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IHL REVIEWER

WHAT IS INTERNATIONAL HUMANITARIAN LAW (IHL)?

It is a body of International Law assigned to prohibit certain categories of conduct commonly viewed as atrocities and to make the perpetrators of such atrocities accountable.
The main thrust of IHL are as follows:
a. sparing those who do not[1] or no longer[2] directly[3] participate in hostilities;
b. restricting it to the amount necessary to achieve the aim of the conflict, which independently of the causes fought for[4] c
an only be to weaken the military potential of the enemy.
JUS IN BELLO VS. JUS AD BELLUM

A: Jus in Bello is the law that governs the way warfare is conducted. It is purely humanitarian; it seeks to lessen the harm caused by the war itself. Jus ad bellum, seeks to limit the resort to
force between states; sets the criteria that has to be consulted whether states can enter into war or if war is permissible in their current situation.

GENEVA LAW VS. HAGUE LAW

A: The Geneva Law is a body of rules that is highly devoted for the protection of those involved in armed conflict, which includes their individual rights and duties. The Hague Law, on the
other hand, handles the conduct of hostilities between states. It is designed to regulate the means and methods of warfare, and sets the rights and duties of each state during times of war.

The four protocols and the three additional protocols; distinctions


The Geneva Conventions I, II, III, and IV, and their additional protocols are all focused in the protection of individuals locked in armed conflict. The Geneva Conventions are mainly
concerned on the protection of people not involved or are no longer taking part in conflicts.
The Additional Protocols are of suppletory nature; they support the four other conventions in such a way that it could adapt to modern conflict, both international and non-international;
mostly focused on the welfare of captured individuals or prisoners and the usage of emblems during times of conflict.
PRINCIPLES IN IHL
1.) Humanity
The principle of humanity forbids the infliction of all suffering, injury or destruction not necessary for achieving the legitimate purpose of a conflictThis principle is meant to avoid the effects of the
armed conflicts which could mean a threat against the people that dont take part in the war, exposure to the excessive pain or even to death of the people without protection, the infringement of the
humans equality principle and of the human dignity and also the spread of the conflict to those who do not take part in the conflict.
2.) Distinction
The principle of distinction means making a distinction, under any circumstances, between the civilian population and servicemen, as well as between civilian objects and military objectives, which
helps ensure protection of civilian persons and objects. The parties to a conflict, must, at all times, distinguish between civilians and combatants. Attacks may only be directed to, combatants, but not
to civilians.
3.) Military Necessity
The principle of Military Necessity permits only a certain degree of force to achieve the legitimate purpose of an armed conflict. This does not allow measures that would potentially violate rules
under international humanitarian law. In the case of an armed conflict, the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.
4.) Proportionality
When considering a target, the damage to civilians and their property should not exceed or should be excessive in relation to the direct military advantage. The usage of warnings and or evacuation
measures are observed before conflict even begins.
In other words, the principle of proportionality seeks to limit damage caused by military operations by requiring that the effects of the means and methods of warfare used must not be
disproportionate to the military advantage sought.

The Martens Clause


In cases not covered by the Law in Force, the human person remains under the protection of principles of humanity and the dictates of public conscience AP II
This clause aims to offer protection to individuals who are caught in between and armed conflict, even if there is no specific applicable rule of international humanitarian law.

Combatants v. Civilians; Human Shields (Rights, Distinctions, Responsibilities)


A:
RIGHTS
COMBATANT Are protected when they no longer participate:

members of armed forces; they take If they have fallen in to enemy hands
part in hostilities (but still must a.) They become prisoners of war (cannot be convicted if they participated in hostilities)
observe IHL) b.) Can be interned until the end of active hostilities
Must be the focus of attacks. c.) May be criminally prosecuted for criminal acts/ war crimes committed before internment
d.) Protected by IHL
If wounded, sick or shipwrecked
If parachuting out of distress
If protected against some means and methods of warfare while fighting.

Conduct of Hostilities:

Attacks directed against them


If they take part in hostilities, they are not liable to prosecution for taking up arms; Are referred to as belligerents or
unlawful combatants.
CIVILIANS Are Protected because they do not participate:

all other persons other than As civilians, in the hands of the enemy
combatants; they do not take direct
part in hostilities (but still have a.) Do not enjoy prisoner of war status
rights to be respected) b.) May be prosecuted by the detaining state for any acts of violence committed during the conflict; includes war
Never the focus of attacks crimes.
Mere participation is punishable. c.) Rights and treatment during detention are governed by humanitarian law, human rights law, and domestic law.
Against attacks and effects of hostilities.

Conduct of Hostilities
Enjoy immunity of attack; unless they participated in the hostilities
Taking direct part in hostilities: loss of immunity; criminal prosecution under domestic law
Ceased to participate: may regain immunity.
Prohibitions: BOTH combatant and civilians

Violence against life or person

Taking of hostages

Passing of sentences or execution

without prior judgements by a regularly constituted court; and

Outrages to personal dignity


Degree of Participation
Elements of Direct Participation

Act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects
protected against direct attack (Threshold Of Harm)
There must be a direct causal link between the act and the harm likely to result either from the act, or from a coordinated military operation of which that act constitutes an integral part
(Direct Causation)
The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (Belligerent Nexus)

Elements of Indirect Participation


Activities that merely support the adverse partys war or military effort
1. Selling goods to one or more of the armed parties
2. Expressing sympathy for the cause of one the parties
3. Failing to act or prevent an incursion by one of the armed parties
4. Aids unlawful combatants by general strategic analysis
5. Grants logistical, general support or monetary aid
HUMAN SHIELDS
Are prohibited under the rules of IHL. State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
Under the Statute of the International Criminal Court, utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations
constitutes a war crime in international armed conflicts. The prohibition of using human shields is contained in numerous military manuals, many of which extend the prohibition to all civilians
MILITARY OBJECTIVES and CIVILIAN STRUCTURES (PRECAUTIONARY MEASURES)

RULES PRECAUTIONS
MILITARY OBJECTIVES: Rule 20. Advance Warning. Each party to the conflict must give effective advance
a. by their nature, location, purpose or use make an effective contribution to military warning of attacks which may affect the civilian population, unless circumstances
action, and do not permit.
b. whose partial or total destruction, capture or neutralization, in the circumstances
ruling at the time, offers a definite military advantage. Specific restrictions placed on the warring party in the preparation of an
attack.

An attack must be cancelled if it becomes apparent that it is of a type that is


prohibited.
CIVILIAN STRUCTURES/OBJECTS
If circumstances permit, an advance warning must be given for those attacks
Are all objects that are not military objectives.
which may affect the civilian population.
The definition of civilian objects has to be read together with the definition of
In determining the objective of an attack, and when a choice is possible, the
military objectives: only those objects that qualify as military objectives may be
one causing least danger to the civilian population must be selected.
attacked; other objects are protected against attack.
Furthermore, IHL requires those planning and deciding on an attack to take
precautionary measures, including refraining from attacking when incidental
loss of civilian life or destruction of civilian objects outweighs the military
advantage of the attack.
LEVEE EN MASSE, SPIES, SABOTEURS, MERCENARIES

LEVEE EN MASSE SPIES SABOTEURS MERCENARIES

The term applied to the inhabitants of People who are gathering or Saboteurs are persons Additional Protocol I defines a mercenary as a person who:
a territory which has not been attempting to gather information in undertaking activities behind
occupied, who on the approach of the territory controlled by an adverse the lines of an adverse Party to a) is specially recruited locally or abroad in order to fight in an
enemy spontaneously take up arms to party through an act undertaken on commit acts of destruction. armed conflict;
resist the invading troops without false pretenses or deliberately in a
having had time to organize clandestine manner. Sabotage is allowed under IHL, b) does, in fact, take a direct part in the hostilities;
themselves into regular armed forces. to the extent that the object of
The definition includes combatants sabotage is a legitimate c) is motivated to take part in the hostilities essentially by the
who wear civilian attire or who wear objective. desire for private gain and, in fact, is promised, by or on behalf
the uniform of the adversary but of a Party to the conflict, material compensation substantially in
excludes combatants who are excess of that promised or paid to combatants of similar ranks
gathering information while wearing and functions in the armed forces of that Party;
their own uniform.
d) is neither a national of a Party to the conflict nor a resident of
territory controlled by a Party to the conflict;

e) is not a member of the armed forces of a Party to the conflict;


and

f) has not been sent by a State which is not a Party to the


conflict on official duty as a member of its armed forces.
They must be regarded as combatants If they are captured while engaged in Saboteurs in uniform are This definition is very restrictive because it requires that all six
if they carry arms openly and respect espionage, they do not have the right combatants and are entitled to conditions be cumulatively fulfilled.
the laws and customs of armed to prisoner-of-war status. POW [prisoner-of-war] status if
conflict. they are captured.

If captured they have a right to be If caught in the act, they may not be Civilian saboteurs or saboteurs In addition, the definition requires evidence that a person
treated as prisoners of war. The leve convicted or sentenced without not wearing uniform do not accused of being a mercenary is
en masse should not be confused with previous trial. receive that protection and risk
resistance movements. being treated as spies. motivated to take part in the hostilities essentially by
the desire for private gain and

is promised material compensation substantially in


excess of that promised or paid to combatants of
similar ranks and functions in the armed forces.

PRISONERS OF WAR

IDENTIFICATION RIGHTS PROTECTION


Prisoners of war are combatants who have fallen into POWs must be treated humanely in all circumstances. POWs cannot be prosecuted for taking a direct
the hands of the enemy, or specific non-combatants to They are protected against any act of violence, as well part in hostilities.
whom the status of prisoner of war is granted by as against intimidation, insults, and public curiosity.
international humanitarian law Their detention is not a form of
IHL also defines minimum conditions of detention punishment, but only aims to prevent
covering such issues as accommodation, food, further participation in the conflict.
clothing, hygiene and medical care
They must be released and repatriated
without delay after the end of hostilities.
The detaining power may prosecute
them for possible war crimes, but not for
acts of violence that are lawful under
IHL.

The following categories of persons are prisoners of war: Rules governing the treatment and conditions of
. detention of civilian internees under IHL are
a. members of the armed forces of a party to the In particular, they are protected against murder, very similar to those applicable to prisoners of
conflict, including members of militias or torture, as well as cruel, humiliating or degrading war.
volunteer corps forming part of such armed treatment. Those detained for participation in
forces (this includes members of regular armed hostilities are not immune from criminal prosecution The fourth 1949 Geneva Convention and
forces who profess allegiance to a government or under the applicable domestic law for having done so. Additional Protocol I also provide extensive
authority not recognized by the Detaining Power); protection for civilian internees during
b. members of other militias or other volunteer corps international armed conflicts.
that belong to a party to the conflict, provided that The rules protecting prisoners of war (POWs) are
such groups: specific and were first detailed in the 1929 Geneva If justified by imperative reasons of security, a
are under responsible command; Convention. party to the conflict may subject civilians to
have a fixed distinctive sign recognizable at a assigned residence or to internment.
distance;
carry arms openly; and Therefore, internment is a security measure, and
conduct operations according to the law of armed cannot be used as a form of punishment. This
conflict; means that each interned person must be
released as soon as the reasons which
c. civilians who accompany the armed forces provided necessitated his/her internment no longer exist.
they are authorized by the armed force they accompany;
d. members of crews of merchant marine and civilian
aircraft of a party to the conflict who do not benefit from
more favourable treatment under international law;
e. participants in a leve en masse; and
f. the military wounded, sick and shipwrecked who fall
into the hands of an enemy.

Combatants are required to distinguish themselves


from the civilian population while they are In non-international armed conflicts, Article 3
common to the 1949 Geneva Conventions and
engaged in an attack or in a military operation They were refined in the third 1949 Geneva Additional Protocol II provide that persons
preparatory to an attack. Convention, following the lessons of World War II, as deprived of liberty for reasons related to the
well as in Additional Protocol I of 1977. conflict must also be treated humanely in all
A combatant who fails to distinguish himself circumstances.
while he is engaged in an attack or in a military a. he clearly expresses an intention to surrender;
operation preparatory to an attack loses his or
combatant status if he is captured, which means he b. he has been rendered unconscious or is
does not have prisoner of war status and can be otherwise incapacitated by wounds or sickness,
tried for an act of war. and is therefore incapable of defending
himself.
However, he is to be given protections equivalent
in all respects to those provided to prisoners of Provided that in any of these cases he abstains from
war under the third Geneva Convention. any hostile act and does not attempt to escape, he may
not be made the object of attack.
Notably, in international armed conflicts governed by
Additional Protocol I, a combatant distinguishes himself A fundamental rule of international humanitarian law
sufficiently if he carries his arms openly: is that persons who are hors de combat must not be
attacked and must be treated humanely.
a. during each military engagement; and
b. during such time as he is visible to the adversary
while engaged in a military deployment preceding
the launching of an attack in which he is to
participate.

Persons excluded from prisoner of war status:


The following persons are explicitly excluded from
prisoner of war status in the law of armed conflict:

a. members of the armed forces of a party who fall


into the power of the adverse party while engaging
in espionage; and
b. mercenaries.

PERSONS HORS D COMBAT


A PERSON HORS D COMBAT IS RIGHTS
(a) anyone who is in the power of an adverse party; Provided that in any of these cases he abstains from any hostile act and does not attempt to escape, he may not be made the object
(b) anyone who is defenceless because of of attack.
unconsciousness, shipwreck, wounds or sickness; or
(c) anyone who clearly expresses an intention to A fundamental rule of international humanitarian law is that persons who are hors de combat must not be attacked and must be
surrender; treated humanely.
provided he or she abstains from any hostile act and
does not attempt to escape.
MEDICAL PERSONNEL/MEDICAL TRANSPORT

MEDICAL PERSONNEL RIGHTS MEDICAL TRANSPORT RIGHTS


The term medical personnel refers to Medical personnel must not knowingly be Refers to any means of transportation, Other persons performing medical duties enjoy
personnel assigned, by a party to the conflict, attacked, fired upon, or unnecessarily whether military or civilian, permanent or protection against attack as civilians, as long as
exclusively to the search for, collection, prevented from discharging their proper temporary, assigned exclusively to medical they do not take a direct part in hostilities.
transportation, diagnosis or treatment, functions transportation under the control of a
including first-aid treatment, of the wounded, competent authority of a party to the State practice generally indicates that
sick and shipwrecked, and the prevention of Medical personnel may not be attacked, conflict. medical transports enjoy the same
disease, to the administration of medical units and must be allowed to carry out their tasks protection as mobile medical units.
or to the operation or administration of as long as the tactical situation permits. This includes means of transportation by
medical transports. land, water or air, such as ambulances, With respect to medical aircraft, State
Additional Protocol I also requires that if hospital ships and medical aircraft practice recognizes that, in principle,
needed, all available help shall be afforded medical aircraft must be respected and
to civilian medical personnel in an area protected when performing their
where civilian medical services are humanitarian functions.
disrupted by reason of combat activity.
Additional Protocol II requires that medical
personnel be granted all available help for
the performance of their duties.
The definition includes the terms: LOSS OF PROTECTION These vehicles, ships and aircraft must be LOSS OF PROTECTION
Medical personnel lose the special exclusively assigned to the conveyance of
(i) medical personnel of a party to the conflict, protection to which they are entitled if they the wounded, sick and shipwrecked, According to State practice, the transport of
whether military or civilian, including those commit acts of hostility. Such behavior medical personnel, religious personnel, healthy troops, arms or munitions and the
described in the First and Second Geneva might even constitute perfidy if in so doing medical equipment or medical supplies. collection or transmission of military
Conventions, and those assigned to civil they take advantage of their medical intelligence are examples of uses of medical
defence organizations; position and the distinctive emblems transports leading to loss of protection.

(ii) medical personnel of National Red Cross Hence, medical aircraft should not
or Red Crescent Societies and other voluntary carry any equipment intended for the
aid societies duly recognized and authorized collection or transmission of
by a party to the conflict, including the ICRC; intelligence.

(iii) medical personnel made available to a Light arms carried by medical


party to the conflict for humanitarian purposes personnel in self-defense or which have
by a neutral or other State which is not a party just been taken from the wounded and
to the conflict; by a recognized and authorized not yet turned over to the proper
aid society of such a State; or by an impartial authority do not constitute prohibited
international humanitarian organization. equipment either

PROTECTION OF CHILDREN AND WOMEN

CHILDREN WOMEN
International humanitarian law provides general protection for children as persons taking no Like all civilians, women are protected both against abusive treatment by the Party to the
part in hostilities, and special protection as persons who are particularly vulnerable. Moreover, conflict in whose power she finds herself and against effects of hostilities: "A civilian is any
children taking part in hostilities are also protected. person who does not belong to the armed forces" (Article 50, P. 1).

Children shall be the object of special respect and shall be protected against any Under these conditions, they benefit from all the provisions which state the basic
form of indecent assault. The parties to the conflict shall provide them with the care principle of humane treatment, including respect of life and physical and moral
and aid they require, whether because of their age or for any other reason integrity, particularly forbidding coercion, corporal punishment, torture, collective
Children shall be provided with the care and aid they require. penalties, reprisals, pillage and the taking of hostages.

Provide for treatment "without any adverse distinction founded on sex... " It is also
specified that women "shall in all cases benefit by treatment as favorable as that
granted to men"

"Pregnant women and mothers of children under seven years shall benefit by any
preferential treatment to the same extent as the nationals of the State concerned"
(Art. 38, C. IV).

Likewise, "The Occupying Power shall not hinder the application of any preferential
measures... which may have been adopted prior to the occupation in favour of
children under fifteen years, expectant mothers, and mothers of children under seven
years" (Art. 50, C. IV).

PRINCIPLE OF NON-REFOULEMENT
A: is a fundamental principle of international law which forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on
"race, religion, nationality, membership of a particular social group or political opinion" Unlike political asylum, which applies to those who can prove a well-grounded fear of persecution based on
certain category of persons, non-refoulement refers to the generic repatriation of people, including refugees into war zones and other disaster locales.
PROHIBITED WEAPONS DURING ARMED CONFLICT
Weapons that are by nature indiscriminate are those that cannot be directed at a military objective or whose effects cannot be limited as required by international humanitarian law. The prohibition of
such weapons is also supported by the general prohibition of indiscriminate attacks.
INDISCRIMINATE WEAPONS:
Weapons that have indiscriminate effects, strike military objectives and civilians indiscriminately or cannot distinguish between military objectives and civilians,

Additional Protocol I prohibits the use of weapons which are of a nature to strike military objectives and civilians or civilian objects without distinction. This prohibition was reaffirmed in
the Statute of the International Criminal Court. It has also been included in other instruments.
This rule is set forth in many military manuals. Violations of this rule constitute an offence under the legislation of several States. This rule is also supported by official statements and
reported practice. This practice includes that of States not, or not at the time, party to Additional Protocol I.
The prohibition of weapons which are by nature indiscriminate is also recalled in numerous resolutions adopted by the UN General Assembly, as well as in some resolutions adopted by the
OAS General Assembly. The rule has also been recalled by several international conferences.

RUSE OF WAR vs. PERFIDY; RUSE

RUSE OF WAR PERFIDY


Considered to be a permissible method of warfare. Acts inviting the confidence of an adversary to lead him to believe he is entitled to, or is
Ruses of war are acts intended to mislead an adversary or induce him to act recklessly but they obliged to grant, protection under the rules of international humanitarian law applicable
infringe no rule of international humanitarian law and are not perfidious because they do not invite in armed conflict, with intent to betray that confidence, constitute perfidy. The following
the confidence of an adversary with respect to protection under that law. acts are examples of perfidy:

Examples of ruses of war are: a. feigning an intent to negotiate under a flag of truce;
b. feigning surrender;
a. camouflage (natural, paints, nets, smoke); c. feigning incapacitation by wounds or sickness;
b. displays (decoys, feints); d. feigning civilian or non-combatant status;
c. simulations and mock operations; and e. feigning protective status by the use of signs, emblems or uniforms of the United
d. dissemination of false information. Nations or of a neutral or other State not party to the conflict;
f. Making improper use of the emblem of the red cross, red crescent or red
crystal.

Under international humanitarian law, it is prohibited to kill, injure or capture an


adversary by resort to perfidy.

SEA WARFARE USE OF RUSE OF WAR SEA WARFARE: PROHIBITION AGAINST PERFIDY
Ruses of war are permitted. Warships and auxiliary vessels, however, are prohibited from Perfidy is prohibited. Acts inviting the confidence of an adversary to lead it to believe
launching an attack whilst flying a false flag, and at all times from actively simulating the status of: that it 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, constitute perfidy.
(a) hospital ships, small coastal rescue craft or medical transports; Perfidious acts include the launching of an attack while feigning:
(b) vessels on humanitarian missions;
(c) passenger vessels carrying civilian passengers; (a) exempt, civilian, neutral or protected United Nations status;
(d) vessels protected by the United Nations flag; (b) surrender or distress by, e.g., sending a distress signal or by the crew taking to life
(e) vessels guaranteed safe conduct by prior agreement between the parties, including cartel rafts.
vessels;
(f) vessels entitled to be identified by the emblem of the red cross or red crescent; or
(g) vessels engaged in transporting cultural property under special protection.

NAVAL BLOCKADE
Blockade
93. A blockade shall be declared and notified to all belligerents and neutral States.
94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.
95. A blockade must be effective. The question whether a blockade is effective is a question of fact.
96. The force maintaining the blockade may be stationed at a distance determined by military requirements.
97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules
set out in this document.
98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.
99. A blockade must not bar access to the ports and coasts of neutral States.
100. A blockade must be applied impartially to the vessels of all States.
101. The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared and notified as in paragraphs 93 and 94.
102. The declaration or establishment of a blockade is prohibited if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or
(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage
of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as
the International Committee of the Red Cross.

104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to
prescribe technical arrangements, including search, under which such passage is permitted.

VESSELS AND AIRCRAFT EXEMPTED FROM ATTACK


The following classes of enemy vessels are exempt from attack:
(a) hospital ships;
The exemption from attack of a hospital ship may cease only by reason of a breach of a condition of exemption, in such a case, only after due warning has been given naming in all
appropriate cases a reasonable time limit to discharge itself of the cause endangering its exemption, and after such warning has remained unheeded.
If after due warning a hospital ship persists in breaking a condition of its exemption, it renders itself liable to capture or other necessary measures to enforce compliance.
A hospital ship may only be attacked as a last resort if:

1. diversion or capture is not feasible;


2. no other method is available for exercising military control;
3. the circumstances of non-compliance are sufficiently grave that the hospital ship has become, or may be reasonably assumed to be, a military objective; and
4. the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.

(b) small craft used for coastal rescue operations and other medical transports;
(c) vessels granted safe conduct by agreement between the belligerent parties including:
(i) cartel vessels, e.g., vessels designated for and engaged in the transport of prisoners of war;
(ii) vessels engaged in humanitarian missions, including vessels carrying supplies indispensable to the
survival of the civilian population, and vessels engaged in relief actions and rescue operations;
(d) vessels engaged in transporting cultural property under special protection;
(e) passenger vessels when engaged only in carrying civilian passengers;
(f) vessels charged with religious, non-military scientifc or philanthropic missions, vessels collecting scientific data of likely military applications are not protected;
(g) small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection;
(h) vessels designated or adapted exclusively for responding to pollution incidents in the marine environment;
(i) vessels which have surrendered;
(ij) life rafts and life boats

All other categories of vessels exempt from attack


If any other class of vessel exempt from attack breaches any of the conditions of its exemption, it may be attacked only if:
(a) diversion or capture is not feasible;
(b) no other method is available for exercising military control;
(c) the circumstances of non-compliance are sufficiently grave that the vessel has become, or may be reasonably assumed to be, a military objective; and
(d) the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.

Classes of aircraft exempt from attack


The following classes of enemy aircraft are exempt from attack:
(a) medical aircraft;
(b) aircraft granted safe conduct by agreement between the parties to the conflicts; and
(c) civil airliners.

Conditions of exemption for medical aircraft


Medical aircraft are exempt from attack only if they:

(a) have been recognized as such;


(b) are acting in compliance with an agreement as specified in paragraph 177;
(c) fly in areas under the control of own or friendly forces; or
(d) fly outside the area of armed conflict. In other instances, medical aircraft operate at their own risk.
Conditions of exemption for aircraft granted safe conduct
Aircraft granted safe conduct are exempt from attack only if they:
(a) are innocently employed in their agreed role;
(b) do not intentionally hamper the movements of combatants; and
(c) comply with the details of the agreement, including availability for inspection.

Conditions of exemption for civil airliners


Civil airliners are exempt from attack only if they:
(a) are innocently employed in their normal role; and
(b) do not intentionally hamper the movements of combatants.
Loss of exemption
If aircraft exempt from attack breach any of the applicable conditions of their exemption, they may be attacked only if:
(a) diversion for landing, visit and search, and possible capture, is not feasible;
(b) no other method is available for exercising military control;
(c) the circumstances of non-compliance are sufficiently grave that the aircraft has become, or may be reasonably assumed to be, a military objective; and
(d) the collateral casualties or damage will not be disproportionate to the military advantage gained or anticipated.

Conditions for exemption of vessels: If vessels are


(a) are innocently employed in their normal role;
(b) submit to identification and inspection when required; and
(c) do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.

TWO TYPES OF ARMED CONFLICTS

1. International armed conflicts exist whenever there is resort to armed force between two or more States.
2. Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such
groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must
show a minimum of organisation.

International armed conflicts, opposing two or more States, and

IACs are those which oppose "High Contracting Parties", meaning States. An IAC occurs when one or more States have recourse to armed force against another State, regardless of the
reasons or the intensity of this confrontation. Relevant rules of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the
situation is required. The existence of an IAC, and as a consequence, the possibility to apply International Humanitarian Law to this situation, depends on what actually happens on the
ground.

Non-international armed conflicts, between governmental forces and non-governmental armed groups, or between such groups only. IHL treaty law also establishes a distinction between non-
international armed conflicts in the meaning of common Article 3 of the Geneva Conventions of 1949 and non-international armed conflicts falling within the definition provided in Art. 1 of
Additional Protocol II.

Non-International Armed Conflicts within the Meaning of Common Article 3


Common Article 3 applies to "armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties". These include armed conflicts in which one
or more non-governmental armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-governmental armed groups or between
such groups only.

To qualify as NIAC:

First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use
military force against the insurgents, instead of mere police forces.11
Second, non-governmental groups involved in the conflict must be considered as "parties to the conflict", meaning that they possess organized armed forces. This means for example that
these forces have to be under a certain command structure and have the capacity to sustain military operations.12

Non-International Armed Conflicts in the Meaning of Art. 1 of Additional Protocol II


A more restrictive definition of NIAC was adopted for the specific purpose of Additional Protocol II. This instrument applies to armed conflicts "which take place in the territory of a High
Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as
to enable them to carry out sustained and concerted military operations and to implement this Protocol.

COMMON ARTICLE 3 RULES


Article 3, common to the four Geneva Conventions, marked a breakthrough, as it covered, for the first time, situations of non-international armed conflicts. These types of conflicts vary
greatly. They include traditional civil wars, internal armed conflicts that spill over into other States or internal conflicts in which third States or a multinational force intervenes alongside the
government. Common Article 3 establishes fundamental rules from which no derogation is permitted.

It is like a mini-Convention within the Conventions as it contains the essential rules of the Geneva Conventions in a condensed format and makes them applicable to conflicts not of an
international character:
It requires humane treatment for all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment,
the taking of hostages and unfair trial.
It requires that the wounded, sick and shipwrecked be collected and cared for.
It grants the ICRC the right to offer its services to the parties to the conflict.
It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through so-called special agreements.
It recognizes that the application of these rules does not affect the legal status of the parties to the conflict.

Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. Its full respect is required.

INTERNATIONAL COMMITTEE OF THE RED CROSS


The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of
victims of war and internal violence and to provide them with assistance. It directs and coordinates the international relief activities conducted by the Movement in situations of conflict. It
also endeavors to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Established in 1863, the ICRC is at the origin of the International
Red Cross and Red Crescent Movement.

PRINCIPLES OF ICRC

a. HUMANITY
The Red Cross, born of a desire to bring assistance without discrimination to the wounded on the battlefield, endeavors in its international and national capacity to prevent and
alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being. It promotes mutual understanding, friendship,
co-operation and lasting peace amongst all peoples.
b. IMPARTIALITY
It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It endeavors only to relieve suffering, giving priority to the most urgent cases of distress.
c. NEUTRALITY
In order to continue to enjoy the confidence of all, the Red Cross may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological
nature.
INTERNATIONAL CRIMINAL LAW

Body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable
for their perpetration (local or global).
principally deals with genocide, crimes against humanity, war crimes and crime of aggression

Importance of prosecuting International Crimes


observance of transitional justice
jus cogens norm
shifting from impunity to accountability
giving justice to victims of international atrocities
International Criminal Tribunal for the Former Yugoslavia (ICTY)
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991 up to 2001
ad hoc tribunal located in The Hague, Netherlands created by the United Nations to try the crimes committed during the wars in the previous Yugoslavia
Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993 grave breaches of the Geneva Conventions, violations of the laws or customs of war,
genocide, and crime against humanity
life imprisonment as maximum penalty

COMPOSITION:
Office of the Prosecutor (OTP)
has four chambers (three Trial Chambers and one
Appeals Chamber)
has 20 permanent judges and 3 ad litem judges
president of the Tribunal is the presiding judge of the
Appeals Chamber

International Criminal Tribunal for Rwanda (ICTR)


Established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations
of international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.
has jurisdiction over genocide, crimes against humanity and war crimes, which are defined as violations of Common Article Three and Additional Protocol II of the Geneva
Conventions.
transfer of cases to International Residual Mechanism for Criminal Tribunals
Composition
Office of the Prosecutor (has the Investigation and Prosecution sections)
Tribunal consists of 16 judges in four "chambers" three to hear trials, and one to hear appeals has an additional 9 ad litem judges, making 25 in all

International Criminal Court

was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002
the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining (China, US and Israel among those in the negative)
as of 1 May 2013, there are 122 states that are parties to the statute at present, the Court has looked into nine situations: the Democratic Republic of the Congo; Uganda; two in the Central
African Republic; Darfur, Sudan; Kenya; Libya; Cte d'Ivoire; and Mali

Main Features
a permanent tribunal
exercise jurisdiction over the most serious crimes of international concern
complementary to national jurisdictions
sits in The Hague, Netherlands (but it may hold sessions elsewhere)
nullum crimen sine lege
nullum poena sine lege
non-applicability of statute of limitations
irrelevance of official capacity

Composition:

Has 18 judges segregated in three (3) Chambers:

Pre-Trial Chamber
at least six (6) judges in the
Chamber; three (3) judges or at least one (1) judge sitting in each Division; confirmation of charges against the defendant/s
Trial Chamber
at least three (3) judges sitting in each Division; trial stage proper
Appeals Chamber
the President and four (4) other judges sitting as one collegial body

Jurisdiction:

Rationae temporis
Rationae Materiae
Rationae loci
Rationae personae

Exercise of Jurisdiction
upon referral by a state party to the Prosecutor;
upon referral by the UN Security Council in accordance with Article VII of the UN Charter; OR no investigation within twelve (12) months from referral
Upon information, the Prosecutor has initiated motu proprio its own investigation

gather information from concerned parties


request the Pre-Trial Chamber to allow it to conduct investigations
if refused, Prosecutor can still request in the future provided it concerns new evidence and facts
if permitted, Prosecutor shall conduct investigations and inform state parties concerned; state parties are given one (1) month to start the conduct of their own investigations; six (6) months
thereafter, Prosecutor can review the deferral proceedings in favor of the state parties
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecuti
UNWILLING:
1) shielding the person from criminal responsibility;
2) unjustified delay in the proceedings;
3) proceedings were not or are not being conducted independently or impartially

UNABLE:
1) total or substantial collapse of national judicial system;
2) unavailability of its national judicial system;
3) the State is unable to obtain the accused or the necessary evidence and testimony;
4) unable to carry out its proceedings

The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability
of the State genuinely to prosecute.

The person concerned has already been tried for conduct which is the subject of the complaint.
Challenging the Admissibility
prior to confirmation of charges, before the Pre-Trial Chamber
after confirmation of charges, before the Trial Chamber decisions on this matter can be appealed to the Appeals Chamber
Ne Bis In Idem / Non Bis in Idem
same charge before the ICC
same charge before another Court
same charge brought to ICC from another Court unless:
a) purpose of shielding
b) partial and not independent national proceedings
PROSECUTOR V. TADIC PROSECUTOR V. JEAN PAUL PROSECUTOR V. LUBANGA - DYILO PROSECUTOR V. JEAN PIERRE
AKEYASU BEMBA - GOMBO
Tadi was arrested by On April 6, 1994, a plane During the Second Congo War, In 2002, Jean-Pierre Bemba Gombo was
German police in Munich in carrying President Juvnal Lubanga was a military commander and President and Commander-in-Chief of the
February 1994. He faced Habyarimana of Rwanda and "minister of defence" in the pro-Uganda MLC when armed conflict broke out in the
twelve counts of crimes President Cyprien Ntaryamira Congolese Rally for Democracy- CAR. He was also the organisations
against humanity, twelve of Burundi crashed at Kigali Liberation Movement figurehead and source of its funding, goals
counts of grave breaches of airport, killing all on board. and aims. Upon receipt of Patasss
the Geneva Conventions, and Following the deaths of the two request, Bemba immediately deployed
ten counts of violations of Presidents, widespread killings, Under Lubanga's leadership, the largely three MLC battalions totalling around
the customs of war, to all of having both political and ethnic Hema, UPC became one of the main 1,500 men to counter Bozizs rebellion.
which he pleaded not guilty. dimensions, began in Kigali and actors in the Ituri conflict between the
His trial was to be held spread to other parts of Rwanda. Hema and Lendu ethnic groups. It Only a few weeks later, eight MLC
together with Goran seized control of Bunia, capital of the combatants entered a community near
Borovnica's, but Borovnica Rwanda is divided into 11 prefectures, gold-rich Ituri region, in 2002,and P119s home where P23 and his family
went missing in 1995 and each of which is governed by a prefect. demanded that the Congolese lived. The soldiers attacked P23s wife,
was later declared dead. The prefectures are further subdivided government recognise Ituri as an P80, in front of their children. One of the
into communes which are placed under autonomous province.Lubanga was soldiers told her that if she resisted, he
On May 7, 1997, the Trial Chamber II the authority of bourgmestres. The arrested on 13 June 2002 while on a would sleep with her 50 times without
found Tadi guilty on 9 counts and bourgmestre of each commune is mission to Kinshasa but he was released stopping. Then, at gunpoint, P80 was
partially guilty on 2 counts. Tadi and appointed by the President of the ten weeks later in exchange for a raped by three soldiers. P23s
the prosecution appealed on a number Republic, upon the recommendation of kidnapped government minister. granddaughter (aged between 10 and 13
of grounds. One of the arguments the Minister of the Interior. In Rwanda, years old)was dragged outside, where
required the court to determine the bourgmestre is the most powerful Human Rights Watch has accused the UPC, soldiers hit her legs with batons before
whether or not the court was figure in the commune. His de facto under Lubanga's command, of "ethnic they took turns raping her. One of P23s
legitimate in its exercise of authority in the area is significantly massacres, murder, torture, rape and mutilation, daughters was raped by four soldiers in
jurisdiction. greater than that which is conferred upon as well as the recruitment of child soldiers". front of her husband, children, brother and
him de jure. UPC are reported to have destroyed 26 villages mother the fifth soldier refused to rape
Tadi argued that the court in one area, killing at least 350 people and her because she was bleeding. Two more
was illegitimately created As bourgmestre, Jean Paul AKAYESU forcing 60,000 to flee their homes.Human rights of his teenage daughters were raped by
through the United Nations was responsible for maintaining law and organisations claim that at one point Lubanga other soldiers. With family members and
Security Council. His public order in his commune. At least had 3,000 child soldiers between the ages of 8 neighbours looking on, P23 was also
argument was based upon 2000 Tutsis were killed in Taba between and 15. He reportedly ordered every family in attacked and raped by three of the soldiers.
separation of powers. He April 7 and the end of June, 1994, while the area under his control to help the war effort
essentially argued that the he was still in power. The killings in by donating something: money, a cow, or a On 24 May 2008, Bemba was arrested in
Security Council was an Taba were openly committed and so child to join his militia. Belgium. During his trial, 5,229 survivors
executive governmental widespread that, as bourgmestre, were authorised to participate in the
branch and thus did not have Verdict: Although conscripting, proceedings. By January 2010, the ICC
the power to create a judicial Although he had the authority and enlisting and using child soldiers are had received an abundance of evidence on
body. responsibility to do so, Jean Paul separate offenses under the Statute the widespread act of rape, pillaging and
Akayesu never attempted to prevent the (para. 609), in the circumstances of the murder perpetrated by MLC soldiers
ISSUE: Can plea against the killing of Tutsis in the commune in any present case conscription and enlistment
International Tribunal jurisdiction be way or called for assistance from are dealt with together. The offense is Does Bemba Gombo have effective
examined by the International regional or national authorities to quell committed at the moment a child under control?
Tribunal based on the invalidity of its the violence. 15 joins an armed group, with or
establishment by the Security without compulsion (para. 618). Whether a person has effective authority
Council? He knew that the acts of sexual violence, Consent is not a valid defence but the and control rests on that persons material
beatings and murders were being manner in which the child was recruited power to prevent or repress the
Yes. Plea against the International committed and was at times present whether voluntarily or with commission of crimes or to submit the
Tribunal jurisdiction can be examined during their commission. He facilitated compulsion may be taken into account matter to a competent authority. This need
by the International Tribunal based on the commission of the sexual violence, at sentencing (para. 617). not be an exclusive power and multiple
the invalidity of its establishment by beatings and murders by allowing the superiors can be held concurrently
the Security Council. The criteria for sexual violence and beatings and murders Active participation is a broader term that responsible for their subordinates
establishing an International Tribunal to occur on or near the bureau communal includes a greater number of activities than the actions.
includes the establishment in premises. By virtue of his presence notion of direct participation in international
accordance with the proper during the commission of the sexual humanitarian law (para. 627). The ICC quickly noted that Bemba was
international standards, the provision violence, beatings and murders and by President of the MLC and Commander-in
of guarantees of fairness, justice, and failing to prevent the sexual violence, Active participation includes direct and indirect Chief of the ALC during the conflict.
evenhandedness, in full conformity beatings and murders, he encouraged participation; the decisive factor is whether the Acting in those capacities, Bemba
with internationally recognized these activities. support provided by the child exposed him/her possessed a broad range of powers that
human rights instruments. Hence, a to real danger as a potential target. Whether a indicated that he acted as a military
tribunal like the one created in this Issue: Is he Liable for the crime of Rape particular activity constitutes active commander with effective authority and
case must be endowed with primacy (Crime against humanity) participation is to be decided on a case-by-case control over the MLC troops in the CAR.
over national courts. basis (para. 628).
Held: Yes. The Trial Chamber held that He also had direct knowledge that MLC
rape, which it defined as "a physical soldiers were committing widespread rape
invasion of a sexual nature committed on as evidenced by the speech he gave
a person under circumstances which are condemning the brutalising of the
coercive", and sexual assault constitute civilian population in P119 and P23s area.
acts of genocide insofar as they were
committed with the intent to destroy, in
whole or in part, a targeted group, as
such. It found that sexual assault formed
an integral part of the process of
destroying the Tutsi ethnic group and
that the rape was systematic and had
been perpetrated against Tutsi women
only, manifesting the specific intent
required for those acts to constitute
genocide.