EUPST - International Humanitarian Law

International
Humanitarian Law
EUPST IPSTC D+6
CAPT. PIERPAOLO SINCONI
[email protected]
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IHL as a branch of International Law
International Public Law
Jus ad Bellum
HR Law
Maritime Law
Laws governing
Air Space
Int. Civil Law
nternal Law of many Nations
Laws governing
economic relations
Laws governing
Int. Organizations
Refugee
Law
IHL or
LoAC or
Jus in Bello
Environmental
Law
Laws governing
Diplometic Relations
INTERNATIONAL PUBLIC LAW = INTERNATIONAL LAW
INTERNATIONAL HUMANITARIAN LAW =LAW OF ARMED CONFLICTS= LAW OF WAR = HUMANITARIAN LAW = JUS IN BELLO
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JUS AD BELLUM = RIGHT TO WAGE WAR
IHL
HUMANITARIAN
CONSIDERATIONS
MILITARY
NECESSITY
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DEFINITION of IHL
Rules and principles limiting violence during AC IOT
safeguard the life and dignity of persons not
participating (or anymore participating) directly in
hostilities:
 Wounded, sick
 Shipwrecked
 Prisoners of war
 Civilians
IHL also protects objects necessary to the survival of
the civilian population as well as personnel and
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material of humanitarian organizations.
Combatant and Civilian

AP I, Art 43
Only combatants are permitted to take a direct part
in hostilities.
 They may therefore be attacked


AP I, Art 51
Civilians may not take a direct part in hostilities
 As long as refrain from doing so are protected from
attack.

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Definition of Combatant



Combatants are all the members of the armed
forces of a party to a conflict. They have the right to
participate directly in hostilities
The armed forces of a party consist of all organized
armed forces, groups & units under its command &
responsibility.
Excludes medical & religious personnel
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Armed Forces



(H. IV R, art. 1)
Commanded by a person responsible for his
subordinates
Have a fixed distinctive emblem
recognizable at a distance
Carry arms openly (AP I clarified combatants must
distinguish themselves from the civilian population
whilst engaged in an attack or preparatory to an attack)

Conduct their operations IAW the laws and
customs of war
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Lex specialis
IHL Temporal Scope
Beginning of application
IACs:
- armed violence between two States Party to the Conventions
- armed occupation, (even not meeting armed resistance) NIACs:
- violence reaching the level of an armed conflict (Common Art. 3 1949, Art. 1
of AP II (1977))
End of application
IACs:
-Actual cessation of hostilities, occupation. Release or
repatriation of POWs and civilian internees
NIACs:
- Violence not reaching anymore the level of Art. 3 or of Art. 1 of Prot.8 II.
N-IAC
IAC
A
B
A
R
SPT
B
A
R
SPT
B
DEFINITION OF N-IAC
Non international Armed Conflicts are armed confrontations occurring within the territory of a
single State and in which the armed forces are engaged against the central government
 Internal disturbances & tensions (such as riots, isolated & sporadic acts of violence…) do not
amount to NIAC
International Armed Conflicts
Armed Conflicts Between Independent States
Wars of National Liberation (Struggles for Self-Determination)
Non-International Armed Conflicts
Civil Wars
Non-International Armed Conflicts
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Art. 3 common to the four G.C. (1949); Martens Clause; ICJ Nicaragua Case (1986)

IHL Basic Principles
Military Necessity
 Distinction
 Proportionality
 Humanity (Humane Treatment - Prohibition of

unnecessary suffering)
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IHL FOLLOWS THE HISTORICAL EVENTS

Solferino (1859) Wounded (1949 GC 1)

Tsushima (1905) Shipwrecked (1949 GC2)

WWI - 1929 POWs (1949 GC 3)

WWII - Civilians (1949 GC 4)

Vietnam - Civilians (1977 AP)

Afghanistan, Angola, Cambodia - Landmines (Ottawa)

Yugoslavia & Rwanda – ICTY, ICTR (1993, 1994)

ICC (1998)
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“LAW OF GENEVA”
PROTECTION OF VICTIMS
“NY LAW”
EFFORTS OF UN TO
ENSURE HR RESPECT IN AC
& LIMIT THE USE OF
CERTAIN WEAPONS
IHL
CONVENTION ON PROHIBITIONS/RESTRICTIONS
OF CERTAIN CONVENTIONAL WEAPONS
EXCESSIVELY INJURIOUS OR WITH INDISCRIMINATE
EFFECTS (1980)
PROT. ON NON-DETECTABLE FRAGMENTS
PROT. ON PROHIBITIONS/RESTRICTIONS OF MINES,
BOOBY-TRAPS AND OTHER DEVICES
PROT. ON PROHIBITIONS/RESTRICTIONS OF
INCENDIARY WEAPONS
PROT. ON BLINDING LASER WEAPONS (1995)
“LAW OF THE HAGUE”
PERMISSIBLE MEANS
METHODS OF WAR
JUS AD BELLUM (“LAW TO MAKE WAR” – LAW
REGULATING THE USE OF FORCE)
3° HAGUE CONVENTION 1907, RELATING TO
THE OPENING OF HOSTILITIES
JUS IN BELLO - IHL
LAW OF NEUTRALITY
5° HAGUE CONVENTION 1907, RATING TO THE
RIGHTS AND DUTIES OF BELLIGERANTS AND
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NEUTRAL POWERS IN CASE OF LAND WARFARE
Application of IHL to PSOs

UN usually not a party to the conflict;

UN not a party to IHL Conventions;



If UN engaged as a party UN bound by the rules of
customary international law;
Participating States when engaged in armed conflict
are bound by IHL Conventions to which they are a
party;
UN SG 1999 Bullettin
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

Exceptions
Spies and Mercenaries do not have combatant
status and may be put on trial under the domestic
criminal legislation of the territory concerned
Child soldiers (AP I, Art 77) under 15 are not Combatants
Under 18 years old they shouldn’t participate actively
in hostilities
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LOSS OF PROTECTION
U N
/ DEFENDU ?
WHATAUTORISE
CONSEQUENCES?
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23-févr.-10
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Definition of Military Objective

‘Those objects which by their nature, location,
purpose or use make an effective contribution
to military action and whose total or partial
destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite
military advantage ’ (AP I, Art 52)
Definition of Civilian Objective: All those objects that not constitute a
military objective
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Religious & Medical Personnel
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Works and Installations containing
Dangerous Forces (AP I 56)
Dams, Dykes and nuclear electrical generating stations
including military objectives nearby, shall not be
made the object of attack, even where these
objects are military objectives, if such attack may
cause the release of dangerous forces and consequent
severe losses among the civilian population.
Marked with emblem 3 orange circles on same axis.
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Civilian Defence Facilities (AP I Art 61)
Civil Defence Personnel (non combatants) must be exclusively assigned to the
performance of civil defence tasks to remain protected.
Can include members of the armed forces, however they may not take part
in hostilities.
Buildings and personnel must wear/carry identification and be marked with the
recognised emblem
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Cultural Objects and Places of
Worship
Art 53 AP I and the Hague Cultural Property Convention 1954
Prohibited to commit acts of hostility against cultural property.
Prohibited to use such objects in support of the military effort.
States must protect it from theft, vandalism, misappropriation,
requisitioning or reprisals.
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PROHIBITED WEAPONS








Poisons,
Non-detectable fragments,
Exploding small arms
projectiles,
ANTHRAX ATTACKS
Asphyxiating gases,
Lasers designed to blind,
Anti-Personnel landmines,
Environment altering weapons, and
Chemical, biological or bacteriological weapons.
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Prohibited Methods of Warfare






Terror Attacks
Using Civilians as shields
Indiscriminate Attacks
Pillage
Food and Water
Starvation
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UNDER ALL CIRCUMSTANCES
in time of peace and conflict
prevention
• training (P. I, 1977, Art. 83)
• legal advisers (82)
• duty of commanders (art. 87 AP I)
 prevent, suppress and report
 ensure that subordinates are aware
 initiate disciplinary or penal action
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Enforcing IHL by Prosecution
The Parties to Geneva Conventions
• universal jurisdiction/mutual assistance
• imprescriptibility of war crimes/no amnisty
DOMESTIC CIVIL & CRIMINAL COURTS
International Criminal Courts
• ICTY (The Hague)
(Ad hoc)
• ICTR (Arusha, Tanzania)
(Ad hoc)
• Cambodia, S. Leone
(special)
• International Criminal Court (The Hague)
• Special Tribunal for Lebanon
• Special programs in Kosovo and East Timor
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INTERNATIONAL CRIMINAL COURT
(ICC)
Jurisdiction over the most serious crimes
 Genocide
 Crimes against humanity
 War crimes
 Crime of Aggression
Complementary to national criminal jurisdictions
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