War Crimes:-

The term “war crimes” refers to serious breaches of international humanitarian law
committed against civilians or enemy combatants during an international or domestic armed
conflict, for which the perpetrators may be held criminally liable on an individual basis. Such
crimes are derived primarily from the Geneva Conventions of 12 August 1949 and their
Additional Protocols I and II of 1977, and the Hague Conventions of 1899 and 1907. Their
most recent codification can be found in article 8 of the 1998 Rome Statute for the
International Criminal Court (ICC).
The vast majority of incidents listed in the report could, if investigated and proven in a
judicial process, “point to the commission of prohibited acts such as murder, wilfully causing
great suffering, or serious injury to body or health, rape, intentional attacks on the civilian
population, pillage, and unlawful and arbitrary destruction of civilian goods, including some
which were essential to the survival of the civilian population.
Although the concept of war crimes has ancient roots, rules on war crimes started to develop
at the end of the 19th century. The meaning of war crimes was clarified in the four
1949 Geneva Conventions.

Article 147 of the Fourth Geneva Convention defines war crimes as “wilful killing, torture or
inhuman treatment, including … wilfully causing great suffering or serious injury to body or
health, unlawful deportation or transfer or unlawful confinement of a protected person …
taking of hostages and extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly”.

The Geneva Conventions established that states could exercise jurisdiction over such crimes.
Over recent decades, international courts such as the Yugoslavia Tribunal and
the International Criminal Court (ICC) have exercised jurisdiction over individuals accused
of war crimes.

‘Serious Violations’ and ‘Grave Breaches’

An occasional by-product of the analysis of war crimes is the controversy surrounding an

understanding and application of the term ‘grave breaches’ of the Geneva Conventions of
1949 on the laws and customs of war. The notion of ‘grave breaches’ was introduced into the
Geneva Conventions of 1949 under the heading ‘Repression of Abuses and Infractions’ (of
the Conventions). It began with article 49 of the First Convention
The same provision appears in identical terms in article 50 of the Second Convention, article
129 of the Third Convention and article 146 of the Fourth Convention. The stated aim of this
common provision was to suppress ‘abuses and infractions’ of the Geneva Conventions. The
two primary methods employed to achieve this aim were: (a) requiring States Parties, through
their undertakings, to proscribe such abuses and infractions in their domestic criminal codes;
and (b) obligating States Parties to search for—within their territories—and prosecute culprits
found therein, under a regime of conditional universal jurisdiction, or to extradite the culprits
to other States Parties with sufficient jurisdictional links to the violations. Having required
States to do these things in order to suppress ‘abuses or infractions’ of the Geneva
Conventions, it became necessary to define the sort of ‘abuses or infractions’ intended to be
suppressed. That was done in the next provision, typified by article 50 of the First
Convention

The same provision appears in the same terms in all the four Geneva Conventions of 1949,
with necessary variation made after the sentence ‘wilfully causing great suffering or serious
injury to body or health’, so as to meet the special aims of each particular Convention.8
These specific catalogues of grave breaches were further collated from the Geneva
Conventions and restated in article 2 of the Statute of the International Criminal Tribunal for
the former Yugoslavia, for purposes of

Conclusion It is possible to take the view that the debate about the sphere of application of
the notion of ‘grave breaches’ does not lend itself to a straightforward resolution. But this is
so when one is lost in the legal thicket and complexities of the Four Geneva Conventions of
1949 and their Additional Protocols of 1977. There are grounds in those instruments to
contend that ‘grave breaches’ are war crimes which may only be committed in international
armed conflicts. There are reasons to quarrel with that proposition. In the final analysis,
however, it is a pointless debate, for there are more powerful reasons to conclude that to take
the view that ‘grave breaches’ is limited to international armed conflicts is to miss the whole
point of international humanitarian law. It is about protecting the core values of humanity.
And humanity remains the same, regardless of where it is found— on the fields of a high-tech
war involving major Western powers against each other or against other nations, as well as in
the jungle of an African or Asian country embroiled in a civil war fought with cudgels,
machetes, and knobkerries. A serious violation of international humanitarian law is a ‘grave
breach’ on either occasion. That is easy to see if the protection of humanity is the aim of
international humanitaria law, as it ought to be.

4 .. terrorism:-

IHL does not provide a definition of “terrorism” but prohibits most actions committed in
armed conflicts that would commonly be considered “terrorist” if committed in peacetime.
These include indiscriminate acts of violence, deliberate attacks against civilians and civilian
objects, the use of “human shields”, attacks on places of worship, and hostage-taking.
Definition
International law provides no clear definition for the term terrorism . It has political and
ideological connotations. One man’s terrorist is another man’s freedom fighter.
Despite attempts of the United Nations, States have not yet agreed upon a definition of
terrorism. Nonetheless, we will keep in mind the definitions proposed by the United Nations
and the European Union.
Attempts of Definition by the United Nations
The International Convention for the Suppression of the Financing of Terrorism, signed on 9
December 1999, defines terrorism in its Article 2.1.b as “any . . . act intended to cause death
or serious bodily injury to a civilian, or to any other person not taking an active part in the
hostilities in a situation of armed conflict, when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act.”
Means to Fight Terrorism
It is important to make a clear distinction between terrorist acts and activities and the use of
terror as a method of warfare in the context of an armed conflict carried out by States or non-
states belligerents who may not have been formally recognized by national authorities (such
as guerrilla and other resistance movements). Where terror is used within an armed conflict,
international humanitarian law applies to all parties concerned; it sets out mandatory rules
regarding methods of warfare and the use of force by State and non-state actors, treatment of
combatants and civilians, and penalties for crimes. Humanitarian law applies to military
occupation.
What governments often call acts of “terrorism” may in fact be non-international armed
conflicts if acts of violence are organized in a continuous and concerted way and from areas
of territory that are—even partly—not under the control of the national authorities. In such
situations, authorities must respect humanitarian law; it is not enough to respect national law
applicable in situations of emergency and to strengthen the authority of the police force (APII
Art. 1). ▸ International humanitarian law ▸ Non-international armed conflict ▸ Terror
Where the use of terror is not part of an armed conflict the State generally responds by
increasing the police force’s authority and activities in order to protect public order. A State
may also temporarily limit certain human rights and freedoms. In all cases, Common Article
3 to the four Geneva Conventions, together with non-derogable rules defined by international
human rights conventions, continue to apply as they have the same content and part of
Common Article 3 are said to apply at all times. ▸ Fundamental guarantees ▸ Human
rights ▸ Occupied territory ▸ Public order
the UN General Assembly recalled that terrorism must be condemned in all its forms and
manifestations and decided to elaborate an international strategy to combat terrorism. This
strategy, called the UN Global Counter-Terrorism Strategy, was adopted by the GA on 8
September 2006 (Resolution 60/288). The goal of the Strategy is to prevent and combat
terrorism at national, regional, and international levels through the adoption of practical
measures.

Legislation
In times of peace, various international conventions that regulate mutual assistance in
criminal matters address some of the measures to be taken. Those specifically related to
terrorism include the following:

 European Convention on the Suppression of Terrorism of 27 January 1977,

adopted under the aegis of the Council of Europe and entered into force on 4
August 1978 (forty-six States Parties as of June 2015).
 Council of Europe Convention on the Prevention of Terrorism, adopted in May
2005 and entered into force on 1 June 2007 (currently, thirty-three States
Parties).
 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of
Crimes against Persons and Related Extortion That Are of International
Significance, adopted under the aegis of the Organization of American States on
2 February 1971 (it enters into force for each State as it ratifies the convention).
As of April 2013, it had eighteen States Parties.
 International Convention for the Suppression of Terrorist Bombings, adopted by
the General Assembly of the United Nations on 15 December 1997 and entered
into force on 23 May 2001. As of June 2015, it had 168 States Parties.
 International Convention for the Suppression of the Financing of Terrorism,
adopted by the General Assembly of the United Nations on 9 December 1999 and
entered into force on 10 April 2002. As of June 2015, it had 186 States Parties.
 International Convention for the Suppression of Acts of Nuclear Terrorism,
adopted by the General Assembly of the United Nations on 13 April 2005 and
entered into force on 7 July 2007). As of June 2015, it had 99 States Parties.
 Organization of the African Union Convention on the Prevention and
Combating of Terrorism, adopted in Algiers, Algeria, on 14 July 1999 (it entered
into force on 6 December 2002). As of June 2015, it had forty-one States Parties.

Arab Convention for the Suppression of Terrorism, adopted in Cairo by the League of
Arab States on 22 April 1998 and entered into force on 7 May 1999.

Indeed, the general requirement for persons fighting in an armed conflict to distinguish
between civilians and combatants is the cornerstone of IHL. In addition, IHL specifically
prohibits “[c]ollective penalties and likewise all measures of (…) terrorism” (Article 33 of
the Fourth Geneva Convention), “acts of terrorism” (Article 4 of Additional Protocol II) and
acts that aim to spread terror among the civilian population.

These provisions do not prohibit lawful attacks on military targets which may spread fear
among civilians, but they outlaw attacks that are specifically aimed at terrorizing civilians.
The acts mentioned above may also constitute war crimes that must be universally prosecuted.
It is to be noted that IHL rules prohibiting the types of attacks against civilians or civilian
objects mentioned above apply in both international and non-international armed conflicts.

In times of conflict, humanitarian law prohibits terror as a method of warfare, such as attacks
against the civilian population, civilian objects, and property.
International humanitarian law also prohibits any acts or threats the primary purpose of which
is to spread terror among the civilian population. This applies to both international and
internal armed conflicts (API Art. 51, APII Art. 13). No protected person may be punished
for an offense he or she has not personally committed. Collective penalties and all measures
of intimidation or of terrorism are prohibited (GCIV Art. 33).
The following acts are prohibited at all time and in all places: violence to the life, health, and
physical or mental well-being of persons; collective punishments; taking of hostages; acts of
terrorism (APII Art. 4.2.d).
International humanitarian law takes into account the specificity of guerrillas’ methods of
warfare to ensure that such acts are not considered as mere terrorism, therefore preventing the
law of armed conflict from applying. On the other hand, humanitarian law provides minimal
opportunity for members of these groups to be afforded combatant status and associated
protections—including prisoner-of-war protection (API Art. 44). According to it, armed force
must be used within a hierarchically organized framework, under responsible command able
to enforce humanitarian law. Further, combatants must carry arms openly when engaged in
hostilities.
In times of armed conflict, “terrorist” is not a specific legal category under humanitarian law.
Geneva Conventions and Additional Protocols only allow for a distinction between civilians
and combatants—or between those who take part in hostilities and those who do not or who
have since laid down arms. Further, humanitarian law prohibits methods of warfare that are
primarily designed to spread terror among the civilian population. Persons who employ such
methods commit a crime yet remain members of the civilian population. Therefore,
authorities in charge of such persons must indict and prosecute them according to the rule of
law.
If such persons act as member of a non-state armed group or with the support or on behalf of
a State authority in the framework of an armed conflict, they enter into the category of
combatants or into the one of civilians directly participating in hostilities. A combatant who
resorts to such practices can be arrested, detained, and prosecuted for his or her criminal
activities. If so, guarantees in regard to detention, interrogation, and fair trial provided by IHL
must be respected. Terrorists do not have any specific legal status under humanitarian law.
Besides, jurisprudence of domestic courts interpreting international humanitarian law has
shown that, under IHL, the so-called global war on terror does not constitute a third type of
conflict involving “unlawful combatants” who would escape any rules provided for
international and non-international armed conflicts. This was confirmed by several judgments
pronounced by the United States and the Israel Supreme Courts, which denied, on this issue,
the doctrine developed by governmental authorities and jurists in the context of their
management of the terrorist threat.

“Combatant” describes those persons with a right to directly participate in hostilities

between States.
The following persons are combatants in an international armed conflict:

a. Members of the armed forces, except medical personnel and religious personnel.
b. Members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a Party to the conflict, provided that
 such militias or volunteer corps, including such organized resistance movements,
fulfil the following conditions:

1. they are commanded by a person responsible for his subordinates;

2. they wear a fixed distinctive sign recognizable at a distance;
3. they carry their arms openly; and
4. they conduct their operations in accordance with the laws and customs of war.

c. Members of the regular armed forces who profess allegiance to a government or

authority not recognized by the other Party to the conflict.

d. Participants in a levée en masse.

Combatants are required to distinguish themselves from the civilian population while they are
engaged in an attack or in a military operation preparatory to an attack.
A combatant who fails to distinguish himself while he is engaged in an attack or in a military
operation preparatory to an attack loses his combatant status if he is captured, which means
he does not have prisoner ofwar status and can be tried for an act of war.
However, he is to be given protections equivalent in all respects to those provided
to prisoners of war under the third Geneva Convention.

A combatant who falls into the power of an adverse party to the conflict is a prisoner of war.

Terrorist:-a person who uses unlawful violence and intimidation, especially against civilians, in the
pursuit of political aims.

an advocate or practitioner of terrorism as a means of coercion

Mumbai terrorist attacks of 2008:-

The attacks were carried out by 10 gunmen who were believed to be connected to Lashkar-e-
Taiba, a Pakistan-based terrorist organization. Armed with automatic weapons and hand
grenades, the terrorists targeted civilians at numerous sites in the southern part of Mumbai,
including the Chhatrapati Shivaji railway station, the popular Leopold Café, two hospitals,
and a theatre. While most of the attacks ended within a few hours after they began at around
9:30 PM on November 26, the terror continued to unfold at three locations where hostages
were taken—the Nariman House, where a Jewish outreach centre was located, and the luxury
hotels Oberoi Trident and Taj Mahal Palace & Tower.

By the time the standoff ended at the Nariman House on the evening of November 28, six
hostages as well as two gunmen had been killed. At the two hotels, dozens of guests and staff
were either trapped by gunfire or held hostage. Indian security forces ended the siege at the
Oberoi Trident around midday on November 28 and at the Taj Mahal Palace on the morning
of the following day. In all, at least 174 people, including 20 security force personnel and 26
foreign nationals, were killed. More than 300 people were injured. Nine of the 10 terrorists
were killed, and one was arrested.

The attackers

Amid speculation regarding the identity of the terrorists, an unknown group calling itself
Mujahideen Hyderabad Deccan claimed responsibility for the attacks in an e-mail; however,
the e-mail was later traced to a computer in Pakistan, and it became obvious that no such
group existed. The way the terrorists had reportedly singled out Western foreigners at both of
the luxury hotels and at the Nariman House led some to believe that the Islamic militant
group al-Qaeda was possibly involved, but this appeared not to be the case after the lone
arrested terrorist, Ajmal Amir Kasab, provided substantial information regarding the planning
and execution of the attacks. Kasab, a native of Pakistan’s Punjab province, told investigators
that the 10 terrorists underwent prolonged guerrilla-warfare training in the camps of Lashkar-
e-Taiba. He further revealed that the team of terrorists had spent time at the headquarters of a
second and related organization, Jamaat-ud-Dawa, in the city of Muridke before traveling
from Punjab to the port city of Karachi and setting out for Mumbai by sea.

After first traveling aboard a Pakistani-flagged cargo ship, the gunmen hijacked an Indian
fishing boat and killed its crew; then, once they were near the Mumbai coast, they used
inflatable dinghies to reach Badhwar Park and the Sassoon Docks, near the city’s Gateway of
India monument. At that point the terrorists split into small teams and set out for their
respective targets. Kasab—who was charged with various crimes, including murder and
waging war—later retracted his confession. In April 2009 his trial began, but it experienced
several delays, including a stoppage as officials verified that Kasab was older than age 18 and
thus could not be tried in a juvenile court. Although he pled guilty in July, the trial continued,
and in December he recanted, proclaiming his innocence. In May 2010 Kasab was found
guilty and sentenced to death; he was executed two years later. In June 2012 Delhi police
arrested Sayed Zabiuddin Ansari (or Syed Zabiuddin), who was suspected of being one of
those who trained the terrorists and guided them during the attacks. In addition, David C.
Headley, a Pakistani American, pleaded guilty in 2011 to helping the terrorists plan the
attacks, and in January 2013 he was sentenced in a U.S. federal court to 35 years in prison.
Connections to Pakistan

With evidence pointing to the attacks’ having originated within Pakistan’s territory, India on
November 28, 2008, requested the presence of Lieut. Gen. Ahmed Shuja Pasha, director
general of Pakistan’s intelligence agency, as its investigation process got under way. Pakistan
at first agreed to this request but subsequently backpedaled, offering to send to India a
representative for the director general instead of Pasha himself. The immediate impact of the
attacks was felt on the ongoing peace process between the two countries. Alleging inaction
by Pakistani authorities on terrorist elements, Pranab Mukherjee, India’s external affairs
minister, stated, “If they don’t act, then it will not be business as usual.” India later canceled
its cricket team’s tour of Pakistan that had been scheduled for January–February 2009.

India’s attempt at pressuring Pakistan to crack down on terrorists within its borders was
strongly supported by the international community. U.S. Secretary of State Condoleezza
Rice and British Prime Minister Gordon Brown toured both India and Pakistan following the
attacks in Mumbai. In a flurry of diplomatic activity that was essentially viewed as an
exercise in “conflict prevention,” U.S. officials and others urged Pakistan’s civilian
government to take action against those suspected of involvement in the attacks. There were
concerns that tensions might escalate between the two nuclear-armed neighbours. India,
however, refrained from amassing troops at the Pakistan border as it had following the
December 13, 2001, attack on India’s parliament, which had also been carried out by
Pakistan-based militants. Instead, India focused on building international public support
through various diplomatic channels and through the media. India made a plea to the UN
Security Council for sanctions against Jamaat-ud-Dawa, contending that the group was a
front organization for Lashkar-e-Taiba, which had been banned by Pakistan in 2002.
Acceding to India’s request, the Security Council imposed sanctions on Jamaat-ud-Dawa on
December 11, 2008, and formally declared the group a terrorist organization.

Pakistan claimed to have arrested Zaki-ur-Rehman Lakhvi, a senior leader of Lashkar-e-

Taiba and the suspected mastermind of the Mumbai attacks, on December 8, 2008. Pakistani
security forces carried out raids on Jamaat-ud-Dawa offices across the country. This
crackdown, however, lasted only a few days, after which the security cordons that had been
placed around Jamaat-ud-Dawa offices were relaxed. Pakistani Prime Minister Yousaf Raza
Gillani stated that the activities of Jamaat-ud-Dawa should not be blocked, since “thousands
of people are benefiting” from what he described as the group’s “welfare activities.” Pakistan
further maintained that India did not provide it with sufficient evidence against a number of
suspected terrorists and that any action against these suspects was possible only after such
evidence had been provided “through diplomatic channels instead of the media.” Pakistan
refused India’s demand that it extradite 20 people for their alleged involvement in several
terrorist attacks on Indian territory. During his 2011 trial, however, Headley gave detailed
testimony about the involvement of both Lashkar-e-Taiba and the Pakistani intelligence
agency in the Mumbai attacks.
Reaction in India

The terrorist attacks in Mumbai exposed loopholes in the security system that India had in
place to deal with this “new brand” of terrorism—urban warfare characterized by symbolic
attacks, multiple targets, and high casualties. Subsequent reports indicated that several
intelligence warnings by Indian as well as U.S. sources had preceded the attacks but that
authorities, citing the lack of “actionable intelligence,” had ignored them. Moreover, there
was an inordinate delay in the deployment of India’s elite National Security Guards, whose
commandos reached the besieged hotels some 10 hours after the first shootings took place on
November 26. The lack of coordination between authorities in the Indian capital of New
Delhi and officials in Maharashtra state also weakened the immediate crisis response. India’s
interior minister, Shivraj Patil, who was widely criticized in the aftermath of the attacks,
tendered his resignation on November 30, 2008, declaring that he took “moral responsibility”
for the assault.

The November attacks prompted the Indian government to introduce important new
institutions as well as legal mechanisms to fight terrorism. On December 17, 2008, the Indian
parliament consented to the creation of the National Investigation Agency, a federal
counterterrorism group whose functions would be similar to many of those of the U.S.
Federal Bureau of Investigation. Parliament also approved amendments to the Unlawful
Activities (Prevention) Act that incorporated stringent mechanisms to contain and investigate
terrorism. Although myriad comparisons were made between the September 11, 2001,
attacks in the United States and those that occurred in Mumbai, the latter outbreak of
terrorism was of a much more-limited scale, in terms of both casualties and
financial implications. The Mumbai attacks did, however, evoke a similarly strong national
and international outcry against such violence and renewed calls to increase efforts to deal
with the menace of terrorism.

5. Refugees

Refugees are people who are at risk, or have been victims, of persecution in their country of
origin and have subsequently crossed an international border. Internally displaced persons
have also had to flee their homes but have not crossed an international border. Refugees are
protected by refugee law – mainly the Convention Relating to the Status of Refugees (1951)
and its 1967 Protocol (Protocol Relating to the Status of Refugees), the Convention
Governing the Specific Aspects of Refugee Problems in Africa (1969) and the Cartagena
Declaration on Refugees (1984) – and human rights law, and particularly by the principle of
non-refoulement.

The 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the core of
the international protection system, complemented by regional treaties and declarations that
also address the rights of refugees. But international refugee law does not operate in isolation.
It is best understood in conjunction with international human rights law, starting with the
1948 Universal Declaration of Human Rights, and with international humanitarian law (the
law of war)

Article 1 of the Convention Relating to the Status of Refugees, as modified by the 1967
Protocol, defines a refugee as any person who “owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social group
or political opinion, is outside the country of his nationality and is unable or, owing to such
fear, is unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it”.

The UN General Assembly created UNHCR after the Second World War to ensure the
international protection of refugees, and to work with governments to find lasting solutions to
refugee problems.

The Convention Governing the Specific Aspects of Refugee Problems in Africa and the
Cartagena Declaration on Refugees have adopted a broader definition that includes people
fleeing events that seriously disrupt public order, such as armed conflict and other situations
of violence.

Refugees are also protected by IHL when they are in a State involved in an armed conflict. In
addition to the general protections afforded to civilians by IHL, refugees receive special
protection under the Fourth Geneva Convention and Additional Protocol I to the Geneva
Conventions. For instance, Article 44 of the Fourth Geneva Convention states that Detaining
Powers should not treat as enemy aliens those refugees who do not, in fact, enjoy the
protection of any government. Article 73 of Additional Protocol I adds that refugees must be
regarded as protected persons in all circumstances and without any adverse distinction.

1951 Convention relating to the Status of Refugees

The 1951 Convention relating to the Status of Refugees is the foundation of international
refugee law. It defines the term “refugee”, establishes the principle that refugees should not
be forcibly returned to a territory where their lives or freedom would be threatened (see box
below: The principle of non-refoulement), and sets out the duties of refugees and States’
responsibilities toward them.

The Convention was drawn up shortly after the Second World War, and its authors were
focused on refugee problems existing at that time. The definition of a refugee contained in the
1951 Convention refers to persons who became refugees as a result of events occurring
before 1 January 1951, and States had to declare whether they would apply that definition
only to events that took place in Europe or also to events in other parts of the world.

As new refugee crises emerged around the globe during the 1950s and early 1960s, it became
clear that the temporal and geographical scope of the 1951 Convention needed to be widened.

The 1967 Protocol to the Convention was adopted to do this.

1967 Protocol

The 1967 Protocol is independent of, though integrally related to, the 1951 Convention. The
Protocol removes the temporal and geographic limits found in the Convention. By acceding
to the Protocol, States agree to apply the core content of the 1951 Convention (Articles 2–34)
to all persons covered by the Protocol’s refugee definition, without limitations oF Most States
have preferred to accede to both the Convention and the Protocol. In doing so, they reaffirm
that both treaties are central to the international refugee protection system.

The 1951 Convention and 1967 Protocol are the modern embodiment of the age-old
institution of asylum, Their strength remains their universal and non-discriminatory character
and the fundamental values they reflect.

Regional refugee laws and standard:-

1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa

The conflicts that accompanied the end of the colonial era in Africa produced a succession of
large-scale refugee movements. These population displacements prompted the drafting and
adoption not only of the 1967 Protocol, but also of the 1969 Organization of African Unity
(OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa. The 1969
OAU Convention confirms that the 1951 Convention is “the basic and universal instrument
relating to the status of refugees”.

It adopts the refugee definition found in the 1951 Convention, but also expands it to include
any person compelled to leave his or her country because of “external aggression, occupation,
foreign domination or events seriously disturbing public order in either part or the whole of
his [or her] country of origin or nationality”.

This means that persons fleeing civil disturbances, widespread violence and war are entitled
to refugee status in States that are parties to the African Convention, even if they do not have
a well-founded fear of persecution for one of the reasons set out in the 1951 Convention. Of
course, many people may be refugees under the terms of both Conventions.

1984 Cartagena Declaration :-

In 1984, a colloquium of government representatives and distinguished jurists was convened

in Cartagena, Colombia, to discuss refugee protection in Latin America. Inspired by the 1969
OAU Convention, they adopted what is known as the Cartagena Declaration on Refugees.
The Declaration reaffirms the centrality of the 1951 Convention and its 1967 Protocol, the
principle of non-refoulement, as well the importance of international cooperation to solve
refugee problems. It recommends that the definition of a refugee used throughout the region
be enlarged beyond persons who fulfil the 1951 Convention definition to include those who
have fled their country “because their lives, safety or freedom have been threatened by
generalized violence, foreign aggression, internal conflicts, massive violation of human rights
or other circumstances which have seriously disturbed public order”.

Although the Declaration is not a legally binding instrument, most Central and South
American countries apply its definition and many have incorporated it into their legislation.
The Organization of American States (OAS), the UN General Assembly, and UNHCR’s
Executive Committee have all endorsed the Cartagena Declaration. Since 1984, States in
Central and Latin America have adopted three Declarations on the occasion of important
anniversaries of the Cartagena Declaration, including most recently, the 2014 Brazil
Declaration and Plan of Action.

The Middle East and Asia :-

There are no binding regional instruments addressing refugee law in the Middle East or Asia.
In 1994, the Arab Convention on Regulating Status of Refugees in the Arab Countries was
adopted by the League of Arab States (LAS), but it never entered into force. In October 2017
the League of Arab States adopted a new Arab Convention on refugees.

In 2001, Asian and African countries adopted the revised Bangkok Principles on the status
and treatment of refugees. Both the proposed Arab Convention and the Bangkok Principles
use the refugee definition contained in the 1969 OAU Refugee Convention.

The Arab Convention extends it further to persons fleeing disasters or other grave events
disrupting public order. In 2012, Member States of the Organization of Islamic Cooperation
adopted the Ashgabat Declaration at a ministerial conference in Turkmenistan. The
Declaration recognizes that “over fourteen centuries ago, Islam laid down the basis for
granting refuge, which is now deeply ingrained in Islamic faith, heritage and tradition”.

The ministers also noted the “enduring value and relevance in the twenty-first century” of the
1951 Convention and 1967 Protocol and “the importance of respecting the principles and
values that underlie these instruments”

UN General Assembly Resolutions and Declarations

Every year, the General Assembly considers a report on UNHCR’s work and adopts a
resolution on this subject. It has also adopted numerous resolutions on specific aspects of
refugee protection, such as unaccompanied refugee minors, human rights and mass exoduses,
and the situation of specific countries receiving large flows of refugees.

In September 2016, the General Assembly adopted the New York Declaration for Refugees
and Migrants and launched intergovernmental negotiations to reach a “global compact for
safe, orderly and regular migration”.

Like the Universal Declaration of Human Rights adopted in 1948, the New York Declaration
is a political document. It puts refugees at the centre of political attention and encourages a
broad, whole-of-society approach to refugee protection.

United Nations High Commissioner for Refugees (UNHCR):-

Article 14 of the Universal Declaration of human rights 1948, which recognizes the right of
persons to seek asylum from persecution in other countries, the United Nations Convention
relating to the Status of Refugees, adopted in 1951, is the centrepiece of international refugee
protection today.(1) The Convention entered into force on 22 April 1954, and it has been
subject to only one amendment in the form of a 1967 Protocol, which removed the
geographic and temporal limits of the 1951 Convention.

Under the Convention and Protocol, there is a particular role for UNHCR. States undertake to
cooperate with UNHCR in the exercise of its functions, which are set out in its Statute of
1950 along with a range of other General Assembly resolutions, and, in particular, to
facilitate this specific duty of supervising the application of these instruments. By its Statute,
UNHCR is tasked with, among others, promoting international instruments for the protection
of refugees, and supervising their application.

Protecting refugees:

Members of parliament can play a crucial role in ensuring that refugees are protected in law
and in practice. The following steps are important

1. Incorporate the principle of non-refoulement

2. Accede to international treaties

3. Review reservations and restrictive interpretations

4. Implement international standards when establishing State asylum systems

5. Broaden the refugee criteria

Pg no:-31 of refugee pdf

Internally displaced persons :-

The United Nations Guiding Principles on Internal Displacement (1998) define “internally
displaced persons (IDPs)” as “persons or groups of persons who have been forced or obliged
to flee or to leave their homes or places of habitual residence, in particular as a result of or in
order to avoid the effects of armed conflict, situations of generalized violence, violations of
human rights or natural or human-made disasters, and who have not crossed an
internationally recognized State border”. There is however no universal treaty that
specifically addresses the protection needs of IDPs.

The Convention for the Protection and Assistance of Internally Displaced Persons in Africa
(Kampala Convention), which entered into force in December 2012, is the first international
treaty to address the matter of protection and assistance for IDPs. IDPs are protected by
various bodies of law, including domestic law, human rights law and – if they are in a State
involved in armed conflict – IHL.

IHL contains many provisions concerning the prevention of displacement and the protection
of IDPs – mainly in the Fourth Geneva Convention and Additional Protocols I and II, as well
as in customary law. IHL expressly prohibits compelling civilians to leave their place of
residence unless their security or imperative military reasons so demand.
The rules of IHL aimed at protecting civilians, if respected, can prevent displacement and the
suffering that follows and provide for the protection of persons forced to flee. While
displaced, these communities struggle to meet their essential needs amid serious hardship;
they may also face tensions with host communities, unsafe or unhealthy living conditions and
the risk of being forced to return to unsafe areas.

Particular mention should be made of the rules prohibiting:

• direct attacks on civilians and civilian objects as well as indiscriminate attacks;

• starving the civilian population and destroying objects indispensable to its survival;

• collective punishment, such as the destruction of dwellings.

All these rules are recognized under customary IHL and apply during both international and
non-international armed conflict

2.. Definition of Combatants :-All members of the armed forces of a party to the conflict
are combatants, except medical and religious personnel

The parties to the conflict must at all times distinguish between civilians and combatants.
Attacks may only be directed against combatants. Attacks must not be directed against
civilians.

Non-combatant is a term of art in the law of war and international humanitarian law to refer
to civilians who are not taking a direct part in hostilities;[1] persons, such as combat
medics and military chaplains, who are members of the belligerent armed forces but are
protected because of their specific duties (as currently described in Protocol I of the Geneva
Conventions, adopted in June 1977); combatants who are placed hors de combat;
and neutral persons, such as peacekeepers, who are not involved in fighting for one of the
belligerents involved in a war. This particular status was first recognized under the Geneva
Conventions with the First Geneva Convention of 1864.

Regulation and Prohibition of some Means and Methods of Warfare

1. TO Diminish Cruelty between Combatants

2. Protection of those Hors de Combat and the Civilian Population.

Three Fundamental Rules…

 1. In any armed conflict, the right to choose methods or means of warfare is not unlimited
(AP I Art. 35)

2. It is prohibited to deliberately attack the civilian population (AP I Art. 52)

3. Distinction must be made at all times between combatants and civilians– attacks are to
be directed only against Military Objectives (AP I Art. 48).

Military objects can be attacked:-

Military objects are those objects which make an effective contribution to military action,
and whose destruction, capture or neutralisation, in the circumstances ruling at the time,
offer a definite military advantage.

Weapons That Are by Nature Indiscriminate:-

The use of weapons which are by nature indiscriminate is prohibited. 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.

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.
Examples
The following weapons have been cited in practice as being indiscriminate in certain or all
contexts: chemical, biological and nuclear weapons; anti-personnel
landmines; mines; poison; explosives discharged from balloons; V-1 and V-2 rockets; cluster
bombs; booby-traps; Scud missiles; Katyusha rockets; incendiary weapons; and
environmental modification techniques. There is insufficient consensus concerning all of
these examples to conclude that, under customary international law, they all violate the rule
prohibiting the use of indiscriminate weapons. However, there is agreement that some of
them are prohibited and they are discussed in subsequent chapters.

Definition of Indiscriminate Attacks

Indiscriminate attacks are those:
(a) which are not directed at a specific military objective;
(b) which employ a method or means of combat which cannot be directed at a specific
military objective; or
(c) which employ a method or means of combat the effects of which cannot be
limited as required by international humanitarian law; and consequently, in each such case,
are of a nature to strike military objectives and civilians or civilian objects without
distinction.
This definition of indiscriminate attacks represents an implementation of the principle of
distinction and of international humanitarian law in general. Rule 12(a) is an application of
the prohibition on directing attacks against civilians (see Rule 1) and the prohibition on
directing attacks against civilian objects (see Rule 7), which are applicable in both
international and non-international armed conflicts. Rule 12(b) is also an application of the
prohibition on directing attacks against civilians or against civilian objects (see Rules 1 and
7). The prohibition of weapons which are by nature indiscriminate (see Rule 71), which is
applicable in both international and non-international armed conflicts, is based on the
definition of indiscriminate attacks contained in Rule 12

Principle of Precautions in Attack

In the conduct of military operations, constant care must be taken to spare the civilian
population, civilians and civilian objects. All feasible precautions must be taken to avoid,
and in any event to minimize, incidental loss of civilian life, injury to civilians and damage
to civilian objects.
Proportionality in Attack
Launching an attack which may be expected to cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated, is prohibited.

The principle of proportionality in attack is codified in Article 51(5)(b) of Additional

Protocol I, and repeated in Article 57.

The principle of proportionality in attack is also contained in Protocol II and Amended

Protocol II to the Convention on Certain Conventional Weapons. In addition, under the
Statute of the International Criminal Court, “intentionally launching an attack in the
knowledge that such attack will cause incidental loss of life or injury to civilians or damage
to civilian objects … which would be clearly excessive in relation to the concrete and direct
overall military advantage anticipated” constitutes a war crime in international armed
conflicts.

A large number of military manuals lay down the principle of proportionality in

attack. Sweden’s IHL Manual, in particular, identifies the principle of proportionality as set
out in Article 51(5) of Additional Protocol I as a rule of customary international
law. Numerous States have adopted legislation making it an offence to carry out an attack
which violates the principle of proportionality

Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering:-

Rule 70. The use of means and methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering is prohibited.
The prohibition of the use of means and methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering is set forth in a large number of treaties,
including early instruments such as the St. Petersburg Declaration and the Hague
Declarations and Regulations.The prohibition on the use of chemical and biological weapons
in the Geneva Gas Protocol was originally motivated by this rule.Its reaffirmation in recent
treaties, in particular Additional Protocol I, the Convention on Certain Conventional
Weapons and its Protocol II and Amended Protocol II, the Ottawa Convention banning anti-
personnel landmines and the Statute of the International Criminal Court, indicates that it
remains valid. The rule is also included in other instruments.
Numerous military manuals include the rule.
Numerous resolutions of the UN General Assembly, as well as some resolutions of the OAS
General Assembly, recall this rule. The rule has also been recalled by several international
conferences.
The prohibition of the use of means and methods of warfare which are of a nature to cause
superfluous injury or unnecessary suffering was included by consensus in the draft of
Additional Protocol II but was dropped at the last moment without debate as part of a
package aimed at the adoption of a simplified text.
The prohibition of means of warfare which are of a nature to cause superfluous injury or
unnecessary suffering refers to the effect of a weapon on combatants. Although there is
general agreement on the existence of the rule, views differ on how it can actually be
determined that a weapon causes superfluous injury or unnecessary suffering. States
generally agree that suffering that has no military purpose violates this rule. Many States
point out that the rule requires that a balance be struck between military necessity, on the one
hand, and the expected injury or suffering inflicted on a person, on the other hand, and that
excessive injury or suffering, i.e., that which is out of proportion to the military advantage
sought, therefore violates the rule.Some States also refer to the availability of alternative
means as an element that has to go into the assessment of whether a weapon causes
unnecessary suffering or superfluous injury.

Examples
The following weapons have been cited in practice as causing unnecessary suffering if used
in certain or all contexts: lances or spears with a barbed head; serrated-edged
bayonets;expanding bullets; explosive bullets; poison and poisoned weapons, including
projectiles smeared with substances that inflame wounds; biological and chemical
weapons;weapons that primarily injure by fragments not detectable by X-ray, including
projectiles filled with broken glass; certain booby-traps; anti-personnel landmines; torpedoes
without self-destruction mechanisms; incendiary weapons; blinding laser weapons; and
nuclear weapons.There is insufficient consensus concerning all of these examples to conclude
that, under customary international law, they all violate the rule prohibiting unnecessary
suffering. However, there is agreement that some of them are prohibited and they are
discussed in subsequent chapters.
3. Privatization of war:-

In recent years, parties to armed conflicts have increasingly recruited private military and
security companies (PMSCs) to undertake tasks traditionally carried out by the armed forces.
The involvement of these companies in or close to military operations has raised questions
about the way international humanitarian law (IHL) should be applied.

The involvement of PMSCs in warfare is not new. However, in recent armed conflicts their
numbers have increased significantly and the nature of their activities has changed, leading
some commentators to speak of a growing "privatization" of war.Their activities include
protecting military personnel and assets, training and advising armed forces, maintaining
weapons systems, interrogating detainees and, on occasions, even fighting.

The ICRC has not joined the debate about the legitimacy of using private companies. Its
concern is compliance with IHL. In particular it is concerned with the question of what
obligations and rights PMSCs and their staff have, and what are the obligations of States
using them?
The position of the companies and their staff is not straightforward. Non-state actors are
bound by IHL during an armed conflict if they are parties to the conflict or when they carry
out acts in link with the conflict. PMSCs may not generally be parties to the conflict, but their
employees as individuals, depending on their particular roles and activities, are more likely to
fall under IHL rules.

The majority of employees of PMSCs fall within the caThe majority of employees of PMSCs
fall within the category of civilians, as defined by IHL. In both international armed conflicts
and non-international armed conflicts their position is covered, and their protection assured,
by the Fourth Geneva Convention, the Additional Protocols of 1977 and customary law.
However, if they participate directly in hostilities, they lose the protection from attack
afforded to them as civilians in both types of conflict.

Despite the occasional use in media reports of the word "mercenary" in relation to employees
of PMSCs , the term has, in fact, a narrow interpretation under IHL and would not apply to
most private contractors in recent conflicts.

When it comes to the obligation of States, this need to be clarified. In very general terms a
State that employs private companies must ensure that IHL is respected by such companies,
and their staff made aware of their obligations. States that have jurisdiction over private
companies involved in armed conflicts also have obligations to ensue respect for IHL by
those companies.

In response to the increased presence of PMSCs, several international initiatives have been
undertaken with a view to clarifying, reaffirming or developing international legal standards
regulating their activities and, in particular, ensuring their compliance with standards of
conduct reflected in IHL and human rights law.

As a result of an initiative launched jointly by Switzerland and the ICRC, the Montreux
document was adopted in September 2008. The Montreux Document restates and reaffirms
the existing legal obligations of States with regard to PMSCs activities during armed conflict.
It also recommends a catalogue of good practices for the practical implementation of existing
legal obligations.

From an initial 17 states in 2008, the number of participants supporting the Montreux
Document has now risen to 54 states and three international organisations.

. Introduction

1. The primary responsibility for the security and protection of United Nations personnel,
their eligible family members and the premises and property of United Nations Security
Management System organizations rests with the host Government. In ensuring such safety
and security, certain circumstances may arise where armed security services become
necessary. When the host Government is unwilling or unable to provide such protection, as
determined by the United Nations in consultation with the relevant authorities, armed security
services will normally be provided by alternate member States or the appropriate security
entity within the United Nations system.

2. On an exceptional basis to meet its obligations, the United Nations Security Management
System may use private companies to provide armed security services when threat conditions
and programme need warrant it.

3. The fundamental principle in guiding when to use armed security services from a private
security company is that this may be considered only when there is no possible provision of
adequate and appropriate armed security from the host Government, alternate member
State(s), or internal United Nations system resources such as the Security and Safety Services
or security officers recruited directly by a mission or through another United Nations Security
Management System organization. B. Purpose

4. In circumstances where a United Nations Security Management System organization

determines that armed security services from a private security company are required, the
engagement and use of such services will be governed by a clear accountability and
responsibility framework and clear operational standards and oversight. Further details are
stipulated in the accompanying “Guidelines on the Use of Armed Security Services from
Private Security Companies”.

5. The present policy describes the fundamental pillars of the decision-making framework,
the assessment process and standards for such decisions

Applicability

6. This policy is applicable to all security professionals and managers in the United Nations
Security Management System in accordance with Security Policy Manual, Chapter II, Section
B, entitled “The Framework of Accountability for the Security Management System”.

7. This policy applies to the selection, contracting and managing of any armed security
services from private security companies by an organization participating in the United
Nations Security Management System.

. General Policy:-

8. The objective of armed security services from a private security company is to provide a
visible deterrent to potential attackers and an armed response to repel any attack in a manner
consistent with the United Nations “Use of Force Policy”, the respective host country
legislation and international law.

9. Armed security services from a private security company may not be contracted, except on
an exceptional basis and then only for the following purposes:
a. To protect United Nations personnel, premises and property.

b. To provide mobile protection for United Nations personnel and property.

10. The details of the services outlined in paragraph 9 above are contained in the
accompanying “Guidelines on the Use of Armed Security Services from Private Security
Companies”.

11. The approval of the Under-Secretary-General for Safety and Security must be obtained
prior to commencing the process for engaging aprivate security company.

. Selection Criteria for the Armed Private Security Company

21. In cases where the Under-Secretary-General for Safety and Security has
approved the use of armed security services from a private security company,
companies bidding for the contract must meet the mandatory requirements for
possible selection. The mandatory requirements are described in the
“Guidelines on the Use of Armed Security Services from Private Security
Companies”.

22. The selection of armed security services from a private security company
shall be undertaken in accordance with the applicable UNSMS organization’s
rules and regulations from those companies that meet the requirements
stipulated in paragraph 21 above.

Responsibility of States that hire PMSCs:-

States cannot absolve themselves of their obligations under IHL by contracting PMSCs.
States must ensure that employees of these companies respect IHL.

Important measures for achieving this include:

• requiring the employees to be properly trained in IHL; and

• requiring that PMSCs’ rules of engagement and standard operating procedures comply with
IHL. If PMSC employees violate IHL, the contracting State may be responsible if the
violations can be attributed to it as a matter of international law. States must ensure that
mechanisms exist to hold PMSC employees accountable for violations of IHL

The private security and military industry has been booming since the end of the Cold War,
especially in the context of the US-led military interventions in Afghanistan and Iraq
following the 9/11 attacks. The biggest PMSC, the UK-based company G4S, which offers a
broad range of security services, has reported a total revenue of EUR 3.7 billion for 2018.
Another multinational security giant, DynCorp International, which benefits almost entirely
from US government contracts, indicates a revenue exceeding EUR 2.6 billion.

Individuals selling their participation in war have always existed. Monarchs relied on
“military entrepreneurs” to wage war at least since the mid-16th century. Despite the signing
of the Treaty of Westphalia in 1648, which marked the consolidation of European states and
the subsequent strengthening of state-controlled armies, European rulers continued to use
mercenaries. In the United States, a large-scale use of contractors to support US military
operations occurred during the Vietnam War. The end of the Cold War marked the
proliferation of private military corporations and civilian contractors as the reduction of
former Soviet and US forces left thousands of professional soldiers without a job, allowing
PMSCs to fill the vacuum. During the conflicts in Afghanistan and Iraq in the early 2000s the
ratio of US troops to private contractors was ten-to-one. Today, the industry is worth billions
of dollars and the use of PMSCs by different actors, such as states but also international
organisations and NGOs, seems here to stay.

PMSCs offer different kinds of services and not all of them actually involve combat functions.
Private military corporations can fall into three types of categories: military providers,
military consulting and military support. Only military provider firms engage in actual
combat and in command and control operations. The US company AirScan, for example,
provides military surveillance services, often directly in combat zones. Military consulting
and support companies, which form the majority of PMSCs, offer strategic advice, weapons
maintenance, intelligence gathering (such as the US firms CACI International or GK Sierra),
military training, military interrogation or security services for high level officials. Often
these companies are founded and staffed by former military. Blackwater (Academi) was
founded by former US Navy SEAL Erik Prince, while the employees of the company Triple
Canopy (Constellis) are often former special operations personnel, who join the business
looking either for new work opportunities (as happened after the end of the Cold War) or for
better paid jobs