INTERNATIONAL HUMANITARIAN LAW AND HUMAN RIGHTS

Doct. GIANLUIGI GULLI Instructor D.I.U. – Qualified Councillor FF.AA.

OMAC Istituto Comprensivo Sant’Angelo in Vado 2008/2010

INTERNATIONAL HUMANITARIAN LAW

FIELD OF THE PUBLIC INTERNATIONAL LAW, ESTABLISHING THE CONDUCT RULES OF

COUNTRIES IN CASE OF WAR. IT SETS SOME LIMITS TO THE USE OF MEANS

AND METHODS OF WAR AND IT TAKES CARE OF PEOPLE WHO DO NOT TAKE PART

AND THOSE WHO ARE NO LONGER PARTICIPATING IN THE HOSTILITIES.

LET’S START FROM A QUESTION

!IS WAR PROHIBITED?

SI SI 1945

THE CHARTER OF THE UNITED NATIONS YES!

THE MENACE OR THE USE OF FORCE AGAINST OTHER COUNTRIES IS

UNLAWFUL

!IN THIS CASE, WHY SPEAK OF INTERNATIONAL

HUMANITARIAN LAW?

A.! THE COUNTRIES STILL HAVE THE RIGHT TO DEFEND THEMSELVES FROM ATTACKS

B.! THE PROHIBITION DOESN’T CONCERN INLAND WARS AND CIVIL WARS

C.! …ANYWAY, WARS EXIST!

Solferino battle 2nd Indepence War

24 June 1859

40.000 victims between dead and wounded people

!a little of history?

!a little of history ?

Henry Dunant

! Dunant’s project

•! Establishment of permanent humanitarian rules, having a universal purpose

•! Establishment of societes of assistance in all countries

•! Neutrality of wounded and sick people whatever line-up they may belong to

•! Neutrality of medical corps •! Establishment of a distinctive universal emblem

BANDIERA CONFEDERAZIONE ELVETICA

RED CROSS EMBLEM OF NEUTRALITY AND PROTECTION

22 AUGUST 1864

•!For the amelioration of the conditions of the wounded ad sick in Armed Forces in the field.

1st GENEVA CONVENTION

• For the amelioration of the conditions of wounded, sick and shipwrecked members Armed Forces at sea

2nd GENEVA CONVENTION

• Relative to the treatment of prisoners of war

3rd GENEVA CONVENTION

1949

•!Relative to the protection of civilian persons in time of war

4th GENEVA CONVENTION

.!THE ONLY RIGHT PURPOSE THE COUNTRIES HAVE TO INTEND IN WARTIME IS THE

WEAKENING OF THE ENNEMY’S FORCED ARMS

!THEY GO BEYOND THE PURPOSE ABOVE-MENTIONED IF THEY USE ARMS THAT WORSEN

USELESSLY THE SUFFERINGS OF THE MEN WHO HAVE BEEN PUT OUT OF ACTION OR THEY MAKE

THEIR DEATH INEVITABLE

DECLARATION OF ST PETERSBURG 1868

WAR LAW

DIRITTO DELL’AJA

Norme che stabiliscono diritti e doveri dei belligeranti nella condotta delle operazioni militari; limitano la scelta dei “mezzi” e dei “metodi” di combattimento

DIRITTO DI GINEVRA

Norme che mirano alla protezione e salvaguardia dei militari posti fuori combattimento e di tutte le altre persone che non partecipano alle ostilità - POPOLAZIONE CIVILE

NOWADAYS THE MODERN TEACHING

THINKS THE DIFFERENCE BETWEEN THE LAW OF AJA AND GENEVA’S IS OLD FASHIONED. TODAY THE EXPRESSION INTERNATIONAL

HUMANITARIAN LAW IS USED,BY THE INTERNATIONAL COMMUNITY, TO

MEAN THE WAR LAW ON THE WHOLE.

8 JUNE 1977

ADDITIONAL PROTOCOLS I and II TO THE GENEVA CONVENTIONS

INTERNATIONAL CONFLICTS

•! I, II, III, IV CONVENZIONE DI GINEVRA 1949 •! I PROTOCOLLO AGGIUNTIVO 1977

NON-INTERNATIONAL CONFLICTS

•! ART. 3 COMUNE ALLE CONV. GINEVRA 1949 •! II PROTOCOLLO AGGIUNTIVO 1977

CONFLICT BETWEEN SOLDIERS OF TWO OR MORE COUNTRIES

CONFLICT ON THE TERRITORY OF A COUNTRY BETWEEN FORCED ARMS AND FORCED GROUPS OR BETWEEN

FORCED GROUPS BETWEEN THEMSELVES!

6 TREATES AND 600 ARTICLES !BUT, IN BRIEF:

1. PEOPLE WHO ARE NO LONGER PARTICIPATING IN THE HOSTILITIES,HAVE TO BE PROTECTED,RESPECTED AND TREATED WITH HUMANITY.

2.! THE REQUIRED TREATMENTS WILL BE ALWAYS ASSURED, WITHOUT ANY DISCRIMINATION

6 TREATES and 600 ARTICLES !BUT, IN BRIEF:

2. THE FIGHTERS CAPTURED AND PEOPLE WHO ARE, ANY WAY, IN POWER OF THEIR ADVERSARY, HAVE TO BE ALWAYS HANDLED WITH HUMANITY.

THEY HAVE TO BE PROTEC- TED AGAINST VIOLENT ACTS, ESPECIALLY AGAINST THE TORTURE BOTH PHYSICAL AND PSYCHOLOGICAL.

A RIGHT PROCESS HAS TO BE ASSURED TO PEOPLE WHO ARE SUBMITTED TO JUDGE- MENT.

6 TREATES and 600 ARTICLES !BUT, IN BRIEF:

3.! BELLIGERANTS HAVE NO ILLIMITED RIGHT TO CHOOSE

METHODS AND MEANS OF WARFARE.

METHODS AND MEANS THAT CAUSE SUPERFLUOUS HARMS OR USELESS SUFFE- RINGS AS REGARDS THE CONCRETE MILITARY ADVANTAGE IN DEMAND WON’T BE USED.

DISTINCTION BETWEEN

CIVILIAN POPULATION AND COMBATANTS AND BETWEEN

CIVILIAN OBJECTS AND MILITARY OBJECTIVES

6 TREATES and 600 ARTICLES !BUT, IN BRIEF:

INTERNATIONAL COURT OF JUSTICE - AJA

Case Corfu “!elementary considerations of humanity”

Case Nicaragua “!fundamental general principles of

Humanitarian Law”

ART. 3 COMMON C.G.’49 THE “MINI-CONVENTION”

IT OFFERS FUNDAMENTAL GUARANTEES TO THE VICTIMS OF WARS THAT HAVE NO INTERNATIONAL CHARACTER. THESE GUARANTEES CONCERN THE REGULATION OF BUSINESS INSIDE THE STATE. CONSEQUENTLY, THEY RESTRAIN ITS EXCLUSIVE SOVEREIGNITY.

GENERAL ASSEMBLY OF THE UNITED NATIONS 1948

UNIVERSAL DECLARATION OF HUMAN RIGHTS

HUMAN RIGHTS

LEGISLAZIONE INTERNAZIONALE CHE HA PER SCOPO DI GARANTIRE AGLI INDIVIDUI –

IN OGNI TEMPO – LA POSSIBILITÀ DI GODERE DI DIRITTI E DI LIBERTÀ

FONDAMENTALI LIMITANO IL POTERE DELLO STATO SUGLI

INDIVIDUI

According to Davidson: “!the phenomenon known as human rights is relative not only to the protection of individuals

from the ruling of States or of government authorities in certain periods of their life,but it

is also inclined to the creation of social conditions by which each individual can develop

his maximum potential”

INTERNATIONAL HUMANITARIAN LAW

FIELD OF THE PUBLIC INTERNATIONAL LAW, ESTABLISHING THE CONDUCT RULES OF COUNTRIES IN CASE OF WAR. IT SETS SOME LIMITS TO THE USE OF MEANS AND WAYS OF WAR AND IT TAKES CARE OF PEOPLE WHO DO NOT TAKE PART AND THOSE WHO ARE NO LONGER PARTICIPATING IN THE HOSTILITIES.

!ma allora DIU e DU sono la stessa cosa?

BUT

BOTH OF THEM AIM AT RESTRAINING THE POWER OF GOVERNMENT

AUTHORITIES TO PROTECT THE HUMAN BEING

BUT

!THEY PROTECT HIM IN DIFFERENT WAYS AND CIRCUMSTANCES

IHL •! IT IS APPLIED IF

THERE IS A CONFLICT

•! THEY ARE ALWAYS APPLIED

HR

•! IT CAN NEVER BE DEROGATED

•! SOME OF THEM CAN BE INTERRUPTED IN EXCEPTIONAL CASES.

THEY ARE DISTINCT AND COMPLEMENTARY BRANCHES OF PUBLIC

INTERNATIONAL LAW

“HARD POINT”

•! DIRITTO ALLA VITA •! DIVIETO DI TORTURA •! DIVIETO DI PENE E TRATTAMENTI

INUMANI •! DIVIETO DI SCHIAVITU’ E SERVITU’ •! PRINCIPIO DI LEGALITA’ •! GIUSTO PROCESSO

HUMAN RIGHTS THAT ALL COUNTRIES HAVE TO

RESPECT IN ALL CIRCUMSTANCES

MARTENS CLAUSE PREAMBLES AJA 1907 IV

“….IN CASES NOT INCLUDED IN THE REGULATIONS ADOPTED, THE INHABITANTS

AND THE BELLIGERENTS REMAIN UNDER THE PROTECTION AND THE RULE OF THE

PRINCIPLES OF THE LAW OF NATIONS, AS THEY RESULT FROM THE USAGES

ESTABLISHED AMONG CIVILIZED PEOPLES FROM THE LAWS OF HUMANITY AND THE DICTATES OF THE PUBLIC CONSCIENCE.”

ANY QUESTIONS?

!THANKS FOR YOUR ATTENTION

DISTINCTION between

civilian population and combatants and between

civilian objects and military objectives

6 TREATES and 600 ARTICLES !but, in brief:

MILITARY OBJECTIVE ART. 52 CO.2 I P.A. 1977

OBJECT WHICH BY ITS NATURE, LOCATION, PURPOSE OR USE MAKES AN EFFECTIVE CONTRIBUTION TO MILITARY ACTION AND WHOSE TOTAL OR PARTIAL

DESTRUCTION, CAPTURE OR NEUTRALIZATION IN THE

CIRCUMSTANCES RULING THE TIME, OFFERS A DEFINITE MILITARY

ADVANTAGE.

CIVILIANS

ALL PEOPLE WHO DO NOT BELONG TO ONE OF THE CLASSES INDICATED

IN THE ART.4 LET.A III C.G.1949 AND ART.43 I P.A. 1977

CIVILIAN POPULATIONALL CIVILIANS AS A WHOLE

A CIVILIAN IS A CIVILIAN

 If he doesn’t take part in the conflict in no way…

 If he doesn’t behave in a hostile way…

 If he is always and not occasionally a civilian person

CIVILIAN OBJECTS

ALL OBJECTS THAT ARE NOT MILITARY OBJECTIVES

NO ATTACK NO RETALIATION

ART.52 CO.1 I P.A. 1977

DOUBTFUL CASES???

UN BENE CHE NORMALMENTE E’ DESTINATO AD USO CIVILE, COME

ABITAZIONI, LUOGHI DI CULTO, SCUOLE, SI PRESUME CHE NON SIA

UTILIZZATO PER “CONTRIBUIRE EFFICACEMENTE ALL’AZIONE

MILITARE”

COMPARATIVE PRESUMPTION

SUSCEPTIBLE OF EVIDENCE TO THE

CONTRARY

•! Attacks which are not directed to a specific military

objective •! Attacks which employ a method or means of combat

which cannot be directed to a specific military objective

•! Attacks which employ a method or means of combats the effects of which cannot be limited as required by this Protocol and consequently , in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

INDISCRIMINATE ATTACKS ART. 51 CO.4 I PA 1977

THEY’RE PROHIBITED

!for example ART.51 CO.5 I P.A. 1977

•! AN ATTACK BY BOMBARDMENT, BY ANY METHODS OR MEANS WHICH TREATES AS A SINGLE MILITARY OBJECTIVE A NUMBER OF CLEARLY SEPARATED AND DISTINCT MILITARY OBJECTIVES LOCATED IN A

CITY,TOWN, VILLAGE OR OTHER AREA CONTAINING A SIMILAR CONCENTRATION OF CIVILIANS OR CIVILIAN OBJECTS

•! AN ATTACK WHICH MAY BE EXPECTED TO CAUSE INCIDENTAL LOSS OF CIVILIAN LIFE, INJURY TO CIVILIANS, DAMAGE TO CIVILIAN OBJECTS OR A COMBINATION THEROF, WHICH WOULD BE EXCESSIVE IN RELATION TO THE CONCRETE AND DIRECT MILITARY ADVANTAGE ANTICIPATED.

NOT PEREMPTORY

PRECAUTIONS IN ATTACK ART.57 I P.A. 1977

Those who plan or decide upon an attack shall:

•! DO EVERYTHING FEASIBLE TO VERIFY THAT THE OBJECTIVES TO BE ATTACKED ARE NEITHER CIVIIAN NOR CIVILIAN OBJECTS AND ARE NOT SUBJECT TO SPECIAL PROTECTION BUT THEY ARE MILITARY OBJECTIVES EX ART. 52,2 AND IT IS NOT PROHIBITED BY THE PROVISIONS OF THIS PROTOCOL TO ATTACK THEM

•! TAKE ALL POSSIBLE PRECAUTIONS IN THE CHOICE OFMEANS AND METHODS OF ATTACK, WITH A VIEW TO AVOIDING AND IN ANY EVENT TO MINIMIZING INCIDENTAL LOSS OR CIVILIAN LIFE, INJURY TO CIVILIANS AND DAMAGES TO CIVILIAN OBJECTS.

•! REFRAIN FROM DECIDING TO LAUNCH ANY ATTACK WHICH MAY BE EXPECTED TO CAUSE INCIDENTAL LOSS OF CIVILIAN LIFE, DAMAGES TO CIVILIAN OBJECTS OR A COMBINATION THEROF, THAT WOULD BE EXCESSIVE IN RELATION TO THE CONCRETE AND DIRECT MILITARY ADVANTAGE ANTICIPATED.

PRECAUTIONS IN ATTACK ART.57 I P.A. 1977

THOSE WHO PLAN OR DECIDE UPON AN ATTACK SHALL:

NO EXCESSIVE COLLATERAL DAMAGES

PRINCIPLE OF PROPORTIONALITY

THE PARTIES HAVE NO ILLIMITED RIGHT TO CHOOSE METHODS AND MEANS OF WAR

HUMAN LOSSES and COLLATERAL

DAMAGES MILITARY

ADVANTAGE

MILITARY NECESSITY

CAUSE OF JUSTIFICATION

LIMIT TO THE WAR ACTION

WAR NECESSITY REASON OF WAR

MILITARY NECESSITY =

THE REASON OF WAR PREVAILS ON THE RIGHT OF WAR

NUREMBERG COURT

1950 CASE “LIST AND OTHERS”

!military necessity doesn’t justify the killing of civilian population and the destruction of towns in

the occupied territories

BREACH OF PRECAUTIONS =

SERIOUS INFRACTION TO I.H.L. =

WAR CRIME

!and therefore ART.57 I P.A. 1977

•! AN ATTACK SHALL BE CANCELLED OR SUSPENDED IF IT BECOMES APPARENT THAT THE OBJECTIVE IS NOT A MILITARY ONE OR IS SUBJECT TO SPECIAL PROTECTION, OR THAT THE ATTACK MAY BE EXPECTED TO CAUSE INCIDENTAL LOSS OF CIVILIAN LIFE, INJURY TO CIVILIANS,DAMAGE TO CIVILIAN THAT OBJECTS OR A COMBINATION THEREOF, WHICH WOULD BE EXCESSIVE IN RELATION TO THE CONCRETE AND DIRECT MILITARY ADVANTAGE ANTICIPATED

•! WHEN A CHOICE IS POSSIBLE BETWEEN SEVERAL OBJECTIVES FOR OBTAINING A SIMILAR MILITARY ADVANTAGE.

•! THE OBJECTIVE TO BE SELECTED SHALL BE THAT THE ATTACK ON WHICH MAY BE EXPECTED TO CAUSE THE LEAST DANGER TO CIVILIAN LIVES AND TO CIVILIAN OBJECTS.

PRECAUTIONS AGAINST THE EFFECTS OF ATTACKS ART. 58 I P.A. 1977

!THE PARTIES TO THE CONFLICT SHALL: •! ENDEAVOUR TO REMOVE THE CIVILIAN POPULATION,

INDIVIDUAL CIVILIANS AND CIVILIAN OBJECTS UNDER THEIR CONTROL FROM THE VICINITY OF MILITARY OBJECTIVES

•! AVOID LOCATING MILITARY OBJECTIVES WITHIN OR NEAR DENSELY POPULATED AREAS

•! TAKE THE OTHER NECESSARY PRECAUTIONS TO PROTECT THE CIVILIAN POPULATION, INDIVIDUAL CIVILIANS AND CIVILIAN OBJECTS UNDER THEIR CONTROL AGAINST THE DANGERS RESULTING FROM MILITARY OPERATIONS.

PROTECTION OF OBJECTS INDISPENSABLE TO THE SURVIVAL OF THE CIVILIAN POPULATION

ART. 54 I P.A. 1977

IT IS PROHIBITED! • STARVATION OF CIVILIANS AS A METHOD OF WARFARE

• TO ATTACK, DESTROY, REMOVE OR RENDER USE LESS OBJECTS INDISPENSABLE TO THE SURVIVAL OF THE CIVILIAN POPULATON ( SUCH AS FOOD-STUFFS, AGRICULTURAL AREAS FOR THE PRODUCTION OF FOOD-STUFFS,CROPS,LIVESTOCK, DRINKING WATER, INSTALLATIONS AND SUPPLIES AND IRRIGATION WORKS) FOR THE SPECIFIC PURPOSE OF DENYING THEM FOR THEIR SUSTENANCE VALUE TO THE CIVILIAN POPULATION OR THE ADVERSE PARTY, WHATEVER THE MOTIVE: WHETHER IN ORDER TO STARVE OUT CIVILIANS, TO CAUSE THEM TO MOVE AWAY OR ANY OTHER MOTIVE.

!unless THE OBJECTS ARE NOT USED BY AN ADVERSE PARTY:

•! AS SUSTENANCE SOLELY FOR THE MEMBERS OF ITS FF.AA.

•! IF NOT A SUSTENANCE , THEN IN DIRECT SUPPORT OF MILITARY ACTION

!and however •! PROVIDED THAT IN NO EVENT SHALL ACTIONS

AGAINST THESE OBJECTS BE TAKEN WHICH MAY BE EXPECTED TO LEAVE THE CIVILIAN POPULATION WITH SUCH INADEQUATE FOOD OR WATER AS TO CAUSE ITS STARVATION OR FORCE ITS MOVEMENT

CULTURAL OBJECTS AND PLACES OF WORSHIP

ART. 53 I P.A. 1977 AJA CONVENTION 1954 + PROT.

IT IS PROHIBITED •! TO COMMIT ANY ACTS OF

HOSTILITY AGAINST THE HISTORIC MONUMENTS, WORKS OF ART OR PLACES OF WORSHIP WHICH CONSTITUTE THE CULTURAL OR SPIRITUAL HERITAGE

•! OF PEOPLES •! TO MAKE SUCH OBJECTS THE

OBJECT OF REPRISALS

CULTURAL OBJECTS AND PLACES OF WORSHIP

ART. 53 I P.A. 1977 AJA CONVENTION 1954 + PROT.

THEY CAN’T ! •! BE USED IN SUPPORT

TO THE MILITARY EFFORT

WORKS AND INSTALLATIONS CONTAINING DANGEROUS FORCES

ART. 56 I P.A. 1977

NON POSSONO ESSERE OGGETTO DI ATTACCO ANCHE SE COSTITUISCONO OBIETTIVO MILITARE SE GLI ATTACCHI POSSONO

PROVOCARE LA LIBERAZIONE DI TALI FORZE E CAUSARE GRAVI PERDITE TRA LA

POPOLAZIONE CIVILE

BUT THE PROTECTION SHALL CEASE

IF THEY ARE USED FOR OTHER THAN ITS

NORMAL FUNCTION AND FOR REGULAR,SIGNIFICANT AND DIRECT

SUPPORT OF MILITARY OPERATIONS AND IF

SUCH ATTACKS ARE THE ONLY FEASIBLE WAY TO TERMINATE SUCH SUPPORT

NATURAL ENVIRONMENT ART 35 N.3 AND ART 55 I PA 1977

INSIEME DELLE CONDIZIONI

FISICHE, CHIMICHE E BIOLOGICHE CHE PERMETTONO E

FAVORISCONO LA VITA DEGLI ESSERI VIVENTI

DIVIETO DI MEZZI O METODI CHE PROVOCHINO DANNI ESTESI, DUREVOLI E

GRAVI

1976 CONVENTION

ON THE PROHIBITION OF MILITARY OR ANY HOSTILE USE OF

ENVIRONMENTAL MODIFICATION TECHNIQUES

RIS. 31/72 10 DECEMBER 1976

CIVILIANS SUBJECT TO PARTICULAR PROTECTION

•! PREGNANT WOMEN •! UNDER-SEVENS’ MOTHERS •! BOTH CIVILIAN AND MILITARY

BLESSED AND SICK PEOPLE •! UNDER-FIFTEENS CHILDREN

CONCLUSION OF AGREEMENTS FOR THE EVACUATION OF BLESSED, SICK

AND OLD PEOPLE, WOMEN, CHILDREN, HEALTH AND RELIGIOUS PERSONNEL

FROM THE BESIEGED ZONES CREATION OF SECURITY HEALTH

ZONES OR OF NEUTRALIZED ZONES

•!TO RESPECT THE PRECISE GUARANTEES PROVIDED BY THE CONVENTIONS •!TO RESPECT AND PROTECT HOSPITALS

•!TO LET HEALTH MATERIALS, PROVISIONS, CLOTHES FOR CIVILIANS GO BY FREELY

•!TO MAKE THE CORRESPONDENCE EXCHANGE BETWEEN THE PROTECTED PEOPLE AND THEIR OWN FAMILIES EASIER

•!TO SUPPORT THE REUNION OF THE FAMILIES

MARTENS CLAUSE PREAMBLES AJA 1907 IV

“….IN CASES NOT INCLUDED IN THE REGULATIONS ADOPTED, THE INHABITANTS AND THE BELLIGERENTS REMAIN UNDER THE PROTECTION AND THE RULE OF THE PRINCIPLES OF THE LAW OF NATIONS, AS THEY RESULT FROM THE USAGES ESTABLISHED AMONG CIVILIZED PEOPLES FROM THE LAWS OF HUMANITY AND THE DICTATES OF THE PUBLIC CONSCIENCE.”

ANY QUESTIONS?

!Thanks for your attention!