echecs16.info Theory INTERNATIONAL HUMANITARIAN LAW PDF

INTERNATIONAL HUMANITARIAN LAW PDF

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For example, the two bodies of law aim to protect human life, prohibit torture or cruel treatment, On the other hand, rules of IHL deal with many issues that. What practical measures can parliamentarians take to ensure that IHL is on IPU's Committee to Promote Respect for International Humanitarian Law also. hostilities, in particular by reaffirming the principle of customary law, .. rules of international law applicable in armed conflict, with intent to betray that confidence .


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International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are. As the promoter and guardian of international humanitarian law, it strives to protect and assist the victims of armed conflicts, internal disturbances and other. An overview of international humanitarian law, in A2 poster format, presenting the key principles and You are here >; PDF >; International Humanitarian Law.

Gerd Oberleitner This e-learning course offers a basic introduction to international humanitarian law or the law of armed conflict. It is a foundation course for other HREA e-learning courses in this area and serves as a stepping stone for developing expertise in specialised areas of the law of armed conflict. The course examines how international humanitarian law guides the conduct of hostilities, restrains the use of force, mitigates the consequences of warfare and protects civilians in international and non-international armed conflicts and in situations of occupation. The course also discusses the role of international criminal law and international human rights law in armed conflicts as well as ways and means to enforce adherence to international humanitarian law. Learners will acquire basic knowledge on the development, scope and purpose of international humanitarian law and on the basic protective principles such as distinction between civilian objects and military objectives, military necessity, proportionality, the prohibition of non-discriminatory weapons, and precautions in targeting.

Pdf international humanitarian law

Thus, a broader notion for its material scope of application could be maintained, and since only the basic humanitarian laws were binding, no great controversy arose. The International Criminal Tribunal for Yugoslavia has followed this notion by stating that an armed conflict exists "whenever there is a resort to armed force between states or protracted armed violence between authorities and organized armed groups or between such groups within a state. The ICRC affirms in its Commentary: "Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfill any of the above conditions which are not obligatory and are only mentioned as an indication?

We do not subscribe to this view. We think, on the contrary, that the Article should be applied as widely as possible. There can be no reason against this. For, contrary to what may have been thought, the Article in its reduced form does not in any way limit the right of a State to put down rebellion. The International Criminal Tribunal for Yugoslavia, ICTY, has, in assessing the intensity of the conflict, taken into consideration factors such as "the seriousness of attacks and their recurrence, the spread of these armed clashes over territory and time, whether various parties were able to operate from a territory under their control, an increase in the number of governmental forces, the mobilization of volunteers, and the distribution of weapons among both parties to the conflicts, as well as whether the conflict had attracted the attention of the UN Security council and whether any resolutions on that matter had been passed.

In order to assess the organization of the parties to the conflict, Trial Chambers took into account such factors as the existence of headquarters, designated zones of operation and the ability to procure, transport and distribute arms ICTY Tadic, Kordic, and Celebici Trials. Article 3 armed conflicts do not require the existence of large-scale and generalized hostilities or a situation comparable to a civil war in which dissident armed groups exercise control over parts of national territory.

These criteria are used "solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law. However, adverse situations such as the above have arisen from the lack of clarity of the text of common Article 3, and from the absence of an established international authority for construing both the law and the nature and status of a particular conflict situation, breeding various interpretations which can, in the end, undermine the effectiveness the framers wished to bestow on the regulations.

It can be argued that there is an actual necessity to amend the International Humanitarian Law norms relating to internal armed conflicts, clarifying their scope of application in order to prevent misinterpretations and loopholes from giving civilians, wounded, and other non-combatants the minimal protections they are entitled to.

In its Article 1 1 , Additional Protocol II delineates its Material Field of Application to acts "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. Another important difference is that the Article makes it imperative that the armed forces of the State in whose territory the conflict occurs have to participate in the hostilities, as opposed to common Article 3, in which two illegal groups may be engaging each other in combat.

Additional Protocol II and common Article 3 are, therefore, two separate normative bodies for internal armed conflicts. Whereas common Article 3 applies to all more or less sustained hostilities of a certain scope of violence, Additional Protocol II only applies to those in which the conditions it sets forth specifically are met. It can be noted, however, that nothing in the wording of Article 1 1 of Additional Protocol II concerns the amount of territory that must be controlled or for how long, 24 or what "control over territory" entails, or over who must decide on these issues, thus generating a confusing condition which can be distorted into an excuse for ultimately avoiding its application.

Armed Conflict in the Rome Statute The drafters of the Rome Statute 25 , basic treaty regulating the International Criminal Court, decided to follow the jurisprudence rendered by the International Criminal Tribunal for Yugoslavia and engendered a distinct notion of armed conflict, analogous to that of common Article 3 with an inferior threshold for application than Additional Protocol II.

Humanitarian law pdf international

It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

The query as to whom does common Article 3 and Additional Protocol II to the Geneva Conventions in an internal armed conflict apply to has lead to immense controversies and diverse interpretations. In its Article 2 1 a , the Vienna Convention 27 defines a 'treaty' as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

According to this traditional concept, only those who ratify the international treaties, by disposition of the Vienna Conventions, are bound by them. But this strict interpretation, however, would leave the civilian population and other non-combatants, such as injured or captured military force members, outside of the scope of protection of the norms and absolutely vulnerable to unrestrained attack. Considering that in internal armed conflicts the application of guerrilla warfare and commonly used tactics such as terrorism progressively target civilians in a direct fashion, this reading would lead to the forced conclusion that the International Humanitarian Law currently in force is outmoded for non-international armed conflicts, failing to accomplish its specific objective of providing a minimum safeguard for those most vulnerable during hostilities of a protracted and sustained nature.

Following the previously argued statement that increasingly the armed conflicts in the world will hold this quality, the cited interpretation would make a complete re-vamping of the Law of War imperative, seeking to maintain the peril of its complete obsolescence at bay.

In his first report to the Security Council on the Protection of Civilians in Armed Conflict, the United Nations Secretary General noted that the "deliberate targeting of non-combatants" is a key characteristic of these [internal] conflicts, which results in "civilian casualties and the destruction of civilian infrastructure".

5. International Humanitarian Law (IHL)

The Report stressed that it was "non-state actors, including irregular forces and privately financed militias" who were responsible for the bulk of this type of violence. These interpretations can be divided as to their respect to belligerent and to non-belligerent organizations.

The Annex to the Convention II with Respect to the Laws and Customs of War on Land, 31 in its Article 1, specifically defines the characteristics that belligerent groups must entail, including, in its numeral 4, their respect to the laws of war.

Only when a group complies with these requisites, and is recognized as belligerent by either the State in which it operates or by a third State, does it acquire the rights of an international public law subject, including legal personality.

The former would signify that belligerent groups could endeavor as States in the international public law ambiance and would be bound by treaties to which they are signatories, becoming obliged to enforce them within the territories upon which their sovereignty is claimed and exerted. This would hence generate a series of different situations depending on the specific circumstances of a conflict.

Humanitarian pdf international law

If the belligerent group claims that it is in fact the legal government of a State which has ratified the Conventions, it would be obliged under international legal rules to respect the treaties and obligations acquired by the pre-existing government. According to the traditional interpretation of treaty law previously cited, illegal groups within a territory would only be bound by the national legislation implemented by the State to enforce International Humanitarian Law within its territory.

This results either when the treaties automatically become an integral part of internal law upon ratification, or when the State implements separate legislation to enforce the treaty, depending on the system adopted by each State. That is to say, they could not be prosecuted or sanctioned for a direct infraction of the treaties. Thus, this research document aims to clarify this matter by means of an analysis of the law, case law, and current legal principles, defining what the application margin is for the International Humanitarian Law to non-international armed conflicts.

Afterwards, we aim to clarify another common question: Does International Humanitarian Law apply exclusively to Party States, or does it also apply directly to non-state agents? Finally, this document aims to briefly propose a plausible solution to the problem regarding the confusion created by the lack of a clear definition of armed conflict. Said issue clearly harms the protection that during conflicts must be given at all times to hors de combat or protected population.

Armed Conflict in Common Article 3. Armed Conflict in the Rome Statute. Eisenhower [] during the liberation of the Nazi death camps: "The world must know what happened, and never forget. As explained by the authoritative commentator on the Geneva Conventions, Jean S.

Geneva Conventions

Pictet, 4 common Article 3, included in all Four Geneva Conventions, "at least ensures the application of the rules of humanity [to conflicts of a non-international nature] which are recognized as essential by civilized nations.

This haziness has been used by governments to try to evade the application of International Humanitarian Law to armed conflicts taking place within their territories for a number of diverse reasons.

Since the Geneva Conventions were drafted in , a major change has taken place in war fighting around the planet. Mankind's reaction to the amount of carnage suffered by the international community during the Second World War did not stop at the drafting of the Geneva Conventions to regulate the acts of States during on-going conflicts, but the States also devised the creation of instruments that would prevent wars from surfacing at all.

This is how the United Nations was engendered with the main rationale of preventing the development of armed conflicts among its members. A myriad of international treaties and resolutions have been additionally drafted and ratified by most of the States in the world renouncing the use of force against other States, especially the United Nations Charter in its Article 2 4. Furthermore, countries and powers such as the United States, Russia, and China have also dramatically increased their arsenal of weapons, making full implementation of the military deterrence strategy seeking to prevent the perpetration of further attacks on their territories by other States.

Even though these actions, treaties, and organizations have not been entirely effective in preventing conflicts on the Planet, they did generate a side effect, which has drastically altered the very nature of the world security panorama.

This has been the proliferation of what have been denominated as Fourth Generation 6 or Low-Intensity Conflicts, 7 in which non-State irregular actors attack State forces or fight each other with the implementation of tactics, which usually directly involve civilians, encompassing massive and flagrant violations of International Humanitarian Law. For these reasons, it becomes of vital consequence to analyze the Law of the Armed Conflicts' scope of application, mainly of common Article 3 to the Geneva Conventions of and Additional Protocol II to the Geneva Conventions, in relation to non-international armed conflicts, which are generally those resulting from the action of non-State actors against governmental forces.

More often than not, internal hostilities encounter the implementation of tactics such as terrorism or as those described as part of "guerrilla warfare" by the Chinese military strategist and communist leader Mao Tse-tung 8 that focus on the direct involvement of the civilian population in the hostilities, expressly forbidden by the International Humanitarian Law Principle of Distinction, widely considered as customary international law. In this paper, the issues of to which internal "conflicts" is Law of War applicable to, and who is bound by International Humanitarian Law norms will be assayed.

The first issue at hand in analyzing International Humanitarian Law's scope of application to conflicts of a non-international nature is to establish what situations are considered as "armed conflicts" and come into the range of applicability of the norms regulating the matter. Armed Conflict in Common Article 3 Common Article 3 to the Geneva Conventions states: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions It is apparent that the specific characteristics, which hostilities occurring within a State Party must include in order to be considered as an "armed conflict" for the application of the norm are not incorporated within the text of the common Article 3 itself, and neither is a definition of the term "armed conflict.

Therefore, several criteria were set forth to determine exactly when an armed conflict was occurring. One of these proposals included, for example, that the warring party would possess "an organized civil authority exercising de facto governmental functions over the population of a determinate portion of the national territory, an organized military force under the direction of the above civil authority, and the means of enforcing the Convention and the other laws and customs of war.

Thus, a broader notion for its material scope of application could be maintained, and since only the basic humanitarian laws were binding, no great controversy arose.

The International Criminal Tribunal for Yugoslavia has followed this notion by stating that an armed conflict exists "whenever there is a resort to armed force between states or protracted armed violence between authorities and organized armed groups or between such groups within a state.

The ICRC affirms in its Commentary: "Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfill any of the above conditions which are not obligatory and are only mentioned as an indication?

5. International Humanitarian Law (IHL)

We do not subscribe to this view. We think, on the contrary, that the Article should be applied as widely as possible. There can be no reason against this. For, contrary to what may have been thought, the Article in its reduced form does not in any way limit the right of a State to put down rebellion.

The International Criminal Tribunal for Yugoslavia, ICTY, has, in assessing the intensity of the conflict, taken into consideration factors such as "the seriousness of attacks and their recurrence, the spread of these armed clashes over territory and time, whether various parties were able to operate from a territory under their control, an increase in the number of governmental forces, the mobilization of volunteers, and the distribution of weapons among both parties to the conflicts, as well as whether the conflict had attracted the attention of the UN Security council and whether any resolutions on that matter had been passed.

In order to assess the organization of the parties to the conflict, Trial Chambers took into account such factors as the existence of headquarters, designated zones of operation and the ability to procure, transport and distribute arms ICTY Tadic, Kordic, and Celebici Trials. Article 3 armed conflicts do not require the existence of large-scale and generalized hostilities or a situation comparable to a civil war in which dissident armed groups exercise control over parts of national territory.

These criteria are used "solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.

Pdf international humanitarian law

However, adverse situations such as the above have arisen from the lack of clarity of the text of common Article 3, and from the absence of an established international authority for construing both the law and the nature and status of a particular conflict situation, breeding various interpretations which can, in the end, undermine the effectiveness the framers wished to bestow on the regulations.

Civil conflicts, in particular, continue to proliferate. Conflicts involving non-state armed groups have always posed a challenge for international humanitarian law. Many contemporary civil conflicts involve a number of different state and non-state parties, some of which may be loosely affiliated or have overlapping command structures. These conflicts may occur wholly within the territory of a single state or spill over national boundaries.

The respect shown for international humanitarian norms in these conflicts is highly variable. Organisations such as the International Committee of the Red Cross and the United Nations continue to work to disseminate humanitarian principles. However, the informal recruitment policies and loose command structures that characterise many contemporary conflicts makes it difficult to disseminate and enforce humanitarian standards.

Reprisals against captured combatants and civilian populations, including campaigns of torture and rape, are widespread. The problem is exacerbated in some conflicts by the use of independent contractors outside the military hierarchy.

International Humanitarian Law - PDF

This article focuses on the challenges these kinds of conflicts can pose for one of the most fundamental principles of international humanitarian law: International humanitarian law encourages a clear and reliable division between combatants and non-combatants.

The principle of distinction requires combatants to distinguish at all times between military targets and civilian objects and stipulates that only military targets may be the object of attack. This is arguably the most important principle of the whole law of armed conflict.

The principle is undermined if attacking forces cannot readily distinguish combatants from other parties. That provision sets out the categories of people who are entitled to prisoner of war status. The first category comprises members of the regular armed forces of a party to the conflict.

The second category covers members of other armed groups, such as militias and volunteer corps, who are under responsible command; bear a fixed, distinctive sign recognisable at a distance; carry arms openly; and respect the requirements of international humanitarian law.

Beirne School of Law, University of Queensland.

Beyond that, however, the provision is open to two different interpretations. One way of interpreting this provision would be to infer that only combatants have the right to participate in hostilities. This would make it a violation of international humanitarian law for a noncombatant to engage directly in armed conflict. The better view, however, is that Article 43 2 of Additional Protocol I does not prohibit noncombatants from directly participating in hostilities.

Article 43 2 is as close as we get. Other provisions that deal expressly with civilians engaging in hostilities, such as Article 51 3 of Additional Protocol I, merely say they lose their immunity from attack while doing so. It would be dangerous to imply such a strong prohibition from the ambiguous words of Article 43 2 when it does not appear anywhere else in the relevant international treaties.

What, then, is the point of Article 43 2? I would contend that the provision serves two purposes. The first is to reinforce the importance of the distinction between combatants and non-combatants, by designating combatants as the primary although not necessarily sole agents of warfare.

The second is to emphasise that combatants may not be tried or punished merely for taking part in hostilities. Article 43 2 therefore reinforces the prohibition on reprisals against prisoners of war. Non-combatants who take up arms are bound by the same legal rules as any other fighter.

They cannot directly attack civilians or their property; they cannot mount their attacks in a disproportionate way; they cannot mistreat civilians or captured combatants; they cannot use prohibited weapons or tactics. Like recognised combatants, they can lawfully be targeted by opposing forces. However, provided that non-combatants abide by the ordinary laws of war, they are not prohibited under international law from engaging in hostilities.