International Humanitarian law

Basic Concepts Scope and Application Rights and Obligations

Basic Concepts and Principles Military Necessity Necessity and Proportionality Distinction

Principle of Military Necessity

Military necessity is a legal concept used in international humanitarian law (article 52, IAP) as part of the legal justification for attacks on legitimate military targets that may have terrible consequences for civilians and civilian objects. Even under the laws of war, winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL. Military necessity does, however, not give the armed forces the freedom to do what they want.

Principle of Necessity and Proportionality

It states that even if there is a clear military target it is not possible to attack it if the harm to civilians or civilian property is excessive to the expected military advantage. For example, a TV or a radio station can be a legitimate military target if used as a military command or communication center but if it is used for civilian purposes only it cannot be targeted.

Principle of Distinction
It prohibits all means and methods that cannot make a distinction between those who do take part in hostilities, and are therefore considered combatants, and those who do not and are therefore protected (Article 48 IAP). The sick and wounded, medical personnel, civilians and prisoners of war (POWs) are all called protected persons.

Armed Forces
Armed forces of a party to the conflict consist of all organized armed groups which are under a command responsible to that for the conduct of its subordinates. All persons who fight on behalf of a party to a conflict and who subordinate themselves to its command.

Combatants
Combatants are members of armed forces or groups that may be considered POWs if captured. Armed groups that are not part of the armed forces need to follow four conditions (to be considered combatants):
Commanded by a person responsible for his subordinates. Having a fixed distinctive emblem recognizable at a distance. Article 44(3) of the First Additional Protocol (IAP) sets an exception to this rule when the nature of the hostilities prevents the combatant from distinguishing himself or herself. There is an ongoing legal debate about the scope of a distinctive sign which combatants of non-regular armed forces need to wear. Carrying arms openly. Conducting their operations in accordance with the laws and customs of war.

Combatants
In case of doubt, a person should be considered a POW until a competent court decides otherwise. Members of groups that do not follow these conditions, and individuals that are not part of armed groups that take direct part in the hostilities (violent resistance) are not regarded as combatants and do not enjoy the status of POWs. They are therefore protected civilians and lose their immunity only for such time as they take direct part in hostilities.

Civilians
Who are CIVILIANS?
Persons who are not members of the armed forces. Civilians must not be attacked. They do not take part in the hostilities and should be protected and respected.

Principle of Precautions of Attack

Whenever civilians are present, the parties to an armed conflict must:
Take precaution during military operations to spare the civilian population and civilian objects (article 57 of the First Additional Protocol IAP). Take precaution to protect the civilian population and civilian objects, which are under their own control, against the effects of military attacks (article 58 IAP).

Other Precautions
Location of military objectives (separate civilians under its control from military objectives) Choosing weapons and methods of warfare (verify military targets, consider that which causes the least danger to civilians) Warnings (The parties to armed conflict must, as much as possible, give effective warnings before an attack. Warnings increase the chance for civilians to protect themselves from any possible harm caused by the war)

THE SPECIFICS OF IHL

Personal Scope and Application Material Scope and Application Rights and Obligations
Method of Warfare Protected Persons

Personal Scope and Application

States (parties to conflict and to IHL) Non-state armed groups (parties to the conflict) Individuals (members of parties to the conflict, e.g. civilians and combatants)

Material Scope and Application

The Rules of IHL apply to situations of ARMED CONFLICT International Armed Conflict
Armed conflicts between two or more states Total/partial military occupation

Non-International Armed Conflict

Prolonged conflict between governmental authorities and armed organized groups or between such groups within a State. Generally, only Common Article 3 of the Geneva Convention applies, BUT there has been a trend of applying rules applicable to international armed conflict, except

Material Scope and Application

In IACs, the parties to the conflict are (at least) two equal sovereigns. Lawful participants in the hostilities who in effect represent those sovereigns thereby have combatant status, and enjoy the privilege of belligerency. They cannot be prosecuted by the other party for their mere participation in the hostilities, but solely for violations of IHL. In NIACs, however, the parties are fundamentally different most commonly a government and a rebellious non-state actor. Because governments have every right to suppress rebellions against them, no combatant status or privilege exists in NIACs. A rebel can be prosecuted for the mere fact that he is a rebel, even if he has been completely observant of the rules of IHL. Thus, for example, the government of Afghanistan has every right to imprison a Taliban soldier, even if that soldier committed no war crime.

Common Article 3 of the Geneva Conventions

Persons taking no active part in hostilities including military persons who have ceased to be active as a result of sickness, injury, or detention, should be treated humanely and that the following acts are prohibited:

Common Article 3 of the Geneva Conventions

Prohibited:
1. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture 2. Taking of hostages 3. Outrages upon personal dignity, in particular humiliating and degrading treatment 4. The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples

The wounded and sick shall be collected and cared for.

Internationalized Armed Conflict

Conflicts that initially begin as a non-international armed conflict but develop into an international armed conflict. If a state intervenes with its armed forces on the side of another state in a non-international armed conflict, it is generally agreed that this does not change the qualification of the conflict. The situation would give rise to both international (the state versus the intervening state), and non-international (the state versus the rebel group) conflicts. Where a state intervenes indirectly without the use of its armed forces in a non-international armed conflict on the side of the rebels, the Tadi case, decided by the International Criminal Tribunal for the former Yugoslavia (ICTY), concluded that overall control of a rebel group would be sufficient to internationalize the conflict

Exclusion to IHL
The RULES of IHL do not apply in situations of internal disturbances and tensions, e.g. riots, isolated and sporadic acts of violence and other acts of a similar nature.

RIGHTS and OBLIGATIONS

Methods and Means of war Protected Persons
Sick and wounded on land (GCI) Sick and wounded at sea (GCII) Prisoners of War POW (GC III) Civilian Persons (GC IV) Other protected persons

Methods and Means of War

International humanitarian law (IHL) limits the means and methods of warfare. IHL covers the conduct of military operation by stating what weapons and military tactics can be used in armed conflict. The only legitimate object during war is to weaken the military forces of the enemy. Civilians can never be legitimate targets of attack.

Means and Methods of War

Weapons that cause superfluous injury or unnecessary suffering
They are PROHIBITED under IHL.
The use, production, stock-piling, and transfer of anti-personel landmines are prohibited according to the Ottawa Treaty of 1997. The 1980 Convention on Certain Conventional Weapons (CCW) includes five protocols covering landmines, incendiary weapons (weapons that set fire to objects or cause burn injuries to persons), blinding laser weapons, and explosive remnants (weapons and ammunition left behind after war), undetectable fragments (weapons with the effect to injure by fragments that are non-detectable by xray). These treaties are binding on states that have signed and ratified them.

Biological and Chemical weapons are PROHIBITED as well, specifically by the 1952 Geneva Protocol. This is binding on any state regardless of whether they signed or not. Note: Cultural property and Natural environment

The First Geneva Convention

The WOUNDED and SICK in the Armed Forces
The terms wounded and sick apply to persons who as the result of trauma, suffer from disease or other physical or mental illness or disability, and who require medical treatment while abstaining from any hostile acts. (Article 8(a) Additional Protocol I to the Geneva Conventions) Protects soldiers who are hors de combat (out of the battle)

The First Geneva Convention

Protection specifically accorded to:
Wounded and sick soldiers. Medical personnel, facilities, and equipment Wounded and sick civilian support personnel accompanying the armed forces Military chaplains. Civilians who spontaneously take up arms to repel an invasion.

Relevant Specific Provisions:

Be respected and protected without discrimination on the basis of sex, race, nationality, religion, political beliefs, or other criteria. (Art. 12) Not be murdered, exterminated, or subjected to torture or biological experiments. (Art. 12) Receive adequate care. (Art. 15) Be protected against pillage and ill-treatment (Art. 15) All parties in a conflict must search for and collect the wounded and sick, especially after battle, and provide the information to the Central Tracing Agency of the International Committee of the Red Cross (Art 15-16) This Convention, like the others, recognizes the right of the ICRC to assist the wounded and sick. Red Cross and Red Crescent national societies, other authorized impartial relief organizations, and neutral governments may also provide humanitarian service. Local civilians may be asked to care for the wounded and sick. (Art. 9)

Second Geneva Convention

Adapts the protections of the First Geneva Convention to reflect conditions at sea Protects wounded and sick combatants while on board ship or at sea. Shipwrecked It covers those persons who find themselves in a perilous situation at sea or in other waters due to misfortune affecting them or affecting the vessel or aircraft carrying them, and who refrain from committing any hostile acts. Specifically, the Second Geneva Convention applies to:
Armed forces members who are wounded, sick, or shipwrecked. Hospital ships and medical personnel. Civilians who accompany the armed forces.

Relevant Provisions
This Convention mandates that parties in battle take all possible measures to search for, collect, and care for the wounded, sick, and shipwrecked. Shipwrecked refers to anyone who is adrift for any reason, including those forced to land at sea or to parachute from aircraft. (Arts. 12, 18) Appeals can be made to neutral vessels, including merchant ships and yachts, to help collect and care for the wounded, sick, and shipwrecked. Those who agree to help cannot be captured as long as they remain neutral. (Art. 21) Religious, medical, and hospital personnel serving on combat ships must be respected and protected. If captured, they are to be sent back to their side as soon as possible. (Art. 36-37) Hospital ships cannot be used for any military purpose. They cannot be attacked or captured. The names and descriptions of hospital ships must be conveyed to all parties in the conflict. (Art 22) While a warship cannot capture a hospital ships medical staff, it can hold the wounded, sick, and shipwrecked as prisoners of war, providing they can be safely moved and that the warship has the facilities to care for them. (Art. 14)

Third Geneva Convention

Sets out specific rules for Prisoners of War. Who is a prisoner of war? Any person captured or interned by a belligerent power during war. In the strictest sense it is applied only to members of regularly organized armed forces, but by broader definition it has also included guerrillas, civilians who take up arms against an enemy openly, or noncombatants associated with a military force. Relevant Provisions of the Third Geneva Convention:

Prisoners of war must be:

Treated humanely with respect for their persons and their honour. Enabled to inform their next of kin and the Central Prisoners of War Agency (ICRC, the International Red Cross) of their capture. Allowed to correspond regularly with relatives and to receive relief parcels. Allowed to keep their clothes, feeding utensils and personal effects. Supplied with adequate food and clothing. Provided with quarters not inferior to those of their captor's troops. Given the medical care their state of health demands. Paid for any work they do. Repatriated if certified seriously ill or wounded, (but they must not resume active military duties afterwards).

Prisoners of war must NOT be:

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 of release). Given individual privileges other than for reasons of health, sex, age, military rank or professional qualifications. Held in close confinement except for breaches of the law, although their liberty can be restricted for security reasons. Compelled to do military work, nor work which is dangerous, unhealthy or degrading.

Fourth Geneva Convention

Protects Civilians in areas of armed conflict and occupied territories. Covers all individuals "who do not belong to the armed forces, take no part in the hostilities and find themselves in the hands of the Enemy or an Occupying Power" Relevant provisions of the Fourth Geneva Convention

Protected civilians must be:

Treated humanely at all times and protected against acts or threats of violence, insults and public curiosity. Entitled to respect for their honour, family rights, religious convictions and practices, and their manners and customs. Specially protected, for example in safety zones, if wounded, sick, old, children under 15, expectant mothers or mothers of children under 7. Enabled to exchange family news of a personal kind. - Helped to secure news of family members dispersed by the conflict Allowed to practise their religion with ministers of their own faith. Civilians who are interned have the same rights as prisoners of war. They may also ask to have their children interned with them, and wherever possible families should be housed together and provided with the facilities to continue normal family life. Wounded or sick civilians, civilian hospitals and staff, and hospital transport by land, sea or air must be specially respected and may be placed under protection of the red cross/crescent emblem.

Protected Civilians must NOT be:

Discriminated against because of race, religion or political opinion. - Forced to give information. Used to shield military operations or make an area immune from military operations. Punished for an offence he or she has not personally committed. - Women must not be indecently assaulted, raped, or forced into prostitution.