International Humanitarian Law FAQ

Embed Size (px)

Citation preview

  • 7/29/2019 International Humanitarian Law FAQ

    1/26

    INTERNATIONAL HUMANITARIAN LAW

    1. What is International Humanitarian Law?

    Rules which, in times of armed conflict, seek to protect people who are notor are

    or no longertaking part in hostilities, and to restrictthe methods and means of

    warfare employed1.

    A set of rules which seek, for humanitarian reasons, to limit the effects of armed

    conflict. It protects persons who are notor are no longerparticipating in the

    hostilities and restricts the means and methods of warfare2.

    2. What are the basicrules of International Humanitarian Law3?

    Conflicting parties must, at all times, distinguish between the civilianpopulation

    and combatantsin order to sparethe civilian populationandcivilian property.

    Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solelyagainst military objectives.

    People who do not or can no longertake part in the hostilities are entitled to

    respect for their lives and for their physical and mental integrity.

    It is forbidden to killor woundan adversary who surrendersor who can no longer

    take partin the fighting.

    Neither the parties to the conflict nor members of their armed forces have an

    unlimited right to choose methods and means of warfare.

    It is forbidden to use weapons or methods of warfare that are likely to cause

    unnecessary losses or excessive suffering.

    The wounded and sick must be collected and cared for by the party to the conflict

    which has them in its power.

    Medical personnel and medical establishments, transports and equipment must be

    spared.

    The red cross or red crescent on a white background is the distinctive sign

    indicating that such persons and objects must be respected.

    Captured combatants and civilians who find themselves under the authority of the

    adverse party are entitled to respectfor their lives, their dignity, their personalrights and their political, religious and other convictions.

    They must be protected against all acts of violenceand reprisals.

    3. What are The Law of Geneva and The Law of the Hague?4

    The Law of Geneva designed to safeguard military personnel who are no longer

    taking part in the fighting and people not actively involvedin hostilities, i.e.

    civilians;

    International Humanitarian Law: Questions, Answers and Debate

    1

    1 IHLAQ, 4.

    2 WIHL, 1.

    3 IHLAQ, 6. This number is a wide elaboration of some basic rules of the International Humanitarian Law.While maybe, commonly there are only several of them, the elaboration here, hopefully, can help to giveclearer definition of the basic rules.

    4 IHLAQ, 4.

  • 7/29/2019 International Humanitarian Law FAQ

    2/26

    The Law of the Hague, which establishes the rights and obligations of

    belligerents in the conduct of military operations, and limits the means of harming

    the enemy.

    4. What is the Martens Clause?5

    The principle, laid down in 1899 by Fyodor Martens6, which said, ... civilians and

    combatants remain under the protection and authority of the principles of international law

    derived from established custom, from the principles of humanity and from the dictates of

    public conscience. This principle was already considered as a standard part of customary

    law when it was incorporated in Article 1, paragraph 2, of Additional Protocol I of 19777.

    5. What is the International Criminal Court (ICC)?

    The International Criminal Court (ICC), governed by the Rome

    Statute, is the first permanent, treaty based, internationalcriminal court established to help end impunity for the

    perpetrators of the most serious crimes of concern to the

    international community. The ICC is an independent

    international organization, and is not part of the United

    Nations system. Its seat is at The Hague in the Netherlands.

    Although the Courts expenses are funded primarily by States

    Parties, it also receives voluntary contributions from governments,

    international organizations, individuals, corporations and other entities. The international

    community has long aspired to the creation of a permanent international court, and, in the

    20th century, it reached consensus on definitions of genocide, crimes against humanity

    and war crimes. The Nuremberg and Tokyo trials addressed war crimes, crimes against

    peace, and crimes against humanity committed during the Second World War.8

    6. What does International Humanitarian Law cover?9

    The protection of those who are not, or no longer, taking part in fighting;

    International Humanitarian Law: Questions, Answers and Debate

    2

    5 IHLAQ, 7.

    6 Friedrich Fromhold Martens (also Fyodor Fyodorovich Martens or Frederic Frommhold de Martens) (18451909) was a famous Estonian born international lawyer.He became an official in the foreign ministry of Russia in 1868 and was professor of international law at theUniversity of St. Petersburg from 1873 to 1907.Martens was a representative at many internationalconferences, including the Hague Conferences of 1899 and 1907, for which he helped lay the foundation. Itwas at the former where heformulatedthe famous savings clause that was included in the preamble of theConvention with Respect to the Laws and Customs of War on Land and has become known as the MartensClause:Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare

    that in cases not included in the Regulations adopted by them, populations and belligerents remain under theprotection and empire of the principles of international law, as they result from the usages establishedbetween civilized nations, from the laws of humanity, and therequirements of the public conscience.- The Martens Society

    7 In cases not covered by this Protocol or by other international agreements, civilians and combatantsremain under the protection and authority of the principles of international law derived from establishedcustom, from the principles of humanity and from the dictates of public conscience. PAGC, 4.

    8 The International Criminal Court.

    9 WIHL, 2.

  • 7/29/2019 International Humanitarian Law FAQ

    3/26

    Restrictions on the means of warfare - in particular weapons - and the methods of

    warfare, such as military tactics.

    7. What are military objectives?10

    Objects which by their nature, location, purposeor usemake an effective

    contribution to military actionand whose total or partial destruction, capture or

    neutralization, in the circumstances ruling at the time, offers a definite military

    advantage.

    In case of doubtwhether an object which is normally dedicated to civilian

    purposes, such as a place of worship, a house or other dwelling or a school, is

    being used to make an effective contribution to military action, it shall be presumed

    not to be so used.

    8. Who are the parties11

    to the International Criminal Court?12

    Parties and Signatories of the Rome Statute

    Asia (9) Afghanistan, Bangladesh, Cambodia, Cook Islands, Japan,

    Jordan, Mongolia, South Korea, Tajikistan

    Africa (30) Benin, Botswana, Burkina Faso, Burundi, Central AfricanRepublic, Chad, Congo, Democratic Republic of the Congo,Comoros, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya,Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius,Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa,Tanzania, Uganda, Zambia

    International Humanitarian Law: Questions, Answers and Debate

    3

    10 Additional Protocol I, Art 52(2) - PAGC, 37.

    11 Parties means have ratifiedor acceded

    12 UN Documentation, Amnesty International, International Criminal Court

  • 7/29/2019 International Humanitarian Law FAQ

    4/26

    Europe (40) Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina,Bulgaria, Croatia, Cyprus, Czech Republic, Denmark,Estonia, Finland, France, Georgia, Germany, Greece,Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein,Lithuania, Luxembourg, Macedonia, Malta, Montenegro,Netherlands, Norway, Poland, Portugal, Romania, SanMarino, Serbia, Slovakia, Slovenia, Spain, Sweden,Switzerland, United Kingdom

    Americas (25) Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia,Brazil, Canada, Chile, Colombia, Costa Rica, Dominica,Dominican Republic, Ecuador, Guyana, Honduras, Mexico,Panama, Paraguay, Peru, Saint Kitts and Nevis, SaintVincent and the Grenadines, Suriname, Trinidad and Tobago,Uruguay, Venezuela

    Oceania (7) Australia, East Timor, Fiji, Marshall Islands, Nauru, NewZealand, Samoa

    9. Who are the signatories13 of the Rome Statute?1415

    Asia and Oceania(13)

    Bahrain, Iran, Israel, Kuwait, Kyrgyzstan, Oman, Philippines,Solomon Islands, Syria, Thailand, United Arab Emirates,Uzbekistan and Yemen.

    Africa (14) Algeria, Angola, Cameroon, Cape Verde, Cte d'Ivoire,Egypt, Eritrea, Guinea-Bissau, Morocco, Mozambique, So

    Tom and Prncipe, Seychelles, Sudan*and Zimbabwe

    Europe (5) Armenia, Moldova, Monaco, Russia and Ukraine

    Americas (5) Bahamas, Haiti, Jamaica, Saint Lucia and the United States

    10. What is ICCs Complementary principle?

    This means, ICC is the court of last resort. However, ICC shall determine that a case is

    inadmissible when the following requirements are met (refer to the Article 17 of the Rome

    Statute):(a) The case is being investigated or prosecuted by a State which has jurisdiction

    over it, unless the State is unwilling16or unable17 genuinely to carry out the

    investigation or prosecution;

    (b)The case has been investigated by a State which has jurisdiction over it and the

    State has decided not to prosecutethe person concerned, unless the decision

    resulted from the unwillingness or inability of the State genuinely to prosecute;

    International Humanitarian Law: Questions, Answers and Debate

    4

    13 States which have signedthe Rome Statute, but have not ratifiedit

    14 UN Documentation, Amnesty International, International Criminal Court

    15 Sudan should have been exempted of this list, since in a letter to the Secretary-General of the UN, .....,Sudan does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligationarising from its signature on 8 September 2000.

    16 Unwilling means the State is clearly shadingsomeone from the responsibility for ICC crimes. ICC.

    17 Unable (genuinely) means the legal system of the state has collapsed. ICC.

  • 7/29/2019 International Humanitarian Law FAQ

    5/26

    (c) The person concerned has already been tried for conduct which is the subject of

    the complaint18, and a trial by the Court is not permitted under article 20,

    paragraph 319;

    (d)The case is not of sufficient gravity to justify further action by the Court.

    11. Who can initiate proceedings in the ICC?

    State parties, the Prosecutor of the ICC, or the United Nations Security Council (without

    forgetting the complementaryprinciple)20.

    12. What crimes are under the jurisdiction of the ICC?

    According to Article 5, Paragraph 1 of the Rome Statute, there are four crimes within the

    jurisdiction of the Court:

    (a) The crime of genocide;

    (b)Crimes against humanity;(c) Warcrimes;

    (d)The crime of aggression.

    13. What constitutes Genocide?21

    According to Article 6 of the Rome Statute, genocide means any of the following acts

    committed with intent to destroy, in whole or in part, a national, ethical, racial, or religious

    group, as such:

    (a) Killing22 members of the group;

    (b)Causing serious bodily or mental harmto members of the group;

    (c) Deliberately inflicting on the group conditions of life calculated to bring about its

    physical destruction in whole or in part;

    (d) Imposing measures intended to prevent birthswithin the group;

    (e) Forcibly transferring childrenof the group to another group.

    International Humanitarian Law: Questions, Answers and Debate

    5

    18 This is the principle of Ne bis in idem. Refer to Article 20 of the Rome Statute.

    19 Article 20 paragraph 3 of the Rome Statute:No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall betried by the Court with respect to the same conduct unless the proceedings in the other court:

    (a) Were for the purpose of shieldingthe person concerned from criminal responsibility for crimeswithin the jurisdiction of the Court; or

    (b) Otherwise were not conducted independently or impartially in accordance with the norms of dueprocess recognized by international law and were conducted in a manner which, in thecircumstances, was inconsistent with an intent to bring the person concerned to justice.

    20 ICC.

    21 EOC, 2etc.

    22 According to Elements of Crimes, elements to killing are:1. The perpetrator killed (caused death) one or more persons2. Such person or persons belonged to a particular national, ethical, racial or religious group3. The perpetrator intended to destroy, in whole or in part, that national, ethical, racial or religious

    group, as such4. The conduct took place in the context of a manifest pattern of similar conduct directed against that

    group or was conduct that could itself effect such destruction.- EOC, 2

  • 7/29/2019 International Humanitarian Law FAQ

    6/26

    14. What constitutes Crimes against humanity?2324

    According to Article 7, Paragraph 1 of the Rome Statute, crime against humanity means

    any of the (following) acts when committed as part of a widespreador systematicattack

    directed against any civilian population25, with knowledge of the attack:

    (a) Murder;

    (b)Extermination26;

    (c) Enslavement27;

    (d)Deportation or forcible transfer of population28 ;

    (e) Imprisonment or other severe deprivation of physical liberty in violation of

    fundamental rules of international law;

    (f) Torture29;

    (g)Rape, sexual slavery, enforced prostitution, forced pregnancy30, enforced

    sterilization, or any other form of sexual violence of comparable gravity;

    (h)Persecution31

    against any identifiable group or collectivity on political, racial,national, ethnic, cultural, religious, gender, as defined in paragraph 3, or other

    grounds that are universally recognized as impermissible under international law,

    in connection with any act referred to in this paragraph or any crime within the

    jurisdiction of the Court;

    International Humanitarian Law: Questions, Answers and Debate

    6

    23 EOC, 5etc.

    24 The general elements of Crimes against humanity can be summed up into the points:1. The conduct was committed as part of a widespread or systematic attack directed against a

    civilian population2. The perpetrator knew that the conduct was part of or intended the conduct to be part of

    widespread or systematic attack directed against a civilian population

    25 According to Article 7, Paragraph 2, point (a), Attack directed against any civilian population means acourse of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilianpopulation, pursuant to or in furtherance of a State or organizational policy to commit such attack.

    26 According to Article 7, Paragraph 2, point (b), Extermination includes the intentional infliction of conditionsof life, inter aliathe deprivation of access to food and medicine, calculated to bring about the destruction ofpart of a population.

    27 According to Article 7, Paragraph 2, point (c), Enslavement means the exercise of any or all of the powersattaching to the right of ownership over a person and includes the exercise of such power in the course oftrafficking in persons, in particular women and children.

    28 According to Article 7, Paragraph 2, point (d), Deportation or forcible transfer of population means forceddisplacement of the persons concerned by expulsion or other coercive acts from the area in which they arelawfully present, without grounds permitted under international law.

    29 According to Article 7, Paragraph 2, point (e), Torture means the intentional infliction of severe pain orsuffering, whether physical or mental, upon a person in the custody or under the control of the accused;except thattorture shall not include pain or suffering arising only from, inherent in or incidental to, lawfulsanctions.

    30 According to Article 7, Paragraph 2, point (f), Forced pregnancy means the unlawful confinement of awoman forcibly made pregnant, with the intent of affecting the ethnic composition of any population orcarrying out other grave violations of international law. This definition shall not in any way be interpreted asaffecting national laws relating to pregnancy.

    31 According to Article 7, Paragraph 2, point (g), Persecution means the intentional and severe deprivation offundamental rights contrary to international law by reason of the identity of the group or collectivity.

  • 7/29/2019 International Humanitarian Law FAQ

    7/26

    (i) Enforced disappearance of persons32;

    (j) The crime of apartheid33;

    (k) Other inhumane acts of a similar character intentionally causing great suffering, or

    serious injury to body or to mental or physical health.

    15. What constitutes War crimes?3435

    According to Article 8, Paragraph 1 of the Rome Statute, the ICC shall have jurisdiction in

    respect of war crimes in particular when committed as part of a plan or policy or as part of

    a large-scale commission of such crimes.

    To further specify, in Article 8, Paragraph 2 of the Rome Statute, war crimes means:

    (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of

    the following acts against persons or property protected under the provisions of

    the relevant Geneva Convention36 :

    (i) Wilful killing37

    ;(ii) Torture38 or inhuman treatment, including biological experiments39;

    (iii) Wilfully causing great suffering, or serious injury to body or health;

    (iv) Extensive destruction and appropriation of property, not justified by

    military necessity and carried out unlawfully and wantonly;

    (v) Compelling a prisoner of war or other protected person to serve in the

    forces of a hostile Power;

    (vi) Wilfully depriving a prisoner of war or other protected person of the

    rights of fair and regular trial;

    (vii) Unlawful deportation or transfer or unlawful confinement;

    (viii) Taking of hostages.

    (b)Other serious violations of the laws and customs applicable in international armed

    conflict, within the established framework of international law, namely, any of the

    following acts:

    International Humanitarian Law: Questions, Answers and Debate

    7

    32 According to Article 7, Paragraph 2, point (i), Enforced disappearance of persons means the arrest,detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or apolitical organization, followed by a refusal to acknowledge that deprivation of freedom or to give informationon the fate or whereabouts of those persons, with the intention of removing them from the protection of thelaw for a prolonged period of time.

    33 According to Article 7, Paragraph 2, point (h), The crime of apartheid means inhumane acts of a charactersimilar to those referred to in paragraph 1, committed in the context of an institutionalized regime ofsystematic oppression and domination by one racial group over any other racial group or groups andcommitted with the intention of maintaining that regime.

    34 EOC, 14etc.

    35 The general elements of War crimes can be summed up into the points:1. Such person or persons were protected under one or more of the Geneva Conventions of 19492. The perpetrator was aware of the factual circumstances that established that protected status.3. The perpetrator was aware of factual circumstances that established the existence of an armed

    conflict.

    36 While this is on international armed conflict, thus one other general principle applies: The conduct tookplace in the context of and was associated with an international armed conflict. EOC, 14etc.

    37 Among them: Article 50, Geneva Conventions I/Article 130, Geneva Conventions III

    38 One of the elements: The perpetrator inflicted the pain or suffering for such purposes as: obtaininginformation or a confession, punishment, intimidation or coercion or for any reason based on discriminationof any kind.

    39 Among them: Article 50, Geneva Conventions I/Article 130, Geneva Conventions III

  • 7/29/2019 International Humanitarian Law FAQ

    8/26

    (i) Intentionally directing attacks against the civilian population as such or

    against individual civilians not taking direct part in hostilities;

    (ii) Intentionally directing attacks against civilian objects, that is, objects

    which are not military objectives;

    (iii) Intentionally directing attacks against personnel, installations, material,

    units or vehicles involved in a humanitarian assistance or peacekeeping

    mission in accordance with the Charter of the United Nations, as long as

    they are entitled to the protection given to civilians or civilian objects

    under the international law of armed conflict;

    (iv) Intentionally launching an attack in the knowledge that such attack will

    cause incidental loss of life or injury to civilians or damage to civilians

    objects or widespread, long-term and severe damage to the natural

    environment which would be clearly excessive in relation to the concrete

    and direct overall military advantage anticipated;(v) Attacking or bombarding, by whatever means, towns, villages, dwellings

    or buildings which are undefended and which are not military objectives;

    (vi) Killing or wounding a combatant who, having laid down his arms or

    having no longer means of defence, has surrendered at discretion;

    (vii) Making improper use of a flag of truce, or the flag of the military insignia

    and uniform of the enemy or of the United Nations, as well as of the

    distinctive emblems of the Geneva Conventions, resulting in death of

    serious personal injury;

    (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its

    own civilian population into the territory it occupies, or the deportation or

    transfer of all or parts of the population of the occupied territory within or

    outside this territory;

    (ix) Intentionally directing attacks against buildings dedicated to religion,

    education, art, science or charitable purposes, historic monuments,

    hospitals and places where the sick and wounded are collected,

    provided they are not military objectives;

    (x) Subjecting persons who are in the power of an adverse party to physicalmutilation or to medical or scientific experiments of any kind which are

    neither justified by the medical, dental or hospital treatment of the

    person concerned nor carried out in his or her interest, and which cause

    death to or seriously endanger the health of such person or persons;

    (xi) Killing or wounding treacherously individuals belonging to the hostile

    nation or army;

    (xii) Declaring that no quarter will be given;

    (xiii) Destroying or seizing the enemys property unless such destruction or

    seizure be imperatively demanded by the necessities of war;

    (xiv) Declaring abolished, suspended or inadmissible in a court of law the

    rights and actions of the nationals of the hostile party;

    (xv) Compelling the nationals of the hostile party to take part in the

    operations of war directed against their own country, even if they were in

    the belligerents service before the commencement of the war;

    (xvi) Pillaging a town or place, even when taken by assault;

    (xvii) Employing poison or poisoned weapons;

    International Humanitarian Law: Questions, Answers and Debate

    8

  • 7/29/2019 International Humanitarian Law FAQ

    9/26

    (xviii) Employing asphyxiating, poisonous or other gases, and all analogous

    liquids, materials or devices;

    (xix) Employing bullets which expand or flatten easily in the human body,

    such as bullets with a hard envelope which does not entirely cover the

    core or is pierced with incisions;

    (xx) Employing weapons, projectiles and material and methods of warfare

    which are of a nature to cause superfluous injury or unnecessary

    suffering or which are inherently indiscriminate in violation of the

    international law of armed conflict, provided that such weapons,

    projectiles and material and methods of warfare are the subject of a

    comprehensive prohibition and are included in an annex to this Statute,

    by an amendment in accordance with the relevant provisions set forth in

    articles 121 and 123;

    (xxi) Committing outrages upon personal dignity, in particular humiliating anddegrading treatment;

    (xxii) Committing rape, sexual slavery, enforced prostitution, forced

    pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,

    or any other form of sexual violence also constituting a grave breach of

    the Geneva Conventions;

    (xxiii) Utilizing the presence of a civilian or other protected person to render

    certain points, areas or military forces immune from military operations;

    (xxiv) Intentionally directing attacks against buildings, material, medical units

    and transport, and personnel using the distinctive emblems of the

    Geneva Conventions in conformity with international law;

    (xxv) Intentionally using starvation of civilians as a method of warfare by

    depriving them of objects indispensable to their survival, including

    wilfully impeding relief supplies as provided for under the Geneva

    Conventions;

    (xxvi) Conscripting or enlisting children under the age of fifteen yearsinto the

    national armed forces or using them to participate actively in hostilities.

    (c) In the case of an armed conflict not of an international character, seriousviolations of article 3 common to the four Geneva Conventions of 12 August 1949,

    namely, any of the following acts committed against persons taking no active part

    in the hostilities, including members of armed forces who have laid down their

    arms and those placed hors de combatby sickness, wounds, detention or any

    other cause:

    (i) Violence to life and person, in particular murder of all kinds, mutilation,

    cruel treatment and torture;

    (ii) Committing outrages upon personal dignity, in particular humiliating and

    degrading treatment;

    (iii) Taking of hostages;

    (iv) The passing of sentences and the carrying out of executions without

    previous judgement pronounced by a regularly constituted court,

    affording all judicial guarantees which are generally recognized as

    indispensable.

    International Humanitarian Law: Questions, Answers and Debate

    9

  • 7/29/2019 International Humanitarian Law FAQ

    10/26

    (d)Paragraph 2 (c) applies to armed conflicts not of an international character and

    thus does not applyto situations of internal disturbances and tensions, such as

    riots, isolated and sporadic acts of violence or other acts of a similar nature.

    (e) Other serious violations of the laws and customs applicable in armed conflicts not

    of an international character, within the established framework of international law,

    namely, any of the following acts:

    (i) Intentionally directing attacks against the civilian population as such or

    against individual civilians not taking direct part in hostilities;

    (ii) Intentionally directing attacks against buildings, material, medical units

    and transport, and personnel using the distinctive emblems of the

    Geneva Conventions in conformity with the international law;

    (iii) Intentionally directing attacks against personnel, installations, material,

    units or vehicles involved in a humanitarian assistance or peacekeeping

    mission in accordance with the Charter of the United Nations, as long asthey are entitled to the protection given to civilians or civilian objects

    under the international law of armed conflict;

    (iv) Intentionally directing attacks against buildings dedicated to religion,

    education, art, science, or charitable purposes, historic monuments,

    hospitals and places where the sick and wounded are collected,

    provided they are not military objectives;

    (v) Pillaging a town or place, even when taken by assault;

    (vi) Committing rape, sexual slavery, enforced prostitution, forced

    pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization,

    and any other form of sexual violence also constituting a serious

    violation of article 3 common to the four Geneva Conventions;

    (vii) Conscripting or enlisting children under the age of fifteen years into

    armed forces or groups or using them to participate actively in hostilities;

    (viii) Ordering the displacement of the civilian population for reasons related

    to the conflict, unless the security of the civilians involved or imperative

    military reasons so demand;

    (ix) Killing or wounding treacherously a combatant adversary;(x) Declaring that no quarter will be given;

    (xi) Subjecting persons who are in the power of another party to the conflict

    to physical mutilation or to medical or scientific experiments of any kind

    which are neither justified by the medical, dental or hospital treatment of

    the person concerned nor carried out in his or her interest, and which

    cause death to or seriously endanger the health of such person or

    persons;

    (xii) Destroying or seizing the property of an adversary unless such

    destruction or seizure be imperatively demanded by the necessities of

    the conflict;

    (f) Paragraph 2 (e) applies to armed conflicts not of an international character and

    thus does not apply to situations of international disturbances and tensions, such

    as riots, isolated and sporadic acts of violence or other acts of a similar nature. 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.

    International Humanitarian Law: Questions, Answers and Debate

    10

  • 7/29/2019 International Humanitarian Law FAQ

    11/26

    Article 8 states further,

    Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to

    maintain or re-establish law and order in the State or to defend the unity and territorial

    integrity of the State, by all legitimate means.

    16. What is torture?

    Any act by which severe pain or suffering, whether physical or mental, is

    intentionally inflicted on a person for such purposes as obtaining from him or a

    third person, information or a confession, punishing him for an act he or a third

    person has committed or is suspected of having committed, or intimidating or

    coercing him or a third person, or for any reason based on discrimination of any

    kind, when such pain or suffering is inflicted by or at the instigation of or with the

    consent or acquiescence of a public official or other person acting in an official

    capacity. It does not include pain or suffering arising only from, inherent in orincidental to lawful sanctions40.

    The intentional infliction of severe pain or suffering, whether physical or mental,

    upon a person in the custody or under the control of the accused; except that

    torture shall not include pain or suffering arising only from, inherent in or incidental

    to, lawful sanctions41.

    17. How is torture banned?

    Torture is banned, among several:

    United Nations Convention Against Torture (CAT)

    Rome Statute of the International Criminal Court (considered crime against

    humanity)

    The Geneva Conventions of 194942 and its Additional Protocols of 1977

    18. What does the Geneva Conventions say about Terrorism?

    IHL - sometimes also called the Law of Armed Conflict or the Law of War - does not

    provide a definition of terrorism, but prohibits most acts committed in armed conflict that

    would commonly be considered "terrorist" if they were committed in peacetime43

    .

    19. Does the IHL mention Terrorism?

    IHL, under the situation in which it applies44, does prohibit measures of terrorism and

    acts of terrorism45. Among them:

    Article 33, Geneva Convention IV, Collective penalties and likewise all measures

    of intimidation or of terrorism are prohibited.

    International Humanitarian Law: Questions, Answers and Debate

    11

    40

    United Nations Convention Against Torture (CAT), Article 1 (1)41 Rome Statute of the International Criminal Court, Article 7, paragraph 2, point (e)

    42 Among them: Geneva Convention I, Article 4 (1)

    43 International Committee of the Red Cross, International humanitarian law and terrorism: questions andanswers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504

    44 Which is, under armed conflict, both international and non-international

    45 International Committee of the Red Cross, International humanitarian law and terrorism: questions andanswers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504

  • 7/29/2019 International Humanitarian Law FAQ

    12/26

    Article 4 (2), Additional Protocol II

    Article 51 (2), Additional Protocol I, The civilian population as such, as well as

    individual civilians, shall not be the object of attack. Acts or threats of violence the

    primary purpose of which is to spread terror among the civilian population are

    prohibited.

    Article 13 (2), Additional Protocol II

    20. Does the International Humanitarian Law apply in the so-called War Against

    Terrorism?4647

    Specific aspects of the so-called "war on terrorism" launched after the attacks against the

    United States on 11 September 2001 amount to an armed conflict as defined under IHL.

    The war waged by the US-led coalition in Afghanistan that started in October 2001 is an

    example. The 1949 Geneva Conventions and the rules of customary international law

    were fully applicable to that international armed conflict, which involved the US-ledcoalition, on the one side, and Afghanistan, on the other side.

    However,much of the ongoing violence taking place in other parts of the world that is

    usually described as "terrorist" is perpetrated by loosely organized groups(networks), or

    individuals that, at best, share a common ideology. On the basis of currently available

    factual evidence it is doubtful whether these groups and networks can be characterized as

    a "party" to a conflict within the meaning of IHL.

    Even if IHL does not apply to such acts they are still subject to law. Irrespective of the

    motives of theirperpetrators, terrorist acts committed outside of armed conflict should be

    addressed by means of domestic or international law enforcement, but not by application

    of the laws of war.

    Most of the measures taken by states to prevent or suppress terrorist acts do not amount

    to armed conflict48.

    21. What are types of armed conflict?49

    There are conflicts called international armed conflicts50, which is between states.

    Under Protocol I of 8 June 1977, wars of national liberationmust also be treated

    as conflicts of an international character. A war of national liberation is a conflict inwhich a people is fighting against a colonial power, in the exercise of its right of

    self-determination.

    International Humanitarian Law: Questions, Answers and Debate

    12

    46 International Committee of the Red Cross, International humanitarian law and terrorism: questions andanswers http://www.icrc.org/Web/Eng/siteeng0.nsf/html/terrorism-faq-050504

    47 The ICRC believes that it is more appropriate to use the term fight against terrorism rather than waragainst terrorism.

    48 Measures such as intelligence gathering, police and judicial cooperation, extradition, criminal sanctions,financial investigations, the freezing of assets or diplomatic and economic pressure on states accused ofaiding suspected terrorists are not commonly considered acts of war.

    49 International Committee of the Red Cross, International humanitarian law and the protection of warvictims. http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jm93?opendocument

    50 The four 1949 Geneva Conventions and Protocol I deal extensively with the humanitarian issues raised bysuch conflicts. Protocol I deals exclusively with international armed conflicts.

  • 7/29/2019 International Humanitarian Law FAQ

    13/26

    There are conflicts happen within the territory of a State, which are conflicts of a

    non-international character5152.

    22. What are the distinctive emblems?

    Throughout the history, the Geneva Conventions (esp. Additional Protocol III, 2005)

    recognizes several emblems in its protective and indicative functions53. Some of those

    emblems:

    Left to right: Red Cross54, Red Crescent55, and Red Crystal56

    Moreover, the Additional Protocol I also recognizes:

    Red Lion and Sun57

    23. What are the roles of the International Committee of the Red Cross?58

    to maintain and disseminate the Fundamental Principles of the Movement, namely

    humanity, impartiality, neutrality, independence, voluntary service, unity and

    universality;

    International Humanitarian Law: Questions, Answers and Debate

    13

    51 A common feature of many such internal armed conflicts is the intervention of armed forces of anotherState, supporting the government or the insurgents.

    52 The substantive rules of humanitarian law governing non-international armed conflicts are much simplerthan their counterparts governing international conflicts. They are derived from one main source, namelyArticle 3 common to the four Geneva Conventions of 1949, which enjoins the parties to an internal conflict torespect some basic principles of humanitarian behaviour already mentioned above. It is particularly importantto note that common Article 3 is binding not only on governments but also on insurgents, without, however,conferring any special status upon them.

    Additional Protocol II of 1977 supplements Article 3 common to the Geneva Conventions with a number ofmore specific provisions. This is a welcome contribution to the strengthening of humanitarian protection insituations of internal armed conflict. Protocol II has, however, a narrower scope of application than common

    Article 3. It applies only if the insurgent party controls part of the national territory.

    53 Refer to, e.g. Article 44, Geneva Convention I

    54 Refer to, e.g. Article 44, Geneva Convention I

    55 Refer to, e.g. Article 44, Geneva Convention I

    56 Refer to Article 2 (2) of the Additional Protocol III

    57 Refer to Article 4 of the Additional Protocol I

    58 Refer to Article 4 (1) of the Statute of the International Committee of the Red Cross

  • 7/29/2019 International Humanitarian Law FAQ

    14/26

    to recognize any newly established or reconstituted National Society which fulfils

    the conditions for recognition set out in the Statutes of the Movement, and to notify

    other National Societies of such recognition;

    to undertake the tasks incumbent upon it under the Geneva Conventions, to work

    for the faithful application of international humanitarian law applicable in armed

    conflicts and to take cognizance of any complaints based on alleged breaches of

    that law;

    to endeavour at all times as a neutral institution whose humanitarian work is

    carried out particularly in time of international and other armed conflicts or internal

    strife to ensure the protection of and assistance to military and civilian victims of

    such events and of their direct results;

    to ensure the operation of the Central Tracing Agency as provided in the Geneva

    Conventions;

    to contribute, in anticipation of armed conflicts, to the training of medical personneland the preparation of medical equipment, in cooperation with the National

    Societies, the military and civilian medical services and other competent

    authorities;

    to work for the understanding and dissemination of knowledge of international

    humanitarian law applicable in armed conflicts and to prepare any development

    thereof;

    to carry out mandates entrusted to it by the International Conference of the Red

    Cross and Red Crescent (the International Conference).

    24. What are the Fundamental Principles of the International Committee of the Red

    Cross?59

    Humanity: human suffering is prevented or alleviated, life and health protected

    and human dignity respected

    Impartiality60: discrimination of any kind is prohibited

    Neutrality: the movement is neutral with respect to the military situation, politics,

    ethnicity, ideology and religion

    Independence: the movement is independent with respect to the military situation,politics, ideology, religion and economic interests

    Voluntary service: relief is provided on a voluntary and disinterested basis

    Unity: in each country there is only one Red Cross society

    Universality: the movement is present worldwide

    25. Who are the Combatants which enjoy protections provided by the Geneva

    Conventions?

    Article 13 of the Geneva Convention I provides a list of protected persons, i.e. combatants:

    Members of the armed forces61 of a Party to the conflict as well as members of

    militiasor volunteer corpsforming part of such armed forces.

    International Humanitarian Law: Questions, Answers and Debate

    14

    59 ABCIHL, 38

    60 Treating all rivals or disputants equally; fair and just - Oxford New American Dictionary

    61 Defined as consist of all organized armed forces, groups and units which are under a commandresponsible to that party for the conduct of its subordinates. See CIHL I, 14.

  • 7/29/2019 International Humanitarian Law FAQ

    15/26

    Members of other militias of other volunteer corps, including those of organized

    resistance movements, belonging to a Party to the conflict and operating in or

    outside their own territory, even if this territory is occupied, provided that such

    militias or volunteer corps, including such organized resistance movements, fulfil

    the following conditions62:

    that of being commanded by a person responsible for his subordinates;

    that of having a fixed distinctive sign recognizable at a distance;

    that of carrying arms openly;

    that of conducting their operations in accordance with the laws and

    customs of war.

    Members of regular armed forces who profess allegiance to a Government or an

    authority not recognized by the Detaining Power.

    Persons who accompany the armed forces without actually being members

    thereof, such as civilian members of military aircraft crews, war correspondents,supply contractors, members of labour units or of services responsible for the

    welfare of the armed forces, provided that they have received authorization from

    the armed forces which they accompany.

    Members of crews including masters, pilots and apprentices of the merchant

    marine and the crews of civil aircraft of the Parties to the conflict, who do not

    benefit by more favourable treatment under any provisions in international law.

    Inhabitants of a non-occupied territory who, on the approach of the enemy,

    spontaneously take up arms to resist the invading forces, without having had time

    to form themselves into regular armed units, provided they carry arms openly and

    respect the laws and customs of war63 .

    26. How about incorporating paramilitary or armed law enforcement agencies into

    armed forces?64

    Such incorporation needs formal act, e.g. act of parliament. In absence of that, the status

    of such groups will be judged on the facts and in the light of the criteria for defining armed

    forces. When they take part in hostilities and fulfill the criteria of armed forces, they

    become such. In addition, Additional Protocol I65

    requires a party to the conflict to notifysuch incorporation to the other parties to the conflict.

    27. What are the cases being heard in the International Criminal Court?6667

    International Humanitarian Law: Questions, Answers and Debate

    15

    62

    Article I of the Hague Regulations, CIHL, 15.63 Known as leve en masse. CWW, 40.

    64 CIHL, 17.

    65 Article 43 (3), Additional Protocol I

    66 International Criminal Court

    67 This lists cases being taken into hearing, which the court has been commenced and hearings havestarted. Cases in which still at pre-trial hearings or arrest warrants (e.g. Omar al-Bashir of Sudan) arediscounted from this list.

  • 7/29/2019 International Humanitarian Law FAQ

    16/26

    Case Allegations Verdict

    Prosecutor v.

    Thomas Lubanga DyiloDR Congo, 2006

    Allegedly responsible, as co-perpetrator, of war crimesconsisting of:

    Enlisting and conscripting ofchildren under the age of 15years into the Forces patriotiquespour la libration du Congo[Patriotic Forces for theLiberation of Congo] (FPLC) andusing them to participate activelyin hostilities in the context of aninternational armed conflict fromearly September 2002 to 2 June2003 (punishable under article8(2)(b)(xxvi) of the RomeStatute);

    Enlisting and conscriptingchildren under the age of 15years into the FPLC and usingthem to participate actively inhostilities in the context of anarmed conflict not of aninternational character from 2June 2003 to 13 August 2003(punishable under article 8(2)(e)

    none

    Court started January 2009(under ICC custody)

    Prosecutor v.Germain Katanga &

    Mathieu Ngudjolo Chui

    DR Congo, 2007

    Allegedly jointly committed

    through other persons, within themeaning of article 25(3)(a) of theStatute:

    War crimes:1. Using children under the ageof fifteen to take active part in thehostilities, under article 8(2)(b)(xxvi) of the Statute;2. Directing an attack against acivilian population as such oragainst individual civilians nottaking direct part in hostilities

    under article 8(2)(b)(i) of theStatute;3. Wilful killings under article 8(2)(a)(i) of the Statute;4. Destruction of property underarticle 8(2)(b)(xiii) of the Statute;5. Pillaging under article 8(2)(b)(xvi) of the Statute;6. Sexual slavery under article8(2)(b)(xxii) of the Statute;7. Rape under article 8(2)(b)(xxii)of the Statute

    Crimes against Humanity:1. Murder under article 7(1)(a) ofthe Statute;2. Rape under article 7(1)(g) ofthe Statute;3. Sexual slavery under article7(1)(g) of the Statute.

    none

    Court started November 2009(under ICC custody)

    International Humanitarian Law: Questions, Answers and Debate

    16

  • 7/29/2019 International Humanitarian Law FAQ

    17/26

    Case Allegations Verdict

    Prosecutor v.Jean-Pierre Bemba Gombo

    Central African Republic, 2008

    Allegedly responsible, as militarycommander, of

    Two counts of crimes againsthumanity: murder (article 7(1)(a)of the Statute) and rape (article7(1)(g) of the Statute);

    Three counts of war crime:murder (article 8(2)(c)(i) of theStatute); rape (article 8(2)(e)(vi)of the Statute); and pillaging(article 8(2)(e)(v) of the Statute).

    none

    Court started June 2009(under ICC custody)

    28. What organizations are humanitarian-focused?68

    Organization Brief Information Focuses

    INTERNATIONAL COMMITTEEOF THE RED CROSS

    COMITE INTERNATIONALCROIX-ROUGE

    Established under Switzerlandnational law to give aid towounded victims in war, theInternational Committee of theRed Cross is now aninternational humanitarianorganization which formulatesand establishes the internationalhumanitarian law.

    The ICRC is an independent,neutral organization ensuringhumanitarian protection andassistance for victims of war andother situations of violence.

    The ICRC has a permanentmandate under international lawto take impartial action forprisoners, the wounded and sick,and civilians affected by conflict.

    promotion of InternationalHumanitarian Law,helping victims of armed conflicts

    MEDECINS SANS FRONTIERESDOCTORS WITHOUT BORDERS

    Established in 1971, ahumanitarian aid organizationthat provides emergency medicalassistance to populations indanger in more than 70countries.

    awareness of crisis situations,witnessing populations in danger,alleviate human suffering,respect for human beings

    MEDICAL EMERGENCYRESCUE COMMITTEE

    An Islamic-based humanitarian

    aid organization, established bystudents in Indonesia in 1999.

    giving aid to persons and groupsin need without discrimination, on

    the basis of urgency, to help themost vulnerable and neglectedpeople

    International Humanitarian Law: Questions, Answers and Debate

    17

    68 This list is not to be meant as an exhaustive list on humanitarian organizations.

  • 7/29/2019 International Humanitarian Law FAQ

    18/26

    Organization Brief Information Focuses

    CARE INTERNATIONAL

    A humanitarian organizationfighting global poverty, which is

    non-political and non-sectarian,operates in more than 65countries in all continents.

    tackling underlying causes ofpoverty,emergency relief for natural andmanmade disasters

    WORLD FOOD PROGRAMME

    Food aid branch of the UnitedNations, formally established in

    1963.

    save lives in refugee and otheremergency situations,improve the nutrition and qualityof life of the most vulnerablepeople at critical times in theirlives,

    help build assets and promotethe self-reliance of poor peopleand communities, particularlythrough labour-intensive worksprogrammes.

    29. What is the Common Article 3 of the Geneva Conventions?

    Often called mini convention, the Common Article 3 is the part of the Geneva

    Conventions where the conflict not of an international characteris mentioned. In complete:

    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:

    1. Persons taking no active part in the hostilities, including members of armed forces

    who have laid down their arms and those placed hors de combat by sickness,

    wounds, detention, or any other cause, shall in all circumstances be treated

    humanely, without any adverse distinction founded on race, colour, religion or

    faith, sex, birth or wealth, or any other similar criteria.To this end, the following

    acts are and shall remain prohibited at any time and in any place whatsoever with

    respect to the above-mentioned persons:

    (a) violence to life and person, in particular murder of all kinds, mutilation, cruel

    treatment and torture;

    (b) taking of hostages;

    (c) outrages upon personal dignity, in particular humiliating and degrading

    treatment;

    (d) 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.

    2. The wounded and sick shall be collected and cared for.

    " An impartial humanitarian body, such as the International Committee of the Red" Cross, may offer its services to the Parties to the conflict." The Parties to the conflict should further endeavour to bring into force, by means" of special agreements, all or part of the other provisions of the present" Convention.

    International Humanitarian Law: Questions, Answers and Debate

    18

  • 7/29/2019 International Humanitarian Law FAQ

    19/26

    " The application of the preceding provisions shall not affect the legal status of the" Parties to the conflict.30. What any other distinctive symbols?69

    Left: blue triangle on a orange background, for civil defence

    Right: three orange circles, for installations containing dangerous forces

    31. What are cluster munitions?70

    Cluster munitions, as defined by Convention on Cluster

    Munitions71:

    Cluster munition means a conventional munition that is designed

    to disperse or release explosivesubmunitions each weighing less

    than 20 kilograms, and includes those explosive submunitions. It

    does not mean the following:

    (a)A munition or submunition designed to dispense flares, smoke,

    pyrotechnics or chaff; or a munition designed exclusively for an air

    defence role;

    (b)A munition or submunition designed to produce electrical or

    electronic effects;

    (c)A munition that, in order to avoid indiscriminate area effects and the risks posed

    by unexploded submunitions, has all of the following characteristics:

    (I) Each munition contains fewer than ten explosive submunitions;

    (II)Each explosive submunition weighs more than four kilograms;

    (III)Each explosive submunition is designed to detect and engage a single

    target object;(IV)Each explosivesubmunition is equipped with an electronic self-

    destruction mechanism;

    (V)Each explosivesubmunition is equipped with an electronic self-

    deactivating feature.

    International Humanitarian Law: Questions, Answers and Debate

    19

    69 Article 16-17, Annex I to Additional Protocol I

    70Cluster munitions were used regularly and on a large scale during the Vietnam War as well as in otherArmed conflicts. They consist of a hollow shell containing from a dozen to many hundreds of bomblets(submunitions) which are released over a wide area. Cluster munitions can have grave humanitarian effectssince their impact is indiscriminate. Moreover, many submunitions do not explode, lie on the ground and arethus a long-term threat to the civilian population. In May 2008, in Dublin, an international convention wasadopted prohibiting the manufacture, stockpiling, transfer and deployment of cluster munitions. Theconvention also provides for obligations on stockpile destruction, clearance and victim assistance. Clustermunitions are also a subject of negotiation in the framework of the 1980 Convention on ConventionalWeapons, which involves major military powers not present at the adoption of the Convention on ClusterMunitions. ABCIHL, 12-13.

    71 Article 2

  • 7/29/2019 International Humanitarian Law FAQ

    20/26

    32. How do cluster munitions banned72?

    Cluster munitions are banned through the Convention on Cluster Munitions.

    33. What countries have been affected by cluster munitions?73

    "

    "

    ternational0

    LayoutNJmc

    "

    2 Falkland Islands(United Kingdom)

    3 Croatia

    4 Bosnia and Herzegovina5 Serbia

    6 Montenegro

    7 Kosovo8 Albania

    9 Georgia

    10 Chechnya11 Azerbaijan

    12 Tajikistan

    13 Afghanistan14 Lebanon

    15 Israel

    16 Syria

    1 Grenada

    17 Iraq18 Kuwait

    19 Saudi Arabia

    20 Chad21 Sudan

    22 Eritrea23 Ethiopia

    24 Uganda

    25 Democratic Republic of Congo26 Zambia

    27 Angola

    28 Sierra Leone29 WesternSahara (Morocco)

    30 Laos

    31 Vietnam32 Cambodia

    39

    12

    13

    1110

    3130

    32

    1416

    17 18

    19

    22

    23

    2120

    28

    29

    25

    24

    27 26

    15

    5

    6 78

    4

    Laos:1965 1973

    414,920 cluster munitions =260 million submunitions were used

    of which 13 to 78 million did not explode

    on impact.

    Vietnam:1965 1975296,680 cluster munitions =

    96.9 million submunitions were used

    of which 4.9 to 29.1 million did not ex plodeon impact.

    Cambodia:1969 197380,173 cluster munitions =

    26 million of submunitions were used

    of which 1.3 to 7.8 million did not explodeon impact.

    Afghanistan:2001 2002

    1,228 cluster munitions =

    248,056 submunitions were used.

    Lebanon: 2006more than 4 million submunitions were

    used during the last 72 hours of the conflict.

    Over 1 million submunitions did notexplode according to the UN.

    Serbia Montenegro Kosovo: March June 1999

    1,392 cluster munitions =289,536 submunitions were used in Kosovo.(Number dropped in Serbia and Montenegro is unknown).

    Iraq:1991 2006

    50 million submunitions were used,

    of which 2.6 to 6 million did not explodeon impact.

    34. What countries are currently stockpiling cluster munitions?74

    "

    "

    "0

    "

    "

    5 Sweden6 Finland7 Denmark

    8 France9 Portugal10 Switzerland11 Italy12 Czech Republic13 Poland14 Estonia15 Belarus16 Ukraine17 Moldova18 Romania19 Slovakia20 Hungary21 Slovenia22 Croatia23 Bosnia-Herzegovina24 Serbia25 Montenegro26 Bulgaria27 Greece

    28 Morocco29 Algeria30 Libya31 Egypt32 Sudan33 Eritrea34 Ethiopia35 Uganda36 Nigeria37 Guinea38 Guinea-Bissau39 Angola40 Zimbabwe41 South Africa

    42 Israel43 Jordan44 Saudi Ar

    abia45 Yemen46 Oman47 United Arab Emirates48 Qatar49 Bahrein50 Kuwait51 Syria52 Turkey53 Georgia54 Azerbaijan55 Iran56 Turkmenistan57 Uzbekistan58 Kazakhstan59 Mongolia

    60 Russia61 North Korea62 South Korea63 Japan64 China65 Pakistan66 India67 Sri Lanka68 Thailand69 Singapore70 Indonesia

    1 United States2 Cuba3 Peru4 Brazil

    1

    1

    2

    5 6

    7

    8

    9

    10

    11

    2829

    30 31 44

    55

    56

    57

    58 59

    64

    65

    66

    67

    68

    69

    70

    63

    61

    62

    60

    52

    53

    54

    51

    45

    4647

    48

    5049

    3233

    3436

    35

    12

    13

    15

    14

    16

    17

    18

    26

    27

    2022

    25

    23 24

    4243

    19

    21

    34

    3738

    39

    40

    41

    Argentina,Australia, Honduras,Iraq, Mali and Spain havecompleted the destruction of their stockpiles of clustermunitions.

    Austria, Belgium, Canada, Chile, Colombia, Germany,the Netherlands, Norway, and the United Kingdom are

    currently destroying their stockpiles of cluster munitions.

    International Humanitarian Law: Questions, Answers and Debate

    20

    72 Prohibiting the manufacture, stockpiling, transfer and deployment of cluster munitions, also providesobligations on stockpile destruction, clearance and victim assistance.

    73 Cluster Munitions Coalition

    74 Cluster Munitions Coalition/Human Rights Watch

  • 7/29/2019 International Humanitarian Law FAQ

    21/26

    35. What countries have used cluster munitions?75

    "

    "

    "0

    "

    "

    1 United States:Laos(1965-1973)Vietnam (1965-1975)Cambodia(1969 -1973)Grenadaand Lebanon (1983)

    Iraq,Kuwait,Saudi Arabia(1991)Serbia,Kosovo,Montenegro(1999)Afghanistan (2001-2002)

    Iraq (1998,2003-2006)

    1

    1

    2 3

    4

    15

    13

    14

    12

    11

    10

    9

    8

    6

    57

    2 United Kingdom:

    Falkland Islands(1982)Iraq,Kuwait (1991)Serbia,Kosovo,Montenegro(1999)Iraq (2003- 2006)

    3 Netherlands:

    Serbia,Kosovo,Montenegro(1999)

    4 France:SuspicionsofuseinChad (1986)Iraq,Kuwait (1991)

    5 Serbia:Albania,Bosnia-Herzegovina,Croatia(1999)

    NorthernAlliance(Afghanistan)

    Afghanistan (1996-2000)

    Non-identified groups:Azerbaijan /Nagorno-Karabakh (1992- 1994)Tajikistan (1992- 1997)

    Hezbollah (Lebanon) : Israel(2006)

    11 Ethiopia:

    Eritrea(1990,1998- 2000)

    12 Sudan:South Sudan (1995 - 2000)

    14 Libya:Chad (1987)

    15 Morocco:Western Sahara(1975 -1991)

    Non-identified groups:Zambia(1970s)Dem.Rep ofCongo(1998- 2003)

    Self-proclaimed Republic

    ofSerbian Krajina:Croatia(1991-1995)Bosnian Serbmilitia:Bosnia-Herzegovina(1992-1995)

    6 Russia:Afghanistan (1979-1989)Chechnya(1994 -1996,1999)

    Georgia(august 2008)

    7 Georgia:South Ossetia(2008)

    8 Israel:Syria(1973)Lebanon (1978,1982,1996,2006)

    10 Eritrea:Ethiopia(1998)

    9 Saudi Arabia:

    SaudiArabia (1991)

    13 Nigeria:SierraLeone (1997)

    NATO:Bosnia-Herzegovina(1995-1999)Albania(1999)

    Countries

    Non-state armed groups

    36. What is Civil Defence?76

    Civil defence is the organisation of assistance and relief in situations of conflict and major

    disasters to protect and ensure the survival of civilian populations and to limit damage to

    Civilian objects as much as possible. It is prohibited to attack members of the civil defence

    service, who are identified by a blue triangle on an orange ground77.

    37. What weapons are considered prohibited under International Humanitarian Law?

    There are some weapons generally considered prohibited7879 under (customary)

    international humanitarian law80. Namely: poison, nuclear weapons81, biological

    International Humanitarian Law: Questions, Answers and Debate

    21

    75 Cluster Munitions Coalition/Human Rights Watch

    76 ABCIHL, 11.

    77 Look the entry on other distinctive signs.

    78 The use of means and methods of warfare which are of a nature to cause superfluous injury or

    unnecessary suffering is prohibited. CIHL I, 237

    79 The use of weapons which are by nature indiscriminate is prohibited. CIHL I, 244

    80 CIHL I, 237etc.

    81 This category of weapon includes atomic bombs, hydrogen bombs (thermonuclear) and neutron bombs.While atomic bombs such as those dropped on Hiroshima and Nagasaki in 1945 are not banned as such byinternational law, they are affected by other bans on testing, manufacture, stockpiling, etc. According to a996 advisory opinion of the International Court of Justice (ICJ), the use of nuclear weapons is usually aviolation of international humanitarian law due to the scale of their impact, even though there is nocomprehensive ban in > Customary international law, nor indeed in international treaty law. ABCIHL, 32.

  • 7/29/2019 International Humanitarian Law FAQ

    22/26

    weapons82, chemical weapons83 (or atomic-biological-chemical, ABC), expanding bullets

    (also known asdum-dum84), exploding bullets, weapons primarily injuring by non-

    detectable fragments, bobby-traps, landmines, incendiary weapons, and blinding laser

    weapons.

    Weapons Explanatory notes

    POISON

    Prohibited under Rome Statute (Article 8 (2) (b) (xvii)) Definition, from adversary opinion of Nuclear Weapons case, ICJ

    stated that the terms poison and poisoned weapons have beenwell understood.

    Effects: to poison or to asphyxiate Mechanisms: poisoning wells, water supplies, food, etc.

    NUCLEAR WEAPONSor ATOMIC WEAPONS

    Advisory opinion by the International Court of Justice, dated July

    8, 1996: There is neither customary nor conventionalinternational law any specific authorization of threat or use ofnuclear weapons; there is neither customary nor conventionalinternational law any comprehensive and universal prohibition ofthe threat or use of nuclear weapons as such; ... However, inview of the current state of international law, and of the elementsof fact at its disposal, the Court cannot conclude definitivelywhether the threat or use of nuclear weapons would be lawful orunlawful in an extreme circumstance of self-defence, in which thevery survival of a State would be at stake.

    BIOLOGICAL WEAPONS

    Prohibited under Biological Weapons Convention and GenevaGas Protocol

    No first use: reservation that states retained the right to retaliateif an adverse party violated the terms of the Protocol (only Angolaand Israel are currently with such reservation)

    Examples: anthrax, ebola, Marburg virus, plague, cholera,tularemia, brucellosis, Q fever, Bolivian hemorrhagic fever,Coccidioides mycosis, glanders, Melioidosis, Shigella, RockyMountain spotted fever, typhus, Psittacosis, yellow fever,Japanese B encephalitis, Rift Valley fever, and smallpox

    International Humanitarian Law: Questions, Answers and Debate

    22

    82 Biological Weapons are also known as bacteriological weapons. These are designed to cause disease anddeath. Biological weapons contain living organisms that reproduce and release toxins dangerous to humans,animals and plants. As well as endangering health they cause damage to the environment. The use ofbiological weapons has been prohibited since 1925. The Biological Weapons Convention of 1972 prohibitsthe development, production or stockpiling of weapons that contain microbiological and bacteriologicalagents and toxins, as well as their means of delivery. It also recommends the destruction of such weapons.ABCIHL, 9

    83 Chemical Weapons contain chemical substances that are a danger to health, can cause death to humans

    and animals, or render them temporarily incapable of resistance (hors de combat) or cause lasting damage.These substances can also contaminate foodstuffs, drinks and other materials. As a result of the terribleconsequences of chemical weapons in the First World War, the use of asphyxiating, poisonous and similargases was prohibited in 1925. In 1993 an international convention went further, prohibiting the development,production, stockpiling or use of chemical weapons and recommending their destruction. ABCIHL, 12

    84 Dumdum bullets were first used as ammunition for firearms at the end of the 19th century. On entering thebody the bullet loses velocity, and unlike a conventional bullet the dumdum tears the body tissue andfragments bone.At the first international peace conference in The Hague (1899) the use of dumdum bullets in Armed conflictwas prohibited on the grounds of cruelty and inhumanity. The bullet is named after a suburb of Kolkata(Calcutta), where it was invented. ABCIHL, 18

  • 7/29/2019 International Humanitarian Law FAQ

    23/26

    Weapons Explanatory notes

    CHEMICAL WEAPONS

    Prohibited under, some of them, Geneva Gas Protocol, ChemicalWeapons Convention, Rome Statute of the International CriminalCourt

    Prohibition including retaliation of using chemical weapons(however Angola, Iraq, Israel, North Korea and Libya still feel thatsuch retaliation permissible)

    Among such weapons are weapons employing asphyxiating,poisonous or other gases, and all analogous liquids, materials ordevices

    Prosecutor v. Tadic case, the ICTY there undisputedly emergeda general consensus in the international community on theprinciple that the use of [chemical] weapons is also prohibited...

    Uses of riot-control agents as a method of warfare is prohibited Under many circumstances, herbicides is prohibited as method

    of warfare (CIHL, 265)

    EXPANDING BULLET

    Listed as war crime under the Rome Statute of the InternationalCriminal Court (Article 8 (2) (b) (xix))

    EXPLODING BULLET

    First mentioned in St. Petersburg Declaration (1868) to avoidinflicting suffering which exceeded that needed to render acombatant hors de combat. The Declaration prohibits the use ofany projectile of a weight below 400 grammes, which is eitherexplosive or charged with fulminating or inflammablesubstances.

    BOOBY TRAPS

    Related to the principles of distinctive and proportionality Definition (Protocol II CCW), any device or material which is

    designed, constructed or adapted to kill or injure and whichfunctions unexpectedly when a person disturbs or approaches anapparently harmless object or performs an apparently safe act.

    Kinds of booby traps: (a) any booby-trap in the form of an apparently harmless portable

    object which is specifically designed and constructed to containexplosive material and to detonate when it is disturbed orapproached, or (b) booby-traps which are in any way attached to

    or associated with: (i) internationally recognized protective emblems, signs orsignals;

    (ii) sick, wounded or dead persons; (iii) burial or cremation sites or graves; (iv) medical facilities, medical equipment, medical supplies or

    medical transportation; (v) children's toys or other portable objects or products specially

    designed for the feeding, health, hygiene, clothing or educationof children;

    (vi) food or drink; (vii) kitchen utensils or appliances except in military

    establishments, military locations or military supply depots;

    (viii) objects clearly of a religious nature; (ix) historic monuments, works of art or places or worship which

    constitute the cultural or spiritual heritage of peoples; (x) animals or their carcasses.

    International Humanitarian Law: Questions, Answers and Debate

    23

  • 7/29/2019 International Humanitarian Law FAQ

    24/26

    Weapons Explanatory notes

    LANDMINES

    Prohibited under Protocol II to the Convention on CertainConventional Weapons

    Aim of prohibition: minimizing indiscriminate effects Any placement of landmines should be recorded Anti-personnel mine: a mine designed to be exploded by the

    presence, proximity or contact of a person and that willincapacitate, injure or kill one or more persons. Mines designedto be detonated by the presence, proximity or contact of aVehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as aresult of being so equipped. (Ottawa Treaty)

    INCENDIARY WEAPONS

    Purpose: to cause maximum fire damage and flammable objectsto illuminate

    Examples: napalm, white phosphorous, thermite, chlorine Prohibited under Protocol III to the Convention on Certain

    Conventional Weapons

    BLINDING LASER WEAPONS

    Prohibited under the Protocol on Blinding Laser Weapons, It isprohibited to employ laser weapons specifically designed, astheir sole combat function or as one of their combat functions, tocause permanent blindness to unenhanced vision, that is to thenaked eye or to the eye with corrective eyesight devices.

    38. What is Perfidy?

    Perfidy is any form of deception designed to win the confidence of an adversary and lead

    him to believe that he is entitled or obliged to accord protection under the rules of

    international humanitarian law, with the intention of betraying that confidence.85

    Additional Protocol I of the Geneva Conventions (1977) prohibits perfidy 86:

    1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts

    inviting the confidence of an adversary to lead him to believe that he is entitled to,

    or is obliged to accord, protection under the rules of international law applicable in

    armed conflict, with intent to betray that confidence, shall constitute perfidy. Thefollowing acts are examples of perfidy:

    (a) The feigning of an intent to negotiate under a flag of truce or of a surrender;

    (b)The feigning of an incapacitation by wounds or sickness;

    (c) The feigning of civilian, non-combatant status; and

    (d)The feigning of protected status by the use of signs, emblems or uniforms

    of the United Nations or of neutral or other States not Parties to the conflict.

    2. Ruses of war are not prohibited. Such ruses are acts which are intended to

    mislead an adversary or to induce him to act recklessly but which infringe no rule

    of international law applicable in armed conflict and which are not perfidious

    because they do not invite the confidence of an adversary with respect to

    protection under that law. The following are examples of such ruses: the use of

    camouflage, decoys, mock operations and misinformation.

    International Humanitarian Law: Questions, Answers and Debate

    24

    85 ABCIHL, 34

    86 Article 37, Additional Protocol I of the Geneva Conventions

  • 7/29/2019 International Humanitarian Law FAQ

    25/26

  • 7/29/2019 International Humanitarian Law FAQ

    26/26

    June 10, 1998 (Central Sudan): three Sudanese UN staffs were killed and three

    other wounded, resulted from gunfire on the UN vehicle

    July 10, 1998 (Arua, Rwanda): Ugandan driver for the UN World Food Programme

    (WFP) was killed by rebels

    July 24, 1998 (Bujumbura, Burundi): one Italian WFP staff member was killed in

    the capital

    January 4, 1999 (South Sudan): four ICRC staffs were killed by the SFLA

    January 3, 2000 (Balad, Somalia): one local CARE staff was shot dead in an

    ambush

    September 6, 2000 (Atambua, East Timor): five UNHCR staff members and two

    Indonesians were killed by local militia

    March 27, 2001 (Mogadishu, Somalia): MSF compound was attacked by gunmen

    March 24, 2003 (Kandahar, Afghanistan): ICRC staff member Ricardo Munguia

    was shot and killed in an ambush north of Kandahar October 27, 2003 (Baghdad, Iraq): an attack on the ICRC building killed at least 12

    people

    June 2, 2004 (Badghis, Afghanistan): five staffs for Medecins Sans Frontieres

    were killed, resulting in withdrawal of MSF from Afghanistan (Hlne de Beir,

    Willem Kwint, Egil Tynaes, Fasil Ahmad, Besmillah)

    June 3, 2007 (Colombo, Sri Lanka): two Red Cross workers were abducted and

    murdered in Sri Lanka

    June 11, 2007 (El Bared, Lebanon): two Lebanese Red Cross workers were killed,

    the third was wounded

    July, 2007 (Central African Republic): an MSF volunteer logistician was killed by

    gunfire

    January 28, 2008 (Kismayo, Somalia): three MSF staffs were killed

    International Humanitarian Law: Questions, Answers and Debate