
guarantee by both Additional Protocols I and II.[3]
The requirement of humane treatment is set forth in numerous military manuals.[4] It has
been reaffirmed in national and international case-law.[5]
Human rights law is similarly based on the principle of humane treatment of persons. In
particular, human rights instruments stress the requirement of humane treatment and
respect for human dignity of persons deprived of their liberty.[6] In its General Comment
on Article 4 of the International Covenant on Civil and Political Rights, the UN Human
Rights Committee declared Article 10, which requires that persons deprived of their
liberty be treated with humanity and with respect for the inherent dignity of the human
person, to be non-derogable and therefore applicable at all times.[7]
Definition of humane treatment
The actual meaning of humane treatment is not spelled out, although some texts refer
to respect for the dignity of a person or the prohibition of ill-treatment in this
context.[8] The requirement of humane treatment is an overarching concept. It is
generally understood that the detailed rules found in international humanitarian law and
human rights law give expression to the meaning of humane treatment. The rules in
Chapters 3339 contain specific applications of the requirement of humane treatment for
certain categories of persons: the wounded, sick and shipwrecked, persons deprived of
their liberty, displaced persons, women, children, the elderly, the disabled and infirm.
However, these rules do not necessarily express the full meaning of what is meant by
humane treatment, as this notion develops over time under the influence of changes in
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society. This is shown, for example, by the fact that the requirement of humane treatment
has been mentioned in international instruments since the mid-19th century, but the
detailed rules which stem from this requirement have developed since then, and may do
so still further.
Non-Discrimination
Rule 88. Adverse distinction in the application of international humanitarian law based on
race, colour, sex, language, religion or belief, political or other opinion, national or social
origin, wealth, birth or other status, or on any other similar criteria is prohibited.
Summary
State practice establishes this rule as a norm of customary international law applicable in
both international and non-international armed conflicts.
International and non-international armed conflicts
The prohibition of adverse distinction in the treatment of civilians and persons hors de
combat is stated in common Article 3 of the Geneva Conventions, as well in the Third and
Fourth Geneva Conventions.[1] It is recognized as a fundamental guarantee by Additional
Protocols I and II.[2] It is contained in numerous military manuals.[3] It is also supported
by official statements and other practice.[4]
The notion of adverse distinction implies that while discrimination between persons is
prohibited, a distinction may be made to give priority to those in most urgent need of care.
In application of this principle, no distinction may be made among the wounded, sick and
shipwrecked on any grounds other than medical (see Rule 110). Another application can
be found in Article 16 of the Third Geneva Convention, which provides that all prisoners
of war must be treated alike, taking into consideration the provisions of the present
Convention 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.[5] There is no indication that adverse distinction is lawful in relation to
some rules, and no State has asserted that any such exception exists.
The human rights law equivalent of the prohibition of adverse distinction is the principle
of non-discrimination. The prohibition of discrimination in the application of human rights
law is included in the Charter of the United Nations and in the major human rights
treaties.[6] With respect to the derogability of the right to non-discrimination, the UN
Human Rights Committee stated in its General Comment on Article 4 of the International
Covenant on Civil and Political Rights that:
Even though article 26 or the other Covenant provisions related to non-discrimination
have not been listed among the non-derogable provisions in article 4, paragraph 2, there
are elements or dimensions of the right to non-discrimination that cannot be derogated
from in any circumstances. In particular, the provision of article 4, paragraph 1, must be
complied with if any distinctions between persons are made when resorting to measures
that derogate from the Covenant.[7]
Article 4(1) of the Covenant provides that measures that derogate from it may not involve
discrimination solely on the ground of race, colour, sex, language, religion or social
origin.[8] While discrimination on grounds of political or other opinion, national origin,
property, birth or other status is prohibited under Article 2(1) of the Covenant, these
grounds are not listed in Article 4(1) dealing with derogations.[9] It is significant,
however, that the Additional Protocols prohibit discrimination on grounds of political or
other opinion, national origin, wealth, birth or other status and thus recognize that the
prohibition of discrimination on such grounds cannot be dispensed with, even during
armed conflict.[10] This is also the approach of the African Charter on Human and
Peoples Rights and the Convention on the Rights of the Child, which prohibit
discrimination on grounds of political or other opinion, national origin, property, birth or
other status and do not allow for any derogation.[11]
Apartheid
According to Additional Protocol I, practices of apartheid and other inhuman or
degrading practices involving outrages upon personal dignity, based on racial
discrimination constitute grave breaches.[12] This rule is set forth in several military
manuals.[13] The legislation of many States also contains this rule.[14] In addition,
apartheid constitutes a crime against humanity under several international treaties and
other international instruments.[15] The legislation of several States also prohibits
apartheid as a crime against humanity.[16]
Position of Women in the International Humanitarian Law
At wartime all people (men and women) inevitably leave their homes. They are wounded
or killed at these times and can hardly make subsistence even after war. On the other hand,
in regional wars the life of women is inappropriately affected by conflicts between
opposing groups. Therefore, their experiences mainly differ from those of men in such
eras. While the majority of men are either killed or wounded during war, women become
the victim of sexual harassment, rape and AIDS. They have to hold a fetus in their wombs
which is the product of rape. In the course of conflicts, women also experience another
form of violence by losing their relatives or remaining unaware of the conditions of their
families.
International Documents Associated with Womens Rights in Conflicts
Contracts and conventions signed to prevent war and protect victims of wars and civilians
are considered part of the wartime law. The following are a number of such contracts with
dates which are associated with the topic of this manuscript.
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A: Protocols on protection of victims of international armed conflicts:
Section four of part 2 of chapter 2 of the protocol refers to protective measures that can
be directly made to protected women and children.
B: Protocols on protection of victims of non- international armed conflicts:
These protocols had been signed by 17 countries by 1981. These protocols do not allocate
a section or article to women but they include paragraphs that refer to civilians and
women.
The 4 Geneva Conventions (1949) and their two supplementary protocols (1977), which
are dedicated to humanitarian law, contain a total of 560 articles. 42 articles out of the 560
refer to women in different way and state notions associated with violence against women.
In article 3, which is common among all of the conventions, there are various paragraphs
that emphasize on the importance of respecting human rules and prohibition of harming
the lives and physical entity of people. They also refer to cruel behaviors, torture, and
damage to the dignity of individuals.
The Convention on the Prevention and Punishment of the Crime Genocide is among the
international documents addressing violence against arrested women or women in civil
and international armed conflicts. It is also applied to violence against refugee and
displaced women as well.
In international armed conflict the cases of pregnant women or women with little children,
who are for any reason arrested and imprisoned, shall gain the highest attention.5 It is the
principle that was mentioned considering the need for supporting women the same as
civilians. Therefore, writers of the protocol formulated this protocol in an attempt to make
sure that pregnant women and women with babies are immediately released.
1- According to this convention, female prisoners of war (POW) who are either pregnant
or the mother of babies and little children are given residence in impartial countries.
2- According to this convention, when it is not possible for normally pregnant women, or
prisoners suffering from women diseases or pregnancy disorders to reside in impartial
countries, they are allowed to return to their countries.
The third convention contains measures and bonds, which are based on the following
principle: Women should be treated with the respect that their gender necessitates8. It
also states that In camps where women and men prisoners of war live together, women
should be provided with separate residences.
When it is stated that in camps where women and men prisoners of war live together,
women should be provided with separate residences, it should be noted that health
facilities are of greatest importance because they are necessary to maintain the hygiene
and health of camps. Such facilities shall be organized to be decent, elegant and adequate.
The convention states that a female POW should not be punished with punishments
harder than a female member of armed forces punished by officials for a similar crime.
No female POW should be ever punished harder than a male member of armed forces
punished by officials for a similar crime.
Moreover, according to this convention female POWs punished by disciplinary or
criminal penalties should be kept in camps other than those used for male POWs. They
should also be subjected to immediate supervision as well.
The first protocol includes an act that is similar to the act referred to articles 25, 97 and
108 of the third convention. According to this act women whose freedom is limited as a
result of armed violence shall be kept separate from men in camps. They should be
subjected to immediate supervision as well.13 The first protocol also asserts that women
who are arrested and imprisoned should be kept in camps separate from men. They
should also be subjected to immediate supervision except for the time their families are in
the same camp as well.14 Anyhow, arrested people should be treated like prisoners of
war.
It seems that the second supplementary protocol does not specifically support women the
same as victims of non-international armed forces. It generally refers to civilians and
covers this group of individuals. On the other hand, the majority of victims of internal
conflicts are women. Moreover, article 88, which is included in paragraphs 2 and 3 of the
third convention (1949), states: A female POW should not be punished with punishments
harder than those determined for a male member of the armed force punished by officials
for a similar crime. It seems that the term POW, or more specifically female POW, implies
that military use and direct participation of women in conflicts is authorized.
Unfortunately, it is contradictory to the objectives of the Geneva Conventions which are
basically aimed at supporting women. In addition, the Geneva Conventions and their
supplementary protocols do not refer to examples of violence against women. However,
raping women and girls is widely used as a method of war. Instances include sexual
harassment of women in the former Yugoslavia, Rwanda and most internal conflicts,
especially in Africa. Fortunately, in articles 7 and 8 of the statue of the International
Criminal Court, examples of violence and crime against women are mentioned. These
articles introduce these crimes, which are committed in international and internal
conflicts, as examples of war crimes.
Position of Children in the International Humanitarian Law
Children have always been the chief victims of human wars in the course of history. They
are killed, tortured and bothered. They lose their families and homes and suffer from lack
of education and health, which leave profound effects on them. Children, as a part of the
population that highly needs to be protected against violence, sexual harassment,
malnutrition, and armed conflicts, are usually forgotten at times of tension and armed
conflict. They are in fact abused by military forces at such occasions. Children employed
as soldiers by military forces are forced to commit violent crimes that leave incurable and
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inevitable effects on their souls. These soldiers witness the most horrible crimes, murder,
wreckage, under the age of 18. Since they are affected by such cruel environments they
become agents of more horrible crimes in the future.
Prohibition of Using Children in Armed Conflicts
The Convention on the Rights of the Child states:
1- Countries supporting the convention are obliged to respect the regulations of
international humanitarian law that concern children at times of armed conflict.
2- Countries supporting the convention commit to take any practical measure to ensure
that people under 15 do not directly take part in conflicts.
3- Countries supporting the convention are obliged to refuse to employ people under 15
in the armed forces. In employing those who are over 15 and under 18, these countries
give the priority to the older applicants.
4- Countries supporting the convention are obliged to commit to the international
humanitarian law in supporting civilians at times of armed wars. They are also required
to take all of the practical measures to ensure the safety and security of children affected
by consequences of war.
- The first 1977 protocol attached to the Geneva Conventions (August 12, 1949):
It is dedicated to the support for victims of international armed conflicts.
Moreover, article 77 states on the support for children: If children are arrested or
imprisoned for any reason, they should be kept separate from adults unless their families
accompany them similar to the case described in paragraph 3 of article 75.
Article 3, which is common among Geneva Conventions, is the main source of non-
international armed conflicts laws. In the case of all non- international armed conflicts
(especially in the case civil wars, colonial conflicts, and religious wars) occurred on the
land of one of the committed parties, each party is obliged to apply the regulations
mentioned in this convention.
- The second 1977 protocol that is attached to the Geneva Conventions (1949):
It focuses on the support for victims of non- international conflicts.
According to this protocol, should be protected and provided with the following cares:
a) They should benefit from education, religious and moral teachings as their parents wish.
In case they lose their parents they should be educated by discern of their overseers.
b) All of the measures necessary to gather temporarily separated families should be taken.
c) Children under 15 should neither be employed by the armed force nor participate in
conflicts.
d) The special support for children under 15 that is dictated by this article should be
available even if the children participate in war or become prisoners of war.
e) In case of necessity measures should be taken with the consent of parents or legal
overseers of children to temporarily move them to more secure areas in the country. It
should also be ensured that they are accompanied by a supervisor who is in charge of their
health.
Moreover, death penalty does not apply to criminals who commit a crime when they are
under 18 or pregnant women or their mothers.
Apparently, contents of paragraph 1 of article 4 (under the C and D sections) have
unknowingly provided for abuse of children and the requirement (military use) in conflicts
because according to section D, if children are directly involved in war they need to be
supported. Hence, the criminal immunity of children has made commanders implement
their criminal wartime plans by taking advantage of children. Although the use of children
under 15 is considered a crime, article 6 of paragraph 4 of the second protocol have pave
the ways for this crimes. Therefore, according to this article, criminals under 18 are not
sentenced by death penalty. In other words, persons who commit crimes during conflicts
are immune to prosecution or punishment of they age between 15 and 18. Hence, since
commanders do not violate article 4 they are free from criminal responsibly and since the
criminals are under 18 they are immune to punishment as well according to article 6.
Although the protocol attached to the Convention on the Rights of Children (2000) has
increased the lower age limit for participation in armed conflicts to 18, the statue of the
International Criminal Court, which secures the implementation of the international
humanitarian law, has an article that negates the effort. The reason is that according to
article 8 of the statue, recruitment of people under 15 is considered a crime. In most of the
countries engaged with internal conflicts, especially armed conflicts, children are briefly
trained and equipped with weapons and explosives. Not to mention that girls are even
exposed to sexual harassment as well.
Conclusion
Recently, the attention paid by the global community to the position and support of women
and children in armed conflicts has considerably increased. However, similar to other
fields of humanitarian law and human rights there are obstacles in the way of realization
of this objective. In spite of significant changes made to the attitude of the international
humanitarian law toward women and children, women and children are still the target of
most damages. Women and children are those who are hurt and victimized in wars while
they have no say in the start or finish of the wars. Considering the security of support for
womens rights in conflicts, it should be said that fortunately the statue of the International
Criminal Court has introduce sexual harassment (which is the most prevalent form of
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violence practiced against women in conflicts) as a human crime. There is a paragraph in
the document which directly refers to rape, sexual slavery, forced prostitution, forced
pregnancy, forced sterilization, or any other form of sexual violence. In other words, all
of the contents of humanitarian law documents are applied to all of the persons involved
in armed conflicts including women and children. However, the notion of support for
women and children in the humanitarian law refers to a special support for these groups.
Fortunately, article 8 of the statue takes support for children and women in account. The
article guarantees implementation of humanitarian laws. It seems that currently it is
possible to increase the support for women and children in armed conflicts through
contractual rights. It should also be noted that the support relies on alternation of the
attitude toward women and social structure of societies. It in fact necessitates reformation
of beliefs and polices adopted toward women as human creatures and not creatures for
enjoyment, acts of war or advancement of war strategies.

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