Humanitarian Law

International
Humanitarian Law
Chris C. Wigwe PhD (Leeds) BL

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International Humanitarian Law by Chris Chizindu Wigwe. LLM, PhD, BL
Published by Readwide Publishers 2010
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Acknowledgements
I acknowledge with many thanks the contributions of my former students;
George Igonibo, Amakoromo Mark, Ohochukwu Chigoziri, Aladetuyi
Ademola, Uti Emetekoba, Anabaraba Titi and Soberekon Sokeipiri who
were employed as Research Assistants by my law firm (Chrismarcus
Chambers) to put this book together. Similarly, I acknowledge with great
thanks the influence of distinguished highly academic authors, Dieter
Fleck, Michael Bothe, Horst Fischer, Hans-Peter Gasser, Jann K Kleffner,
Nilender Kummar and Stefan Qeter that propelled me to write this book.
Finally I acknowledge the sacrifice made by my wife Veronica who at the
time of writing this book was rounding up her doctorate degree program
in law at the University of Dundee Scotland UK but still found time to make
valuable contribution to this book.
Chris C. Wigwe PhD (Leeds) BL
iv
Table of Contents
Acknowledgements iv
Table of Cases
xiii
Table of International Statutes
xiv
CHAPTER 1
Historical Evolution and Legal Basis of

International Humanitarian Law
I.
Meaning of the term Humanitarian Law

a) Authorization by the UN Security Council
1
4
b) The Right to Self Defence
c) Humanitarian Intervention
II.
Historical Origins
III. Sources of International Humanitarian Law
International Agreements
12
16
17
Custom 19
IV.
General Principles of Law
21
Judicial Decisions
24
Writings of Legal Specialists
25
National Manuals of Military Law and Related Texts
27
Resolutions of International Bodies
28
The Role of the Icrc in Humanitarian Law
CHAPTER
Scope of Humanitarian Law
33
I.
Armed Conflicts
II. Acts of War
III. Area of War
Hospital zones and Localities
IV.
30
33
39
40
41
Hospital and Safety zones and Localities
42
Neutralized Zones
43
Demilitarized zones
43
Non-Defended Localities
45
Termination of Hostilities
Parlementaires and Protecting Powers
Ceasefire and Armistice
47
47
51
Table of contents
Capitulation 53
Conclusion of Peace Treaty
54
V. Relationship Between International Humanitarian Law

and Other Related Fields
Chapter 3
Methods and Means of Warfare
57
61
I. Introduction
II. Means of Warfare
Certain Conventional Weapons
61
64
65
1868 St. Petersburg Declaration
65
1899 Hague Declaration 3 Concerning Expanding Bullets

(Dum-Dum Bullets)
66
Protocol on Prohibitions or Restrictions on the use of Mines, BoobyTraps and other devices (1980 Protocol II) 67
Restrictions on the use of Incendiary Weapons
79
Restrictions on the use of Laser Weapons
82
Nuclear, Biological (Bacteriological) and

Chemical (NBC) Weapons
83
Nuclear Weapons
84
Chemical Weapons
95
Bacteriological (Biological) and Toxin Weapons
98
Iii. Methods of Warfare

Military Objectives
99
100
Protection of civilian objects
108
Legal Status of Prohibitions against Perfidy and Ruses of War
121
Psychological Warfare
123
Reprisals 125
CHAPTER 4
The Civilian Population and Its Protection
127
Introduction 127
Who is a Civilian?
128
Rights of Civilians in Armed Conflict Situations
133
Specific Prohibitions and Restrictions
140
Collective Penalties
140
vi
Table of contents
Measures of Intimidation or Terrorism

141
Reprisals 142
Pillage 143
Hostage Taking
143
Feasible Precautions in the Attack of Military Objectives
144
Attacks in Excess of the Anticipated Military Advantage
145
Protected Areas and Zones
148
Obligations relating to the protection of Civilians
150
Relief Actions
150
Humanitarian Organizations
152
When the Right of Civilians Will be Lost
154
Belligerent Occupation
157
Basic Rules on Belligerent Occupation
159
Legal Status of the Civilian Population
Appropriation of Civilian Resources by the Occupying Power
Rights and Obligations of the Occupying Power
Relief Supply in Occupied Territory
Punishment for crimes under the Humanitarian Law
Aliens in the territory of a party to the conflict
CHAPTER 5
Protection of the Wounded, Sick and Shipwrecked
I. Introduction
II. Wounded, Sick And Shipwrecked Persons
Duty to search, collect and evacuate the wounded,
sick and shipwrecked
167
171
177
180
183
186
189
189
191
197
Prohibition against Inconsistent and Generally

Unacceptable Medical Standards
198
Prohibition of Reprisals against the Wounded,

Sick and Shipwrecked Persons
200
Obligation to Keep a Record in Respect of Each Wounded, Sick,

Shipwrecked or Dead Person
200
Iii. Dead And Missing Persons
Prefatory Note
IV.
201
201
Duty to Search for, Collect, Identify and Prevention

from Despoiling
201
Duty to Search As Soon As Circumstances Allow
203
Medical Units, Transport And Personnel
vii
203
Table of contents
Medical Personnel
206
Duty to Respect and Protect
210
Retaining of Medical Personnel
211
V Medical Aircraft
Prohibition against Gaining Advantage
211
213
Obligation to Seize
VI.
VII.
213
Hospitals, Safety Zones and Neutralized Zones

Agreement to Establish Hospital and
Safety Zones and Localities
214
215
Establishment of Neutralized Zones
216
Obligation Not to Attack Hospital and

Safety Zones and Localities And Neutralized Zone
217
The Characteristic Emblem

The Different Emblems
219
220
The Red Cross, Red Crescent, and Red Crystal Emblems
221
General Criteria Governing how Distinctive or

Protective Emblems should be used
222
Obligation to Supervise the Use of the

Distinctive Emblems and Signals
223
CHAPTER 6
Prisoners of War and their Protection
I. Introduction
II. Who is a Prisoner of War?
How prisoners of war were treated before the 19th Century
227
227
229
232
The Rules of The Hague
232
The 1929 Geneva Conventions
233
The Period of the Second World War
233
Advancement in the Law after World War II 235

Customary Law and the Protection of Prisoners of War
235
Prisoners of War and Their Human Right Protection
235
Sanctions for Violations
236
Aim of the Captivity
236
Prisoners of War are not Prisoners of the Capturing Unit
237
Protection of Persons Whose Status are in Doubt
238
viii
Table of contents
Humane Treatment of Persons not benefiting

from more favourable Treatment
239
Transfer of Prisoners of War to another Power
240
Protecting Powers and Weakness of GC III 248

III.
IV.
Commencement of Captivity
The Nexus between Combatant and Prisoner of War
252
252
Capturing Prisoners of War
253
Captured Criminals of War
255
Keeping of Articles of Personal use by Prisoners of War
256
Setting-up of Information Bureau for Prisoners of War
257
Sums of Money and Valued Articles are not to be taken away

from Prisoners of war
259
Evaluation of Prisoners of War
260
Humane Evacuation of Prisoners of War and

the Supply of Necessaries
262
Treatment of Prisoners of War with

Unusual Conditions of Combat
264
Right to Question Prisoners of War and its Limits
265
Conditions in Captivity
Minimum Criteria
267
269
Air Raids Protection for Prisoners of War
270
Duty to Distinctively Mark Prisoner-of-war Camps
270
Obligation to Assemble Prisoners of War
271
Provision of Sufficient Food for Prisoners of War
272
Religious and Other Intellectual Activities for Prisoners of War
274
Responsibility and Right to Work
274
Respecting the Will of Prisoners of War on Labour Matters
276
Duty to Communicate and Notify
277
Complaints of Prisoners of War
278
Representatives of Prisoners of War
279
Sanctioning Prisoners of War
280
V. Absconding of Prisoners of War

Restrictive Punishment of Prisoners of War
Who Attempt to Escape
ix
284
285
Table of contents
Prisoners of War shall not be judicially prosecuted

VI.
The End of Captivity

Repatriation of Prisoners of War
286
287
Release of Prisoners of War
288
Repatriating prisoners of war after every conflict since 1945
290
CHAPTER 7
The Law of Neutrality
I. Introduction
II. Rights and Duties of Neutral Parties
Innocent Passage through Territorial Sea
and Archipelagic Water
Protection of Neutral Merchant Shipping
CHAPTER 8
Internal Armed Conflicts

1.
II.
III.
IV.
V.
285
General Rules on Internal Armed Conflicts

Distinction Between Internal and International Armed Conflict
Applicable Laws in Internal Armed Conflicts
The Nigerian Civil War
Other Instances of Internal Armed Conflicts in Africa
The Liberian Civil War
CHAPTER 9
Peacekeeping Operations
I. Introduction
History and Development of International
Peace Keeping Operations
292
292
299
307
313
323
323
330
332
334
342
342
347
347
347
Instances of Peace Operations 1948-1988
348
Regional and Sub-Regional based Organizations
350
Peace Enforcement, Rules of Engagement and

the Applicable Laws
351
Deployment of Military Personnel into Peace Operation
351
The Immunities and Privileges of Peacekeepers
351
Human Rights in Peace Operations
355
Human Rights Components
356
Table of contents
International versus State Responsibility in a case of Alleged Human

Rights Violations by Peacekeepers
357
Application of International Humanitarian Law
357
The Integrated Mission Planning Process (IMPP) 359

The UN and the International Criminal Court (ICC) 360
Search, Apprehension and Detention
365
Regional Peacekeeping and Enforcement Action
368
I. Introduction
Motivation for Participation in Peacekeeping
368
371
Constitutionality of Regional Peacekeeping Operations
372
Issue of Impartiality of Regional Peacekeeping Forces
374
CHAPTER 10
Enforcement of International Humanitarian Law

I. Introduction
376
Consideration of Public Opinion
376
377
Reciprocal Interests of the Parties to the Conflict
378
Fear of Reprisals
378
Penal and Disciplinary Measures
379
Appointment of Protecting Powers
382
The Functions of the Protecting Powers
383
International Fact-Finding
383
International Committee of the Red Cross
384
The role of the United Nations
384
The Role of the United Nations Security Council
385
Diplomatic Activities
387
The Role of NGOs 388

The Role of Various Nations

389
International Humanitarian Law Enforcement in

National/Local Armed Conflict
Individual Responsibility
389
390
International Humanitarian Law in Nigeria
391
The Nigerian Red Cross Society
392
The Armed Forces Discipline
394
xi
Dissemination of International Humanitarian Law
395
Perspective on Practical Modern Enforcement of International

Humanitarian Law
396
Bibliography 402
Index 406
xii
Table of Cases
1.
Abu Aita et al v. Commander of the Judea and Samaria Region et al HC 69/81

Judgment of 4th April 1983, reprinted in 13 Isr YHR (1983) 348-359.
2.
Anglo Norwegian Fisheries Case (1951) ICJ Rep. 116.
3.
Barcelona Traction Case (Belgium v Spain) 1970 ICJ Rep. 3.
4.
Cyprus v. Turkey 120 ILR 10.
5.
Frontier Dispute Case (Burkina Faso v. Mali), 1986 ICJ Rep 554
6.
Hamadan v Ramsfield et al 29 June, 2006.
7.
Horgan v Taoiseach (2003) 468 2IR, The decision of the Irish High Court of
Appeal 28, 2003
8.
Netherlands v Belgium (The River Meuse Case) (1937) PCIJ Series A/B, No.
9.
Nicaragua v US 1984 ICJ Rep. 392.
70, pp. 76-7
10. North Sea Continental Shuf Case 1969 ICJ Rep. 3.

11.
Sea Co v Iran (1992) 28 Iran US CTR 198
12. Sea Land Service Inc. v Iran 6 Iran- US CTR 149 at 168-9 (1984).
13. South West Africa v Liberia 1996 ICJ Rep. 294.
14. Texaco Case (1978) 17 ILM 28; (1997) 53 ILR 422.
15. The Prosecutor v Kunarac et al Judgement of February 22, 2001 (ICJ).
16. The Prosecutor v Naletilic and Martinovic case No. IT-98-34-1.
17. The Prosecutor v Radoslav Brdjanin Momir Talic case No. IT-99-36-AR 73.9,
Decision on Interlocutory Appeal, 11 December, 2002.
18. The Prosecutor v Tadic; Case No. IT-94-1-AR-72 Appeal Chamber Judgment
of July 15, 1999.
19. United States v Noriega Case No. 88-79 CR US.
20. United States v Pohl et al, US Military Tribunal at Nuremberg 1947.
21. United States v Scott
22. Uzoho v NCP (2007)) 10 NWLR (pt.1042) 320.
xiii
Table of international statutes
Table of International Statutes

-
Additional Protocol I of 8 June 1977 to the Geneva Conventions of 12 A

ugust
Additional Protocol II of 8 June 1977 to the Geneva Conventions of 12 A

ugust
1949.
Additional Protocol III of 8 December 2005 to the Geneva Conventions of

12 August 1949.
African Charter on Human and Peoples Rights (ACHPR) (Banjul Charter)
African Nuclear-Weapon Free Zone Treaty of 11 April 1996.
Brussels Declaration concerning the Laws and Customs of War of 27 A

ugust
Charter of the United Nations of 26 June 1945
Comprehensive Nuclear-Test-Ban Treaty of 24 September 1996.
Convention for the Protection of Cultural Property in the event of Armed

Conflict (Cultural Property Convention)
Convention on the Prohibition of the Development, Production and

Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their
Destruction (Biological Weapons Convention) of 10 April 1972
Convention on the Prohibition of the Development, Production, S tockpiling

and Use of Chemical Weapons and on their Destruction (Chemical Weapons
Convention) of 13 January 1993.
Convention on the Prevention and Punishment of the Crime of Genocide

(Genocide Convention) of 9 December 1948.
Convention on Prohibitions or Restrictions on the Use of Certain

Conventional Weapons of 10 October 1980:
I.
Protocol on Non-Detectable Fragments (Non-Detectable Fragments

Protocol)
II.
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-traps

and other devices, amended on 3 May 1996 (Mines Protocol; Amended
Mines Protocol II).
1949.
1981.
1874.
III. Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons

(Incendiaries Protocol).
IV.
Protocol on Blinding Laser Weapons, adopted 13 October 1995 (Lasers

Protocol).
xiv
Declaration respecting maritime law (Paris Declaration) of 16 April 1856
Declaration renouncing the use in time of war of Explosive Projectiles under

400 Grammes weight (St Petersburg Declaration) of December 1868
Geneva Convention (I) for the Amelioration of the Condition of Wounded

and Sick Armed Forces in the Field (GC I) of 12 August 1949.
Geneva Convention (II) for the Amelioration of the Wounded, Sick and
Shipwrecked members of the Armed Forces at Sea (GC II) of 12 August 1949.
Geneva Convention (III) relative to the treatment of Prisoners of war (GC

III) of 12 August 1949.
Geneva Convention (IV) relative to the Protection of Civilian Persons in

Time of War (GC IV) of 12 August 1949.
Hague Convention (III) relative to the Opening of Hostilities (HC III) of 18

October 1907.
Hague Convention (IV) respecting the Laws and Customs of War on Land
(HC IV). With Annex: Regulations respecting the Laws and Customs of War
on Land (Hague Regulations) of 18 October 1907.
Hague Convention (V) respecting the Rights and Duties of Neutral Powers
and Persons in case of War on Land (HC V) of 18 October 1907.
Hague Convention (VIII) relative to the laying of Automatic Submarine

Contract mines (HC VIII) of 18 October 1907.
Hague Convention (XIII) concerning the Rights and Duties of Neutral

Powers in Naval War (HC XIII) of 18 October 1907.
Hague Declaration concerning Expanding Bullets (Dum-Dum Bullets H

ague
Declaration) of 29 July 1899
Hague Declaration concerning Asphyxiating Gasses (Hague Declaration I II)

of 29 July 1899
Hague Rules of Aerial Warfare (HRAW) of 19 February 1923.
International Covenant on Civil and Political rights (ICCPR) of 19 D

ecember
Ottawa Convention on the Prohibition of the Use, Stockpiling, Production,

ines
and Transfer of Anti-personnel Mines and on their Destruction (Land M
Convention) of 3 December 1997.
Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other

Gases, and of Bacteriological Methods of Warfare (Geneva Gas Protocol) of
17 June 1925.
1966.
xv
Rarotonga Treaty on the establishment of a nuclear weapon free zone in the

Southern Pacific Area of 6 August 1985.
Rome Statute of the International Criminal Court (ICC Statute) of 17 July

1998.
San Remo Manual on International Law Applicable to Armed Conflicts at Sea

of 12 June 1994.
Statute of the International Court of Justice of June 26 1945 (ICJ Statute).
Statute of the International Criminal Tribunal for the Prosecution of

Persons responsible for serious violations of International Humanitarian
law committed in the territory of the Former Yugoslavia since 1991 (ICTY
Statute) of 25 may 1993.
Statute for the International Criminal Tribunal for the Prosecution

of Persons responsible for Genocide and other Serious Violations of
International Humanitarian Law committed in the territory of Rwanda and
Rwandan citizens responsible for Genocide and other such violations in
the territory of neighboring states between 1 January 1994 and 31 December
1994 (ICTR Statute) of 8 November 1994.
Tlalteleco Treaty on the Prohibition of Nuclear Weapons in Latin America of

14 February 1967.
Treaty on the Non- Proliferation of Nuclear Weapons (NPT) of 1 July 1968.
Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space

and Under Water (Partial Test Ban Treaty) of 5 August 1963.
Treaty on a Nuclear Weapons Free Zone in Central Asia of 8 December 2006.
Treaty on the Southeast Asia Nuclear Free zone of 15 December 1995.
United Nations Convention on the Safety of United Nations and Associated

Personnel (UN Safety Convention) of 15 December 1994.
United Nations Convention on the Law of the Sea of November 16 1994.
Vienna Convention of 23 May 1969.
xvi
CHAPTER
1
Historical Evolution and Legal Basis of
International Humanitarian Law
I.
Meaning of the term Humanitarian Law
Prior to the evolution of international humanitarian law, once there was

fighting between States, the ensuing scenario was often one where the
ordinary laws of peace existing between the warring states were promptly
superseded by a state of chaos, brutality and inhumane treatment between
the parties to the conflict. To regulate such conduct and reduce the
dehumanization of individuals, it was inevitable that a body of law aimed
at regulating activities during the theatre of war would be developed. It was
the need for such a body of law that led to the evolution of international
humanitarian law as it is known today.
International Humanitarian Law is also referred to as the laws of war, the
laws and customs of war or the law of armed conflict. It comprises of all
those rules of international law which are designed to regulate the treatment
of the individual- civilian or military, wounded or active- in international
armed conflicts.1 It is a branch of international law dealing with such
matters as the use of weapons and other means of warfare, the treatment of
war victims by the enemy and generally the direct impact of war on human
life and liberty.2
It is now beyond argument that once there is an armed conflict, it does not
matter which party instigated it or who was blameworthy. Humanitarian
law will come to the fore in such a situation and all parties to the conflict
are bound to observe its rules. In the US-Iraq war for instance, even though
the US started the war which is illegal and in breach of the UN charter,3
the question of who started the war is irrelevant under international
humanitarian law as it operates to protect the two sides of the warring
parties. A preliminary remark can be made here to the effect that during
peace time, international law governs nation states but once there is an
1
2
3
Fleck D, The Handbook of International Humanitarian Law, p. 11

Blacks Law Dictionary, 7th ed., p. 745
Articles 2(4), 2(7), 51 UN Charter 1945
Historical evolution and legal basis of international humanitarian law
outbreak of war between one or two nations, the international law or the law
of peace ceases to operate while the international humanitarian law comes
into full operation.
Perhaps, it can be said that the predominant sources of modern
international humanitarian law are the Laws of The Hague and the Laws
of Geneva conventions. The Law of The Hague (or the law of war proper)
is expressed in the Hague conventions of 1899 and 1907. It determines the
rights and duties of belligerents in the conduct of operations and limits
the choice of means and methods of fighting.4 On the other hand, the
Geneva Conventions were developed from 1864 to 1949 and provided for the
protection of civilian persons during the times of war as well as prisoners
of war (POW) amongst other things. Apart from The Hague and Geneva
Conventions, other treaties, resolutions of UN Security Council and General
Assemblies, case laws as well as customary international law also form part
of the body of international humanitarian law.
The terms international humanitarian law and laws of war are often
used interchangeably. While it may appear that they cover the same
subject matter, slight differences exist between them. The laws of war focus
on the rules governing the resort to armed conflict. On the other hand,
international humanitarian law focuses attention on the central issue of
the treatment of the individual whether civilian or military. According to
one respected legal author5, a possible disadvantage of the use of the term
international humanitarian law is that it might exclude some aspects of the
laws of war (e.g. the law of neutrality). Nevertheless, this work shall deal
with such areas that belong to the laws of war and avoid comparisons except
where necessary.
Another issue which needs to be treated here is the difference between
international humanitarian law and international human rights law.
While there may be no apparent difference between these terms to a
layman, the same should not be said of a student of the law, legal author
or legal practitioner. It is true that both bodies of law are concerned
with the protection of the individual. However, while human rights law
operates primarily in peace time, international humanitarian law starts
as soon as there is armed conflict and seeks to regulate the relationship
between adversaries.
4
5
Pictet, Jean (1985). Development and Principles of International Law, Dordrecht:

Martinus Nijhoff. ISBN 9024731992, p. 2
Roberts A and Guelff R, Documents on the Laws of War, 3rd Ed, p. 2
Apart from its application in peacetime, it is now firmly established that

human rights law also applies during armed conflict.6 This however does
not mean that human rights law supersedes the international humanitarian
law. International humanitarian law gains full force once armed conflict has
commenced. Where human rights treaties are applied, their application is
often more restricted, particularly during the times of armed conflicts as
most countrys constitutions which guarantees fundamental human rights7
are suspended. Be that as it may, the law of human rights has become of
increasing importance in armed conflict. In the case of Cyprus v. Turkey,8
the European Court of Human Rights in Strasburg, held amongst other
things that there had been 14 violation of human rights even though that
there was armed conflicts vat the time. However, it is now settled that the
international humanitarian law remains the lex specialis in armed conflict
and the human rights law remains subject to it in such periods.9
International law seeks to prohibit the use of force but at the same time it
does not make the use of force totally illegal, while Article 2(4) of the United
Nations (UN) Charter states that:
All members shall refrain in their international relations from the
threat or use of force against the territorial integrity and political
independence of any state, or in any other manner inconsistent with
the purposes of the United Nations.
Although, the employment of the term use of force as opposed to the term
war is a deliberate attempt by the UN to broaden the scope of application of
the humanitarian and international law. The debate on whether a particular
conflict can rightly be described as war is thus avoided and Article 2(4) will
apply once there is use of force or aggression by one state against another.10
The general rule is that, the use of force is prohibited however there are
exceptions to this general rule. The use of force may be permitted under the
following circumstances:
a) When it is authorized by the UN Security Council11 and
6
This was affirmed by the ICJ in its Advisory Opinion on the Threat or Use of Nuclear
Weapons, ICJ Reports 1996, 226 at para. 25
7
Section 30-38 Federal Republic of Nigerian Constitution 1999
8 120 ILR 10
9
In its advisory opinion on nuclear weapons, the ICJ held that the right to life provision
during times of armed conflict was subject to the relevant humanitarian law.
10 This is without prejudice to internal armed conflicts which take place within a state.
11 Articles 39-43 of the UN Charter
b) The right of individual or collective self defence exists.12

In addition to these, a 3rd exception will arise where there is a need for a
humanitarian intervention in cases of dire and extreme humanitarian need.
These exceptions shall be treated later.
a) Authorization by the UN Security Council

Chapter VII of the UN Charter deals extensively on action with respect
to threats to the peace, breaches of the peace and acts of aggression. By
the collective provisions of Articles 39-43, the UN Security Council may
authorize the use of force and such application of force will be deemed
legitimate. Article 39 empowers the Security Council to determine the
existence of any threat to the peace, breach of the peace, or act of aggression.
However before deciding on measures under Article 39, the Council may
call upon the parties concerned to comply with such provisional measures
as deemed necessary but without prejudice to the rights, claims or position
of the parties concerned.13 Once the steps under Article 39 have been taken,
the Security Council is further empowered to take measures to restore
international peace and security.14
The power to apply economic sanctions and other measures not involving
armed force is conferred by Article 41 of the Charter. This power was used
when the Libyan Government refused to provide full and effective responses
with respect to acts of terrorism which constituted threats to international
peace and security. In similar fashion, when the Government of Rwanda
requested the establishment of an international tribunal for the prosecution
of persons responsible for genocide and other flagrant violations of
humanitarian law, Article 41 was extended to cover this situation.
Where the measures adopted pursuant to Article 41 are shown to be
inadequate, the Security Council may authorize such action by air, land or
sea forces pursuant to Article 42. Such actions as may be carried out are to be
aimed at maintaining international peace and security. By Article 43, where
action has been authorized under Article 42, member states are to make
available to the Security Council armed forces, assistance and facilities
are including rights of passage necessary for the purpose of maintaining
international peace and security. This is usually effected by a series of
agreements between the UN and contributing member states.
12
13
14
Article 51 UN Charter
Article 40 UN Charter
Under Articles 41 and 42 of the Charter
In summary, the collective provisions of Articles 39-43 play an important

role and permit the UN to authorize the use of force where necessary. The
UN has on several occasions applied these rules to justify the use of armed
force between states in certain circumstances. In the Korean conflict in
1950, the Security Council authorized the US forces to use force to restrain
North Korea from annexing South Korea. Similarly, when Iraq invaded
Kuwait in 1990, the Council authorized15 states co-operating with Kuwait to
use all necessary measures to ensure that Iraq withdrew from Kuwait. Thus,
once the requirements under Articles 39-43 are complied with, the UN may
authorize the use of force.
b) The Right to Self Defence

Article 51 of the UN Charter provides the second exception to the rule
prohibiting the use of force under Article 2(4). It provides thus:
Nothing in the present Charter shall impair the inherent right of
individual or collective self defence if an armed attack occurs against
a member of the United Nations until the Security Council has taken
measures necessary to maintain international peace and security.
The right of self defence is not only limited to defence of the individual or
the civilian population as a whole but also extends to the defence of other
objects (e.g. factories, military installments) within the territory of the
state being attacked. Where measures are taken in self defence, Article 51
further states that these measures shall be reported to the Council and this
will not affect the authority of the Council to take necessary action in order
to maintain peace and security. The provisions under articles 51 of the UN
charter implies that the use of force, war or armed conflicts are not totally
illegal and can validly be termed legal if the provisions of sections 39-43 and
51 of the UN Charter are complied with.
The case of Nicaragua v. United States16 is instructive with respect to the
right of self defence. Here, the United States claimed they were acting in the
collective self defence of El Salvador and this necessitated their attack on
Nicaragua. Although El Salvador had not requested the assistance of the US
on grounds of self defence. However it was held by the International Court
of Justice (ICJ) that the US had been involved in the unlawful use of force.
They could not rely on Article 51 of the Charter since they acted without the
15 By UN Security Council Resolution 678
16 1984 ICJ REP. 392
consent of El Salvador and thus the claim of collective self defence cannot
succeed or be sustained.
It is important to note that when a state acts in self defence, it must limit
itself to rejecting the armed attack. In the Nicaragua case, the ICJ stated that
self defence only warrants measures which are proportional to the armed
attack and necessary to respond to it.17 The State acting in self defence
must not occupy the aggressor states territory unless such occupation
is aimed at preventing the latter from continuing the acts of aggression.
Furthermore, where the Security Council has stepped in and taken effective
steps to curb the aggression, the self defence by the victim state ought to
come to an end. The question may arise as to what will happen where the
victim state prolongs its occupation of the aggressors territory long after the
aggression has been curbed? In such instances, it is submitted that Article
51 of the Charter ought not to be extended to cover such prolonged military
occupation and self defence must cease since its purpose has been achieved.
By virtue of Article 51 of the UN Charter, there is a duty to report actions
of self defence to the Security Council. In the Nicaragua case, the Court held
that the absence of a report may be one of the factors indicating whether
the state in question was itself convinced that it was acting in self defence.18
Where a State reports actions taken in self defence, it is often seen as a sign
of good faith in favour of the reporting state showing that they were actually
and in the real sense of it, acting in self defence. During the US-Vietnam
conflict in 1964, the fact that the USA reported its acts of self defence
against attacks by North Vietnamese naval vessels was sufficient evidence
to show that they were acting in self defence. Conversely, where there is a
failure to report, it may provide evidence against the claim to self defence.
However, it is now firmly established that the reporting requirement is
merely procedural and failure to comply does not invalidate a claim to self
defence.19
One basic element of self defence by victim states is that such actions
must be necessary and proportionate to the acts of aggression by the other
State. This does not mean that the defending State is restricted to the same
weapons or the same number of armed forces of the attacking state.20
Once self defence has achieved its purpose of curbing the aggression, the
victim state should not be further allowed to rely on self defence to carry
17
18
19
20
ICJ Reports (1986) para 176

Supra at para. 200 p178
Greig, Self Defence and the SC: What does Article 51 require? 40 ICLQ (1991) 366
Gray C., International Law and the Use of force (2000) p. 106
out other retaliatory, punitive or deterrent measures. In the Nicaragua case,

US activities of mining the Nicaraguan ports and attacking oil installations
went beyond acts of self defence and were not proportionate to the aid
received by the Salvadorian opposition in Nicaragua.
In practice, the right of self defence of a states territory has been extended
to the protection of nationals or citizens abroad. Numerous examples of this
kind of intervention abound: the Belgian intervention of Congo (1960), the
USA in the Dominican Republic (1965), Libya (1986), Grenada (1983), Panama
(1989), Iran (1980), Baghdad (1993), Afghanistan and Sudan (1999), Germany
in Mogadishu, Somalia (1977), Israel in Uganda (1976) amongst others.
The legality of such actions in protection of nationals has also often been
questioned. It has been stated by some authors that it would be a strange law
of self-defence which allowed a state to use force in response to the military
occupation of an uninhabited island but not in response to an attack which
threatened the life of its citizens.21 This is arguably the better view and such
actions can be justified as being in self defence pursuant to Article 51 of the
UN Charter.
The criticism against the extension of Article 51 to the protection of
nationals abroad lies in the nations using the excuse of protecting their
nationals abroad as a facade for intervention in a foreign country. In such
instances, the action of the state seeking to protect its citizens was not often
necessary or proportionate and was often prolonged. When the USA invaded
Panama for the protection of its nationals, it went further to install a new
government there. This is clearly beyond the original aim of protecting
its nationals abroad. In contrast, during the rescue operation in Entebbe,
Uganda, the Israeli Defence Forces (IDF) extracted their nationals who had
been held hostage and left Entebbe less than two hours after their arrival.
When Article 51 is extended to aid in the protection of nationals abroad,
actions taken in this regard should be proportionate and should not be used
as an excuse for unlawful occupation.
The final issue to be discussed under this heading is the question
whether anticipatory self defence comes within the purview of Article 51 of
the Charter? Over the years, anticipatory self defence has been a source of
controversy between states. While some states have argued in favor of a right
of pre-emptive strikes against countries preparing for war against them, the
other states adopt a more conservative view that acts of self defence should
only be carried out in response to an armed attack.
21
Fleck D, op cit, p. 6
The reason why anticipatory self defence is frowned upon is that states
should not be allowed on their own to determine what should be called
preventive acts. If so, this would lead the world back to the law of the jungle
and far away from the new international legal order convocated on the
principles of the present Charter of the United Nations.22 On the other hand
the other class of states in favour of anticipatory self defence, their argument
is that a state should be allowed the right to launch a defensive military
attack against a likely aggressor and thwart the armed attack it would have
possibly suffered. When such attack is bound to happen and may involve the
use of lethal force, these states believe that a pre-emptive attack is necessary
to prevent rather than cure the effects of an armed attack.
In carrying out pre-emptive attacks on other states, states prefer to adopt
a wider interpretation of self defence rather than pleading anticipatory self
defence out rightly. In 1967, Israel launched pre-emptive attacks against
Egypt, Jordan and Syria. These were clear instances of anticipatory self
defence but instead Israel argued that they were responding to prior armed
attacks by these Arab nations. Similarly, when the USA intercepted Cuban
missiles on the High Seas in 1962, the USA did not rely on anticipatory self
defence but rather claimed they were acting under regional peacekeeping
duties pursuant to Chapter VIII of the UN Charter.
Despite this resort to a wider definition of self defence, states have in a
few instances expressly declared that they were acting in anticipatory self
defence. When Israel attacked Iraq in 1981 with the aim of destroying the
Iraq Nuclear Reactor, they claimed anticipatory self defence. The Iraqi
nuclear plant would have been capable of producing nuclear weapons whose
target would have been Israel. In light of this, the Israeli Government felt it
was necessary to destroy the nuclear reactor which would have constituted a
serious threat to Israels continued existence.
In the light of terrorist activities that have rocked the very foundations of
the world in recent times (particularly the September 11 2001 attacks on the
World Trade Center), it would appear that acts in anticipatory self defence
may likely enhance and strengthened efforts in curbing terrorist activities.
However, since Article 51 does not expressly cover anticipatory self defence,
it is submitted that a wider interpretation should be applied regarding the
inherent right to self defence and thus permit states to act in anticipatory
self defence against likely terrorist attacks.
22
SCOR, Thirtieth Year, 1859th Meeting, 4 December 1975 at 11 para 99
c) Humanitarian Intervention
This is the third exception to the general that prohibits the use of force,
but there is no express provision in the UN Charter which provides for
humanitarian intervention as an exception to the rule of force. Even where
Article 2 (4) is closely read, no clear inference can be made to suggest that
humanitarian intervention is permitted under international humanitarian
law. Thus, unlike authorization by the UN Security Council and the
right of self defence which has sound legal backing, the rules governing
humanitarian intervention are not stated in any Charter.
Humanitarian intervention usually arises where one State uses force in
the territory of another state not pursuant to the right of self defence or under
the authority of the UN but with the aim of protecting against human rights
violations in the latter state. Since humanitarian intervention does not enjoy
any clear legal backing, states do not always raise it as a defence to their
actions of invasion even where it can be inferred from the facts that such state
may have performed the acts on the bases of humanitarian intervention.
Prior to 1990, claims were made by states that they acted on the basis
of humanitarian intervention, their arguments were generally rejected by
the UN Security Council. In 1971, India entered Bangladesh with the aim of
helping the people secure their independence from Pakistan. The Security
Council rejected this argument. Similarly, when Vietnam claimed this
right concerning its actions in Cambodia, their claim was rejected by the
Security Council. Surprisingly however, the invasion of Uganda by Tanzania
in 1979 which secured the overthrow of the Idi Amin Government seemed
to receive greater international support. Perhaps the reason was because of
the widespread violation of human rights under the Amin administration
coupled with the dictatorial tendencies of the self-proclaimed Field Marshall
Idi Amin Dada.
By 1990, military actions made on the basis of humanitarian intervention
met with lesser resistance from the UN. When ECOWAS intervened in Liberia
through the instrumentality of the ECOWAS Military Observer Group
(ECOMOG), it was a welcome development considering the violation of
human rights and extreme humanitarian concerns in Liberia at the time.
Similarly, when US, British and French forces intervened in Iraq in 1991 and
1992, their action received little opposition by the United Nations.
With regard to the post 1990 instances of humanitarian intervention, the
situation in Kosovo, Yugoslavia deserves special consideration here. In 1999,
the North Atlantic Treaty Organization (NATO) embarked on an action in
Kosovo aimed at the protection of the Kosovo Albanians. To achieve this,
they carried out a bombing campaign against Yugoslavia and aimed its
assault at strategic locations all over Yugoslavia. This action represented
a departure from the traditional NATO role of acting in collective self
defence. Although NATO did not expressly state that they were acting based
on humanitarian intervention, it was the only tenable ground for the use
of force.
At a Security Council meeting held to vote on a resolution condemning
the use of force by NATO, the Security Council rejected the resolution by
twelve votes to three votes in favor.23 This draft resolution would have
condemned the NATO action as illegal but the apparent justification was
based on the continuing violence against the people of Kosovo as opposed to
the act being in violation of the UN Charter particularly Article 2 (4).
With respect to humanitarian intervention being used as an exception
to the general rule prohibiting the use of force, it is submitted that such a
development is welcome but in the absence of clear rules found in treaties,
it does not constitute a proper exception to Article 2 (4). The rationale for
this statement is that states should not be allowed to unilaterally resort
to the use of force without receiving the green light from the Security
Council or in the least, acting in pursuance of some written law. While
humanitarian intervention has indeed contributed to peace in some regions
of the world (consider the Tanzanian intervention), the truth remains that
there is no express right to use force against another country in the name
of humanitarian intervention. For such a right to be recognized, it ought
to be codified in the conventions and treaties dealing with the use of force.
Besides, where a state is allowed to act unilaterally, the possibilities for abuse
are manifest.24 And while the right to act on the basis of humanitarian
intervention is welcome, such right ought to be given legal validity.
According to Dixon, there is no moralistic magic that can manufacture
the right simply because it ought to exist.25 In light of these arguments,
the UN should make a deliberate effort towards codifying rules relating to
humanitarian intervention which will serve to embolden states acting in
response to situations of extreme humanitarian need.
Perhaps a proper conclusion to this section on the meaning of
humanitarian law would be to list out the basic principles of international
humanitarian law. While the body of law governing humanitarian law may
be found in conventions, treaties and protocols, it became necessary to
23 SC 3989th Meeting 26 March 1999
24 Dixon M, Textbook on International Law, p. 325
25 ibid
10
highlight the basic rules of humanitarian law and make this information
available to combatants. These itemized rules do not attempt to supplant
the larger body of laws on international humanitarian law but are aimed
at ensuring ease of understanding of the basic rules of international
humanitarian law. They are as follows:
1. Persons who do not or can no longer take part in the hostilities are
entitled to respect for their lives and for their physical and mental
integrity. Such persons must in all circumstances be protected and
treated with humanity without any unfavorable distinction whatever.
2. It is forbidden to kill or wound an adversary who surrenders or who
can no longer take part in the fighting.
3. The wounded and sick must be collected and cared for by the party
to the conflict which has them in its power. Medical personnel and
medical establishments, transports and equipment must be spared.
The Red Cross or Red Crescent on a white background is the sign
protecting such persons and objects and must be respected.
4. Captured combatants and civilians who find themselves under the
authority of the adverse party are entitled to respect for their lives,
their dignity, personal rights and their political, religious and other
convictions. They must be protected against all acts of violence or
reprisal. They are entitled to exchange news with their families and
receive aid.
5. Everyone must enjoy basic judicial guarantees and no one may
be held responsible for an act he has not committed. No one may
be subjected to physical or mental torture or to cruel or degrading
corporal punishment or other treatment.
6. Neither the parties to the conflict nor members of their armed forces
have an unlimited right to choose methods and means of warfare. It
is forbidden to use weapons or methods of warfare that are likely to
cause unnecessary losses or excessive suffering.
7. The parties to the conflict must at all times distinguish between the
civilian population and combatants in order to spare the civilian
population and civilian property. Neither the civilian population as a
whole nor individual civilian may be attacked. Attacks may be made
solely against military objective.
11

II.
Historical Origins
The history of war in all its respects can be traced to the ancient times when
it was mainly considered as a political tool to assert authority of the strong
community over the weak ones. During that era, there were no clearly
written or codified rules regulating the conduct of war. It was only by the
19th Century that the evolution of international humanitarian law gained
full force through international conventions and treaties. However, the
rules existing prior to the 19th Century played vital roles in the evolution
of the current body of the international humanitarian law and some of the
rules that will be considered here.
In ancient times, Hammurabi, King of Babylon (1728-1686 BC), wrote a
Code aimed at protecting the weak against all forms of oppression. This
Code of Hammurabi (as it was known) also ordered that hostages should be
released on the payment of a ransom. In similar fashion, Cyrus 1 the King
of the Persians during the 7th Century BC ordered that wounded Chaldeans
were to be treated like his own wounded soldiers and not subjected to
degrading or inhumane treatment.
The principles of Islam also recognized the essential requirements of
humanity. According to Abu Bakr (about 632 BC):
The blood of women, children and old people shall not stain your
victory. Do not destroy a palm tree, nor burn houses and cornfields
with fire, and do not cut any fruitful tree. You must not slay any flock
or herds, save for your subsistence.
Abu Bakr being the first Caliph to lead the Islamic faith after the death of
Prophet Mohammed indicates by this statement, the principles which would
later form an integral part of humanitarian law: that the civilian population
should not be harmed.
Apart from Abu Bakr, other Islamic leaders such as Sultan Saladin in the
12th Century also showed respect for the principles of humanitarian law.
During his reign at the time of the Crusades, he ordered that wounded
persons from both armies were to be treated outside the city of Jerusalem
and granted permission to the members of the Order of St John to discharge
their hospital duties. These acts of humane treatment were unusual in those
days but they set the foundation for what would subsequently be regarded as
international humanitarian law.
St. Augustines influence on the evolution of humanitarian law is also
noteworthy. He developed the theory of the just war and was of the opinion
that Christians committed no sin by engaging in a war which had a just
12
cause and as backed by a lawful authority. This opinion was also held by St
Thomas Aquinas (1225-1274) and he argued that for a war to be just, it must
be backed by a lawful authority. He further argued that war was not to be
commenced without prior notice to the warring parties.
Between 1618 and 1648, the world witnessed a horrifying war which was
fought in Europe under the Roman Empire. There was unlimited belligerent
practice which brought untold hardship to all the parties to the conflict.
During this period, a man named Hugo Grotius (1583-1645) wrote a book
called De iure belli ac pacis. In this work, he complained of the prevailing
attitude at the time where men resorted to arms for trivial or no reasons at
all. In his words,
when arms have once been taken up, there is no longer respect for
law, divine or human; it is as if, in accordance with a general decree,
frenzy had openly been let loose for the committing of all crimes.26
Although his work was to have a direct influence on the growth of the laws
governing wars at the time, it did not achieve this purpose but still made a
vital contribution in the evolution of international humanitarian law.
In 1762, Jean Jacques Rousseau (1712-1778) in his work Du Contrat Social
pointed out that war is not between a man and another man but exists
between states. Men fighting in wars do not fight as citizens but as soldiers
defending their countries and once they have surrendered their arms, no
person has a right to take their lives. This opinion laid a proper foundation
for the Geneva Convention dealing with prisoners of war which provide
that such captives should not be killed once they have surrendered.
One of the first declarations with respect to acts of war was the 1856
Paris Declaration with respect to maritime law. Although it was limited to
maritime law, its importance cannot be underestimated. Its origin lies in the
Crimean war when France and Great Britain were making plans for a joint
military support for Turkey against Russia. Their major concern was on how
to deal with the neutral states that traded with belligerents. The Declaration
was signed in 1856 and it prohibited the seizure of enemy or neutral property
(except contraband) from enemy or neutral ships. It also stated that
blockades were to be maintained by a force which was capable of preventing
access to an enemy coast.27 The Declaration also abolished privateering
(where belligerents authorized private ships to engage in hostilities at sea
26
27
Grotius, Volume Two, 20, para 28

Roberts A and Guelff R, Documents on the Laws of War, p. 47
13
and prey on enemy merchant ships) which was legally recognized prior to
the Declaration.
The evolution of humanitarian law took a leap in the 19th Century. In 1861,
one of the foremost professors at the time named Francis Lieber, prepared a
Code for the Union army during the American Civil war.
This was upon the request of then President Abraham Lincoln of the
United States.
The Lieber Code (as it was called) represents the origin of what is now
known as the Hague Law.
The origin and development of the International Committee of the Red
Cross (ICRC) also played a very vital role in the evolution of the international
humanitarian law. In 1859, a merchant named Henry Dunant while traveling
through Italy, came across about 40,000 Austrian, French and Italian
soldiers wounded on the battlefield at Solferino. He organized volunteers
to collect the wounded at Solferino and cater for them. Subsequently, he
published his experiences in his book A Memory of Solferino. In this book,
he made two solemn appeals:
1. That relief societies or associations should be formed in the peacetime
with nurses that would cater for the wounded during wartime and
2. That the volunteers being called upon to assist the military medical
services should be respected and protected through an international
agreement to be signed by all member nations.
These appeals soon led to the formation of the International Committee
for relief to the wounded which later became the International Committee
of the Red Cross.
Flowing from the formation of the ICRC, a Diplomatic Conference was
held in Geneva in 1964. Twelve governments took part in this conference
and adopted a treaty prepared by the International Committee entitled
Geneva Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field. This represented a giant leap in the
growth of international humanitarian law aimed at protecting wounded
enemy soldiers.
It should also be noted that the first step towards the prohibition of the
use of any particular weapon was taken in 1868 through the instrumentality
of the 1868 St Petersburg Declaration. This Declaration came into existence
to prohibit the use of bullets which exploded upon impact with a hard
surface. This bullet was subsequently modified to explode even upon impact
with a soft surface and even shattered upon explosion. Due to the danger
14
posed by such bullets, a conference was held in St Petersburg in 1868. The

Declaration was signed on 11th December 1868 and its aim was to renounce
the use in the time of war of explosive projectiles under 400 grammes
weight. The importance of this Declaration lies not only in the banning of
these particular bullets but also in its promotion of the rule that weapons of
war should not cause unnecessary suffering.
The growth of international humanitarian law took further strides with
the 1899 Hague Conventions and Declarations. The 1899 Hague Declaration
2 dealt with asphyxiating gases and prohibited the use of projectiles
whose sole object is the spread of asphyxiating or deleterious gases. The
Hague Declaration 3 dealt with expanding bullets and was drawn up with
the Dumdum bullets in mind. These bullets did not contain explosive or
inflammable materials but since they expanded and flattened in the human
body, they were prohibited on the possibility that other bullets could be
made to expand into a larger form.
The outbreak of the First World War (1914-1918) tested the effectiveness
of the body of laws existing at the time. The invention of airplanes in 1903
by the Wright Brothers subsequently led to a new type of warfare which
had not been foreseen by the draftsmen of the Hague Declarations. While
Article 2528 prohibited attacks against undefended towns, villages, dwellings
or buildings, aerial warfare created the possibility of attacking such towns
which were behind enemy lines. Since there was no way for these villages to
be captured without the use of force, they fell outside the purview of Article
25 leading to widespread losses to the civilian population.
To cure this anomaly, the Hague Rules of Aerial Warfare were formulated
in 1923. These rules were never adopted in a legally binding form but
represented an attempt to formulate rules to govern air warfare and by
extension to protect the civilian population from aerial bombardment. Since
these rules were never legally adopted, they were subsequently disregarded
during the 2nd World War. However, the rules are now codified in the
Additional Protocol 1 of 1977 and are binding law on parties to a conflict.
By 1929, the earlier Hague and Geneva Conventions were developed
and affirmed one more time. These 1929 Geneva Conventions were more
detailed than their predecessors and sought to cure the deficiencies in the
law that was not effective during the 1st World War. In the aftermath of the
2nd World War, a Diplomatic Conference deliberated for 4 months before
adopting the Geneva Conventions of 1949. These conventions supplanted
28Of the Annex to the 1907 Hague Convention IV
15
the 1929 Geneva Conventions and included for the first time provisions
relating to the protection of civilians in times of war.
The 1949 Geneva Conventions represents to a large extent the primary law
governing matters of international humanitarian law today. To complement
these are the two Additional Protocols of 1977. This is without prejudice to
all other treaties and conventions which in one way or another form part of
the larger body of international humanitarian law.
III.
Sources of International Humanitarian Law
Like every other body of law, international humanitarian law does not exist
in the abstract but is directly traceable to particular sources. Where rules
governing a particular legal principle are sought at the national level, such
rules are usually clearly identified and may be found in statutes, judicial
precedent, customary law etc. With respect to international humanitarian
law, the sources are less clearly defined. This may either be due to the absence
of a universal legislative body corresponding or similar to the legislative
organ in a State or the absence of universal judicial jurisdiction with a wide
range of precedent. Nevertheless, international humanitarian law still has
its sources exactly identical to sources of international law and they are to
be considered here.
Article 38 (1) of the Statute of the International Court of Justice (ICJ)
contains the general list of the sources of international humanitarian law. It
provides as follows:
1) The Court whose function is to decide in accordance with international
law such disputes as are submitted to it shall apply:
a) International conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
b) International custom, as evidence of a general practice accepted as law;
c) The general principles of law recognized by civilized nations;
d) Subject to the provisions of Article 59, judicial decisions and the
teachings of the most qualified publicists of the various nations, as
subsidiary means for the determination of the rules of law.
Note that this provision shall not prejudice the power of the court to
decide a case ex aequo et bono if the parties agree thereto.29 The qualification
under Article 38 (1) (d) is contained in Article 59 which is to the effect that
29Article 38 para 2 Statute of the ICJ
16
the Courts decision has no binding force except between the parties and
in respect of the particular case. According to some legal authors,30 the
contents of national manuals of military law and related texts as well as the
resolutions of various international bodies form part of the sources of law.
These shall be examined, analyzed and discussed much later in this book.
International Agreements
As a source of law, international agreements are arguably the most
predominant source of international humanitarian law. These agreements
usually come under various designations and may be termed conventions,
declarations, protocols or statutes. The term treaty is often used to
represent different categories of international agreements. While this may
be proper in some cases, there are others where its use as a generic term
may give rise to some doubt. For instance, the term protocol is used to
designate a treaty amending another treaty (e.g. The 1977 Geneva Protocols)
and substitution by the term treaty will give a different meaning to the rules
contained therein.
The question may arise as to why treaties must be complied with? The
answer lies in the principle of pacta sunt servanda set out in Article 26 of
the 1969 Vienna Convention on the law of treaties. Article 26 provides that
every treaty is binding upon the parties to it and must be performed by them
in good faith. The principle of pacta sunt servanda ensures that treaties are
binding on all parties who have signed, acceded to or ratified them and
further ensures that parties to a treaty do not back out of their obligations.
In practice, some treaties are viewed with more reverence than others.
The 1949 Geneva Conventions enjoy this privilege and have come to be
binding upon all states. Their importance cannot be underestimated and
with 194 parties involved in the making of the treaties, it is observed in every
international armed conflict. They contain more detailed provisions than
their predecessors and introduced for the first time rules for the protection
of civilians in times of war.
Apart from the Geneva Conventions, the Additional Protocols of 1977
also form an important class of international agreements. They supplement
the 1949 Geneva Conventions and make provisions for the protection of
victims of international (API) and non-international (APII) armed conflicts.
A 3rd Additional Protocol was signed on 8th December 2005 and relates
to the adoption of an additional distinctive emblem. It should be noted
30Roberts A and Guelff R, ibid at p. 4
17
that this 3rd Additional Protocol is yet to receive worldwide acclaim like
its predecessors.
The 1949 Geneva Conventions and the Additional Protocols are not the
only international agreements in existence but are supplemented by other
treaties and conventions which deal with specific matters. Important among
these in the conduct of war are:
- The 1907 Hague Conventions
- St. Petersburg Declaration 1868
- Dum-Dum bullets Hague Declaration 1899
- Geneva Protocol on Gas Warfare 1925
- Cultural Property Convention 1954
- Biological weapons Convention 1972
- Chemical Weapons Convention 1993
- Land Mines Convention 1997
While most of these conventions are aimed at preventing the use of
particular weapons in times of war (e.g. Land Mine Convention 1997), others
(like the 1954 Cultural Property Convention) may serve different purposes.
The question may arise as to whether a state being a non party to a treaty
may be bound by it. According to some authors, it is possible that a state could
simply by conduct indicate its acceptance of the regime of the convention as
applicable to itself.31 This was the argument proffered by Denmark and the
Netherlands in the North Sea Continental Shelf Case.32 They argued that the
Federal Republic of Germany had by their conduct, public statements and
proclamations assumed the obligations of the 1958 Geneva Convention on
the Continental Shelf to which Germany had signed but not ratified. The
ICJ rejected this contention and held that only a very definite and consistent
conduct on the part of a State could lead to such a conclusion. The Court did
not rule out the possibility that a state could accept a treaty by its conduct
so it seems that consistency on the part of such a state could lead to such a
result. On the other hand, where there is persistence objection to a treaty
signed by Nation States, every Nation State is bound by the treaty.
There are obvious imperfections which arise from the operation of
international agreements. These imperfections highlight the inherent
31
32
Evans Malcolm, International Law 2nd Edition p. 120

ICJ Reports 1969
18
fallibility of lawmakers in their making of the law. Some of these problems

which are manifested in specific or general issues shall be mentioned here;
1. The treaty provisions existing to deal with aerial warfare (i.e. the
1923 Hague Rules on Aerial Warfare coupled with some relevant
provisions of the 1949 Geneva Conventions) are grossly inadequate.
What exists as law cannot deal with all facets of aerial warfare and
must be supplemented by customary international law to have any
real value.
2. The codified treaty law is inadequate to deal with new and improved
technological developments in the conduct of war. Advances in
science and technology are too unpredictable to make laws which
cover all possible situations.
3. There is an apparent difficulty in distinguishing between military
and civilian objects. The treaties do not solve this problem making
the distinction even harder to make during actual armed conflict.
Distinctions between international conflict and internal conflict
as well as between peacekeeping and enforcement actions are also
difficult to make.
4. Despite their numerous provisions, international agreements do not
always succeed in ascertaining, proving and prosecuting violations
of war.
5. International agreements are often over-detailed making it
increasingly difficult for persons participating actively in armed
conflict to know what conducts are acceptable or not.
Custom
From the history of international humanitarian law, it is clear that custom
played a pivotal role in what subsequently emerged as treaties, conventions
and other international agreements. What exists currently as codified
international agreements has its roots in the general customs prevailing at
the time. This is the nexus that exists between international agreements and
customs and explains why there are some international agreements that
merely restate a previously existing custom and vice versa. For instance,
there is a customary principle to the effect that the rights of belligerents
to adopt methods and means of injuring an enemy are not unlimited.
This customary rule was formally codified in Article 22 of the 1907 Hague
19
Regulations, Article 35 (1) of API 1977, as well as in the preamble of the 1997
Ottawa Convention on anti-personnel mines.
It may be argued that the making of international agreements was aimed
at ousting the operation of the customary international law. However, at
the time when international agreements began to gain importance, rules
of customary international law were still expressly preserved. This was
achieved through the instrumentality of the Martens Clause. It was to the
effect that:
populations and belligerents remain under the protection and
empire of the principles of international law, as they result from
the usages established between civilized nations, from the laws of
humanity and the requirement of the public conscience.33
For a practice to qualify as custom, it must be in tandem with the

definition of custom under Article 38 (1) (b) of the Statute of the ICJ. Article
38 (1) (b) provides that Courts are to apply international custom as evidence
of a general practice accepted as law. This general practice must be
shown to exist and may be found in the bilateral and multilateral relations
between states. In addition to general practice, there ought to be a belief
in the obligatory nature of such practice by states acting pursuant to the
international custom. This belief is described as the opinio juris and seeks to
show that a country acted on the basis of customary international law rather
than acting out of convenience or habitually or to fulfill a moral obligation.
As far as general practice is concerned, it ought to be shown that such
practice is reasonably consistent. In the Anglo-Norwegian Fisheries case,34 it
was held that the degree of consistency may vary depending on the subject
matter of the disputed customary rule. Where it is shown that a new state
practice is emerging which seems to oppose the operation of another, it
should not be taken, without more, to mean that the latter custom has been
overridden by the former.
Of crucial importance is that there should be generality of practice with
respect to a particular rule of customary law. In the North Sea Continental
Shelf Case,35 it was established that not all states need to participate before a
general practice can be seen as custom. One qualification to this requirement
is that where a state persistently objects to a particular practice from the
outset, it may not be bound if a customary rule subsequently surfaces. In
33 Preamble to the 1899 Hague Convention II
34 1951 ICJ REP. 116
35 1969 ICJ REP 3
20
such a scenario, the objecting state is known as the persistent objector and
such initial and sustained objections may prevent the objecting state from
being bound. This was the situation in the Anglo-Norwegian Fisheries case
concerning Norway and their rejection of the 10 mile rule.
With respect to the time or duration within which a state practice may
acquire the status of customary international law, it is now settled that even
a single act can be the basis of custom.36 This is without prejudice to the
decision in the North Sea Continental Shelf case where it was suggested
that the length of time will vary depending on the subject matter and also
that where only a brief period of time has passed, it will not constitute a
hindrance to the formation of customary international law.
The importance of custom as a source of international law has been the
subject of some debate. On one side, it is argued that custom is too clumsy
and slow moving so that it cannot accommodate the evolutionary nature
of international law.37 On the other side of the debate, custom is viewed as
a dynamic process of law creation and even as being of more importance
than treaties considering its universality.38 It is conceded here that while
custom may not be the best source of international law, it performs a vital
supplementary role in the absence of clear provisions in any treaty relating
to a particular subject matter. Worthy of mention is the aptly-called instant
custom39 which dispensed with the need for a long period of time to
elapse before a practice could be treated as custom. Such an instant custom
would have adequately dealt with gaping lapses in international agreements
as sources of international law.40 In the end, the ability of custom to cure
certain inadequacies of treaties and conventions is praiseworthy and serves
to establish custom as a viable source of international humanitarian law.
General Principles of Law

Circumstances arise in international law where there are no treaties on a
particular subject matter and what exists as rules of customary law are either
36
37
38
39
40
Dixon M, Op Cit, P 34
e.g. Fried Mann, The Changing Structure of International Law, 1964, pp. 121-123
e.g. DAmato, The Concept of Custom in International Law p. 12
Advanced by Cheng B (1965), United Nations Resolution on Outer Space: Instant
Customary Law?, 5 Indian J Int L 23-48 (reprinted in Cheng, B (ed) (1982), International
Law Teaching and Practice (London: Stevens and Sons), p 237)
The principle is no longer in operation and was rejected by the ICJ in Nicaragua v. USA
ICJ Reports 1986, p 14 paras 184 and 188 as well as in the Advisory opinion on the
Legality of The threat or use of Nuclear Weapons, ICJ Reports 1996, p 226, para 73
21
grossly inadequate or out-rightly non existent to deal with issues arising. In

anticipation of such a scenario, the Commission of Jurists while drafting
Article 38 of the Statute of the ICJ (then known as the Permanent Court of
Justice) deemed it necessary to include general principles of law as a source
of international law. Their primary aim at the time was to avoid a situation
where a court would declare a non liquet (absence of applicable law) due to
the non existence of any applicable rule of law. Courts are thus enjoined to
adopt the general principles of law accepted by civilized nations where there
are no treaties or rules of customary law on a particular subject matter.
In a number of decided cases, the courts have relied on the general
principles of law as the basis for their decisions. In Sea Land Service Inc. v.
Iran,41 it was held that the concept of unjust enrichment has been widely
accepted as having been assimilated into the catalogue of general principles
of law available to be applied by international tribunals. In similar fashion,
the Court in the Barcelona Traction case,42 the doctrine of lifting the veil
under municipal company law was heavily relied upon as a general principle
of law. Perhaps the rationale behind this lies in the inherent ability of the
doctrine to unmask persons involved in corrupt practices thus making it
applicable as a general principle of law.
Despite the reliance placed by the Courts on the general principles of law,
there are circumstances where the Court has rejected a particular principle
on the basis that it was not of general applicability considering its limited
scope of operation amongst other reasons. In the case of South West Africa
v. Liberia,43 the court found amongst other things that actio popularis
was a principle of law only known to certain legal systems and as such not
a generally acceptable principle of law. In the Texaco case,44 Libya sought
to rely on the French law of administrative contracts in support of their
contentions. It was held that the French law which was being claimed by
Libya was not generally accepted by most nations and thus not a general
principle of law. With respect to promissory estoppel, it was held in Seaco
v. Iran45 that promissory estoppel is not a general principle of law. It was
however added by the Court that most English principles of law can be said
to have general acceptability.
41 6 Iran-US CTR 149 at 168-9 (1984)

42 (Belgium v. Spain) 1970 ICJ Rep 3
43 1996 ICJ Rep 294
44 (1978) 17 ILM 28; (1977) 53 ILR 422
45 (1992) 28 Iran US CTR 198
22
In addition to the general principles of law, the Courts have often had
recourse to the principles of equity in arriving at their decisions. The
adoption of equitable principles has been a subject of differing opinions
and the principal argument against their application lies in the subjective
element that is part and parcel of the doctrines of equity. The application of
equity is not necessarily desirable since it serves to encourage States to act
on the basis of what they deem to be equitable but not seen as equitable by
their adversaries. Be that as it may, it cannot be denied that international
courts and tribunals indeed apply the principles of equity.
In the case of Netherlands v. Belgium46 references were made to the
doctrine of equity. The facts center on claims by the Netherlands that
Belgium had infringed a treaty obligation by building canals which
subsequently altered the flow of water in the River Meuse. It was discovered
as a fact that the Netherlands had also constructed a similar canal in its own
territory. The Court applied the equitable maxim of clean hands and held
per Hudson J that:
where two parties have assumed an identical or a reciprocal
obligation, one party which is engaged in a continuing nonperformance of that obligation should not be permitted to take
advantage of a similar non-performance of that obligation by the
other party
On this basis, the Court refused to grant the Netherlands the relief sought
since they were also guilty of acting in the same way.
It is not in all circumstances that equity will step in, in its typical fashion,
to ameliorate the rigidities of the application of the law. In the Frontier
Dispute Case,47 between Mali and Upper Volta (now Burkina Faso) the
Court held that there was no reason to have recourse to the principles of
equity in order to modify a frontier inherited from colonial powers. The
Court further held that the principles of equity are not to be arbitrarily
imposed by any court or tribunal and on this ground refused to alter the
frontier on the basis of equity.
To conclude the matter, Article 38 (1) (c) expressly provides for the general
principles of law but no such words are used with respect to the principles of
equity. While equitable principles are adopted by the Courts, the subjective
nature of equity no doubt is a cause for concern. In addition, the courts are
not always bound to apply the principles of equity as was seen the Frontier
46 The River Meuse Case (1937) PCIJ Rep., Series A/B, No 70, pp 76-7
47 1986 ICJ Rep 3
23
case. Nevertheless, the application of equity is still welcome not only because
it helps to cure the rigidity of the law, but also because its application serves
to prevent a situation where a non liquet (i.e. absence of applicable law) may
be pleaded.
Judicial Decisions
By virtue of Article 38 (1) (d) of the Statute of the ICJ, judicial decisions
constitute a subsidiary source of international law. This is however subject
to the exception under Article 59 which is to the effect that the Courts
decision has no binding force except between the parties and in respect of
the particular case. Judicial decisions are treated as subsidiary means in the
determination of disputes since in arriving at their decision, the Courts are
duty bound to make reference to the treaties or custom which guided their
decisions. In effect, while treaties, customs and the general principles of law
may be treated as primary of formal sources of law, judicial decisions are to
be treated as material or subsidiary sources but accorded a great measure
of authority.
Before and after the 2nd World War, the practice was for national or
military courts to try persons who had been accused of violations of the
laws of war. Due to the lack of uniformity inherent in this system, appeals
were made for courts or tribunals of a more international nature to deal
with subsequent violations of humanitarian law. It was these appeals that
culminated into the formation of the International Military Tribunal at
Nuremburg (1945-46). This Tribunal as well as its equivalent (Tokyo 194648) successfully tried and prosecuted major war criminals of the 2nd World
war. In addition, the Tribunal laid down some general rules with respect to
the implementation of the laws of war at the time.
Apart from the Military Tribunals at Nuremberg and Tokyo, other
tribunals have subsequently arisen to deal with specific instances of
violations of international humanitarian law. In 1993, the International
Criminal Tribunal for the former Yugoslavia was established48. Its aim
was to prosecute serious crimes committed in the former Yugoslavia
including breaches of the 1949 Geneva Conventions, violations of the
laws and customs of war, genocide and other crimes against humanity. A
similar tribunal was established in Rwanda (The International Criminal
Tribunal for Rwanda 199449) for the prosecution of persons responsible for
48
49
Res. 827 UN Security Council

Res. 955 UN Security Council
24
the genocide in Rwanda as well as for other violations of international law.

Important also is the Rome Statute of the International Criminal Court 1998
which established the International Criminal Court (ICC). As at the 1st of
July 2002, the ICC has been empowered to prosecute acts of genocide, war
crimes as well as crimes against humanity.
It should be noted that unlike national or municipal law which recognizes
the principle of stare decisis, there is no judicial precedence in international
law. This is without prejudice to Article 59 of the ICJ Statute which preserves
judicial precedence but only as between the parties and in respect of a
particular case. The Court is not bound to follow its previous decision
but practice has shown that the Courts treat their previous decisions as
having persuasive authority. This is to ensure that there is an element of
predictability in the evolution of international law.
As the paramount court in the international arena, the jurisdiction
of the International Court of Justice (ICJ) has also been extended to deal
with issues arising out of violations of the laws of war. This is exhibited in
its judgment in the Nicaragua case where it held that the USA had acted in
breach of international law by its attack on Nicaragua. The relevance of
the ICJ as a source of judicial decisions has also been seen in its advisory
opinions dealing on different issues. Its advisory opinions on the Legality of
the Threat or Use of Nuclear Weapons (1996) carry great authority although
they are not binding on states.
Judicial decisions though not a formal source of the international
humanitarian law, still play a vital role in applying to certain situations
as they arise. Even though the courts and tribunals are bound to apply
the law as they see it, the persons sitting as judges must of necessity
ensure that justice is done and that violators of the humanitarian laws are
punished accordingly.
Writings of Legal Specialists

The 2nd limb of Article 38 (1) (d) provides for the writing of publicists as
a subsidiary means of determination of disputes in international law. As
with judicial decisions, this category of sources is not formal but constitutes
material sources of international law. This does not however make them of
less important as great authority is also attached to them.
During the evolution of the international law, the writings of such jurists
as Grotius, Vattel, Bynkershock and Victoria were of great importance. They
paved the way for what would eventually become international law as it is
25
known today. They were the ones who first introduced the idea that there
should be a binding set of rules to govern the relationship between states to
ensure that the sovereignty of states in the international arena is guaranteed.
In present times, it may appear that the relevance of the writings of jurists
has withered away. On the contrary, the writings of jurists may be more
important now than in previous times. This is because of the need to clarify
the rules of international law due to the presence of numerous treaties and
customs. It is only through the writings of such legal scholars that one can
have a general view of the laws of war as well as how these laws are to be
applied in situations of armed conflict. In a certain sense, conventions and
treaties may be viewed as being cold and impersonal since they do nothing
more than to merely state the law as it is. This may sometimes be done in
highly definitive language as well as the problem of multiplicity of provisions
governing any subject matter. It thus becomes the job of these qualified
jurists to water down the somewhat concretized nature of treaty law.
In the modern era, jurists are not limited to academicians but there
are international lawyers as well members of the international bench that
are qualified jurists within the meaning of Article 38 (1) (d). In practice,
judges do rely on these writings to arrive at their decisions not as a binding
authority but in a persuasive or elucidating capacity. Precaution should be
taken by judges in relying on these writings to ensure that their decisions are
not based on improperly researched works. It is also true that the writings
of these qualified judges may be influenced by political inclinations or
other forms of bias. Judges should thus be careful and preferably rely on the
opinion of a neutral jurist and not the opinion of one with some elements
of bias affecting the reasoning and outcome in his work. It is also advisable
that judges do not rely on the opinion of a single jurist since this may limit
the courts understanding of any particular rule. In such a scenario, it is
preferable to adopt the concurrence of opinions of several highly qualified
jurists from different countries.
As a source of international law, the writings of publicists are still of very
great importance. It should however be noted that no matter how convincing
or qualified an author is, his opinions in writing cannot create law in any
form. Such writings should be aimed solely at expounding or elucidating the
law and not to make new legislation on the laws of war.
26
National Manuals of Military Law and Related Texts

In addition to the sources of international law set out in Article 38 of the ICJ
Statute, manuals of military law constitute a vital source of international
humanitarian law. Their importance cannot be underestimated as they
represent the closest contact between the laws of war and persons actually
engaged in armed conflict. Thus, unlike treaties, customs and the general
principles of law that are applied by courts and tribunals, the content of
military manuals serve as the benchmark within which officers in the
armed forces or other persons engaged in armed conflict are to operate. The
other sources of law are too bulky and so it is necessary for the military
manuals to provide some sort of abridged version of the laws of war to
enable combatants act accordingly and to help senior officers punish those
who have acted in violation of the laws.
Perhaps one of the first of such military manuals was the Code prepared
by Dr Francis Lieber (otherwise called the Lieber Code) on the request
of then President of the United States Abraham Lincoln. This Code was
presented to the Union Army in 1863 and was in force during the American
Civil war to educate combatants on how to conduct themselves during
wartime. It also had provisions with respect to the treatment of prisoners
of war.
After the Lieber Code, other codes or military manuals have been
fashioned to regulate the conduct of armed forces. Some of these that
immediately succeeded the Lieber Code include the national manuals of the
Netherlands (1871), France (1877), Serbia (1879), Spain (1882), Portugal (1890),
and Italy (1896). All these manuals were aimed at regulating the conduct of
armed conflict and provide a sound legal regime to ensure that the rules are
complied with and offenders are punished accordingly.
In addition to national or military manuals, there are other related texts
which serve similar purposes but are not manuals and do not fall into the
earlier categories of sources of international humanitarian law. One of such
texts is known as the Rules of Engagement. These rules constitute basic
instructions issued to combatants which they are to comply with in respect
of any particular military operation. Perhaps the distinction between
military manuals and such rules of engagement is that the latter are not
always made available to members of the public except in special cases. It
is important to note that Rules of Engagement may be prepared not only
by the military armed forces but also international organizations (e.g. The
United Nations).
27
National military manuals are of great importance in international

humanitarian law since they directly relate to the laws of war unlike other
sources which apply to non armed conflict situations. While international
treaties and other formal sources of law spell out all the rules relating to
armed conflict, military manuals contain brief and specific instructions to
members of the armed forces. They serve to educate those actually involved
in fighting on which acceptable and unacceptable conducts in the course of
war. In effect, they represent a direct legislative link to the armed forces in
their conduct of war to ensure that such armed forces act in accordance with
the general rules of international humanitarian law.
Resolutions of International Bodies

Resolutions of international bodies are not included as sources of
international law under Article 38 of the ICJ Statute. This does not
however diminish their relevance and over the years, resolutions made by
international organizations (either of a governmental or non governmental
nature) have made great inroads in the evolution of humanitarian law.
With respect to non governmental bodies, the role of the International
Committee of the Red Cross (ICRC) is arguably of the most importance.
It was its formation in 1863 that led to the formulation of the Geneva
Convention on the Amelioration of the Condition of the Wounded in
Armies in the Field. Its subsequent efforts led to the formulation of the 1949
Geneva Conventions as well as the Geneva Protocols of 1977.
Apart from the ICRC, some other non governmental bodies have also
made contributions to international humanitarian law. In 1938, the
International Law Association adopted a draft convention for the protection
of civilians in wartime. In similar fashion, the International Institute of
Humanitarian Law adopted the San Remo Manual on armed conflicts at
sea. These bodies through the instruments created by them, helped aid the
growth of the humanitarian law and even though these instruments are not
legally binding on states, they still form an important contribution to the
The role of certain inter governmental bodies should also not be
discounted. After the 1st World War, the League of Nations was formed
(1920-46) to restore and maintain peace between nations. While most
persons may view this body as a failure (due to the emergence of the 2nd
World War), its contributions with respect to the 1925 Geneva Protocol on
28
Gas and Bacteriological Warfare as well as the resolution on the Law Of

Warfare 1938 are worthy of mention.
With the collapse of the League of Nations came the United Nations
in 1945. This body continues to operate till date and has made valuable
contributions to merit its recognition as a source of international
humanitarian law. Such contributions that have been made by this body are
usually done through its various arms or organs.
As an arm of the UN, the General Assembly has through various
resolutions, made direct contributions to international humanitarian
law and to the laws of war in particular. Among these resolutions are the
Resolution for the Respect of Human Rights and Armed Conflict50 and
the Resolution on the Basic Principles for the protection of the Civilian
Population in Armed Conflict.51 There are also some general assembly
resolutions intended to be applied in particular cases. One instance is the
General Assembly resolution condemning the intervention of the USSR in
Afghanistan.52
With respect to the legal effect of General Assembly resolutions, it is
now settled that such resolutions are not legally binding upon states. It will
only be binding where the resolutions are with respect to internal matters
or to matters which are peculiarly within the competence of the General
Assembly. What effect they have will either be to restate a custom already
in existence or to lay the foundation for the establishment of a new custom.
Resolutions made by the UN Security Council also form an important
source of international humanitarian law. By virtue of Chapter VII of the UN
Charter, the decisions arrived at by the UN Security Council form binding
law on states. By this express authority, they may make resolutions with
regard to international humanitarian law which will be binding upon states.
After the formation of the UN, this power was not always expressly used in
an attempt by the Council to not appear to be condoning acts that occurred
during the 1st World War. However, conflict between states was inevitable
and so the Security Council had to step in and make contributions with
respect to the laws of war. One of such direct contributions was in the
approval of the criminal tribunals for Yugoslavia (1993) and Rwanda (1994).
The relevance of resolutions by international bodies lies not only in
their restating of the law but also (as with general assembly resolutions)
in the creation of new custom. Also, if states were to meet each time a
50
51
52
Resolution 2444 (XXIII) of 19 Dec 1968

Resolution 2675 (XXV)
Resolution of Jan 14 1980, G.A. Resolution ES-6/2
29
new international law was to be made, this would lead to some obvious
difficulties as well as delays in the law making process. Thus by making these
resolutions, these international bodies reduce the burden in the process of
law making. They are thus still of great value and have been shown to be of
immense importance particularly with respect to humanitarian law.
IV.
The Role of the Icrc in Humanitarian Law
Out of the several international organizations in the world, the role of the
ICRC with respect to international humanitarian law is arguably the most
vital and important. Its impact has been seen right from its origin and till
date continues to play vital roles in armed conflict between and within
states. As may be seen from the history of the international humanitarian
law, it was the after effects of the battle at Solferino that led Henry Dunant
to create the International Committee for Relief to the Wounded which later
became known as the International Committee of the Red Cross (ICRC).
The formation of the ICRC was only the first step towards the evolution
of international humanitarian law. After its formation, Henry Dunant and
other members of the Committee were desirous of some sort of official
recognition for the Red Cross. The only way this could be achieved was
through an international agreement and so in 1864, the Swiss Government
convened a Diplomatic Conference in Geneva that considered the
institulization of a permanent body to perform humanitarian duties. Twelve
Governments took part in this Conference and adopted a Treaty entitled
Geneva Convention for the Amelioration of the Condition of the Wounded
in Armies in the Field. This was the first universally applicable codification
of international humanitarian law. Over a period of time, further
conferences were held which extended the scope of the 1864 Convention. In
all the amendments leading up to the 1949 Geneva Conventions, the ICRC
played an active role.
Despite the scope covered by the 1949 Geneva Conventions, there were
still some inadequacies particularly with respect to the protection of
victims of military conflicts. To this end, the Swiss Government convened
a Diplomatic Conference in 1974 to bridge this divide by making provisions
for the protection of victims of international and non international
armed conflicts. At this Conference, the ICRC proposed 47 Articles out
of which only 28 were adopted. This did not however change the spirit of
the Protocols and by June 10th 1977, there was an official ceremony for the
signing of the Protocols. Considering the threat posed by non international
30
armed conflicts, the role of the ICRC in the formulation of the Protocols is
indeed noteworthy.
With respect to the constitution of the ICRC, it is basically a Swiss
organization with its headquarters in Geneva, Switzerland. The body of the
ICRC responsible for the making of policy is known as the Assembly and
consists of 15-25 members which are entirely Swiss citizens. For its efforts in
humanitarian law, the ICRC has received the Nobel Peace prize four times:
through Henry Dunant in 1901 and in 1917, 1944 and 1963.53 As at the time of
writing, the President of the ICRC was Dr. Jakob Kellenberger.
Apart from its assistance in the formulation of the Geneva Protocols and
Conventions the ICRC has also played several roles in humanitarian law and
continues to perform these duties. One of the roles played by the ICRC is
the provision of relief supplies to the victims of armed conflict. It should
be noted that where supplies are being distributed by the ICRC, they shall
be in the order of priority established under Article 70 API.54 However,
in order to facilitate this aim, Article 81 goes further to provide that state
parties and parties to the conflict are to assist the ICRC in carrying out its
humanitarian functions.
The ICRC also has a role to play with respect to the establishment of
hospitals and safety zones. By Article 23 GCI, the protecting powers and the
ICRC are invited to lend their good offices in order to facilitate the institution
and recognition of hospital zones and localities. To perform this duty, the
ICRC has the right55 to suggest such zones to the parties to the conflict and
may further provide assistance in their various establishments.
With respect to prisoners of war (POW), the ICRC has a vital role to
play from the moment of their capture until they are released. This duty
is conferred on the ICRC by Article 126 of the Geneva Convention III
(GCIII) which grants ICRC delegates permission to visit interment camps,
concentration camps and labor camps where imprisoned persons are kept.
The delegates shall also be able to interview prisoners without witnesses.
Where the delegates have chosen where they wish to visit, they are not
to be prohibited from undertaking a visit except in cases of extreme or
imperative military necessity. The delegates are also entitled to evaluate the
prisoners lodgings as well as the attitude towards them. If the conditions
are too inhumane and degrading, representatives of the ICRC may make
53 Bouchet Saulnier F, The Practical Guide to Humanitarian law, p.362
54 i.e. children, expectant mothers, maternity cases and nursing mothers
55 By Article 9 GCI-III, Article GCIV That gives the ICRC the right of initiative in
humanitarian matters.
31
appeals to the prisoners keeping country to effect improvement in the living

conditions of the prisoners of war.
While the bodies primarily responsible for the implementation of the
conventions are the international courts and tribunals as well as the United
Nations, the ICRC may take cognizance of any complaints based on breaches
of international humanitarian law.56 Correlative to this function is that the
ICRC helps in the dissemination of international humanitarian law.57 To
achieve this, the ICRC makes publications on the Conventions and Protocols
as well as other treaties dealing on humanitarian law. This helps to make
such international agreements easier to understand.
Another role being played by the ICRC is in the searching of missing
persons, restoration of family links as well as the exchange of information
between family members that have been separated by armed conflict.
Where persons have been declared missing, the ICRC steps in through its
Central Tracing Agency to facilitate the search for missing persons and the
exchange of correspondence between family members. Where the persons
are missing by virtue of being prisoners of war, visits are arranged on the
basis of strict confidentiality so that reprisal attacks will not be taken out
against the detaining power.
With the passage of time, the ICRC has emerged as the most important
non governmental institution with respect to the humanitarian law. It seeks
not only to help persons who have been injured by armed conflict, but also
provides relief supplies for victims of war and natural disasters among other
things. Due to its importance, there are situations where it is only the ICRC
that can make free movements in occupied territories as well as providing
relief to persons in need. Where the relief required is of a large scale, the
ICRC may call on the National Red Cross or other NGOs or governments not
involved in the armed conflict for assistance. The contributions of the ICRC
are as vital as they were at the origin of international humanitarian law and
will be of continuing importance as new conflicts arise all over the world.
56
57
By Article 4.1 (c) of the ICRC Statute

Article 4.1 (g)
32
CHAPTER
2
Scope of Humanitarian Law
It has now been established that humanitarian law will begin to take effect
once it is shown that there is an armed conflict between states. International
humanitarian law thus takes the place of the laws of war and will begin
to operate whenever there is an international or non international armed
conflict. Once there is an outbreak of armed conflict between states, it is
inevitable that the ordinary laws of peace between nations will be superseded
by the international humanitarian law due to its special status regarding
armed conflict situations. It will be generally irrelevant which party initiated
the conflict since international humanitarian law seeks primarily to protect
hapless civilians, environment and regulate the conduct of hostilities among
other things.
As part of its functions, humanitarian law seeks to define what armed
conflicts are and what are not in a bid to know which laws will be applicable.
It also seeks to determine what constitutes acts of war by one state against
another. Where hostilities have reached a critical stage or crescendo, it is
the international humanitarian law which seeks to delimit certain areas as
being within the areas of war and others as neutral zones. Similarly, with
the termination of hostilities between the warring sides, international
humanitarian law steps in to ensure that such termination is in accordance
with the rules of the law. These instances mentioned above constitute
the scope of the international humanitarian law. An attempt shall also
be made here to relate international humanitarian law with other related
disciplines. In effect, the Chapter is aimed at elucidating the scope covered
by international humanitarian law.
I.
Armed Conflicts
The 1949 Geneva Conventions as well as the Additional Protocols of 1977 do

not offer any definition of the term armed conflicts. This is not an oversight
by the makers of the treaties but a deliberate attempt to avoid technicalities
that may arise if a definition is given. This was the problem when the laws
of war (as they were then called) were in operation as states could argue
33
Scope of humanitarian law
that they were not at war and so the laws of war did not apply to them. To
correct this therefore, a definition of armed conflict was avoided so that
new categories of hostilities would fall within the open ended interpretation
given to the term.
Be that as it may, an attempt was made in the ICRC Commentary on the
Geneva Convention to describe what constitutes an armed conflict. Armed
conflict was described thus:
Any difference arising between two states and leading to the
intervention of members of the armed forces is an armed conflict
within the meaning of Article 2, of the United Nations Charter even
if one of the parties denies the existence of a state of war. It makes
no difference how long the conflict lasts or how much slaughter takes
place.58
It seems that this broad definition has been applied with respect to isolated
incidents. However, it appears that states do not always take such a broad
view because isolated incidents such as border disputes do not necessarily
lead to the conclusion that there is an armed conflict between states. In
fact, such border disputes may not disturb foreign relations between states
despite the clashes experienced. This was the situation in the border dispute
between Nigeria and Cameroon over the Bakassi Peninsula. Despite the
clashes, it could not be said that there was armed conflict between the two
states since foreign relations were not manifestly affected.
To determine what constitutes armed conflict between states, reliance
is placed on the intensity of the clashes. Where it is shown that fighting
has exceeded the level of intensity generated by isolated incidents, such a
situation should be treated as an armed conflict and the rules of international
humanitarian law will be called into operation.
The provisions of Article 1 para 4 of the Additional Protocol I (API)
deserve some consideration here. It provides that armed conflicts are to
include peoples fighting against colonial domination, alien occupation and
racist regimes in the exercise of their right of self determination. In modern
times, the fight for freedom from colonial domination is not common. This
is because most countries have attained their independence from their
colonial masters. Recent developments have suggested that Article 1 para 4
may be used to cover a situation where ethnic groups in a state or persons
belonging to a particular territory seek to secede from the parent state. This
view was the source of constant controversy and this explains why the USA
58
Pictet, Commentary Vol. IV 20
34
refused to ratify API. In practice however, the provision has been relied upon
in the right of self determination with respect to the Republic of Yugoslavia.
With respect to this provision being relied upon by ethnic groups seeking
to secede, it is submitted here that the provision should not be extended
to support such an interpretation. One can only imagine what would
happen where secession from a state receives backing by the international
community. The potential for abuse would be unlimited and every state
would attempt to separate itself from the parent state in a bid to become
self sustaining. In the Nigerian scenario, such an interpretation would grant
legal backing to the attempt by Biafra to secede from Nigeria.59 Also, with
the movements being made in the Niger Delta Region of Nigeria for control
of resources, such an interpretation would encourage their separation
from the Nigerian state. To lay the matter to rest, it is advisable that the
interpretation to be confined to the literal wordings of the provisions. Where
the international community regards such an interpretation of Article 1
para 4 as necessary, they should proceed by making relevant provisions on
the subject through the appropriate channels.
In ancient times, wars were usually commenced by a formal declaration
of war by one state against another. This practice is now a thing of the past.
In modern times, the rules of international humanitarian law come to play
whether or not the states at war made a declaration. In fact, the last known
formal declaration of war was during the 2nd World war. Now what is
essential to be proved is that there is a minimal armed conflict between the
states for international humanitarian law to set in and not necessarily a full
blown state of war between the parties.
In practice, most states do not even agree that they are at war even
where it is apparent from the surrounding circumstances that they are. For
some other states, they may make explicit statements that they regarded
themselves as being at war but not by means of a formal declaration. The
reason behind this reluctance lies in the consequences that can arise from
making such a categorical declaration. War is not a word to be taken lightly
in the relations between states and before such a declaration (if any) is to be
made. Cognizance must be taken of the grave consequences that will follow
a declaration of war not just the declaring state but also for the state that war
is being declared against and the effect on the international community.
Where a state is acting in individual or collective self defence pursuant
to Article 51 of the UN Charter, no formal declaration of war is required.
The state acting in self defence will be permitted to use force and such force
59
Even though the API came into being after the Nigeria-Biafra Civil war
35
must be necessary and proportionate to the acts of the aggressor state. It

has been suggested by some authors that the fact that a country has made
a declaration of war does not therefore increase its right to use force.60
The aggressor is only to apply the amount and kind of force necessary to
conquer the opposing state. Such force is to be directed at military targets
only and a state should not be heard to say that by declaring war it had the
right to annihilate the citizenry of a particular state. This was the attitude
by Germany during the 2nd World War where anti-Semitist agenda led
to the extermination of about six million Jews, including two thirds of
the Jewish population of Europe by massacre, systematic execution and
starvation.61With respect to a declaration of war, it should be mentioned that
such a declaration often means that the aggressor state is committed to the
destruction of his adversary and this will be a relevant factor in determining
what a proportionate response is.62
It is irrelevant that the parties to a conflict do not recognize themselves
as states, international humanitarian law will still apply in such a
situation. This is governed by Article 13 para 3 of the Geneva Convention
I (GCI)63 which provides that the Convention shall apply to the sick and
wounded members of the regular armed forces who profess allegiance to a
Government or an authority not recognized by the detaining power. In any
event, the laws of international humanitarian law will come to play despite
the absence of such recognition by the adverse party. For instance in the
century spanning conflict between the Arab states and Israel, where the
Arab states refused to recognize Israel as a state. Nevertheless, both sides
agreed that the principles of international humanitarian law were applicable
to the conflict between them.
One issue which needs to be treated here is the status of the United
Nations during peace keeping and other military operations. Are they to
be treated as parties to the conflict? Also, do the rules of humanitarian law
apply to them? With respect to the first question, it seems the UN forces may
be viewed as parties to an armed conflict.
As a general rule, it is a crime to attack UN personnel and associated
personnel at any point in time, whether or during armed conflicts. This is
by virtue of the 1994 UN convention on the Safety of United Nations and
Associated personnel. This law was put in place to criminalize attacks on UN
60
61
62
63
Fleck D, The Handbook of Humanitarian Law, 2nd Ed, p. 35

Funk & Wagnalls New Encyclopedia Vol. 2, P. 154
Brownlie, International Law and the Use of Force by States, p. 368
Article 13 para. 2 GCII, Article 4A para 3 GCIII, Article 43 para 1 API
36
personnel, their premises, property as well as threats of attack which prevent

them from carrying out their duties. The exception to this rule is that the
convention will not apply with respect to a Security Council authorized
UN operation being an enforcement action where personnel are engaged as
combatants against organized armed forces.64 In such a situation, the UN
forces will be viewed as parties to the conflict. The rationale behind this line
of thought is that UN forces should not be seen as parties just because they
engage in fighting with members of other armed forces. It is only when they
have been engaged as combatants that they should be viewed as parties to
the conflict
To answer the question whether the rules of international humanitarian
law apply to UN forces, the answer is in the affirmative. It has now been
settled that, to the extent that such forces are a party to an armed conflict,
they are subject to international humanitarian law.65 To ensure compliance
with international humanitarian law, the 1999 Bulletin on observance by UN
forces was put in place by the UN Secretary General. This bulletin came into
effect on 12 August 1999 and deals with the application of the laws of war to
UN forces during armed hostilities in which they are involved in.
Where the UN has become involved in any armed conflict, one of the
usual incidences is that the laws of neutrality will be affected. By virtue of
Article 2, para 5 of the UN Charter,
All members shall give the UN every assistance in any action it takes
in accordance with the present Charter, and shall refrain from giving
assistance to any state against which the United Nations is taking
preventive or enforcement action.
The effect of this Article is that a state cannot hide behind the law of
neutrality when called upon to render assistance to the United Nations. This
provision supersedes the law of neutrality and States are to lend their support
to the UN even if this would be in violation of the laws governing neutrality.
Once there is armed conflict between States, the laws of international
humanitarian law come into play. With respect to parties not involved,
it is usually the law of neutrality that governs their relationship with the
belligerent parties. It has been suggested that the laws of neutrality are to
apply only when there is a formal state of war. However a more current view
would be that the laws on neutrality will apply in any armed conflict and not
only when there is war.
64
65
Article 2 para 2 UN Safety Convention

Schindler, in Swinarski (Ed) 521
37
Apart from armed conflict between two or more independent states, the
rules of international humanitarian law recognize the presence of noninternational armed conflicts. Fundamentally, Article 3 of the Geneva
Conventions contains rules to govern non-international armed conflict
and prohibits certain acts in the conduct of armed hostilities. Paradoxically
in order to supplement this Article, the Additional Protocol II was
introduced and it contains more detailed provisions with respect to noninternational conflicts.
It appears that APII will only apply in a civil war between the government
of a state and a seceding party or a rebel group. This is because Article 1
para 2 is to the effect that the Protocol will not apply in situations like riots
or other isolated and sporadic acts of violence since they are not armed
conflicts. Thus, it is only when hostilities have escalated to being more than
isolated attacks that the provisions of APII will apply. During the Nigerian
Biafra Civil war (1967-1970) the APII had not yet been formulated, so
reliance, if any, must have been placed on Common Article 3 of the Geneva
Conventions with respect to the rules of international humanitarian law.
However, a situation may arise where the internal conflict is between
rebel groups in a state fighting for power and not in the traditional civil
war sense of fighting against the ruling government. In such a scenario, it
seems that the provisions of the APII will have no effect and only a broader
interpretation of Common Article 3 will be able to cover such a situation.
This kind of internal conflict happened in Somalia after 1991and the
provisions of APII were inadequate to cover the situation.
While the rules governing non-international armed conflict are basically
contained in Common Article 3 of the Geneva Conventions and the 1977
APII, there is a possibility that laws of international armed conflict may
become applicable in non-international armed conflict. The authority
for this is still pursuant to Common Article 3 which provides that the
parties to the conflict should further endeavour to bring into force by means
of special agreements, all or part of the other provisions of the present
Convention. Where there is foreign intervention, it may also have the effect
of making international humanitarian law applicable to non-international
armed conflicts.
In conclusion, the term armed conflict has taken over the reigns from the
term war and humanitarian law will apply once it is shown that there is
an armed conflict between the states. It is irrelevant which party instigated
the conflict, international humanitarian law will be applicable to regulate
the conduct of hostilities. Formal declarations of war are no longer a
38
mandatory pre-requisite for states to engage in hostilities since international

humanitarian law will apply regardless of the formal declaration. United
Nations forces are subject to the rules of international humanitarian law but
they are not to be regarded as parties to the conflict unless their involvement
suggests that they have been engaged as combatants against organized
forces. With respect to non international armed conflicts, Common Article
3 and the provisions of the APII are to be read together to effectively cover the
scope of such conflicts. For the application of the APII, some questions have
arisen as to whether the Protocol will be effective in practice. While some
states may have their doubts, one clear instance of application is pursuant to
Art 4 of the 1994 statute of the Intl Criminal tribunal for Rwanda which gives
the Tribunal power to prosecute persons pursuant to Common Article 3 and
the APII. Regarding international and non-international armed conflicts, it
is necessary at all times that states are able to determine what constitutes
armed conflict so that the rules of humanitarian law will apply accordingly.
II.
Acts of War
In every armed conflict whether internal or international, it is necessary to

determine what constitutes acts of war by one state against another. Where
a party to an armed conflict applies all possible measures of force against
another party with intent to decimate the adversarys armed forces and
other military objects, such measures of force will constitute acts of war.
A distinction should be made between the actual use of force and the
threat of the use of force. It is only when force is actually applied in armed
conflict that such application will constitute acts of war. However, if it is
only a threat to use force, such will not likely constitute acts of war since on
their own no situation of armed conflict is generated. The fact that a threat
of force has been issued by one state against the other not entitle the latter
state to resort to the application of force. The right to use force in such a
situation will only arise where the state being threatened has the right to act
in self defence. Thus, it ought to be shown either that an armed attack was
being carried out against the state or such attack was reasonably expected to
be carried out.
Where a State carries out acts of war in any armed conflict, the fact that
the State employs the term acts of war does not of itself validate the legality
of such acts. In other words, the term acts of war does not connote legality
of any action with respect to armed conflict and it must be shown that such
acts of war were necessarily legal and within the confines of the international
39
humanitarian law. This is in line with the equitable maxim that equity
looks to the substance rather than the form and so each act of war has to be
isolated and examined to determine whether it is legal or illegal.
Circumstances may arise where a state that was not originally a party
to the conflict may make itself a party by lending support to either party
to the conflict. The nature of the support to constitute an act of war must
be the direct support in military operations by one party which is likely to
cause harm to the adversary. Where the support is of a financial or political
nature, they are not to be considered as acts of war. The rationale behind
this line of reasoning is obvious. If for instance political support can make
the supporting state a party as well, some states could find themselves
being parties to numerous conflicts at the same time just for showing
political support.
With respect to the current trend of terrorist attacks by particular armed
groups against other States, it appears that military operations against such
attacks will constitute acts of war. It does not matter whether the terrorist
attack was initiated by the State or by an armed Militia group within the
State. The victim State in seeking to curb these activities may resort to acts
of war, thus bringing the international humanitarian law into operation. To
conduct such attacks, it is not uncommon for the Victim State to attack a
region in a State where it believes the terrorists are located. Such a situation
will most likely lead to armed conflict between the Victim State and the State
hosting such terrorists. For instance, even though the militant organization
A1-Queda claimed responsibility for the September 11, 2004 attacks on the
USA, the acts of war carried out by the US against Afghanistan gave rise to a
situation of armed conflict between the states.
Every armed conflict must of necessity involve acts of war by one state
against another. However, in line with the basic rules of international
humanitarian law, such acts of war must be directed against military objects
and installations. Weapons used should not cause unnecessary suffering
to combatants in the armed conflict. The constituents of acts of war are to
be carefully examined to determine whether a state acted properly in any
armed conflict. Where the state fails to act accordingly, they may be held
accountable under the international humanitarian law.
III.
Area of War
In every armed conflict, it is necessary to determine the areas of war and

distinguish them from areas occupied by civilian population and within the
40
territories of the belligerent States. The reason behind this is that military
operations are to be carried out only in the areas of war. In practice, the
area of war often comprises of the territories of the parties to the conflict
as defined by the national boundaries; the high seas (including the airspace
above and the sea floor), and exclusive economic zones.66 With respect to
the national territory of a State, this shall include the land territory, rivers
and land-locked lakes, national maritime waters and territorial waters; and
the airspace above these territories.67 Apart from these, it is unlikely that
any other area may be viewed as an area of war. However, the Exclusive
Economic Zone (EEZ) of a neutral State may constitute an area of war.
With respect to the territory and airspace of neutral States they will only
be considered as areas of war where either party to the conflict has been
permitted to conduct military operations from the neutral territory.
While military operations are only to take place within the area of war,
there are other areas which have been excluded from any military activities.
These areas are collectively known as protected areas and zones and are
distinguished under the Geneva Conventions and Protocols. The different
categories of protected areas and zones include:
1. Hospital zones and localities
2. Hospital and safety zones and localities;
3. Neutralized zones;
4. Demilitarized zones; and
5. Non-defended localities.
While these zones are similar in many respects, some differences exist
between them as each zone was established pursuant to international
humanitarian law for differing purposes. They shall now be treated one after
the other.
Hospital zones and Localities

Article 23 of the GCI contains the provision dealing with hospital zones and
localities. It provides that the parties to an armed conflict.
may establish in their own territory and if the need arises in occupied
areas, hospital zones and localities so organized as to protect the wounded
and sick from the effects of war
66
67
ibid
41
The primary effect of this provision is to protect wounded and sick

members of the armed forces from the effects of war. Article 23 also lends
protection to the medical personnel entrusted with the organization and
administration of the zones and localities.
In order for these zones to be respected, the parties are to conclude
agreements that the zones and localities are mutually recognized by them
for that purpose. One party to the conflict cannot on its own unilaterally
declare that an area is a hospital zone or locality. In similar fashion, a
3rd party cannot designate an area as a hospital zone. There ought to be
agreement between the parties to the conflict for the hospital zone to be
regarded. For this purpose, Act 23 further provides that the provisions of
the Draft Agreement attached to the GCI are to be implemented. It should
be noted that the hospital zones and localities are to be marked by the
distinctive emblem which may be a red cross, red crescent or red lion and
sun against a white background.
Hospital and Safety zones and Localities

While hospital zones are localities treated above are aimed at the
protection of wounded and sick armed forces, hospital and safety zones and
localities are primarily for the protection of the civilian population from
the effects of war. By virtue of Article 14 GCIV, the parties to the conflict
are to establish such hospital and safety zones and localities and these are
to protect:
wounded, sick and aged persons, children under fifteen, expectant
mothers and mothers of children under seven.
The reference made here to mothers of children under seven appears

arbitrary as it causes one to wonder, what if the child is above seven years of
age? Will the protection not avail the mother? These questions are merely
moot or argumentative as the international humanitarian law in practice
will strive to protect all civilians during any armed conflict. With respect
to hospital zones and localities, it is fundamental that both parties must
mutually recognize the zones they have created and the provisions of the
Draft agreement are to be sacredly implemented.
Furthermore, the Protecting Powers and the ICRC are to lend their good
offices in order to facilitate the institution and recognition of the hospital
and safety zones and localities.
42
Neutralized Zones
Neutralized zones are provided for pursuant to Article 15 of GCIV which
provides thus:
Any party to the conflict may, either direct or through a Neutral state
or some humanitarian organization, propose to the adverse party to
establish, in the regions where fighting is taking place, neutralized
zones intended to shelter from the effects of war the following persons
without distinction:
a) wounded and sick combatants or non-combatants;

b) civilian persons who take no part in hostilities, and who, while they
reside in the zones, perform no work of a military character.
The underlined portion of Article 15 represents the distinguishing
factor between neutralized zones and other species of protected zones and
localities. For a zone to be recognized as neutralized, it is to be established in
the regions where fighting is taking place.
Once there has been agreement on the geographical location,
administration, food supply and supervision of the neutralized zone,
Article 15 provides further that the parties to the conflict conclude and sign
a written agreement. This agreement is to include details of the beginning as
well as the duration of the zones neutralization.
Demilitarized zones
Article 60 of the API contains extensive provisions dealing with demilitarized
zones. Where the parties to a conflict have by agreement, conferred on a
zone the status of being demilitarized, they are prohibited from extending
their military operations to that zone. No military operations are to be
conducted in a demilitarized zone neither are purposes related to military
operations permitted in these zones.
Where parties to a conflict have by agreement made a zone demilitarized,
such agreement may be concluded either verbally or in writing. The
agreement may be concluded either directly between the parties to the
conflict, or through a protecting power or any impartial humanitarian
organization.68 Reference to an impartial humanitarian organization must
of necessity include the ICRC considering its pivotal role with respect to the
growth of the international humanitarian law.
68
Article 60 para 2 API
43
For a zone to be deemed as demilitarized, the following conditions are to

be fulfilled:
a) all combatants, as well as mobile weapons and mobile military
equipment must have been evacuated;
b) no hostile use shall be made of fixed military installations
or establishments;
c) no acts of hostility shall be committed by the authorities or by the
population; and
d) any activity linked to the military effort must have ceased.69
Demilitarized zones, more than other protected zones, are more
vulnerable to attacks by the adverse party. The removal of all combatants,
weapons and the absence of military activity are more likely to leave the
inhabitants of zones exposed to military operations. It is thus necessary to
redefine the concept of demilitarized zones with a view to determining how
its inhabitants are to be protected from attack.
Paradoxically, with respect to other protected zones, demilitarized zones
are to be marked by clearly visible signs as agreed by the parties to the
conflict. Such marking is to be done by the party in control of the zone and
should be made especially on its perimeter and limits and on highways.70 It
appears that any of the distinctive emblems recognized under international
humanitarian law will suffice for such marking.
The power to revoke the status of a demilitarized zone does not rest in
the hands of any one party to the conflict. Thus, no party acting on its own
may unilaterally revoke the status of a demilitarized zone. Where however
one party commits a fundamental or material breach in violation of Art 60.3
or 60.6 of API, the other party may be released from its obligation under the
agreement.71 It should be noted that while no party may unilaterally revoke
the status of a demilitarized zone, the agreement or consensus ad idem of
both parties may lead to the revocation of a demilitarized zones status. By
virtue of Art 60 para 7 AP1, where the zone loses its demilitarized status,
it shall continue to enjoy all such protections afforded under the protocol,
as well as those that are available under other rules of international law
applicable in armed conflict.
69
70
71

44
Non-Defended Localities
It is prohibited for the parties to the conflict to attack, by any means
whatsoever, non-defended localities.72 Article 59 para 2 goes further to define
a non-defended locality as any inhabited place near or in a zone where armed
forces are in contact which is open for occupation by an adverse party. These
localities are aimed at avoiding combat and destruction and no fighting is to
take place within these vicinities. The requirement of such localities being
at a place near or in a zone where armed forces are in contact implies that
such localities do not extend to places deep within a states territory. Such
areas within a States territory not being open for occupation cannot qualify
as non-defended localities.
The requirements for a zone to acquire the status of a non defended locality
are in pari materia with those for a demilitarized zone. Thus, pursuant to
Act 59 para 2 AP1, all combatants and military equipment must have been
evacuated from such locality. In addition, there shall be no hostile use of
fixed military installations. Furthermore, acts of hostility are prohibited by
either the authorities or the population and no activities supporting military
operations are to be undertaken therein.
Unlike other protected zones and localities, non-defended localities may
be established without agreement between the parties.73 Where the parties
come to agreement on the establishment of non-defended localities, the
fact that the localities do not fulfill the conditions spelt out in Act 59 para
2 will not be a barrier to granting such localities the non-defended status.
Any agreement reached in such circumstances should define as precisely
as possible the limits of the non-defended locality and may lay down the
methods of supervision.
Principally, similar to demilitarized zones, the party in control of any
non-defended locality is to mark it by signs as agreed upon with the other
party. In the event that a locality loses its status as a non-defended locality
(by failure to fulfill the conditions under the API), it shall continue to enjoy
the protection provided under other provisions of the Protocol and other
rules of international humanitarian law.
Other safe areas established by the UNSC:
In addition to the different protected zones and localities which enjoy
legal backing in the Geneva Conventions and Protocols, the UN has by
means of different resolutions established new safe areas with respect to
72
73

45
individual situations of armed conflict. In Bosnia and Herzegovina, the UN

Security Council created safe areas (also known as safe havens) by virtue
of Resolution 819 of April 16, 1993 and later by Resolution 824 of May 6,
1993. These resolutions were aimed at prohibiting all military operations
within the safe areas, where there is a failure by the parties to the conflict
to observe and abide by the rules as stated in the Geneva Convention. The
result of this failure led the Bosnian Serb Army in 1995 to massacre a large
proportion of the civilian population in Sebrenica. In addition, more that
seven thousand persons were declared missing. It appears that these safe
areas did not achieve the purpose for which they were set up. The UN forces
did not protect the population and so many lives were lost. Perhaps, a proper
approach with respect to such safe havens would have been to clearly state
the bodies responsible for the protection of the population.
Apart from safe areas, the UN Security Council has established what
were termed secure humanitarian areas. These were to be made pursuant
to Resolution 918 of May 17 1994, which expanded the authority of the UN
Assistance Mission for Rwanda (UNAMIR) allowing it to establish and
maintain secure humanitarian areas.
However the only secured humanitarian area established in Rwanda
was set up by Operation Turquoise, a French initiative backed by the UN
Security Council Resolution 929. The resolution was supported by Chapter
VII of the UN Charter which authorizes armed forces under national control
to ensure the security of displaced persons, refugees and civilians. With the
withdrawal of the French Army, the UN peacekeeping forces took over but
due to the absence of specific instructions to the UN forces, the population
was attacked by the Rwandan Army leading to many deaths and thousands
of missing persons.
The determination of the area of war is of crucial importance in any
armed conflict. The parties to the conflict are to confine their hostilities
within the theatre of war in order to ensure safety of the persons residing
in protected zones and localities. In practice, some areas have acquired
the status of being neutralized zones in any armed conflict. Switzerland
for instance has acquired a permanent regime of neutrality. By Article
1 of the Antarctic Treaty 1959, the Antarctic is to be reserved for peaceful
purposes. The establishment of military bases and fortifications within
this region is prohibited. Where such a zone has been created by treaty or
otherwise, armed conflict between states must not be extended there neither
are military activities permitted. The conflict must be within the area of
46
war and any attempt to extend this area must be in accordance with the
provisions of the international humanitarian law.
IV.
Termination of Hostilities
While hostilities between some states may last for decades (possibly
centuries), there comes a time when hostilities will certainly come to an end.
Such termination may either be temporary or permanent. In a temporary
cessation of hostilities, the aim is usually to facilitate the treatment of
wounded soldiers and to provide relief supplies for victims of war. Where
hostilities are being permanently terminated, the armed conflict is deemed
to have come to an end.
For armed conflict to come to an end, it appears that a peace treaty or
some kind of agreement is necessary to bring it to its conclusion. For
instance in the conclusion of the 2nd World War where although armed
hostilities ended in may 1945 in Europe, the USA in 1946 still made a formal
declaration announcing that the war had come to an end. In modern armed
conflict, hostilities may be terminated not necessarily by conclusion of
peace treaty but through the activities of parlementaires and protective
powers. In addition, hostilities may be terminated by a ceasefire, armistice
or capitulation. These shall be treated below for better comprehension
and elucidation.
Parlementaires and Protecting Powers

In any situation where acts of war are being carried out between states,
parlementaires are needed to enter into negotiations to bring the conflict to
an end. Such negotiation may be for a temporary suspension of hostilities
to facilitate the recovery and treatment of wounded persons and the supply
of relief materials. With respect to permanently bringing the conflict to
an end, parlementaires are of extreme importance in the preparation of a
peace treaty.
In carrying out their duties, parlementaires are not to be attacked.
Commanders of any of the parties to the conflict are precluded from
attacking them. Also, they are not to be attacked by any of the parties to
the conflict.
The primary duty of parlementaires in any armed conflict is to enter
into negotiations with the adverse party to bring about a temporary or
permanent cessation of hostilities. In addition to this, parlementaires
duties may also extend to the negotiation for the recovery and treatment
47
of wounded persons, in the supply of relief materials as well as to facilitate

the exchange of prisoners of war. The importance of parlementaires cannot
be underestimated as any situation of aimed conflict is usually terminated
through them. In modern times, the UN acts as a parlementaire to bring
hostilities to an end. In any event, persons acting a parlementaires must act
under the authority of the commander of the forces of any of the parties.
In ancient times, parlementaires were often accompanied by trumpeters,
drummer, flag bearer and an interpreter. In modern times, drivers and
interpreters are sufficient. All persons who approach the enemy territory
with the parlementaires have a right to inviolability. This principle of
inviolability is pursuant to Article 32 of the Hague Regulations and its effect
is that such persons are not to be attacked neither are they to be detained or
held as hostages.
As a general rule, parlementaires are to hoist a white flag for purposes of
identification. This is not only to identify them as parlementaires but also
to guarantee their safety and the safety of persons with them. Contrary to
popular belief, the display of such a while flag does not necessarily indicate
an intention to surrender. However, when it is raised by an individual
solider or a small group of soldiers during an exchange of fires, it may be
construed as surrender.74 The use of the white flag must be respected and it
may not be used as a guise to attack the adverse party. Where a party to the
conflict displaying the white flag uses it as a means to deceive the adversary
and attack them, such act will be regarded as perfidy pursuant to Act 37 and
38 of API and punishable as a war crime. Such acts are also recognized as a
crime under customary international law. It should be noted that parties to
the conflict are to apply great caution when using the flag of truce or acting
on the basis of its being hoisted. This is because a situation may arise where
some members of an armed force have hoisted the flag without the consent
of their Commander. In the Falklands conflicts, some Argentine solders
raised a flag of truce. This act was done without the knowledge of their
Commander and the rest of the Argentine forces were also not aware. When
some British soldiers came closer to investigate, they were attacked by the
Argentine soldiers who had no idea that a flag had been raised.
Article 33 of the Hague Regulations provides thus:
The chief to whom a flag of truce is sent is not obliged to receive it
in all circumstances. He can take all steps necessary to prevent the
74
Fleck D, op cit, p.63
48

envoy taking advantage of his mission to obtain information. In case
of abuse, he has the right to detain the envoy temporarily.
In effect, a commander by refusing to receive a parlementaire cannot be

said to have acted illegally. His refusal may be to prevent the parlementaire
from observing certain operations which are to be used to attack the party
that sent the parlementaire. According to one author, a commander should
not, acting pursuant to Act 33, announce in advance that he will not receive
any parlementaires.75 Such an act will not be considered lawful. However,
some authors maintains that any such announcement will be deemed
legitimate provided it is applied only for a definite period of time.76
To ensure that the parlementaire does not take advantage of his mission
to obtain information, the Commander may take measures (such as
blindfolding) to safeguard the interests of his armed forces. The commander
may also determine the time and route which the parlementaire may use to
get into enemy territory. In all these precautionary measures, the safety of
the parlementaire must be guaranteed at all times.
In the event that the parlementaire abuses the privilege vested in him,
by disclosing information amongst other things, the commander of the
adversary aimed forces may be entitled to detain him and the persons with
him. The requirement of abusing the privilege does not necessarily mean that
the parlementaire came as a spy to aid the other party. He may be detained
even if the information obtained was by accident as long as such information
would jeopardize the success of military operations being undertaken by
the forces that received the parlementaire. Where the parlementaire has
been detained, he is to be treated with the respect accorded to someone of
his position or at least as a prisoner of war.
Article 34 of the Hague Regulations protects parlementaires from being
taken as a prisoner or detained. This is the right to inviolability and where
it is proved beyond doubt that the parlementaire has taken advantage of his
position to provoke or commit an act of treachery, he will lose this right. It
is the misuse of this privilege that gives the Commander of the adversary
forces the right to detain a parlementaire. To take advantage as it is
envisaged under Article 34 means that the parlementaire has either acted
contrary to the rules of international humanitarian law, or has by certain
acts or omissions, that may be detrimental to the military operations of the
adversary while carrying out his own mission.
75
76
Lauterpacht, H. (Ed) Oppenheims International Law, Vol. II 539

Dinstein,, I EPIL, 256-259
49
In pursuance of Art 34, any of the following acts may constitute acts
detrimental to the military operations of the adversary:
- gathering intelligence beyond the observations he inevitably makes
when accomplishing his mission;
- acts of sabotage;
- inducing solders of the adverse party to collaborate in collecting
intelligence;
- instigating soldiers of the adverse party to refuse to do their duty;
- encouraging soldiers of the adverse party to desert; and
- organizing espionage in the territory of the adverse party.77
To ensure secrecy of the activities of the adversary, parlementaires are
not to take photographs or prepare maps with the aim of assisting the other
party to the conflict. Where they do this, they will be in violation of Art 33
para 3 of the Hague Regulations and may be liable to be tried by the adverse
party. Where the Commander of the adverse party permits a parlementaire
to make certain observations concerning their military operations, that
parlementaire will be able to disclose what he has seen to the other party to
be conflict since he was acting under express or implied permission.
Apart from the vital function performed by parlementaires, the Geneva
Conventions makes provisions for Protecting Powers also for the purpose of
facilitating the termination of hostilities. By Art 8 of the GCI, it shall be the
duty of the Protecting Powers to safeguard the interests of the parties to the
conflict. To perform this function, the parties to the conflict can make use
of intermediaries to the Protecting Powers to facilitate communications. It is
for the parties to the conflict to designate a Protecting Power for the purpose
of applying the Conventions and the Protocol.78 In modern practice, parties
to a conflict do not always come to agreement to use a particular Protecting
Power. Where no Protecting Power has been designated by the parties, the
ICRC is required to offer its good offices to the parties to the conflict with
a view to choosing a protecting power for the parties to the conflict.79 To
do this, the ICRC shall request for a list of 5 states from both parties and
through comparison of both lists, seek the agreement of any state named
as a Protecting Power. In the event of a failure to choose a protecting
power after these procedures, the ICRC may act as a Substitute Protecting
77
78
79

50
Power. The functioning of any Substitute Protecting Power (especially the

ICRC) is to be subject to the consent of the parties to the conflict.8023 Where
both parties refuse to consent to the adoption of the ICRC as a Substitute
Protecting Power, Articles 30 and 143 of the GCIV will step in to impose the
presence of the ICRC or any other humanitarian organization with respect to
the armed conflict.
Ceasefire and Armistice

An armistice is a military convention, the primary purpose is to suspend
hostilities over the whole theatre of war, usually for an indefinite period of
time.81 The primary aim of an armistice agreement is to pave the way for the
subsequent termination of hostilities. It should not be mistaken with a peace
treaty which is a formal declaration that the parties are no longer fighting.
Armistices only lay the groundwork for what would eventually become a
termination of hostilities.
On the other hand, ceasefires are characterized by a temporary suspension
of hostilities between the parties to the conflict. Such suspension is usually
not to the whole theatre of the war but with respect to a particular location
where fighting was taking place. The primary aim of ceasefires is to facilitate
the treatment of wounded persons, the provision of relief supplies as well as
the removal of civilians from war ravaged areas.
The distinction between ceasefires and armistices is that while ceasefires
are often of a temporary nature, armistices are geared towards the complete
termination of hostilities. Article 15 of the GCI deals with ceasefires and
armistices and provides thus:
whenever circumstances permit, an armistice or a suspension of fire
shall be arranged, or local arrangements made, to permit the removal,
exchange and transport of the wounded left on the battlefield.
One clear instance of the use of armistice was in the termination of the 1st
world war. This was achieved through the instrumentality of the Armistice
of Rethondes in 1918 which led to the Treaty of Versailles in 1919 and the
subsequent termination of the 1st world war. There are circumstances where
a ceasefire may have the character of an armistice by being of indefinite
duration. In such situation, the distinction between them becomes harder
80
81

Bouchet Saulnier F., The Practical Guide to Humanitarian Law, p. 24
51
to decipher. Such a situation occurred in the cease-fire agreement between

Iran and Iraq in 1988 which was of an indefinite duration.
The formulation of the UN Charter 1945 had some direct impact on the
law relating to armistices and is embodied in the Hague Regulations. By
Article 36 of The Hague Regulations, if the duration of an armistice is not
fixed, the belligerent parties can resume operations provided the enemy is
warned of such resumption. This Article goes against Art 2 para 4 of the
UN Charter which embodies the general rule prohibiting the use of force.
In effect, the right of belligerents to resume hostilities has been thwarted by
Art 2 para 4 of the UN Charter. It is only when a state is acting in self defence
pursuant to Article 51 of the UN Charter that it will be permitted to act in
violation of the armistice agreement.
Two types of armistices are envisaged under Art 37 Hague Regulations i.e.
general and local armistices. Where a general armistice is in force, its effect
is to suspend all military operations of the belligerent state. No war is to take
place in the whole theatre of war. On the other hand, a local armistice is
often limited to certain fractions of the belligerent armies and is to operate
within a fixed radius or in a specified locality.
An armistice must be notified officially, and in good time, to the
competent authorities and the troop.82 Failure to give such notification will
be a bar to the suspension of hostilities. Once there has been a notification
in an unmistakable form, as well as at a fixed date, hostilities between the
belligerent parties are to be suspended immediately.
Article 40 Hague Regulations provides that where one of the parties
to the conflict has acted in violation of the armistice, the other party is
entitled to denounce it. In extreme cases, it may give the latter party the
right to recommence hostilities at once. The same principles apply equally
to ceasefires. Such recommencement, it is submitted, should be subject
to the rules of self defence under Article 51 of the UN Charter. Thus,
where one party has violated the terms of an armistice, the other party in
recommencing hostilities is to do so pursuant to the right of self defence and
their acts must be shown to be necessary and proportionate to the armed
attack suffered.
Where the violation of the terms of the armistice is by private individuals
acting without the authority of their state, the other state will not be entitled
to denounce the armistice. Rather, it may call for the punishment of the
individual members and where necessary, request indemnification for the
82
Article 38 Hague Regulations
52
losses sustained.8326 In practice, it would be difficult to ascertain whether the

individuals were indeed acting on their own initiative and not for the states
benefit. To resolve this, the UN puts forces in place to monitor ceasefires. In
the words of some authors:
Violations of armistice and ceasefire conditions committed by
individuals acting without the authorization of their state will not
normally give rise to such a right, although the time may be very
difficult to ascertain in a particularly case. Partly for that reason,
many ceasefires now monitored by UN peacekeeping forces to deter
violations and to provide an authoritative machinery for determining
the truth where violations have been alleged84
Capitulation
Another means for the termination of hostilities is through capitulations.
In international law, a capitulation is an agreement to surrender a fortified
place or a military or naval force.85 Narrowing it down to international
humanitarian law, capitulations are agreements made unilaterally or
mutually for the termination of hostilities. By Article 35 Hague Regulations,
such capitulations agreed between the parties must be in accordance with
the rules of military honor. The parties are further required to observe the
capitulation faithfully.
A capitulation may either be total or partial. Where it is a total
capitulation, its aim is to apply to all the armed forces of a State. On the
other hand, a partial capitulation is designed to apply to only specific
units of the entire armed force. When there is a partial capitulation, this
does not change the fact that the state of armed conflict still exists between
the parties. When there is a total surrender, the presumption arises that
the parties are no longer engaged in a state of armed conflict. Where this
happens, several issues have to be resolved particularly with respect to the
repatriation of prisoners. This was the situation during the Falkland conflict
between Argentina and Great Britain. After the surrender by Argentine
forces in the Falkland Islands, prisoners of war were released shortly after
and repatriated since it was clear that Argentina would stop carrying
out hostilities.
83
84
85

Blacks Law Dictionary, 7th Ed, p. 203
53
Where there is a unilateral capitulation (ie by one party to the conflict),

there is this presumption that such capitulations are usually made by the
weaker party to the conflict. However, experience has shown that even
the stronger parties to the conflict can surrender or capitulate in any
particular armed conflict. In the current crisis in Nigeria between the
Federal Government and the militant groups in the Niger Delta Region,
there appears to have been some sort of indirect capitulation by the Federal
government of Nigeria. The militant groups in their fight for resource
control threatened the destruction of oil pipelines and installations in the
region. On the other side of the conflict, the Federal Government of Nigeria
insisted that the militant groups would not succeed in this objective. When
the demands of these groups were not met, they embarked on destruction of
oil pipelines and other installations which led to a drastic reduction in the
amount of crude oil produced per day from 3 million barrels to per day to
about 1 million barrels.
To cure this situation and restore the status quo of crude oil production,
a statement was issued by the president of Nigeria Umar Musa YarAdua
granting amnesty to all militants in the Niger Delta Region. While this
may appear to be for the maintenance of peace in the region, the act was
also intended to protect oil installations, oil being the mainstay of the
Nigerian economy.
The events leading up to the grant of amnesty suggest that the Federal
Government in a bid to secure oil installations surrendered to the militants
though not admitting so directly. These facts buttress the point that
capitulations are not in all cases made by the weaker party to the conflict.
Once a capitulation has taken place, steps are taken to renew the existing
relations between the parties to the conflict. In addition, prisoners that have
been detained by reason of the conflict are to be released. Even though a
capitulation does not necessarily mean that the conflict has come to an end,
it contains an implied presumption that by capitulating or surrendering, the
parties are to cease from engaging in any armed conflict.
Conclusion of Peace Treaty

The most effective means for the termination of any armed conflict is through
the conclusion of a peace treaty. Despite their effectiveness, peace treaties
are not commonly in use. Some of the last known peace treaties were the
ones arising from the end of World War II in 1945. Perhaps the change from
the term war to aimed conflicts has reduced the use of peace treaties. In
54
modern practice, hostilities are terminated either by ceasefire, armistice or

capitulation. Once either of these methods is used, the subsequent cessation
of hostilities between the parties should be sufficient to terminate the armed
conflict between the parties.
Peace treaties are basically made between two (or more) hostile parties
who come to an agreement that they shall no longer be involved in fighting
with each other and to formalize this agreement, the parties conclude a
peace agreement. At every point in time during the conclusion of a peace
treaty, due regard must be given to the circumstances which brought about
the state or war or armed conflict between the parties. This is to ensure that
the underlying reason that caused the conflict is resolved by the conflicting
parties and such resolution needs to be spelt out in the treaty agreement
between them. The peace treaty must deal exhaustively with the issues that
generated the state of war as it is not sufficient for the parties to simply say
that they do not wish to fight again.
As earlier stated, issues leading up to the conflict must be resolved
between the parties in a peace treaty drawn up by them. Where the parties
were at war with respect to border disputes, a subsequently drawn peace
treaty must show that the parties have come to agreement on the borders of
their respective countries. It is irrelevant whether one party relinquished its
rights to the territory in question or that they came to a sharing agreement,
their final resolutions on where the borders start or end are to be embodied
in the peace treaty.
Another crucial element pertaining to the conclusion of peace treaty
is with respect to all refugees and displaced persons who have found
themselves in these conditions by reason of the armed conflict between the
states. The treaty must contain provisions to deal adequately with all persons
who have been displaced or have become refugees in other countries as a
result of armed conflict. Such persons are to be repatriated in accordance
with the rules of international humanitarian law.
In addition to provisions relating to borders and the condition of
displaced persons and refugees, a standard peace treaty should also contain
extensive provisions to solve any disputes that may arise in future between
the parties to the conflict. Behaviour which is to be prohibited in the
relations between the parties should also be embodied in the peace treaty.
Where one party to the conflict has failed to recognize the sovereignty of
the other, the subsequent treaty between the parties ought to acknowledge
such sovereignty especially where it has been proved to exist. In the Peace
of Westphalia Treaty of 1648 that ended the 30 years war, the sovereignty
55
and independence of the different states of the Holy Roman empire were
fully recognized.8629 The conclusion of a peace treaty between the parties
should also deal with any exiting debts between them and how they are to
be paid. Relations existing between the parties prior to the conflict are also
to be resumed and the treaties to which are signatories will start to apply to
them again.
The question may arise whether a peace treaty may be used to end a civil
war. The answer will be in the negative. Consider the repercussions where
the government of state concludes a peace treaty with a seceding section of
the state. Treaties are intended to be concluded between independent states.
By concluding a treaty with the seceding section of a state, the parent state
risks granting some sort of legitimacy to the seceding state. In effect, when
hostilities have come to an end in any civil war and the parent state has
prevailed, a capitulation, ceasefire or armistice would suffice and not the
conclusion of a peace treaty. At the end of the Nigerian-Biafra Civil war, a
formal surrender (and not a peace treaty) was signed by Philip Effiong87 on
January 15 1970 and Biafra was reincorporated into the Nigerian State. Where
on the other hand the seceding state succeeds against the parent, state, it
appears that a subsequent agreement between them at the termination of
hostilities may be by a peace treaty.
One of the most significant treaties that led to the conclusion of war
between states, was the Peace of Westphalia Treaty signed on October 24,
1648 to signify the ending of the 30 years war in Medieval Europe. The Treaty
of Versailles which was signed at the end of the 1st World War was also of
historical significance. This treaty subsequently led to the establishment
of the League of Nations as the first international peacekeeping body. It
also contained detailed provisions on the disarmament of Germany and
reparations to be made by her as well as post war territorial adjustments on
the European continent and in Germanys colonial empire.88
In modern situations of armed conflict, the conclusion of peace treaty is
indeed rare. One instance of the completion of a peace treaty was between
Egypt and Israel that concluded a Peace Treaty in 1979. In 1982, Israel entered
another peace treaty with Lebanon though it was not ratified. The practice
now is for armed conflict to terminate when there is a cessation of hostilities
either by capitulation, armistice or ceasefire.
86
87
88
Funk & Wagnalls New Encyclopedia, Vol. 25, p.67

Second in Command to Col. Odimegwu Ojukwu, the President of Biafra.
Funk & Wagnalls New Encyclopedia, Vol. 24, p.28
56
V. Relationship Between International

Humanitarian Law and Other Related Fields
Despite the status of the international humanitarian law as a specialized
body of law relating to any armed conflict, its operation often coincides with
other branches of the law. Some other branches of the law have a part to
play once there is a situation of armed conflict. They are not suspended just
because the parties are at conflict with each other but exist side by side with
the humanitarian law.
Perhaps the most important body of law that operates during situations of
armed conflict is the human rights law. Human rights law is always in vogue
whether there is armed conflict or not. Its relevance does not cease whether
there is a situation of peace or of armed conflict between the parties. It must
be mentioned that human rights treaties do not in any way seek to supplant
the international humanitarian law. The international humanitarian law
remains the law specially dealing with situations of armed conflict and the
human rights law only serves to complement its provisions.
There are circumstances where the international humanitarian law and
human rights law intertwine. For instance, the Convention on the Prevention
of the Crime of Genocide has a similar interpretation to Article 4 of the
African Charter on Human and Peoples Rights which provides that every
human being shall be entitled to respect for his life. While the Genocide
Convention is essentially of a humanitarian nature, it is supplemented by
the African Charter provisions that are essentially human rights provisions.
The Additional Protocol I incorporates several human rights principles.
It prohibits acts at any time or place and whether committed by civilians or
members of the military which involve.
a) violence to the life, health, or physical or mental well-being of
persons, in particular:
i) murder;
ii) torture of all kinds, whether physical or mental;
iii) corporal punishment; and
iv) mutilation;
b) outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;
c) the taking of hostages;
d) rape
57
e) collective punishments; and

f) threats to commit any of the foregoing acts.89
This Article is in consonance with human rights treaties despite
its humanitarian origins. This further highlights the complementary
nature and intertwining relationship between human rights law and the
humanitarian law.
While human rights law can apply in situation of armed conflict and peace
time, humanitarian law cannot apply in peacetime situations. This ability to
apply at all times ensures that when the armed conflict has come to an end,
the human rights law can punish those that committed violations against
the law. Conversely, rules that border on human rights may be applied based
on the standards obtainable in the international humanitarian law. For
instance, where an enemy national has been detained in time of war, the
question of whether such act is compatible with the provisions on liberty of
a person in any human rights treaty is most likely to be decided under the
international humanitarian law.90
With respect to peacekeeping operations, it appears that human rights
rules will be of greater relevance than the principles of humanitarian law.
International Humanitarian law being essentially laws regulating the
conduct of war, are not as comprehensive as the human rights laws with
respect to certain subject matter. Therefore, it is the human rights law that
will likely apply in peacekeeping operations. On the whole, human rights
must be highly regarded despite the fact that the parties are already engaged
in fighting. Its operation will continue not only during the conflict but also
at the end of hostilities since it plays an important complementary role to
the international humanitarian law.
Apart from human rights rules which apply during situations of armed
conflict, the fact that there is a conflict between states will not prevent peace
time rules from operating. Peacetime rules as used here refer to rules which
guide the conduct of the parties to the conflict when they are not involved
in hostilities. Such peacetime rules shall not cease to operate because the
parties are engaged in hostilities against each other. The only peacetime
rules that will not apply are those which the parties intended would not
apply during situations of armed conflict. Where no such reservation was
made on the application of the treaties during peacetime, it appears that
89
90
Article 75 API
58
such treaty relations will not be affected despite the situation of hostilities
between the parties.
The peacetime rules are to have continuing relevance particularly in the
relationship between the parties to the conflict and neutral states. While
the law governing such situations should be the law of neutrality, parties
often rely on peacetime rules in many modern conflicts. This does not mean
that the law of peace therefore ousts the jurisdiction of the law of neutrality.
Rather, the law of neutrality performs a qualifying role on the law of peace.
However, it should be noted that in applying peacetime rules, the parties are
not bound to apply those rules which by their agreement, they are permitted
to disregard in situations of armed conflict. Also, circumstances are bound
to arise where the law on armed conflict will supersede the operation of the
laws on neutrality.
The International Criminal law is also of direct relevance to the
international humanitarian law. While humanitarian law seeks basically to
regulate the conduct of hostilities between warring states, the international
criminal law is aimed primarily at the punishment of persons who have
offended against the humanitarian law. In effect, the relationship between
these two bodies of law operates in such a way that one starts to operate
after the other. The dynamics of their operation however does not mean
that humanitarian law ceases to exist at the closure of hostilities since
punishment under the international criminal law is to be based on violations
of the humanitarian law.
In practice, different tribunals have been set up to punish offenders
of the international humanitarian law. Such punishment is often made
pursuant to international criminal law principles. The Military Tribunal
at Nuremberg (1945-46) was instrumental in the successful trial and
prosecution of major war criminals in the 2nd world war. In similar fashion,
the International Criminal Tribunal for Yugoslavia (1993)91 was established
to prosecute violations of humanitarian law. This was the same purpose of
the International Criminal Tribunal for Rwanda 1994.92 The more recent
development in international criminal law is the establishment of the
91
92
Adopted by SC Res. 827 (1993) of 25 May 1993, amended by SC Res. 1166 (1998) of 13
May 1998, and 1329 (2000) of 30 November 2000
Adopted by SC Res. 955 (1994) of 8 November 1994, amended by SC Res. 1165 (1998)
of 30 April 1998, 1329 (2000) of 30 November 2000, 1411 (2002) of 17 May 2002, and
1431 (2002) of 14 August 2002
59
International Criminal Court (ICC)93 which is empowered to prosecute acts

of genocide, war crimes and crimes against humanity.
93
Of 17 July 1998
60
Chapter
3
Methods and Means of Warfare
I. Introduction
Under the modern and growth of international humanitarian law, limits are
to be set on the methods of warfare employed by the parties to the conflict
as well as the means of warfare to achieve any military objective. While the
methods of warfare refer to the tactics or strategy used against any enemy
in times of conflict, the weapons or weapons systems used are the means
of warfare.94 It is impossible for any armed conflict to take place without
the application of methods and means of warfare. Attempts in the past to
completely ban the use of force or resort to warfare between states have
proved futile. In modern times, it is only possible to regulate the means and
methods of warfare and this is achieved through the rules of international
humanitarian law on the subject. As history will show however, that such
attempts at regulation have encountered major setbacks but have gradually
evolved into the modern humanitarian law on methods and means
of warfare.
In ancient times, there was little room for rules regulating the methods
and means of warfare. Any rule existing at that time where either grossly
inadequate or limited to armed conflict between a numbers of states. The
absence of such regulatory rules meant that where there no limits on the
methods or means of warfare applied in any conflict. As a resultant effect,
weapons were used which caused unnecessary suffering to persons. Also,
there was no proper distinction between civilian and military objects as
the aim of war at the time was to annihilate as many persons as possible
in any conflict. In addition, there were no rules relating to necessity and
proportionality of armed attacks. Such armed attacks were not aimed simply
at weakening the opponents forces but at exterminating the opposition.
The change of attitude towards the indiscriminate application of methods
and means of warfare came due to the effects of the thirty years War of 16181648. There was unlimited resort to various methods and means of warfare
which caused unnecessary suffering to civilians and military forces alike. At
94
Bouchet Saulnier F., The Practical Guide to Humanitarian Law, p.266
61
Methods and means of warfare
the end of the war, about a third of Central Europes population had fallen
victim to the excesses of unlimited warfare.95 In his work De jure Belli ac
Pacis Libri Tres, Hugo Grotius detailed what was experienced during the 30
years war, established principles to be observed during armed conflict and
set limits to regulate the conduct of war.
Due to the works of Grotius, there was a shift in the attitude towards
means and methods of warfare and over the years, States began to recognize
some basic principles that would regulate the conduct of war. Unlike in the
past where no distinction was made between civilians and the military,
the attitudinal change in methods and means of warfare led some States
to recognize that only military objects were to be attacked and not civilian
population. For instance, the Lieber code of 1863 in operation during the
American civil war recognized that civilians were not to be attacked in any
armed conflict. Another important codification of such rules was the 1868
St. Petersburg Declaration renouncing the use of explosive projectiles under
400 grammes weight. This Declaration was aimed at curbing the use of
means of warfare which cause unnecessary suffering to combatants.
Despite the various regulations made during this period, there were
still instances of violation by parties to the conflict. The provisions proved
to be inadequate since they were often based on methods and means of
warfare adopted in the past and failing to take cognizance of any future
technological developments. The Hague Peace Conferences of 1899 and 1907
broke new ground in humanitarian law but were not completely successful
in setting limitations on the methods and means of warfare. Nevertheless,
the Hague Regulations embodied a basic rule of international humanitarian
law that the right of belligerents to adopt means of injuring the enemy is not
unlimited.963 The Conferences also led to the formulation of the Martens
Clause which is to the effect that:
Until a more complete code of the laws of war has been issued, the
High Contracting Parties deem it expedient to declare that, in cases
not included in the Regulations adopted by them, the inhabitants
and the belligerents remain under the protection and the rule of
the principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity, and
the dictates of the public conscience.97
95
96
97
Fleck D, The Handbook of International Humanitarian Law, p.119

Preamble to the Hague Regulation of 1907
62
The general effect of the clause is that customary international law will
continue to apply even after a treaty has been adopted. Thus, where the
treaty is not exhaustive with respect to certain matters, the operation of the
Martens Clause will introduce the provisions of the customary international
law with respect to any particular subject matter. However regards to
the laws of war, customary law will take effect where treaty provisions
are inadequate.
With technological developments, new species of means and methods of
warfare began to appear. Aerial warfare became a very effective means of
decimating enemy populations. The various conventions and declarations
did not anticipate these technological advancements in warfare. As a result,
many persons lost their lives during the 1st and 2nd World Wars. The
Hague Rules of Aerial Warfare (HRAW) 1923 which were aimed at regulating
aerial warfare were largely unsuccessful as states refused to consent to its
operation. Civilians were not spared and by the end of the 1st World War,
about 5% of the Civilian population had been killed. This figure was meager
compared to civilian losses during the 2nd World War where about 50% of
the civilian population were killed.
A new dimension to means and methods of warfare came with the
destruction of the environment by adversary armed forces. These were
aimed at rendering the environment uninhabitable for the military and
civilians alike. At the end of 1945, the US dropped two nuclear bombs, one at
Hiroshima and the other at Nagasaki both in Japan. These bombs not only
led to the death of about 220,000 people (mostly civilians) but the effects
of exposure to radiation led to deaths from leukemia and cancers. Another
instance of environmental destruction was by the US Army during the war
at Vietnam where they carried out large scale deforestation. The effect of
these acts was the destruction of the environment that has a devastating
effect long after the end of the war.
Despite the numerous rules, treaties, regulations or customs regulating
the means and methods of warfare, there are still a lot of violations by
members of the international community. The threat posed by nuclear
weapons has been a source of continuing concern. Efforts have been made to
ban or at least limit their production but these have not stopped some states
from arming themselves with nuclear weapons. Rules regulating methods
and means of warfare continue to evolve everyday and with these rules
come new species of contentious issues. Nevertheless, it is necessary for the
means and methods of warfare adopted in any armed conflict to conform to
the existing rules on international humanitarian law.
63

II.
Means of Warfare
By virtue of Article 22 of the Hague Regulation IV, the right of belligerents to

adopt means of injuring any enemy is not unlimited. This Article embodies
the general rule aimed at limiting the means or weapons employed by
combatants against each other and to curb the behaviour prevailing prior to
that time when there were no limitations on means of warfare. This Article
is supplemented by Article 35 of API which extends the rule to methods of
warfare. It further prohibits the employment of weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or
unnecessary suffering98 as well as those that cause widespread, long-term
and severe damage to the natural environment with devastating effects that
will persist long after the war must have ended.99
In modern times, armed conflict is based on military necessity as
opposed to total war. Acts carried out by military forces of any state must be
proportionate to the military advantage sought to be gained and not above
or beyond. To achieve this purpose, military forces are to limit themselves
to using particular weapons which have not been outlawed by treaties or
conventions regulating their use. It appears that much emphasis is placed on
weapons and materials that cause excessive suffering.
The different conventions which aim at limiting or prohibiting the use of
particular weapons often focus on those that cause unnecessary suffering.
The Hague Declaration of 1899 concerning expanding bullets was aimed
at prohibiting the use of Dum-Dum bullets which expanded and flattened
upon entering the human body. In similar fashion, the Geneva Gas Protocol
of 1925 prohibited the use of asphyxiating, poisonous or other gases and of
bacteriological methods of warfare. In more recent times the Landmine
Convention of 1997 completely banned the use of anti-personnel mines and
prohibits their use, stockpiling, production and transfer. These landmines
had deleterious effects on military and civilians alike as they could be
detonated once anyone came into close contact with them.
Some weapons of warfare are out rightly prohibited with the consent of
the signatories to the Convention (e.g. Ottawa Landmines Convention 1997).
For some others, their use is restricted since the parties could not come to
agreement on a complete or total ban. An example is on the issue of use or
non-use of nuclear weapons. Whatever the case, each of the conventions is
made for the purpose of regulating the use of a particular weapon of warfare.
98
99

64
In general, these weapons may be classified into Certain Conventional

Weapons (CCW) and Nuclear, Biological and Chemical Weapons (NBC).
Some of those important to the evolution of the international humanitarian
law will be treated better elucidation and comprehension.
Certain Conventional Weapons

Over the years, states have come into agreement to ban or restrict the use
of certain conventional weapons used in combat. These weapons were
prohibited not with the intention of banning war in its entirety, but to
ensure that the weapons in use during any armed conflict do not cause
excessive or unnecessary suffering to individuals. Also, that weapons which
have deleterious effects on the environment are also to be prohibited.
1868 St. Petersburg Declaration

The first legal instrument to prohibit the use of any particular weapon
was the 1868 St. Petersburg Declaration. As its full name suggests, the St.
Petersburg Declaration was aimed at renouncing the use in time of war, of
explosive projectiles under 400 grammes weight. The bullets in question
had the tendency of exploding upon impact with a hard surface.
Their use was controlled in 1864 as the Imperial War Minister considered
it improper to use such bullets. By 1867, the bullet had been modified to
explode upon impact with soft surfaces and shatter upon explosion. It was
by reason of the danger posed by such bullets that the conference was called
at St. Petersburg which met in 3 sessions and formally signed the Declaration
on II December 1868.100
The 1868 Declaration made certain contributions to the body of laws
existing at the time on the laws of war. For instance, it provided thus:
That the only legitimate object which states should endeavour to
accomplish during war is to weaken the military forces of the enemy,
that for this purpose it is sufficient to disable the greatest possible
number of men.
While this provision is laudable, practice in warfare over time has shown
that must states do not adhere to such a principle. It would indeed be ideal
for parties to engage in conflict and focus all their attacks at weakening the
100 For further reading, see Roberts and Guellf, Documents on the Laws of War, 3rd Ed,
p.52.53
65
military forces of the adversary. However, practice has shown that in any
armed conflict, civilian losses are mostly unavoidable. This provision on
the other hand, has contributed to the development and growth of current
international humanitarian law. For instance Article 48 of the API is an
extension of this provision which fundamentally provides that distinction
should be made between civilians and members of the armed forces.
The St. Petersburg Declaration also expresses the principal rule that
prohibits the use of weapons which cause unnecessary suffering. Such
weapons that would aggravate the sufferings of disabled men or render their
death inevitable are prohibited under the Declaration. This same principle
of international humanitarian law has been further expressed in Article
23(e) of the Regulations annexed to 1899 Hague Regulation II and 1907
Hague Convention IV, deemed as binding on parties to armed conflicts.
1899 Hague Declaration 3 Concerning

Expanding Bullets (Dum-Dum Bullets)
As an off shoot of the first Hague Peace Conference in 1899, the Hague
Declaration 3 was adopted. This treaty which is also known as the DumDum Bullets Hague Declaration 1899 was formulated to outlaw and prohibit
the use of the Dum-Dum bullet which expanded and flattened upon
entering the human body. Although it was falsely argued by Great Britain
that the bullet cannot expand in a manner to create wounds of exceptional
cruelty and that the wounds were even less severe than those produced by
other rifles being used in the conduct of war. The USA also objected to this
prohibition. However, both objections were overruled and the Declaration
became binding international treaty law binding on all nations.
This Declaration led to the principle set out in Article 23 (e) of The Hague
Convention IV which prohibits the employment of arms, projectiles or
materials that are calculated to cause unnecessary suffering. It also provides
a foundation for the rule expressed in Article 35 para 2 of API 1977 which
similarly prohibit the use of weapons of a nature to cause superfluous
injury or unnecessary suffering. Article 51 goes further to prohibit
indiscriminate attacks. By Art 51 para 4 (e), indiscriminate attacks which are
prohibited include:
those which employ a method or means of combat the effects of
which cannot be limited as required by this Protocol.
66
Although the Hague Declaration 3 was formulated with the Dum-Dum

bullets in mind, it has been extended to cover other types of weapons of a
similar description that cause unnecessary suffering. It is further prohibited
to use projectiles which burst or deform upon penetrating the human body,
those that tumble early in the body and that cause shock waves which
give rise to extensive tissue damage or lethal shook. The application of the
Declaration has been extended to prohibit the use of shotguns in any armed
conflict. The size of the bullets and the damage they cause to human beings
are a source of unnecessary suffering and are prohibited by a joint reading
of the provisions under The Hague Declaration 3, Article 23 (e) Hague
Declaration IV, and Articles 35 & 51 of the API 1977.
Protocol on Prohibitions or Restrictions on the use of

Mines, Booby-Traps and other devices (1980 Protocol II)
This Protocol (also known as the Mines Protocol) was adopted and
entered into force at the same time as the UN Convention prohibiting
and restricting the use of Certain Conventional weapons. The Protocol
does not seek to outlaw the use of mines, booby-traps and other similar
devices in any armed conflict. Rather, it outlaws or prohibits such use which
is indiscriminate or any use that is directed towards civilians. It was the
inadequacy of the Protocol to deal with mines that led to the adoption
of the Ottawa Landmine Convention in 1997 which prohibited the use of
landmines completely. Despite its inadequacies however, the Mines Protocol
was able to achieve some measure of stability through its various provisions.
It was able to regulate the use of such weapons before the adoption of the
Ottawa Convention.
This Protocol II of 1980 was subsequently amended in 1996 and became
known as the Amended Protocol II of 1996. The Amended Protocol
strengthened the pre-existing provisions contained under the first Protocol
II. Like the original Protocol II, this Amended Protocol II did not prohibit
the use of landmines but contained severe restrictions and some specific
prohibitions relating to antipersonnel mines on their use. Despite the
adoption of the Ottawa Convention in 1997, the Mines Protocol is still of
current validity as it contains certain restrictions on devices not included in
the Ottawa Convention101
A mine has been defined under Article 2 Mines Protocol as:
101 Such as for Anti tank mines, booby traps and other devices
67

a munition placed under, on or near the ground or other surface area
and designed to be exploded by the presence, proximity or contact of
a person or vehicle.
This definition is the same obtainable under the original Protocol II and
its distinctive characteristic is that for a weapon to be called a mine, it is
to be exploded by the proximity or contact of a person or vehicle. On the
other hand, anti personnel mine as defined under Amended Protocol II
ought to be exploded by the presence, proximity or contact of a person.102
No mention is made of vehicle with respect to anti-personnel mines. For the
definition of other devices, these are:
manually-emplaced munitions and devices designed to kill, injure
or damage and which are activated manually, by remote control or
automatically after a lapse of time.103
The distinguishing factor here between mines and other devices is

that while mines are exploded by the presence of a person or vehicle, other
devices may be detonated manually, or by remote control or what may be
termed delayed- action cap where they explode automatically after some
time has passed.
As a general rule, and as established under the Amended Mines Protocol
II, it is prohibited to use any mine, booby trap or other device that is designed
to cause superfluous injury or unnecessary suffering.104 This provision is
supplemented by Article 3 para 7 which prohibits the use of such weapons
against the civilian population, or against individual civilians or civilian
objects. It is irrelevant that the use of such weapons is either in offence,
defence or by way of reprisal. Their use against civilians is proscribed.
Article 3 para 8 goes further and prohibits the indiscriminate use of
mines. It describes indiscriminate use as the placement of such weapons:
a) which is not on, or directed against, a military objective
b) which employs a method or means of delivery which cannot be directed
at a specific military objective; or
c) 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.
102 Article 2 para 3 Mines Protocol
68
Where there is doubt as to whether a place which is ordinarily for civilian

purposes (such as place of worship, house, other dwelling or a school) is
being used to contribute to military action, it shall be presumed that the
place is not being used as such.105
The provisions under Article 3 para 8 are almost verbatim with the
wordings of Article 51 para 4 API. Article 3 para 8 serves to reaffirm the
general principles set out under Art 51 API which prohibits indiscriminate
attacks. It shows that the general principles applicable to methods and
means of warfare under Article 51 also apply to situations of mines warfare.
By Article 3 para 10 of Mines Protocol, all feasible precautions shall be
taken to protect civilians from the effects of weapons dealt with under the
Article. This provision reiterates Article 57 of API which in similar fashion,
requires that those who plan or decide upon attack shall do everything
feasible to ensure that only civilian objects are attacked. Feasible precautions
should also be taken in the choice of means and methods of attack and any
attack which will cause excessive loss to civilians objects in relation to the
military advantage anticipated should be avoided. In practice, such feasible
measures will include choosing the proper location of a minefield that
will not cause unnecessary harm to civilians. Also, the use of mines and
booby-traps is to be in such a manner that will not cause indiscriminate and
excessive injuries to the civilian population.
It is prohibited to use anti-personnel mines which are not detectable.106
This rule is aimed at prohibiting the use of mines which are not easily
detectable by mine detection equipment. The rule is as specified in paragraph
2 of the Technical Annex to the Amended Protocol II which provides thus:
a) with respect to anti-personnel mines produced after 1st January, 1997,
such mines shall incorporate in their construction a material or device
which enables the mine to be detected by commonly-available technical
mine detection equipment and provides a response signal equivalent to
a signal from 8 grammes or more of iron in a single coherent mass.
b) with respect to anti-personnel mines produced before 1st January,
1997, such mines shall either incorporate in their construction, or have
attached prior to their emplacement, in a manner not easily removable,
a material or device that enables the mine to be detected by commonlyavailable technical mine detection equipment and provides a response

106 Article 4 Mines Protocol
69
signal equivalent to a signal from 8 grammes or more of iron in a single

coherent mass.
Where it is shown that the party cannot immediately comply with respect
to mines produced before 1st January, 1997 (ie under para b), such party
may at the time of notification of consent to abide by the Protocol, defer
compliance with sub-paragraph (b) for a period not exceeding 9 years.107
It appears that the entire purpose of Article 4 of the Mines Protocol and
the provisions of the Technical Annex is directed at the prohibition of
plastic mines. Plastic mines can easily escape detection even with the use
of standard mine detection equipment. They thus constitute a thorn in the
flesh of mine clearance personnel as well as unsuspecting civilian persons
who have no knowledge of their presence.
Article 5 Mines Protocol imposes restrictions on the use of anti personnel
mines other than remotely delivered mines.108 By Article 5, para 2 the use of
such weapons is prohibited. This prohibition however is not total as they may
be used if they are equipped with self destruction and activation devices.
Their use is also not prohibited where they are placed within a perimeter
marked area being monitored by military personnel. The presence of the
military personnel is aimed at effectively excluding civilians from the area
so that they will not be harmed by any subsequent explosions. Sub-para 2
(b) goes further to permit their use where such weapons have been cleared
before the area is abandoned. If the weapons have not been cleared and the
area has been turned over to the forces of another state, the use of these
weapons will depend on the maintenance of the protections as required
under Article 5 and subsequent clearance of the weapons. In any event, the
marking of these areas must be distinct, of a durable character and clearly
visible to any person who seeks to enter the perimeter-marked area.
As mentioned earlier, Article 6 Mines Protocol provides restrictions on
the use of remotely delivered mines. The use of such mines is prohibited
unless they are recorded in accordance with sub-paragraph 1 (b) of the
Technical Annex. Sub-paragraph 1 (b) is to the effect that the estimated
location and area of such mines are to be specified by co-ordinates of
reference points. These are to be ascertained and marked on the ground at
the earliest opportunity. The sub-paragraph also provides for the recording
of the total number and type of mines laid, the date and time of laying and
the self destruction time periods.
107 Technical Annex 2 Sub para c
108 Remotely delivered mines are dealt with under Art 6 Mine Prot.
70
It is prohibited to use remotely-delivered anti personnel mines which do

not comply with the provisions on self-destruction and self-deactivation
under the Technical Annex.109 This provision came as a compromise
between states that wanted a total prohibition of remotely-delivered weapons
and those who felt that such a prohibition would be against the principles
of military necessity. While most Third World states at the Weapons
Conference demanded a total prohibition, most of the industrialized states
were against such prohibition. These industrialized states (particularly
NATO member states) were of the view that the use of such mines on enemy
territory was of crucial military necessity and as such, their use was not
to be prohibited. The compromise reached under Article 5 para 2 did not
expressly ban the use of remotely delivered mines but banned their use
when they failed to comply with the requirements of self-deactivation and
self destruction.
This qualified prohibition is spelt out under Article 6 para 3 Mines
Protocol which permits the use of such mines when they are equipped with
effective self-destruction or self neutralization mechanism with a back
up self deactivation feature. Such features are to be designed in a way that
the mine will cease to be such by reason of the self deactivation. In any
event, once a party has decided to make use of remotely delivered mines,
effective advance warning is to be given.110 It is argued by some authors that
a deviation from this basic rule in Article 6 para 4 may be justified based
on tactical necessity.111 This may be to preserve the element of surprise or
to protect the airplane delivering the mines. It is submitted here that such
warning is indeed necessary to ensure protection of the civilian population
who are hapless during armed conflict.
Prohibitions on the use of booby-trap and other devices are provided for
under Art 7 Mines Protocol. A booby-trap means any devices or material
which is designed, constructed or adopted to kill or injure and which functions
unexpectedly when a person disturbs or approaches an apparently safe act.112
The use of booby-traps are prohibited in all circumstances and Article 7
para 1 enumerates the most common and reprehensible forms of boobytraps. In any armed conflict, the following apparently harmless objects are
prohibited from being employed as booby-traps:
a) internationally recognized protective emblems, signs or signals;
109
110
111
112
Art 5 para 2 Mines Protocol

Article 6 para 4 Mines Prot
Wirker-Theis, 201 and Rogers
Article 2 para 4 Mines Protocol
71
b) sick, wounded or dead persons;

c) burial or cremation sites or graves;
d) medical facilities, medical transportation;
e) childrens toys or other portable objects or products specially designed
for the feeding, health, hygiene, clothing or education of children;
f) food or drink;
g) kitchen utensils or appliances except in military establishments,
military locations or military supply depots;
h) objects clearly of a religious nature;
i) historic monuments, works of art or places of worship which constitute
the cultural or spiritual heritage of peoples; or
j) animals or their carcasses.113
It is arguable that the rules prohibiting the use of booby-traps are related
to the rules against perfidy.114 However, while booby-traps are weapons in
themselves whose use is prohibited, perfidy refers to acts deception (e.g.
use of the flag of trace unlawfully) which lead to unsuspecting party to be
attacked. In both instances, the weapons or acts are apparently harmless but
likely to lead to devastating consequences.
The harm posed by the use of booby traps is mostly suffered by
civilians. Due to the harmless appearance of booby-traps, it is very easy
for unsuspecting civilian persons to fall prey and end up being injured or
in the worse circumstances killed. In actual armed conflict, it appears that
they are intended to have that purpose of harming the civilian population,
causing them to live in fear and trepidation, wondering whether every single
harmless appearing object is a booby-trap. In recent history, booby-traps
were used during the Soviet campaign in Afghanistan. This was in spite of
the pre-existing regulations and prohibitions existing at the time.115
It is prohibited to use booby-traps or other devices in the form of
apparently harmless portable objects which are specifically designed and
constructed to contain explosive material.116 Here, Article 7 para 2 reiterates
114 Perfidy means misleading acts by one party against another under Art 37 API
115 Findings of the special rapporteur appointed by the UN Human Rights Commission
to investigate human rights violations in Doc A/43/742 of 24 October 1988, 23 (paras.
103- 104).
116 Article 7 para 2 Mines Prot
72
the rule as stated under para 1 but does not itemize the variants of boobytraps in a bid to provide a blanket provision for all species of booby-traps.
As mentioned earlier, the indiscriminate use of weapons is prohibited
under Article 3 para 8 Mines Protocol. This is the general rule on prohibition
of weapons. With respect to booby-traps, their use is prohibited in any city,
town, village or other area containing a similar concentration of civilians.117
However, their use may be permitted either where they are placed on or in
the close vicinity of a military object or where measures are taken to protect
the civilian population.
All information related to minefields, mined areas, mines booby-traps
and other devices are to be recorded.118 This is a very important requirement
with respect to mines, booby-traps and other devices. When hostilities
have come to an end, it is necessary for each of the parties through their
engineers, to locate and demine all minefields. This can only be done
effectively through documentation of not only the location of the mines,
but also of the nature, quantity and patterns of delivery. In addition, there
should be specifications on the lifetime of the weapons laid. This provision
under Article 9 of the Amended Mines Protocol represents a deviation
and strengthening of the provisions under the original Protocol II. The
requirement under the original Protocol II was that parties to the conflict
are to record the location of all pre-planned minefields as well as areas where
they have made large-scale and pre-planned use of booby-traps.119
With the passage of time, it became clear that this requirement of
only recording the location of the mines was grossly insufficient. Where
the persons who planted the mines are not the same as those engaged in
demining, there was bound to be serious injury and harm to the demining
engineers who had no knowledge of the type, number or lifetime of the
mines. The rule established under this Article has become of practical
application and in some instances, it is required that every military unit
placing mines must record the necessary information in a standardized
document.120
At the cessation of active hostilities, the parties to the conflict are required
to take all appropriate and necessary measures to protect civilian persons
and objects from the effects of minefields, mined areas, mines, booby-traps
117
118
119
120
Art 7 para 3 Mines Prot

Art 9 Mines Protocol
Art 7 Protocol II Mines Prot 1980
Memorandum of the German Government on Ratification of the UN weapons
Convention BR-Drs. 117/92, 27
73
and other devices.121 To achieve this objective, the parties may use all the
information gathered with respect to the nature type, number and lifetime
of such mines as well as the location of minefields. In every minefield, the
party to the conflict in control may either mark it to prevent civilians from
going there or may post guards whose duty is to prevent civilian entry into a
minefield area. This is to ensure safety of the civilian population.
Where a particular area is no longer under the control of a party to the
conflict, such party is required to make available all information with
respect to minefields, mined areas etc to the other party or parties to the
conflict. This information is also to be made known to the SecretaryGeneral of the United Nations. Where however, the forces of a party to the
conflict are in the territory of an adverse party, they may not be required to
disclose such information to the other party. This may be because of some
overriding security interests which they consider to be of crucial importance
and whose disclosure will be deleterious to their interests. In any event, the
parties to the conflict shall by mutual agreement, seek to provide for the
release of such information at the earliest possible time in a manner that is
consistent with the security interests of each party. Apart from the Mines
Protocol 1996, rules on recording with respect to mines and minefields etc
are also provided for under the Explosive Remnants of War Protocol.122
The Amended Mines Protocol 1996 makes provision for the removal of
minefields, mined areas, mines booby-traps and other devices. It further
calls for international co-operation from High Contracting parties as well as
the parties to the conflict. It is imperative that as soon as there is a cessation
of active hostilities, all minefields, mined areas etc are to be cleared,
removed, destroyed or maintained.123 Such clearance, removal, destruction
or maintenance however, must be done in accordance with Article 3 and
Article 5.2 of the Amended Mines Protocol.
All the High Contracting Parties as well as the parties to the conflict bear
responsibilities with respect to mined fields and mined areas under their
control.124 Where the party that laid the mines is no longer in control of
that area, it is required to provide the necessary technical and material
assistance to the party in control of the area.125 The responsibility with
respect to these areas is not borne solely by the parties to the conflict. On
121
122
123
124
125
Art 9.2 Mines Prot. II 1996

Adopted on 28 Nov 2003 and entered into force on 12 Nov 2006
Art 10 para 1 Mines Protocol
74
their own, they may agree among themselves on the provision of technical
and material assistance and may even in appropriate circumstances consider
the undertaking of joint operations. They may also, where circumstances
permit, agree with other states as well as with international organizations
on the provision of such assistance and for joint operations necessary to
fulfill their responsibilities.
To ensure proper implementation of the Protocol, the High Contracting
parties are expected to facilitate the exchange of equipment, material and
scientific and technological information.126 They are to provide information
to the database on mine clearance as well as provide assistance for mine
clearance all within the United Nations System.
Article 12 Mines Protocol makes provision for special protection for
international or humanitarian missions. Where UN or humanitarian
operations are being undertaken with the consent of the state involved in the
armed conflict, such operations and their officers or representatives are to
enjoy special protection from the effects of minefields, mined areas, boobytraps and other operations. This special protection is to be made available to:
- any UN force or mission performing peacekeeping, observation, or
similar functions in any area pursuant to the United Nations Charter;
- any mission of the ICRC and its related bodies acting with the consent
of the relevant states;
- any other humanitarian missions or missions of inquiry as provided
under the Genera Conventions.
With respect to the missions mentioned above, the persons acting under
that authority must be protected provided that they are acting with the
consent of the party on whose territory they are performing their functions.
It should be noted that UN peacekeeping missions are not covered by this
requirement. This is the effect of Article 12 para 1 (a) which provides that:
with the exception of the forces and missions referred to in subparagraph 2 (a) (i) of this Article,127 this Article applies only to
missions which are performing functions in an area with the consent
of the High Contracting Party on whose territory the functions
are performed.
However, the party to the conflict must, if so requested by the head of

a force or mission, remove or render harmless all mines, booby-traps and
126 Article 11 Mines Protocol
127 Dealing with UN peacekeeping missions
75
other devices in the area in which it is performing its functions.128 This will
apply to UN peacekeeping missions. The parties to the conflict also has duty
of informing the head of the mission where the minefields, mined areas etc
are located.
For all other missions apart from UN peacekeeping missions, the states
parties are to take all such measures as are necessary to protect the force or
mission from the effects of mines, booby-traps and other devices in areas
under its control. The states parties are to also provide safe passage for
personnel of the mission to or through any place under their control.
The use of mines in any armed conflict, whether international or internal,
has been a source of controversy due to the aftereffects of their use. Whether
designed to be exploded by the presence or proximity of a person or a
vehicle, mines have been known to cause serious damage in areas of war
especially to the civilian population. Over the years, the use of mines has
been propagated primarily by reason of the low cost of manufacturing
them. They are used either to prevent access to certain territories or simply
to strike fear in minds of the civilian populace. The ICRC has estimated
that two thousand individuals, three-quarters of whom are civilians are
injured or killed each month by mines.129 The United Nation Childrens
Fund (UNICEF) has also estimated that since 1975, one million individuals
have been victims of mines, one-third being children under the age of
15. With the ban of landmines by the Ottawa Convention 1997, the effect
of their use has been greatly reduced. Demining activities have taken
place in countries such as Cambodia, Mozambique, Afghanistan and the
former Yugoslavia. It is approximated that about 110 million landmines lie
in seventy countries.130 The International Committee to ban landmines
(ICBL) estimates that it would take more than a millennium and $33 billion
to remove all existing mines in the world. This exorbitant cost is predicated
on the high cost involved in demining. Thus, while the average mine may
cost from $3 to $30, it will take between $300 and $1,000 to demine each.
With the adoption of the Ottawa Convention in 1997, the problem posed
by landmines has been greatly reduced and the expectation is that their use
will be completely avoided.
Ottawa Convention on the Prohibition of the Use, Stockpiling, Production
and Transfer of Anti-Personnel Mines and on their destruction:
128 Bouchet Saulnier F, Practical Guide to Humanitarian law, p. 274

129 ibid
130 From Handicap International in Bouchet Saulnier, ibid p.276
76
The Ottawa Convention was adopted in 1997 and entered into force on 1
March 1999. Its primary aim was to prohibit the use, stockpiling, production
and transfer of anti-personnel mines. As to what is an anti-personnel mine,
Article 2 of the Convention provides.
Antipersonnel mine means a mine designed to be exploded by the
presence, proximity or contact of a person and that will incapacitate,
injure or kill one or more persons.
Where the mine is designed to be detonated by the presence, proximity or

contact of a vehicle rather than a person, and is equipped with anti handling
devices, such mines are not considered anti-personnel mines by reason of
being so equipped.131
Unlike the previous conventions that aimed at banning the use of
particular weapons, the Ottawa Convention received widespread acceptance
by the International Community. The process leading up to its formulation
is worthy of mention. The use of landmines in any armed conflict often leads
to severe loss of life. This is because of its characteristic nature of exploding
upon contact with a human being. It was estimated at one time that there
were up to 100 million land-mines which were spread across 64 countries,
killing about 30 persons per day and injuring over 35, such persons or
victims being mostly civilians.132
Several efforts were made to restrict the use of landmines but they all
had limited applicability and effect. For instance, Protocol II of the 1980 UN
Convention on Certain Conventional Weapons provided for restrictions of
the use of mines, booby traps and other devices. It did not expressly prohibit
the use of such mines but merely prohibited indiscriminate use or use which
is directed against civilians. Even the Amended Protocol II adopted in May
1996 did not out rightly ban the use of land mines but introduced more
extensive restrictions than those found under the first Protocol II of 1980.
Apart from the efforts of the different States to bring about the validity
and operation of the Ottawa Convention, the efforts of the International
Campaign to Ban Landmines (ICBL) cannot be discounted. The ICBL is a nongovernmental organization which zealously pursued the complete and total
ban of land mines. It was established in 1992 and grew in the course of time
to operate in about 75 countries with over a thousand organizations under it.
131 Second limb of Article 2 Landmine Convention
132 Anti Personnel Landmines: Friend or Foe?A study of the military use and effectiveness
of anti personnel mines 1996.
77
It was their view that the 1996 Amendments were not sufficient and that the
only proper thing to be done was a total ban of anti-personnel landmines.
Worthy of mention also in the process leading up to the formation of
the Ottawa convention was the Ax worthy challenge. This was a challenge
issued by Lloyd Ax worthy, the then Foreign Prime Minister of Canada.
Canada hosted an international convention with the aim of limiting the
use of anti-personnel landmines. At the close of the convention, Lloyd Ax
worthy called for a total ban of landmines. He further dared the delegates to
return in a years time to sign a treaty which would be absolutely prohibitive
of the use of landmines. This speech received a resounding applause from
the delegates and contributed to the signing of the Ottawa Convention by
the next year.
The Ottawa Convention is known for its widespread acceptability. Within
a short period of time, it had been signed to, acceded to and ratified by
countries. This is unlike the process for the prohibition of any other weapon
of warfare which usually takes a long time before the convention will
become applicable. Also worthy of note is that the treaty did not come into
force based only on the efforts of the so called superpowers. It was countries
such as Belgium, Canada, Germany, Ireland, Mexico, Netherlands, Norway,
Philippines, South Africa and Switzerland that started the process to bring
about a total ban of anti-personnel mines. As at 1st April, 2007, Russia,
China and the United States had not yet ratified the treaty. The US had called
for a geographical exception in South Korea and proposed that the existing
minefields at the border between North and South Korea be left untouched.
This was the primary reason for their refusal to sign. Notwithstanding,
the treaty came into effect and it completely prohibits antipersonnel mines
and the use, stockpiling production and transfer. State parties are to
destroy all stockpiled antipersonnel mines not later than 4 years after the
treaty enters into force.133 Also, the number of landmines in storage is to
be drastically reduced. What are to be left are just landmines to be used
for training persons on how to detonate landmines. By 10 years after the
adoption of the treaty it is expected that all mined areas would have been
completely destroyed.134
133 Art 4 Ottawa Convention

134 Art 5 para 1 Ottawa Convention
78
Restrictions on the use of Incendiary Weapons

The necessity for regulations on the use of incendiary weapons arose based
primarily on the use of napalm bombs by the US in Vietnam. Due to the
harmful effects of these weapons, some States which took part in the 1980
UN Weapons Conference called for a complete ban of incendiary weapons.
Their argument was that these weapons caused unnecessary and excessive
suffering contrary to the principles of international humanitarian law. They
were also known to have indiscriminate effects as no proper distinction
could be made between civilian and military objects while they were in
use. On the other side, some countries (including the US and USSR) did
not support a complete ban of incendiary weapons. These States made
arguments in favour of the military importance of such weapons but were
prepared to accept a few restrictions on their use. The arguments by the
latter set of States prevailed. While the resulting Protocol III did not provide
for an absolute prohibition of incendiary weapons, it prohibited their use
against the civilian population and limits the attacks of military objects in
areas where civilians reside.
The definition of incendiary weapons is provided for under the 1980
Protocol III. It is defined to mean:
any weapon or munition which is primarily designed to set fire to
objects or to cause burn injury to persons through the action of flame,
heat, or a combination thereof, produced by a chemical reaction of a
substance delivered on the target.135
As mentioned earlier, the quest for restrictions of incendiary weapons was

brought to the limelight based on the US use of napalm bombs in Vietnam.
However, it is clear that the subsequent definition of incendiary weapons
goes beyond incendiary materials based on hydrocarbon (as with the
napalm bombs). The definition under Article 1 para 1 Incendiaries Protocol
is very broad and covers a wider range of weapons. From this definition, once
it is shown that the weapon is capable of setting fire to objects or causing
burn injuries to person through the action of flame, heat or a combination
thereof, such a weapon is an incendiary weapon.
Under sub para 1 (a) Incendiaries Protocol, incendiary weapons do not
include weapons whose primary purpose is not incendiary. This means
that where the incendiary character of the weapon or munition is only
its secondary purpose or side effect (its primary purpose being used as
135 Art 1 para 1 Incendiaries Protocol
79
illuminants, tracers, smoke or signaling systems), it is not an incendiary

weapon. The interpretation of this provision has become necessary in light
of modern international armed conflict situations. In the Israeli- Palestinian
conflict over the Gaza strip, the Israeli army has been suspected to use
white phosphorus, an incendiary weapon which bursts into flame when
exposed to oxygen and which burns on contact with the human skin. This
white phosphorus has been known to burn through the skin and reaches the
bone, causing second or third degree burns. It may also lead to potentially
fatal burns. The Israeli Army has however denied the use of such weapons
in the Gaza strip.136 The weapon has also been used by British and US forces
in Iraq. In the different instances where it has been used, white phosphorus
is used mostly as a smokescreen to protect armed forces from enemy fire.
As such, their use is not illegal regardless of the fact that they may cause
horrific burn wounds to individuals.
It is submitted here that the use of white phosphorus by armed forces
should be prohibited under the international humanitarian law. While
their use is necessary for the purpose of military necessity, the effect on
the population causes unnecessary and excessive suffering. These weapons
are indiscriminate in nature and cannot distinguish between civilian and
military objectives. In the Gaza strip which is highly populated, the use
of such weapons will have deleterious effects on the civilian population.
The natures of the wounds caused are more serious than ordinary burn
wounds and might even prove to be fatal. In an interview with the Times,
Muhammad Azayzeh an emergency medical technician said:
The burns are very unusual. They dont look like burns we have
normally seen. They are third level burns that we cant seem to
control.137
The extensive damage caused by these weapons constitutes sufficient

reasons to prohibit their use. Indeed they are necessary for carrying out of
military operations but the collateral effect of their use is devastating. Even
where it is being used as a weapon it will be difficult to verify as the state
making use of it will claim that it was being used as a smokescreen. Where
white phosphorus is released from a relatively low level above the ground,
this may maximize its incendiary function. In the event that the use of this
weapon is not prohibited, States making use of white phosphorus should
136 It should be noted that Israel used white phosphorus in its war against Lebanon in 2006
137 http://timesonline.co.uk Retrieved 20/07/2009
80
at least take all feasible precautions to avoid loss and injury to civilian lives
and property.
Apart from weapons which have incidental incendiary effects, incendiary
weapons do not also include:
munitions designed to combine penetration, blast or fragmentation
effects with an additional incendiary effects, such as armour- piercing
projectiles, fragmentation shells, explosive bombs and similar
combined-effects munitions in which the incendiary effect is not
specifically designed to cause burn injury to persons, but to be used
against military objectives, such as armored vehicles, aircraft and
installation or facilities.138
The categories of weapons stated here as not being incendiary weapons

includes anti-tank munitions with an armour-piercing projectile working
by extremely high temperature. Also include are fragmentation shells and
explosive bombs which combine penetration blast or fragmentation effects
with an additional incendiary effect.139
When incendiary weapons are being used, feasible precautions are
to be taken by the parties who use them. These are precautions which are
practicable or practically possible taking into account all circumstances
ruling at the time, including humanitarian and military considerations.140
This provision on feasible precautions reiterates the pre-existing general
rules dealing with the use of weapons and means of combat spelt out in
Art 57 API 1977. The relevance of Article 1 para5 Incendiaries Protocol
is that it defines what feasible precautions are to be taken with particular
reference to incendiary weapons. Thus, in carrying out their functions,
military commanders are to ensure that all measures that are practical are
taken before such weapons are used. The use of incendiary weapons in high
density populated civilian areas will definitely be frowned at particularly
where the duty to civilians outweighs the military necessity of any armed
attack. Where their use is mandated outside civilian populated areas, a
considerable degree of diligence is required even if the Incendiaries Protocol
is not intended to protect combatants.141
It is prohibited in all circumstances to make the civilian population,
individual civilians or civilian objects the object of attack by incendiary
138 Art 1 para1 (b) (ii) Incendiaries Protocol
139 Fenrick, New Development in the Law Concerning the Use of Conventional Weapons
in Armed Conflict XIX CYIL,(1981) 249
140 Art 1 para5 incendiaries Prot. 4
141 Fleck D., ibid, p. 158
81
weapons.142 Civilians are not to be terrorized by the use of incendiary

weapons. This rule is in line with the Art. 51 para 2 of API 1977 which
prohibits acts or threats of violence designed to spread terror among the
civilian population. Armed attacks at all times must be directed against
military objectives and civilians must be protected.
The proper restriction on the use of incendiary weapons is set out in Art
2 para 2 Incendiaries Protocol. Where a military objective is located in a
place constituted largely by civilians, it is prohibited in all circumstances
to attack such a place with incendiary weapons. The Article specifically
mentions air-delivered incendiary weapons but in practice, the use of other
incendiary weapons not delivered by air may also be prohibited. Where
incendiary weapons other than air delivered incendiary weapons are used,
their use will be prohibited. The exception to this rule is that their use will be
permitted where the military objective in question is clearly separated from
the concentration of civilians and all feasible precautions have been taken
to avoid loss or injury to civilian life and civilian objects.143 The effect of
this provision is that the use of incendiary weapons is not thereby outlawed.
They may be used against military objectives and personnel as no protection
is afforded to them under the Incendiary Protocol.
In line with Article 35 para 3 and 55 para1 of API dealing with the protection
of the natural environment, it is prohibited to make forests or other kinds of
plant cover the object of attack by incendiary weapons.144 The distinction
between the provisions of Article 2 para 4 of the Incendiary Protocol and
the relevant provisions under the API 1977 lies in the duration of the damage.
Thus, whilst Article 35 and 55 are focused on the widespread, long-term and
severe damage to the environment, Art 2 para 4 of the Incendiaries Protocol
focuses on isolated attacks on the natural environment. Where however
these natural elements (such as leaves, foliage etc) are used to camouflage
or conceal combatants or other military objectives, it shall be permissible to
attack such targets.
Restrictions on the use of Laser Weapons

Protocol IV of the UN weapons Convention 1980 deals with blinding laser
weapons. While blinding laser weapon are not defined under the Protocol,
they may be taken to mean weapons which make use of lasers and are
142 Art 2 para1 Incendiaries Prot.
143 Art. 2 para3 Incendiary Prot.
144 Art 2 para4 Incendiary Protocol
82
capable of causing temporary or permanent blindness to others. In any

event, it is prohibited to use laser weapons that are specifically designed to
cause permanent blindness or unenhanced vision.145 It is irrelevant that
causing blindness is either the sole combat function of the weapons or one
of its many functions; their use is prohibited.
While lasers have been known to be used for target marking or
projectile guidance, they may not be used as a weapon to cause temporary
or permanent blindness. The Blinding Laser Weapon Protocol does not
therefore prohibit the use of lasers. Article 1 goes further to prohibit the
transfer of any such weapons by the High Contracting Parties.
The rationale behind the adoption of this Protocol lies in the unnecessary
and excessive suffering by persons who may be blinded by laser weapons.
Thus, the Protocol steps in as a preventative measure to prohibit use of
such weapons. It should be noted that the Protocol does not provide for
situations where blindness is caused incidentally or collaterally by use of
laser weapons.146 It is only when the weapons are used for the purpose of
causing temporary or permanent blindness that the Protocol will apply.
To avoid the incidence of permanent blindness to unenhanced vision,
parties are to take all feasible measures which shall include training of their
armed forces and other practical measures.147 While the Protocol does not
define blinding laser weapons, it defined permanent blindness to mean any
irreversible and uncorrectable loss of vision with no prospect of recovery.
It is clear that any weapon which causes permanent blindness goes beyond
the intent of the humanitarian law. Parties must restrict themselves to the
means or weapons of warfare approved under the humanitarian law and
avoid the employment of weapons likely to have disastrous effects causing
unnecessary and excessive suffering.148
Nuclear, Biological (Bacteriological) and

Chemical (NBC) Weapons
Apart from the conventional weapons being used in armed conflict, the
use of NBC weapons is also subject to restrictions under the international
humanitarian law. While the use of bacteriological (biological) and
chemical weapons have received some restrictions under the international
145
146
147
148
Article 1 Laser Protocol

Article 3 Laser Protocol
Article 2 Blinding laser Weapons Prot.
It should be noted that by Art 1 para 2 Inhumane Weapons Convention 2001, the Protocol
on Blinding Laser weapon applies to non international armed conflict situations.
83
humanitarian law, nuclear weapons and their use OR non-use has been the
subject of much controversy in the recent times.
Nuclear Weapons
The use of nuclear weapons has been the subject of controversy over the
years. The first known military uses of nuclear weapons were at the end
of World War II. The United States dropped a nuclear bomb code named
Little Boy on Hiroshima in Japan. Three days later, another nuclear bomb
code named Fat Man was dropped on the city of Nagasaki also in Japan.
These bombings resulted in the immediate deaths of around 120,000 people
(mostly civilians).149 These deaths were caused from injuries sustained
directly from the explosion and indirectly from the after-effects of radiation.
The typical nuclear weapons are characterized by their ability to explode
over a wide area, causing serious damage to everything that crosses their
paths. It is an explosion device deriving its destructive force from nuclear
reactions, either by fission or a combination of fission and fusion.150 It
appears that from the day fission was discovered in 1938, the world has
known little rest regarding the control of that technology.
Comparatively speaking, the nuclear weapons used at the end of World
War II by the USA against Japan are much bigger and less effective than those
being manufactured in present times. In the modern era, nuclear weapons
are now smaller in size but with higher explosive qualities.
Apart from the US, other countries have been known to be in possession
of nuclear weapons. The other four members of the UN Security Council (UK,
Russia, France and China) are signatories to the Nuclear Non Prohibition
Treaty and while their use of nuclear weapons is strictly regulated, they are
still known to have nuclear weapons in their possession. The US tested its
first nuclear weapon in 1945 code named Trinity, Russia in 1949 (Joe- 1),
UK in 1950 (Hurricane), France in 1960 (Gerboise Bleue) and China in
1964 (the 596 test).
Some states not being signatories to the NPT have been involved in
nuclear weapons testing and also have stockpiles of nuclear weapons. For
instance, India tested a nuclear explosive code named Smiling Buddha in
1974. In Pakistan, the use of nuclear weapon was spurred by Indias nuclear
149 http://wikipedia.com. Retrieved 27-07-2009

150 ibid
84
capabilities. They conducted their first nuclear tests at the Chagai Hills in
1998. In 2006, North Korea tested its own nuclear device.151
There are some States which have not expressly declared themselves to
be in possession of nuclear weapons but still do not state that they have
no nuclear weapons. Israel is one of such States and has adopted a policy
of strategic ambiguity concerning their possession of nuclear weapons.
Regardless of their statements strengthening their stance of opacity, Israel is
suspected to have nuclear weapons in her arsenal. According to the National
Resources Defence Council and the Federation of American Scientists,
Israel is in possession of about 75200 weapons.152 A similar assertion was
made by former US President Jimmy Carter who stated that Israel has 150 or
more nuclear warheads in its possession.
Countries such as Iran and Syria have been accused of developing
nuclear weapons technology. Iran is rich in uranium which is used for the
production of nuclear weapons. However, there is currently no concrete
evidence which shows that Iran is involve in nuclear weapons testing or has
nuclear weapons facilities. In similar fashion, Syria has suspected to have
nuclear weapons intentions. To that effect, Israel had bombed a site which
was later declared to be for a nuclear reactor undergoing construction.153
The US Government also issued a statement to the US Congress and the
International Atomic Energy Agency (IAEA) that Syria had been creating
a covert nuclear reactor. Syria refuted this allegation and described the
facts as being fabricated and forged. In these two States, there is no concrete
evidence to show that they have nuclear weapons in their possession.
There are States which used to be in possession of nuclear weapons but
have subsequently transferred or disassembled their nuclear stockpiles. The
situation in South Africa is noteworthy and recommended. In the early
1990s, South Africa disassembled its six nuclear weapons which had been
made in the 1980s. The transfer of nuclear weapons was more common
after the collapse of the Soviet Union. For instance, Ukraine had about
5,000 nuclear weapons after the Soviet Union collapse. This made Ukraine
the third largest in terms of nuclear possession around the world.154 These
nuclear weapons were voluntarily transferred to Russia in 1996. Similarly,
151 it should be noted that North Korea was a member of the NPT. However, it withdrew in
2003
152 Israels nuclear Weapons, Federation of American Scientists (Aug. 17, 2000) Retrieved
from http://wikipedia.com on 27/07/2009
153 The bombing took place on September 6, 2007.
154 Ukraine special weapons, GlobalSecurity.org
85
Belarus and Kazakhstan transferred about 81 and 1400 weapons respectively

to Russia.155
From all that has been said so far, no clear inference can be made
concerning the legal status of the use of nuclear weapons. While the use
or non use of nuclear weapons remains a somewhat contentions issues,
several multilateral and bilateral treaties have been made to regulate the
manufacture, testing etc of nuclear weapons. Important among these are:
- Nuclear Non Proliferation Treaty 1968
- Partial Test Ban Treaty 1963
- Comprehensive Nuclear Test Ban Treaty 1996.
Apart from these, there are other treaties related to nuclear weapons but
whose application may be restricted to particular regions.156
The question of regulating the production and possession of nuclear
weapons is often answered based on political considerations rather than
international humanitarian law. While the use of nuclear weapons is likely
to have grave consequences, their present restrictions are fundamentally
based on arms control and rooted in political considerations. According
to some authors, they argue that, the possibly of the future use of nuclear
weapon has an important humanitarian aspect, making it impossible for the
subject matter to be relegated and dealt with according to the usual political
calculations of arms control treaties.157 In modern times however, the use of
nuclear weapons is often based on a system of deference whereby weapons
held by one country are used to deter another from attacking the State.
A close look at the different treaties on nuclear weapons shows that nuclear
weapon use is not clearly prohibited under the international humanitarian
law. For instance, the Partial Test Ban Treaty (1963) which bans nuclear
weapons testing in the atmosphere, outer space and under water leaves
adequate room for underground nuclear testing. The basic obligation
provided for under the Nuclear Non Proliferation Treaty provides thus:
155 It should be noted that Belarus, Kazakhstan and Ukraine are all signatories to the
Nuclear Non proliferation Treaty.
156 e.g. Tlalteco Treaty on the Prohibition of Nuclear weapons in Latin America 1967;
Rarotonga Treaty on the establishment of a Nuclear Weapon Free Zone in the
Southern pacific Area 1985; Treaty on the Southern Asia Nuclear Free zone 1995;
African Nuclear Weapon Free Zone Treaty 1996; Treaty on a nuclear weapon free zone
in Central Asia 206.
157 Fleck D, ibid, p. 187
86

Each nuclear weapon State Party to the Treaty undertakes not to
transfer to any recipient whatsoever nuclear weapons or other nuclear
explosive devices directly, or indirectly; and not in any way to assist,
encourage or induce any non-nuclear weapon state to manufacture or
otherwise acquire nuclear weapons or other nuclear explosive devices,
control over such weapons or explosive material.158
Similarly obligations are also imposed on non nuclear weapons States

mutatis mutandis.159 It should be noted that in all the deliberations
concerning nuclear weapon there no clear intent to prohibit or ban the use
of nuclear weapons completely. The NPT merely imposes restrictions mainly
on the transference, acquisition and manufacture of nuclear weapons and
does not prohibit their use. The Comprehensive Test Ban Treaty (CTBT)
which was intended to ban nuclear weapons testing did not also prohibit
the use of nuclear weapons and is yet to enter into force. Of the 44 states
required to ratify the CTBT, 41 have signed & 31 have ratified (minus US).
India, Pakistan & North Korea have not signed.
The issues relating to the use of non-use of nuclear weapons were
addressed by the ICJ in an advisory opinion on the legality of the threat or use
of nuclear weapons.160 The court confirmed that there exists no customary
or conventional law authorizing the threat or use of nuclear weapons neither
is there any comprehensive and universal prohibition. Where the threat or
use of force by nuclear weapons is not in consonance with Art 2 para 4 UN
Charter (prohibiting use of force) and Art 51 UN Charter (on the right of self
defence), such use will be unlawful.161 With respect to the question posed
by the UN General Assembly on the legality of the use of nuclear weapons in
any circumstances, the court was of the opinion that:
The threat or use of nuclear weapons would generally be contrary
to the rules of international law applicable in armed conflict, and in
particular the principles and rules of humanitarian law.
158 Art. 1 NPT 1968

159 Art 2 NPT 1968
160 The WHO by resolution of May 1993, requested for the Advisory Opinion as regards
the health and environmental effects of the use of nuclear weapons. The UN General
Assembly (by Res. 49/75 UK) also requested for the Advisory Opinion on whether the
use of nuclear weapons are permissible in any circumstances. The ICJ declined the WHO
request as falling outside the scope of WHOs activities but responded to the request of
the UN General Assembly.
161 ICJ Advisory Opinion Extract 2 (c)
87

However, in view of the current state of international law, and the
elements of fact at its disposal, the court cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self defence, in which the
very survival of a State would be at stake.162
From the underlined portion, it can be inferred that the court did not
consider itself n a proper position to decide on the use or non use of nuclear
weapons. This further highlights the delicate nature of nuclear weapons as a
means of warfare.
It may be argued that the prohibitions against indiscriminate warfare
should be extended to prohibit nuclear warfare. In view of current
developments in nuclear technology, such a line of argument may have
proper foundational basis. The use of precision guided missiles which
are targeted at military establishments ensures that military objectives
are attacked not civilians. While the collateral effect of the use of such
weapons may give rise to civilian losses, the loss in numbers may not differ
much from use of conventional weapons. This statement does not in any
way seek to justify the use of nuclear weapons but show that prohibitions
on indiscriminate warfare do not necessarily translate to prohibitions of
nuclear weapons.
It has been contended that nuclear weapons falls either within the scope
poisonous weapons under Article 23 of Hague regulations or poisonous
gasses under the General Gas Protocol 1925.163 The application of these
provisions to the use of nuclear weapons is likely to constitute an overstretch of their scope. Both Article 23 Hague Regulations and the 1925
Geneva Gas Protocol expressly prohibit the use of weapons whose primary
purpose is to act as a poison. While it is conceded that nuclear weapons do
indeed release poisonous substances, the release of poison is an unintended
side effect or secondary effect, the primary purpose being to explode objects
within its vicinity. Not being weapons designed primarily for the release of
poisonous substances, nuclear weapons do not fall within the purview pf
Art 23 (a) Hague Regulations and the 1925 Geneva Gas Protocol.
Despite the inapplicability of Art 23 Hague Protocol and the 1925 Geneva
Protocol on nuclear weapons, as well as the absence of any comprehensive
still imposes certain restrictions on the use of nuclear weapons. Since there
is lack of will to ban completely nuclear weapon, then the use of it must
162 Advisory Opinion 2E. The court was divided on this point by seven votes to seven.
163 Singh/McWhinney, Nuclear Weapons and Contemporary International Law 2nd Ed p
307-312
88
be limited to military objectives with a proper distinction must be made

between military and civilian objects. Their effects must be restricted
to military objects and care must be taken to ensure that the incidents of
the use of nuclear do not extend to the civilian population. According to
some authors:
Care must always be taken to ensure that the pressure wave, the
consequent burn effects, and the radioactive fallout cause the
minimum possible damage or injury to the civilian population as well
as to the environment.164
While devastating consequences may flow from the use of nuclear

weapons, they still have great relevance in the relations between states.
Possession of nuclear weapons appears to reflect a standard of dominion
among states. The superpowers (US, UK, China, France and Russia) have
all successfully tested and have nuclear weapons in their possession. In a
sense, the possession of nuclear weapons has become a benchmark for
world dominion, control and constitutes an effective bargaining chip
between nations. Little wonder that there is a clamour by non-nuclear
states to become nuclear weapon capable. Iran and Syria for instance are
in the class of States striving to control nuclear weapons technology within
their territories.
The primary importance of nuclear weapons lies in the policy of
deterrence where weapons held by one State are used to deter another from
initiating attacks against the former or against other States. It represents
an implied statement made by State possessing nuclear weapons to others
that if you attack me, I am fully equipped to retaliate. Thus, nuclear
weapons serve as a deterrent to States threatening attack. In some senses,
it may actually be stretched to be a preventative mechanism against armed
hostilities or war. Decision on the threat or use of nuclear weapons in any
armed conflict is not limited to military forces but have underlying political
connotations. Considering the effects of nuclear weapons use, the decision
to use them must come from the highest authority in the State.165 This is
by reason of the precarious nature of the use of nuclear weapons and the
possible and far-reaching consequences of their employment.
The use of nuclear weapons has deleterious and harmful effects associated
with it. Perhaps this represents the greatest fear faced when nuclear weapons
164 Fleck D, ibid. p. 165
165 This will vary depending on where power lies in the state e.g. parliamentary, presidential
system of govt.
89
use is mentioned. The effect of the explosion alone could cause of numerous
deaths. The first people to die from nuclear weapons are usually those within
the area of explosion known as ground zero. These people will be killed
instantly by the gamma rays emitted from the blast. The area covered by the
blast will depend on the explosive qualities in the nuclear weapons. Thus, a
one megaton blast will cover a larger area than a one kiloton blast.
The bright light emitted from the nuclear bomb will produce the next
set of casualties, permanently blinding both animals and human beings.
According to some experts, the brightness from the explosion is capable of
causing blindness 10 miles around in every direction for a 1 megaton bomb.
The experts argued thus, that:
Even from fifty miles away a 1 megaton blast will be many times
brighter than the noonday sun. Those looking directly at the blast will
have a large spot burned into their retinas, where the light receptor
cells will have been destroyed.166
Apart from deaths caused by the initial explosion and the blindness
caused by the bright light emitted from the explosion, there exists the
possibility of a firestorm arising from the explosion. The extent of the
burning equally depends on the explosive capacity of the nuclear bombs.
This firestorm will release great quantities of heat which will equally lead to
massive loss of lives. The spread of radioactive material in the atmosphere
is also a contributory factor to deaths after the use of nuclear weapons.
This will give rise to diseases such as leukemia and cancers. For instance,
it was reported that after the bombings of Hiroshima and Nagasaki in 1945,
231 deaths were observed from leukemia while 334 deaths were attributed
to solid cancers167 all flowing the release of radioactive material. The
release of radioactive substances into the atmosphere will also give rise to
contamination of vegetation and water and may lead to death of wildlife,
fishes and other living organisms.
Apart from loss of human life and property, wildlife, vegetation etc, a
nuclear explosion releases an Electromagnetic Pulse (EMP) which is capable
of switching off all electrical appliances at the same time. While this may
appear trivial considering massive losses to the human population, we live
in an information-technology age where our lives depend to a large extent
on the functioning of certain electrical appliances. Imagine what would
166 Hoffman R, Effects of nuclear weapons 1999. Retrieved from http://www.
animatedsoftware.com on 26/09/2009
167 http://www.wikipedia.com Retrieved 31-07-2009
90
happen where the EMP arising from a nuclear blast affects a plane in the air
which depends largely on electrical equipment. This may lead to significant
loss of life to persons as the plane may possibly crash. This will pose further
difficulties of transferring relief supplies to persons affected by the explosion
through the planes which will not be available.
The aftereffects of the use of nuclear weapons are very much dreaded
by individuals and governments alike. This explains why even the threat
to resort to nuclear warfare is greeted with massive disapproval from all
quarters. While nuclear weapons are still being tested by nuclear weapons
States, it is only in Hiroshima and Nagasaki that they have been used in
an actual armed conflict and the inhabitants are still suffering from its
aftereffects. Indeed, there is reason to be petrified at the mention of nuclear
weapons considering that with advances in technology, the devastation
that may be caused by their use will be much greater than that suffered by
Hiroshima and Nagasaki.168 In an ideal world, it would have been better if
there were no such things as nuclear weapons. Being that they are already
in existence, the proper course would have been to ban their use entirely.
But it is clear that there is a reluctance to do so and what now exists is a state
of mutual deterrence whereby one state refrains from it using its nuclear
arsenal for fear of being attacked by another nuclear weapon state.
Finally, the issue that needs to be resolved as regards nuclear weapons
is whether it is right for some States to insist that others do not engage in
nuclear weapons research in a bid to develop their own nuclear arsenal.
As at the time of writing, the 5 permanent members of the UN Security
Council169 were all nuclear weapons states and signatories to the Nuclear
Non Proliferation Treaty. India, Pakistan and North Korea are also nuclear
weapons states but are not signatories to the Nuclear Non Proliferation
Treaty. For Iran and Syria, their possession of nuclear weapons has been
largely suspected but remains unconfirmed.
Iran has been noted for being rich in uranium, a key element for the
making of nuclear weapons. Even though there has been no concrete
evidence of nuclear weapons presence in Iran, the international community
(the US and Israel in particular) has persistently and vehemently opposed
the possibility of Iran creating their own nuclear weapons. It appears
the reasoning behind this opposition is based on statements made by
the President of Iran, Mahmoud Ahmadinejad, which were viewed as
168 This is primarily because by modern standards, the bombs used in Hiroshima and
Nagasaki are small bombs.
169 UK, US, China, France, Russia
91
threatening the very existence of the state of Israel. Perhaps another

argument in opposition of Iran becoming a nuclear weapons State is based
on the propagation of extremist Islamic agenda which may tend to support
the annihilation of enemies of the Islamic faith.
While these reasons may appear justifiable prima facie, they do not have
any cogent legal grounds. There are laws which prohibit the use to a certain
weapons entirely170 and some which prohibit their use to a certain extent.171
Nuclear weapons fall in the latter category because their existence has not
been completely outlawed perhaps due to hesitance on some states part to
ratify the necessary treaties.172 It is true that there are restrictions on the use
of nuclear weapons. Article 2 of the Nuclear Non Proliferation Treaty 1968
provides that:
Each non-nuclear weapon State Party to the treaty undertakes not to
receive the transfer from any transferor whatsoever of nuclear weapons
or other nuclear explosive devices or of control over such weapons
or explosive devices directly, or indirectly; not to manufacture or
otherwise acquire nuclear weapons or other nuclear explosive, and
not to seek or receive any assistance on the manufacture of nuclear
weapons or other nuclear explosive devices.
Iran is a signatory to the NPT. As such the provisions of the NPT under
Art 2 apply to them and they are not to manufacture or otherwise acquire
nuclear weapons or other nuclear explosive.
Be that as it may, it is argued here that Art. 2 of the NPT should not be a
bar to Iran in their quest to obtain nuclear weapons. By Article 2.1 of the
United Nations Charter, the United Nations is based on the principle of the
sovereign equality of its members. As used here, sovereign equality suggests
that each state is entitled to its territorial integrity and that no state has the
right to interfere with the functioning affairs of another state. By extension,
sovereign equality is also taken to mean that all states are equal in the eyes
of the law, are entitled to equal rights, subject to equal obligations and that
no state is higher than the other. On the basis of Article 2 para 1 UN Charter
therefore, all states are equal and some are not more equal than others.
Under the NPT, distinction is made between states which are nuclear
capable (nuclear weapons states) and non nuclear weapon states. Art. I of
the NPT relate to nuclear weapon states and to the effect that:
170 e.g. Landmine Ban Convention, 1997
171 e.g. mines Protocol II 1996
172 The CTBT is yet to be ratified by India, Pakistan and Korea
92

Each nuclear weapon state party to the Treaty undertakes not to
transfer to any recipient whatsoever nuclear weapons or other nuclear
explosive devices or indirectly; and not in any way to assist, encourage
or induce any non nuclear weapons state to manufacture or otherwise
acquire nuclear weapons or other nuclear devices
A literal interpretation of this Art 1 NPT will reveal that there is nothing
restricting nuclear weapons states from producing or manufacturing more
nuclear weapons for themselves. Their only obligation is not to transfer
nuclear weapons to any state and not to assist a non nuclear state in the
acquisition of nuclear weapons. It is true that the world exists in a state of
mutual deterrence where one state is hindered from displaying its nuclear
strength for fear of being attacked by another. While this is plausible, why
should there be contradictory provisions which do not prevent nuclear
weapon states from producing more nuclear weapons on one hand and
absolutely preventing another set of states (non-nuclear states) from having
nuclear weapons at all? Such a situation will certainly create (if it has not
already) a huge gap where you have nuclear weapons states on one side and
non nuclear weapons states are on the other. Thus, while the nuclear weapons
states are capable of creating more nuclear weapons, the non nuclear states
are left with nothing. Any blown out armed conflict or war between any
nuclear weapons states using nuclear warfare will definitely render true the
African Proverb: When the elephants fight, it is grass that suffers.
It is submitted here that it is highly discriminatory for one state to be
nuclear weapon capable (with the possibility of acquiring more nuclear
weapons for itself) while another state with no nuclear capabilities is
prevented from having or manufacturing a single nuclear weapons. All
states have been declared to be equal and entitled to equal rights and
obligations under Art 2 para 1 of the UN Charter 1945. On that basis, if the
US, Russia and other states are nuclear capable, there should be no bar to
non-nuclear states preventing them from having nuclear weapons. While it
is conceded here that nuclear weapons use has grave consequences attached
to it, the proper thing to be done should be a complete prohibition or ban of
nuclear weapons. Such a prohibition should be in line with the Landmine
Ban Treaty 1997 which successfully outlawed the use of landmines in any
armed conflict. The current restrictions on the use of nuclear weapons under
the NPT are grossly inadequate, highly discriminatory and do not accord
with the principles of rule of law which advocates for equality before the law.
It is true that the statements made by the Iranian President Mahmoud
Ahmadinejad constitute threats to the existence of the state of Israel which
93
should not be treated lightly. Also, extremist Islamic ideologies held by

some states are certainly not a good recipe for nuclear weapons possession.
However, arguments made on these grounds hold no water as the proper
course would be to provide concrete legal backing to prevent a non-nuclear
state from having nuclear weapons. As has been established, the sovereign
equality of states contrasted with the discriminatory nature of Articles 1
and 2 NPT should entitle states to equal benefits. With respect to extremist
Islamic ideologies, this is no different from tendencies to colonize or
annex as displayed by North Korea in 1980 when they attempted to annex
South Korea. Despite this domination tendency, North Korea has not been
dispossessed of their nuclear weapons. The law should not be seen as having
double standards and if North Korea has nuclear weapons despite their
tendencies to dominate, so should other states.
To lay the matter to rest, the UN Charter provides that:
In the event of a conflict between the obligations of the members of
the UN under the present Charter and their obligations under any
other international agreement, their obligations under the present
Charter shall prevail.173
The effect of this Article 103 of the UN Charter is to establish the UN

Charter as the grundnorm with respect to matters of international law and
all other international agreements must bow to its application. The joint
effect of Arts 1&2 of the NPT can be read as being discriminatory because
some States (nuclear States) are not seen as being equal to others (non
nuclear States). This is contrary to Art 2 para 1 of the UN Charter which
provides for the sovereign equality of all states. Each state should be entitled
to the same benefits and subject to similar obligations.
Despite these arguments which tend to be in support of nuclear
proliferation, it is once again submitted that the proper thing to be done
is the prohibition of the proliferation of nuclear weapons absolutely. If it
is recognized that every state may lawfully acquire nuclear weapons, the
ensuring scenario will be a state of international anarchy where every state
will be in a position to obliterate its enemies. This will not bode well for
humanitys existence as each State may be successfully wiped off the face of
the earth. Plans should be effectively set in motion to rid the world of the
scourge of nuclear weaponry.
173 Art 103 UN Charter
94
Chemical Weapons
The first proper codification of rules relating to chemical weapons came
by means of Art 23 (a) Hague Regulations. This Article made it especially
forbidden to employ poison or poisoned weapons. With the development
of new weapons of warfare, this provision was interpreted as prohibiting
weapons which had asphyxiating or poisonous effects. During the 1st
world war, the effectiveness of Art 23 was tested and it proved to be grossly
inadequate. In fact, there was a massive reliance by the military of poisonous
gasses during the war.
Due to the inadequacies of Art 23 the need arose for an enlargement
provisions with respect to poisonous weapons. One of such was in the 1919
Treaty of Versailles which provided that:
The use of asphyxiating, poisonous or other gases and all analogous
liquids, materials or devices being prohibited, their manufacture and
importation are strictly forbidden in Germany.174
While this provision was restricted to Germany alone, it set the pace
for further rules regulating the use of poisonous weapons in any armed
conflict.175
It was the need for a universally acceptable and applicable treaty
restricting the use of poisonous weapons that led to the formulation of the
Geneva Gas Protocol of 1925. The intention of the Protocol was to prohibit
the use of asphyxiating, poisonous and other gasses during war as well as
bacteriological methods of warfare. However, at the time that the Geneva
Gas Protocol was being formulated, many states made reservations on the
application of the Protocol. This reservation was to the effect that states
would not be bound by the Protocol in any situation where an enemy state
failed to respect the prohibition and made use of poisonous weapons.
Article 21 of the Vienna Convention 1969 deals with the legal effects of
reservations and is to the effect that reservations modify the provisions of
the treaty in its relations with another party and vice versa. By reason of
these reservations, the prohibitory nature of the protocol was whittled down
from a prohibition on the use of poisonous gasses to an agreement not to
use such weapons first. Thus, if a State violated the Protocol by attacking
another State with poisonous weapons, the latter State would be entitled to
use similar weapons in exercise of its right to reprisal. Such a reprisal would
174 Art 171 Treaty of Versailles.
175 Similar provision was made under the 1922 Washington Treaty which prohibited the
use of poisonous gasses. However, this Treaty did not enter into force.
95
be considered legally acceptable even though the latter State was a signatory
to the 1925 Geneva Protocol.
Despite the restrictions on the use of poisonous weapons, there were still
instances of non observance. For instance, when Ethiopia was being invaded
by Italy in 1935-6, the Italian forces made use of gas. In similar fashion, the
Japanese government authorized the use of gas and biological weapons
against China during the 2nd world war.
The UN General Assembly has called for the strict observance of the 1925
Geneva Protocol. In one of its resolutions, the UNGA declared its prohibition
of the use in international armed conflicts of:
a) any chemical agents of warfare chemical substances, whether
gaseous, liquid or solid which might be employed because of their
direct toxic effects on man, animals or plants.176
Apart from Art 23 (a) Hague Regulations and the 1925 Geneva Protocol,
the 1977 Additional Protocol makes provisions that are directly connected to
prohibitions against the use of poisonous weapons. It is prohibited to attack,
destroy, remove or render useless objects indispensable to the survival of
the civilian population.177 Such objects as are listed include foodstuffs
and drinking water installations amongst others. This prohibition under
Article 54 para 2 API may be interpreted to mean prohibition against toxic
contaminations of food supplies as well as drinking water installations. Thus
poisonous substances are not to be introduced into such essential objects
and doing so will be in violation of the international humanitarian law178
The provisions relating to chemical weapons though laudable but they
were still subject to several situations of non-observance. For instance, there
was use chemical weapon during the Iran-Iraq war (1980-88).179 Iraq also
used chemical weapons in March 1998 against its Kurdish inhabitants in
Halabja in Northern Iraq.
To settle all these issues on non-compliance, the Chemical Weapons
Convention180 was formulated. While other provisions merely prohibited
the use of chemical weapons, this Convention provided for a comprehensive
prohibition on the development, production, stockpiling, transfer and
176
177
178
179
UNGA resolution 2603A (XXIV) of 16 December 1969

Art 54.2 API; Art 14 APII
The prohibition also applies in non international armed conflict by virtue of Art 14 APII
Iraq was severely criticized in a UNSC statement (s/pv.2667) for the use of chemical
weapons in clear violation of the 1925 Geneva Protocol. There was further condemnation
of use of chemical weapons during the Iran-Iraq war by UNSC Res. 620.
180 Adopted 13 January 1993
96
use of chemical weapons. This intent was clearly shown in Art 1 which
provides that:
1. Each State Party to this Convention undertakes never under
any circumstances:
a) To develop, produce, otherwise acquire, stockpile or retain
chemical weapons to anyone;
b) To use chemical weapons;
c) To engage in any military preparations to use chemical weapons;
d) To assist, encourage or induce in any way, anyone to engage in
any activity prohibited to a state party under this Convention.
The Convention goes further to compel State parties to destroy all nuclear
weapons they own or possess within their jurisdiction or in the territory of
another State party in accordance with the provisions of the Convention.
Where a State party to the Convention owns or possess a chemical weapons
production facility which is located within its jurisdiction, such a facility
must also be destroyed. With respect to riot control agents, Art 1 para 5
CWC stipulates that they are not to be used in warfare. In effect, the CWC
did not out rightly prohibit the use of all chemical weapons as riot control
agents (such as teargas) may be used for purposes not prohibited under the
Convention. The provisions of the Chemical Weapons Convention 1993
are more comprehensive and detailed that the 1925 Geneva Protocol. It
deals specifically with chemical weapons and outlaws their use completely
in any armed conflict. The 1925 Geneva Protocol still has some relevance
in modern day armed conflict as some states are not signatories to the
Convention but are bound by the Treaty. As such, the Protocol will apply
to them at least to the extent of prohibition against first use. Also, since the
Protocol deals with poisonous weapons and not strictly chemical weapons,
it is still valid with respect to those other poisonous weapons outside the
scope of the Chemical Weapons Convention. Perhaps, the most important
contribution of the CWC is its comprehensive verification regime which
goes beyond routine inspections and permits one state to challenge another
states lack of compliance. In any event, the different laws regulating the use
of chemical weapons have assisted greatly in regulating the sufferings of
both combatants and civilians alike.
97
Bacteriological (Biological) and Toxin Weapons

The 1925 Geneva Gas Protocol makes provision for the prohibition of
bacteriological warfare. In its declaration it was stated:
That the High Contracting Parties, so far as they are not already
Parties to Treaties prohibiting such use, accept this prohibition, agree
to extend this prohibition to the use of bacteriological methods of
warfare and agree to be bound as between themselves according to the
terms of this declaration.
It should be noted that the reduction in the scope of the prohibition

under the 1925 Geneva Gas Protocol to a prohibition against first use equally
applies to biological weapons. Thus, under the 1925 protocol, a state might be
justified in resorting to bacteriological warfare when acting in reprisal.
Despite the provisions under the Gas Protocol 1925, there was still a
pressing need for a more comprehensive international agreement dealing
with biological weapons. In 1972, the Biological Weapons Convention was
formulated and was aimed at the prohibition of the development, production
and stockpiling of biological and toxin weapons. The Convention does not
define what biological or toxin weapons are. Such weapons (biological) may
however be taken to mean living organisms used either to spread disease or
to cause death in humans, animals or plants in any armed conflict. On the
other hand, toxin weapons refer to substances extracted from living tissue
of organisms which have similarly devastating effects.
The Convention leaves room for state parties either to divert their
biological technology for peaceful purposes or to destroy their biological
weapons completely.181 The state parties are also prohibited from
transferring, assisting or manufacturing any such toxins, weapons and
equipment.182 It should be noted that the operation of the Biological
Weapons Convention does not render the 1925 Gas Protocol irrelevant. In
fact, the BWC provides that:
Nothing in this Convention shall be interpreted as in any way
limiting or detracting from the obligations assumed by any state under
the protocol for the prohibition of the use in war of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of warfare,
signed at Geneva on June 17, 1925.183
181 Art 2 BWC 1972
182 Art 3 BWC 1972
183 Art 8 BWC
98
The use of biological weapons in armed conflict has been a source of

constant worry in the international arena. The spread of disease through
biological weapons is indeed a potent weapon of warfare. However, these
weapons have been known to cause unnecessary suffering and in some
instances death. One of such weapons of biological warfare is anthrax, a
dangerous infectious disease of cattle and sheep, which can be passed to
humans.184 During the 1st world war, anthrax was allegedly used by the
German government but its use was not well documented and confirmed.
The potency of anthrax was seen during the accidental release of anthrax
spores from a research facility in Dverdlork, USSR, killing 66 out of the 77
persons diagnosed with the infection.
The threat posed by the use of biological weapons in any armed conflict
made the formulation of the Biological weapons Convention a dire
necessity. The Convention stepped in at a time when the use of different
kinds of weapons were only successfully restricted (but not prohibited)
and constituted itself as the first international agreement codifying
the prohibition of a class of weapons. It should be noted that while the
Convention prohibits the use of biological or toxin weapons, there is no
restriction where scientific discoveries in the bacteriology field are used for
the prevention of disease or for other peaceful purposes.
Iii. Methods of Warfare

Methods of warfare refer to those tactics or strategies employed against
enemy armed forces in any armed conflict situation. At every point in time
during the armed conflict, there is a need to adopt only methods of warfare
that are not contrary to the international humanitarian law. Article 23 of the
Hague Regulations is instructive in this regard and expresses the customary
rule of international humanitarian law that the right of belligerents to adopt
methods and means of warfare is not unlimited. Parties to any armed
conflict must at all times restrict the methods of warfare adopted by them.
Gone are the days when the primary aim of war was to exterminate enemy
populations. This was probably due to the absence of a proper regulatory
framework. In modern armed conflict, all international agreements
as well as customary rules of international humanitarian law come to
bear and compel observance of the minimum standards imposed in any
armed conflict.
184 Collins English Dictionary p. 30 2006 Edn.
99
While The Hague Regulations and the Geneva Conventions deal

with some issues regarding methods of warfare, it appears that it was
the Additional Protocols of 1977 which dealt exhaustively with methods
of warfare. These Protocols prohibited certain methods of warfare in
both internal and international armed conflict. Military objectives are
intrinsically linked to methods of warfare as it is necessary to ascertain
which objects may be attacked and which may be not. A corollary of this is
the protection of the civilian population as by attacking military objectives,
distinction should be made in order to protect the civilian population and at
least to reduce the collateral damage. Important among prohibited methods
of warfare are acts of perfidy, terror, famine, reprisals, psychological
warfare, attacks which cause damage to the natural environment and those
against works and installations containing dangerous forces. Some of these
shall be treated in turn but first, an understanding of military objectives
is necessary.
Military Objectives
As a general rule, the humanitarian law requires that:
The Parties to the conflict shall at all times distinguish between the
civilian population and combatants and between civilian objects and
military objectives and accordingly shall direct their operations only
against military objectives.185
This provision was aimed at the codification of the customary rule of

the international law relating to distinction. In any armed conflict, only
military objectives are to be attacked. The converse aspect of this rule is
that the civilian population should not be attacked but spared and protected
even by the adversary or enemy forces.
As to the meaning of attacks, they mean acts of violence against the
adversary, whether in offence or defence.186 The use of the term attacks
under Article 49 API relating to all acts of violence has received some
criticisms. From the words of W. Hays Parks, the use of the term attacks
is etymologically inconsistent with its customary use and contrary to its
ordinary meaning.187 While the use of the term attacks may give rise to some
confusion, it serves the purpose of alerting armed troops of their obligations
185 Article 48 API 1977
186 Article 49 API
187 Parks, 32 Air Force Law Review (1990) 114 and 115
100
towards the civilian population. in effect, since attacks also includes acts
of defence, a state (acting in self defence) cannot be seen to endanger its
civilian population in the name of carrying out defensive strategies. Their
obligations to the civilian population remain binding and so they must at all
times ensure the protection of the population in accordance with the rules
of international humanitarian law. Where for instance a state sets traps for
the adversarys armed forces, the protection of the civilian population still
remains of paramount importance. Article 49.2 provides that:
The provisions of this Protocol with respect to attacks apply to
all attacks in whatever territory conducted, including the national
territory belonging to a party to the conflict but under the control of
an adverse party.
This Article ensures further protection for the civilian population in an

armed conflict. It is irrelevant that a particular portion of a state is in enemy
hands, the civilian population is still entitled to the protection against
actions by its own national armed forces. To achieve this, neither of the
parties to the conflict (even the host state) can destroy objects indispensable
to the survival of the civilian population. This further shows the preference
given to non combatants. They are protected even where a party to the
conflict is trying to wrench control of its own territory out of the hands of
its adversary.
As to the scope of attacks envisaged under Article 49 API (para 2), these
include any land, air or sea warfare which may affect the civilian population,
individual civilians or civilian objects on land.188 It should be noted that
armed conflict at sea or air which do not affect land territory do not fall
within the purview of Article 49 API (para 3).
In any armed conflict, armed combatants may be taken to constitute
military objectives and as such are liable to be attacked. These
armed combatants include units of land, naval and air forces. In some
circumstances, members of the civilian population may also constitute
military objectives particularly where they are also involved in fighting.
One category of combatants that deserves special consideration is occupants
of aircraft.
Article 42 API specifically addresses the status of occupants of aircraft
in any armed conflict situation. As a general rule, no person parachuting
from an aircraft in distress shall be made the object of attack during his
188 Article 49 para 3 API
101
descent.189 This protection is not afforded to airborne troops but crew

members as established under Article 42 API (para 3). Where the plane
after being shot down is making an emergency descent, it appears that
even armed combatants are not to be attacked especially where it is outside
the target area of the intended attack.190 This will however be irrelevant as
adversary armed forces cannot be expected to determine with certainty
whether the plane is landing out of emergency or with intent to carry out
their armed attack. Where the armed troops surrenders, they are not to be
attacked by the adverse party.
With respect to crew members descending from an aircraft, Article 42
para 1 makes it clear that they are not to be subject to attacks. Even though
they came to execute a military action, by their descent from the plane, their
combat statuses have been temporarily converted to civilian status and so
they are not to be attacked. However, where they show hostile intent while
descending, it only makes sense that they may be attacked.
At any point in time during an armed conflict, civilian objects are not
to be attacked. Under the API, civilian objects are objects which are not
military objectives.191 The definition of military objectives is set out under
Article 52 (para 2) API thus:
Military objectives are limited to those objects which by their
nature, location, purpose or use make an effective contribution to
military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite
military advantage.
The first limb of this Article deals with military objectives and limits them
to objects which make an effective contribution to the military action. It is
required under the Article that the nature, location, purpose or use of the
objects must be known by the attacking forces. This limb of Article 52 API
(para 2) has been largely criticized as being too restrictive and limiting the
category of legitimate objects that may be attacked.192 Military objectives as
used here refer to installations, buildings or ground sectors which contribute
effectively to the military action.
The second limb of Article 52 API (para 2) lends support to the flailing
first limb. It further defines military objectives to include objects whose
189
190
191
192

de Preux, ICRC Commentary, 501 (para 1652)
Parks, ibid, 137-144
102
destruction, capture or neutralization will offer a definite military

advantage. This will depend on the circumstances ruling at the time. What
this limb means is that the attack must be of some benefit to the armed
forces using violence. This should not be taken to condone attacks which
constitute terrorizing the civilian population or those to display military
strength. Attacks must be directly related to the conflict itself and should
offer definite military advantages and not to achieve other purposes which
go against the spirit of the humanitarian law.
The inadequacy of Article 52 para 2 in the definition of military objectives
is seen in its absence to consider different categories of objects which are
not civilian193 but military in nature and therefore subject to attack. From
Article 52 para 2 API, military objectives include armed forces, military
aircraft and war ships; buildings and objects for combat service support;
and commercial objectives such as industrial plants which contribute
effectively to the military action. To cure this inadequacy, the ICRC drafted a
list of military objectives as an annex to the Draft Rules for the Limitation
of Dangers incurred by the civilian population in Times of war.194 This list
may be employed as a precedent in the determination of what constitutes
military objectives and includes in its list, objects not considered under
Article 52 para 2 API.
Based on the list of military objectives under the Draft rules, armed forces
of the adversary as well as all military auxiliary organizations are military
objectives. Paramilitary units which fight alongside the regular armed
forces may also be seen as military objectives and are liable to be attacked.
Also included are the regular units of the army, navy and air force as well
as militia and volunteer corps that have been incorporated into the armed
forces. Also included are guerilla forces, civilians who take up arms to resist
enemy attack, paramilitary agents195 and members of the police force who
take an active part in hostilities.
Installations and objects used in combat support are also included as
military objectives. These include barracks, military airfields, military
command centres, staff buildings, etc. logistics bases of the armed forces such
as arms supply stores, fuel stores etc are to be treated as military objectives.
Positions, installations or constructions occupied by armed forces are
also viewed as military objectives.196 This category may include ordinary
193
194
195
196
Therefore not being subject to attack

Adopted in 1956 in New Delhi, India by the Red Cross Conference
Incorporated into the armed forces pursuant to Article 43 para 3 API
No. 2 of the Red Cross List
103
civilian objects such as schools, hospitals or private residential households.

The litmus test on whether they are military objectives is that they are being
occupied by military forces. Once this is shown, the object ceases to have a
civilian character and is liable to be attacked by the adversary armed forces.
Where for instance, a school is being occupied by military forces who have
converted the school into a military zone, the school loses its civilian status
and becomes a military objective for the purpose of the armed conflict.
The ICRC list of 1956 provides for commercial objectives making an
effective contribution to military action. These are considered to be military
objectives. Included in this category are lines and means of communication,
telephone and telegraph installations and broadcasting stations. The
problem raised by this category of military objectives is how to make a clear
distinction between commercial objectives serving civilian purposes and
those that contribute to the military action. Different instances of attack
aimed at commercial objectives have been viewed differently from a legal
perspective. For instance, NATO bombed Serbian state television and radio
station in Belgrade in April 1999. The attack was seen as legally acceptable
since it was aimed at disrupting the command control and communications
network of the Serbian forces. The legal basis of the attack would have been
more contentious if the attack on these stations was aimed at destroying
them for their use in the spread of propaganda. Such a scenario would have
definitely raised more serious legal issues as it is highly unlikely that such an
attack is in consonance with the principles of law on the subject matter. In
similar fashion, several bridges were destroyed by the NATO forces during
the Kosovo conflict. The basis for this destruction was that they were
considered to be making effective contribution to the military action. It is
submitted here that such an interpretation would be too broad as it may
have the effect of rendering every single thing which the army makes use of
as effective contributors to the military action.
The list makes mention of industries of fundamental importance for
the conduct of war. These include industries that produce arms as well as
those involved in metallurgy, engineering and chemical production, all
being directly relevant to armed conflict situations. Transport and storage
installations attached to armaments industries also constitute military
objectives. In addition, installations used for the production of electricity
are military objectives. With respect to this category, it is difficult to
distinguish between electricity generating installations which are either for
civilian use or military consumption. It is possible that a single electrical
installation is being used by civilians and the military at the same time. Such
104
problems of distinction raise serious issues and it is for the armed forces to
exercise great care before attacking such installations. Finally, the research
and development sectors of the armaments industry are military objectives
liable to be attacked.197
With respect to industries of fundamental importance, problems may
arise particularly relating to the supply industry of arms as well as other
subcontractors of the Ministry of Defence in any State. These two do not
fall within the category of military objectives but are intrinsically linked to
the armaments industry. Where these industries are not targeted as military
objectives, states may be tempted to decentralize their production of arms
to these subcontractors and thereby, rendering it legally impossible for such
industries to be attacked without being in violation of the international
humanitarian law. The proper thing to be done is to review the existing laws
on the subject to ensure that such a situation does not arise in the future.
As has been established under Article 52 para 2 API, objects which offer
definite military advantages in the event of their destruction, capture or
neutralization may be considered military objectives. The meaning to be
attached to the term definite military advantage has given some cause for
concern. The interpretation under Article 52 para 2 is likely to lead one to
believe that even the attack of a single military objective may give rise to this
definite military advantage. It has now been settled that an isolated attack is
not likely to give a definite military advantage but the operation considered
as a whole. Such an interpretation may be traced to an interpreting
declaration signed by the German government and other States198 that
settled the issue thus:
In applying the rule of proportionality in Article 51 and Article 57,
military advantage is understood to refer to the advantage anticipated
from the attack as a whole and not only from isolated or particular
parts of the attack.
It is trite law that the civilian population is to be protected against dangers

arising from military operations.199 Thus, distinction must always be made
in any armed conflict between civilians and military personnel. Civilians
197 The presence of civilians in a military installation does not change the character of that
installation and so, it is still likely to be attacked for being a military objective. Similarly,
the presence of individual armed forces in the midst of the civilian population does not
render the latter liable to attack
198 Such as Italy Declaration of 27 February 1986; Belgium Declaration of 20 May 1986;
and Spain Declaration of 21 April 1986
105
enjoy non- combatant status as provided under Article 4 GC III and Article
43 API.
A civilian will lose his non combatant status (and thus be liable to attack)
if he/she takes direct part in the hostilities.200 Thus, in a situation where
members of the civilian population take up arms alongside the regular
armed forces, they will be viewed as combatants and the protection afforded
to them pursuant to Article 51 para 1 API will not avail them. A civilian person
who finds himself situated in a military objective liable to be attacked does
not thereby become a combatant. However, the place where they are located
is likely to be attacked and no protection will be available to him. In effect,
the presence of civilian persons in the midst of military objectives does not
change the character of the military installation. The presence of civilian
persons in an army barracks, for instance, does not make the barracks a
civilian object. Problems however arise where the concentration of civilians
in a military zone is high and the question of proportionality arises. This is
why it is not unusual for civilian persons to be deliberately used as a human
shield to prevent attack by adversary forces. For instance, Iraqi civilians
were used as a shield for military operations in the Iraq- US conflict. Such
deliberate injection of civilians makes it more difficult to determine whether
any particular attack is justifiable. Article 53 para 3 API is to the effect that:
In case of doubt whether an object which is normally dedicated to
civilian purposes , such as a place of worship, a house or other dwelling
or a school, is being used to make an effective contribution to military
action, it shall be presumed not to be so used.
This provision complements Article 53 para 2 dealing with military

objectives. Any doubt that the object is being used either for civilian or
military purposes will be decided in favor of civilian purposes. This doubt
is more common with respect to objects that are purely known to be for
civilian use.201 On the other hand, there are objects which must be presumed
to have military utility if they are in use at all. These include the means of
transport and communication of any of the parties to the conflict. In any
event, the determination of whether an object may be attacked for possibly
being a military one is a subjective and depends on the perspective of forces
on the ground.

201 Of course where the military have entrenched themselves in a civilian establishment, it
loses its civilian character and becomes liable to attack
106
Still on military objectives, military aircraft belonging to either of the

parties to the conflict are military objectives which may be attacked under
the humanitarian law. The body of rules regulating this specie of military
objectives is the Hague Rules of Aerial Warfare 1923. The presence of civilian
persons on any military aircraft does not thereby change the character of
the aircraft and it may be attacked. Conversely, where military personnel
convert a civilian plane for their military purposes, it acquires the status of
a military objective.
When an enemy military aircraft falls into the hands of an adversary,
the members of the crew and passengers, if any, may be made prisoners of
war.202 By being on a military plane, the crew members (though civilians)
are deemed to have been incorporated into the military structure. As such,
they may be held as prisoners of war and entitled to the protection available
under the GCIII. This rule is stated in Article 36 HRAW which provides that:
The belligerent may hold as prisoners of war any member of the crew
or any passenger whose service in a flight at the close of which he has
been captured has been of special and active assistance to the enemy.
It should be noted that the release of prisoners is dependent on the

military interests of the party holding them. They are entitled to detain
captured persons for as long as possible. Also, where a passenger plane has
fallen into the hands of the belligerent forces, the crew and passengers of the
plane are entitled to be released provided it is shown that they are not in the
service of the enemy or are enemy nationals fit for military service. Article
34 HRAW goes further to mention circumstances where non military aircraft
may be fired upon. They are not to be fired down without warning unless
they are escorted by a military aircraft into a zone where active hostilities
are taking place or where they engage directly in hostilities.
In any armed conflict, the civilian population must be spared. It was
the need for such protection that led to the formulation of the 4th Geneva
Convention on the protection of civilian persons in times of war. Under the
1st Additional Protocol, it is now firmly established that civilian persons
must be protected.203 Similar provisions exist under Article 13 of the APII.
The civilian population is not to be attacked and attacks which are likely
to cause incidental loss to them are prohibited. While it is conceded that
civilian losses usually occur in any armed conflict as collateral losses, the
international humanitarian law imposes duties on parties to the conflict to
202 Article 36 Hague Rules of Aerial Warfare
203 Article 51 API
107
ensure that these losses are not excessive in relation to the expected military
advantage. The principle of military necessity steps in at this point and each
party to the conflict must abstain from acts of unnecessary violence and the
use of such weapons likely to cause great harm to the civilian population.
As a corollary to this rule on the protection of the civilian population, it
is expected that they (civilians) must be warned of attacks which may affect
them.204 The requirement of effective advance warning will be fulfilled only
where the circumstances make it possible for such warning to be given.
This means that armed forces are not bound to give advance warning to the
civilian population in all circumstances. Such would be highly deleterious to
military operations as the concept of surprise attacks which are necessary
to catch enemy armed forces unawares will be rendered useless.
The duty to minimize losses to civilian lives and the population does not
rest solely in the hands of the attacking State. The State acting in defence
must also ensure that civilian losses are minimized. To achieve this, the
State must endeavor to remove the civilian population, individual civilians
and civilian objects under their control from the vicinity of military
objectives.205 The State is required to take necessary precautionary measures
which may include provision of shelters to achieve this objective.
Protection of civilian objects

With respect to the protection of civilian persons and objects, it is now
settled under the humanitarian law that:
The civilian population as such, as well as individual civilians shall
not be the object of attack. Acts or threats of violence, the primary
purpose of which is to spread terror among the civilian population are
prohibited206
The first limb of this Article 51 para 2 establishes the general rule relating
to the protection of the civilian population, individual civilians and other
civilian objects. It is prohibited to make any of these the object of attack.
The principle of distinction steps in to ensure that only military objectives
are targeted. This rule is an established principle of customary international
humanitarian law and Article 51 para 2 serves to restate or reaffirm the
validity of the law.
204 Article 26 Hague Regulations; Article 57 para 2 (c) API
205 Article 58 API
108
The second limb of Article 51 para 2 goes further to prohibit acts of

violence whose primary purpose is to strike fear in the hearts of the civilian
population. Such acts or threats of violence are also aimed at intimidating the
adversary armed forces and may include a display of their military arsenal
by shooting indiscriminately or other similar acts. Any attack carried out
on such grounds is deemed unlawful under the humanitarian law.
In practice however, it is not uncommon for armed forces to engage in
acts which spread terror among the civilian population. For instance, the
use of missiles by Iraqi forces against some Saudi and Israeli cities during the
Kuwait war of 1991 constituted acts or threats of violence aimed at spreading
terror. Once there are no military objectives within the area being attacked,
it is safe to conclude that the acts are intended to strike fear in the civilian
population. Such acts should be carefully investigated by the international
community and adequate punishments meted out to offenders.
The protection available to civilians is not present in all circumstances.
In the event that individual civilians or civilians acting as a whole take
active part in hostilities, their civilian character is suspended because of
the military acts they have performed. They are no longer seen as purely
civilians and may be attacked. This exception is provided for under the
API207 and arises in situations where civilian persons take up arms against
enemy adversary forces.
Article 51 para 4 prohibits indiscriminate attacks against the civilian
population. As to the meaning of indiscriminate attacks, they are:
a) those which are not directed at a specific military objective;
b) those which employ a method or means of combat which cannot be
directed at a specific military objective; and
c) those which employ a method or means of combat the effects of which
cannot be limited as required by this Protocol208
This prohibition of indiscriminate attacks goes hand in hand with the
principle of distinction. In either (a) (b) or (c) above, such indiscriminate
attack is likely to affect military objectives and civilian objects without
distinction. The use of weapons of mass destruction (nuclear weapons) for
instance will be grossly indiscriminate as the possibilities of distinction
are improbable.
With respect to (a), all military attacks must be directed at specific
military objectives. Civilian persons and objects do not come within the
109
meaning of military objectives and as such are not to be attacked. Collateral

loss of civilian lives and property is unavoidable in any armed conflict, and
the meaning to be ascribed to Article 51 para 4 cannot be extended to mean
that no civilian lives are to be lost. The distinction must clearly be made
and only the military objectives are meant to be attacked. With respect to
the presence of civilian persons in a military establishment, such place is
still liable to be attacked. At all times however, the principles regulating
proportionality must be considered. For instance, would the bombardment
of a military establishment with five military personnel and two hundred
civilian workers be justified?
The answer to similar questions depends at all times on the circumstances
of each case. Another question that may arise is whether it is permissible
to release bombs over enemy territory where civilian presence is known
to exist. This was the practice during World War II and is evident in the
bombings of Hiroshima and Nagasaki in Japan. Such acts are unlawful by
reason of Article 51 para 4 (a). Where through intelligence it is known that
the identification of the target has failed, the proper thing to be done is to
desist from launching the attack. This was what the Allied Forces did during
Operation Desert Storm in line with their rules of engagement. This act by
the Allied forces is highly commendable and is in contrast with the idea of
total war.
With respect to (b) above, the employment of methods or means of
combat which cannot be directed against specific military objectives are
also prohibited. The use of nuclear weapons for instance, cannot be said to
be directed particularly against military objectives as the aftereffects will
be felt by the civilian population. The use of remote guided missiles with
low accuracy is also prohibited pursuant to this Article. The use of such
weapons makes it increasingly difficult to distinguish between military
objectives and civilian objects. The indiscriminate launching of missiles
by Israeli forces against the population in the Gaza strip is a clear example.
The impossibility of targeting precise military objectives only serves to put
the civilian population in harms way. Another example of indiscriminate
attacks under Article 51 para.4 (b) is where night attacks are carried out
without adequate targeting equipment. This will lead to the endangerment
of the civilian population. Also, the use of mines which explode when
a person or vehicle is in close proximity with them is an indiscriminate
means of warfare. The minefields cannot on their own make distinction
110
between civilians and military personnel. When the mines are not properly
recorded,209115 it further endangers the civilian population.
The 3rd category of indiscriminate attacks refers to those that employ
methods or means of combat whose effects cannot be limited. Where the
effects of the weapons being used cannot be curtailed, such use will be
contrary to the rules of humanitarian law. The use of nuclear weapons falls
within this category. Their effect cannot be limited to a particular area and
long after the conflict has come to an end, they still negatively affect the
lines of the population. The signing of a peace treaty does not stop the effects
of nuclear weapons use. The question of proportionality comes into play
with respect to the 3rd category of indiscriminate weapons. While collateral
damage has become a norm in armed conflict, Article 51 para 4 frowns at
methods and means of warfare whose effects cannot be restricted and which
are disproportionate to the military advantage sought. In the Kosovo air
campaign, NATO forces dropped about 1400 cluster bombs each containing
between 147 and 202 sub-munitions on targets in Serbia and Kosovo.210116 In
the Nigerian scenario, the aerial attack by Nigerian Armed Forces against
the population of Gbaramatu in Delta State of Nigeria in a bid to quell
militant uprisings in the state cannot be limited to only military objects. The
effects cannot be limited as required under the Additional Protocol I
Apart from the categories of indiscriminate attacks under Article 51 para
4, the following types of attacks may be considered as indiscriminate:
a) an attack by bombardment or any other means which treats as a
single military objective a number of clearly separated and distinct
military objectives located in a city, town, village or other area
containing a similar concentration of civilians or civilian objects; and
b) 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.211
Circumstances may arise where a number of clearly separated military

objectives are attacked as if they were a single military objective. This
usually happens with respect to area bombardments as was widely practiced
during the 2nd world war. Article 51 para 5 (a) settles this issue and expressly
209 In accordance with Art. 9 Mines Protocol
210 Herby/Nuiten, 83 IRRC (2001), 199; Herthel, 51 Air Force Law Review (2001) 231
111
prohibits such attacks as being indiscriminate. It is not every military

objective that needs to be bombarded. For instance, there is no need to bomb
the living quarters of military personnel when the primary purpose of the
bombing is to destroy a nuclear plant. It is only in circumstances where it is
impossible to attack one military objective without attacking the other that
it may be permissible to treat them as one.
Article 51 para 5 (b) of the API deals primarily with the issue of
proportionality. One basic fact of armed attacks is that there must be civilian
casualties. The purpose of Article 51 para 5 here is to create a balance in the
event that the attack is expected to cause loss of civilian lives and property.
In effect, the Article justifies collateral damage as long it is not excessive
in relation to the military advantage anticipated. The principles governing
proportionality however are more subjective than objective as what will
be considered as proportional is measured according to the standards of
the military officer issuing the attack order. This lack of objectivity makes
it increasingly difficult to determine when an attack is proportionate and
when the civilian losses are not proportionate to the military advantage
sought. For instances, if military intelligence reveals that Osama Bin laden,
a known terrorist, has been spotted in a crowded room with 200 civilian
persons, will it be proportionate to bomb that place and kill all the persons
inside? Thus, the issue of proportionality raises its head in most military
operations and it is left for the military commanders to apply their judgment
to determine whether the attack should be carried out or not.
Proportionality in attacks raises other issues, for instance, situations
where civilian persons are in a legally recognized military objective or
where the military objective is located in a concentration of civilians. Just as
the presence of non- civilians does not change the character of the civilian
population, so also the presence of civilians in military establishments does
not change the military character. In modern armed conflicts, it appears
that civilian personas are deliberately placed in military establishments
to prevent them from being attacked. They are used as a human shield to
prevent attack by adversary forces. In this kind of situation, the onus rests on
the military commander issuing orders to determine whether attack on such
a military establishment (causing loss of civilian workers and personnel)
will be proportionate to the military advantage anticipated. With respect to
human shields, the API provides that:
The presence or movements of the civilian population or individual
civilians shall not be used to render certain points or areas immune
from military operations, in particular in attempts to shield military
112

objectives from attacks or to shield, favour or impede military
operations.212
The parties to the conflict are further prevented from directing the
movement of the civilian population so as to shield military objectives or
military operations. Despite this directive, it will be difficult for proper
implementation as the deliberate use of human persons as protective shield
has proved in certain circumstances to be a very potent tool in preventing
attack from adversary forces. This technique was adopted by Iraq during
the Iraqi-US conflict and made it increasingly difficult for US forces to attack
Iraqi forces as they operated from within the civilian population.
In addition to the different classes of protection made available to
civilians, the humanitarian law further prohibits civilian objects from being
the object of reprisals.213 Reprisals are measures of pressure carried out
by a state in response to unlawful acts committed against it by another
state and are intended to force that state to respect the law.214 There are
circumstances where reprisals are legal. They must be in response to an
attack and only combatants and military objectives are to be attacked.
Article 52 para 1 makes it unequivocally clear that civilians are not to be
attacked in reprisal attacks. The attacking state is duty bound to restrict its
attacks to military objectives. Even where one state has attacked civilians in
another state, the responding state may only attack its military objectives.
Any act beyond that goes out of the scope of reprisals and falls into the
class of acts of revenge which are unauthorized under the international
humanitarian law.215
As an extension to the protection of the civilian population, there are
certain objects which are guaranteed protection under the humanitarian
law. Article 53 API provides:
Without prejudice to the provisions of The Hague Convention for
the Protection of Cultural Property in the event of armed conflict
of 14 May 1954, and of other relevant international instruments, it
is prohibited:
212
213
214
215
Article 51 para7 API

Article 52 para1 API
Bouchet Saulnier F., ibid, p.385
Distinction must be made between reprisals, acts, revenge & retaliation. Acts or revenge
are out rightly unlawful; reprisals are in response to unlawful acts while retaliations in
response to unfriendly but lawful acts.
113
a) to commit any act of hostility directed against the historic monuments,

works of art, or places of worship which constitute the cultural and
spiritual heritage of peoples;
b) to use such objects in support of military effort;
c) to make such objects the objects of reprisals.216
Despite this prohibition, cultural objects may be liable to attack where
they have been converted to military objectives. In any event, where there
is doubt as to whether a cultural object is being used to make an effective
contribution to military action, it shall be presumed not to be so used.217
Article 54 API deals with the protection of objects that are indispensable
to the survival of the civilian population.218 These include foodstuffs, crops,
livestock, drinking water installations and supplies and irrigation works.
This list appears to mention only food and water supplies probably due to
their importance during warfare. The categories of objects protected under
Article 54 are not closed and will depend on the circumstances of each case.
For instance, while electricity is not mentioned, the destruction of electricity
supply may disrupt other civilian infrastructure. This was the situation
during Operation Desert Storm in Iraq. The disruption of the electricity
supply affected the drinking water supply system. Also, the provision of
sweaters, blankets etc may be indispensable to the survival of the civilian
population in a cold ravaged country and as such, should not be prevented
from reaching those who need it.
Article 56 API provides for the protection of works and installations
containing dangerous forces. The Article recognizes 3 types of installations
namely: dams dykes and nuclear electrical generating stations (or nuclear
power plants). These works or installations shall not be made the object of
attack even where the objects are military objectives.219 The special treatment
accorded to these installations is predicated on the uncontrollable forces
that will be released if they are destroyed and which will by extension cause
immense losses to the civilian population. Any attack on such installations
will thus constitute indiscriminate attack and will pose massive threats to
the continued existence of the civilian population. Even where military
objectives are located at or on the vicinity of these installations, they are not
to be subject to attack since such attack may cause the release of dangerous
216
217
218
219
Article 53 API
Article 14 APII
Art 56 para 1 API
114
forces leading to severe civilian losses. As such, parties to the conflict shall
endeavor to avoid locating any military objectives in the vicinity of the
works and installations in a bid to prevent them from being attacked.220
The interests of the civilian population must be placed first. The only
permissible military installations that may be located close to these
installations are those for security purposes and defending the installation
against terrorists and saboteurs.
Despite the special protection against attack accorded to these works and
installations, they may be subject to attack in the following circumstances:
a) for a dam or dyke only if it is used for other than its normal function
and in regular, significant and direct support of military operations
and if such attack is the only feasible way to terminate such support;
b) for a nuclear electrical engineering station only if it provides electric
power in regular, significant and direct support of military operations
and if such attack is the only feasible way to terminate such support;
c) for other military objectives located at or in the vicinity of these works
or installations only if they are used in regular, significant and direct
support of military operations and if such attack is the only feasible
way to terminate such support.221
The effect of (a) above is that where the dam or dyke is being used
beyond its common contribution to military activities, then it is liable
to be attacked. It is only where the attack of the dam or dyke is the only
feasible way to terminate the military support that the protection is lifted.
The standard imposed on military commanders in this regard is very high
considering the effects that the release of dangerous forces could have on the
members of the civilian population. Where it is possible to attack a different
objective that will have lesser consequences for the civilian population but
which will achieve a similar military objective, that objective should be
attacked instead.
With respect to (b), nuclear power plants become subject to attack where
they provide electric power in regular, significant and direct support of
military operations. For nuclear plants, it is harder to determine whether
they are being used in direct support of military operations since by their
normal function, they support military operations as the central source
of electrical energy. As with dams and dykes, the attack on nuclear plants
220 Art 56 para 5 API
221 Art. 56 para 2 API
115
will only be permissible when it is the only permissible way to terminate the
direct military support.
For other military objectives envisaged under (c) above, the exceptions
under which they may be attacked are similar to (a) and (b) above. Once it
is shown that they are being used in regular, significant and direct support
of military operations, the special protection under Art 56.1 API is lifted and
they may be attacked. Also, the attack will only be permitted where there
are no alternative objectives to be attacked and the objective located close
to the installation is the only feasible way to terminate the military support.
Where for instance, there are two strategically important bridges, one being
closer to the installation and the other further from the installation, the
more distant bridge should be attacked in a situation where the destruction
of either bridge will result in a similar military advantage.
To further protect the civilian population and ensure their survival
during armed conflict there are certain places which are not to be
attacked. Also, certain personnel who help to guarantee the continued
existence of the civilian population are not to be attacked. For example, it
is prohibited for parties to the conflict to attack non-defended localities.222
Demilitarized zones are also protected from attack pursuant to Article 60
API. The only circumstances where demilitarized or non-defended localities
may be attacked are where the obligations imposed under Art 60 and 59
respectively are breached. In both instances, the zones continue to enjoy
the basic protections available under the Protocol in the event that they lose
their status.
Article 22 of GCII 1949 provided for the protection of military hospital
ships. They are not to be attacked or captured in any circumstances but
shall at all times be respected and protected. Protection is also available
to medical and religious personnel. When measures have been taken
for the removal or exchange of wounded and sick persons, the passage of
medical and religious personnel and equipment on their way to that area is
to be guaranteed.223 Fixed establishments and mobile medical units of the
medical service (hospital) may in no circumstances be attacked.224 Hospital
zones and localities,225 hospital and safety zones and localities226 as well as
222 Art 59 API

223 Art15 GCI
224 Art 19 GCI
225 Art 23 GCI
226 Art 14 GCIV
116
neutralized zones227 are also to be established primarily for the protection

of persons situated in the regions where fighting is taking place.
The international humanitarian law provides for precautionary measures
that are to be taken in any military attack. Article 57.2 (a) (i) provides that
those who plan or decide upon an attack are to do everything feasible to
ensure that the objectives to be attacked are neither civilians nor civilian
objects. Only military objectives may be the subject of an attack as
established under Art 52 para 2 API. The class of persons envisaged under
the phrase those who plan or decide upon an attack does not refer to low
ranking members of the armed forces but to high ranking officers, military
commanders etc who are in the position to make decisions regarding
military operations. Junior officers do not belong to this category as they act
only upon the instructions of their superior officers.
The Article further requires that the commanders deciding upon an
attack to do everything possible to ensure that non-military objects are
not attacked. This is a further protection available to the members of the
civilian population. The commanders must gather enough information and
intelligence before deciding upon an attack. Failure to do this will be to the
detriment of the civilian population as it will make it more difficult for the
attacking armed forces to distinguish between civilian and military objects.
The best thing to be done in such circumstances would have been to refrain
from attacking until more information is available. This would have been
ideal but with the difficulty in getting the necessary information, attacks
have been known to be initiated blindly making distinction more difficult.
For instance, one reason why the Nigerian government has not been able
to nip the Niger Delta militant situation in the bud is lack of the necessary
intelligence. It is difficult to attack the militants without endangering the
civilian population and with the lack of necessary information; civilian
losses are bound to arise.
The military commanders involved in making the decision to attack
are also enjoined to take feasible precautions in the methods and means
of combat adopted/employed by them. This is with a view to avoiding or
minimizing civilian losses.228 Cognizance must be taken of the weapons to
be adopted in any military operation. Modern warfare has shown that it is
highly unlikely that a military operation will not have civilian casualties.
The humanitarian law however enjoins all parties involved in an armed
conflict to minimize civilian losses. Collateral damage is thus justifies where
227 Art 15 GCIV
228 Art 57.2 (a)(ii) API
117
it is proportionate to the military advantage anticipated. In determining the

method or means to be adopted in any military operation, the humanitarian
law does not stipulate any objective standard. Each military operation is to
be treated in isolation and in accordance with its peculiar circumstances.
The guiding principle is that the civilian losses must be proportionate to
the anticipated military advantage. Where a particular military operation
is likely to cause grave losses to the civilian population, the military
commander is required to refrain from issuing the order to proceed. This
was the situation in the Kuwait war of 1991 where bomber aircraft were
required to return home with the entire bomb load unless they were one
hundred percent sure of their target.229
Where the military objective is located in the midst of civilian objects,
the weapon(s) to be used should be those with the most accurate delivery
parameters.230 Weapons which will cause less casualties or losses to the
civilian population are to be prepared. The use of infantry operations
in these circumstances is preferable (but not always possible) since
they make distinction between military objectives and civilian objects
less cumbersome.
Article 57.2 (a) (iii) provides that those who plan or decide upon an
attack shall:
refrain from deciding to launch any 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.
This provision restated the rule on proportionality set out under Article
51 para 5 API dealing with indiscriminate attacks. Military commanders
must refrain from launching attacks where the collateral damage will be
disproportionate to the military advantage anticipated. The use of human
beings as shields makes it more difficult for military commanders to attack
military objectives for fear of harming the innocent civilian population.
Be that as it may, it is the responsibility of commanders at all times to
take precautions before launching attacks to prevent or at least minimize
civilian losses.
Where it becomes apparent that an objective to be attacked is not a
military one that attack is to be suspended or cancelled.231 Article 57 para
229 Fleck D, op cit, p. 210
230 Ibid
231 Art. 57 para 2 (b)
118
2 (b) further provides that where the attack is subject to special protection
or may be expected to cause disproportionate loss to civilian objects, such
attack is also to be suspended or cancelled. This provision constitutes itself
as a further safeguard in the protection of the civilian population, individual
civilians and civilian objects.
Article 57 para 2 (c) provides that effective advance warning must be given
of attacks which may affect the civilian population unless the circumstances
do not permit. This provision restates the rule set out in Article 26 Hague
Regulations which provides that:
The officer in command of an attacking force must, before
commencing a bombardment, except in cases of assault, do all in his
power to warn the authorities.
Both provisions contain exceptions to the obligation to give advance

warnings. Thus, in case of assault where the element of surprise is a necessary
ingredient for the success of the operation, the military commander will not
be duty bound to issue an advance warning. The importance of Article 57.2
(c) is to give the authorities of the state about to be attacked, the opportunity
of evacuating their civilian population from the planned area to be attacked.
While the effective warning is for the benefit of the civilian population,
it will make nonsense of the planned military operations as the attacking
forces will have lost the crucial element of surprise. The warning will give
the state being attacked the opportunity to prepare themselves by setting
traps etc, making it more difficult for the adversary forces to carry out a
successful attack. Thus, in practice, preference is given to assault attacks
to preserve the military advantage gained by surprise. The permission of
assault attacks does not however supersede the rules on proportionality and
troops are required to minimize civilian losses.
In the event that it is possible to make a choice between several
military objectives with similarly military advantages, the objectives to
be selected may be the one which will cause the least danger to civilian
lives and objects.232 This provision lends further credence to the rules
of proportionality. If attacking a different military objective will bring a
lesser loss of civilian lives or objects (while maintaining a similar military
advantage), such an attack should be preferred. Where for instance, the
choices are between two arms factories, one in the middle of the civilian
population and the other in a deserted region, the later objective is to be
119
attacked. In effect, both the civilians and the military win in this scenario as
the civilian lives are preserved and the military advantage sought is gained.
Children, women and other persons who are hors de combat are not to
be caught in the midst of the fighting. In the Liberian civil war, the forceful
recruitment of children as child soldiers has been frowned upon by the
international community. As at the time of writing, the former President
of Liberia, Charles Taylor, had been charged (amongst other charges)
for the use of child soldiers during his alleged involvement in the Sierra
Leone conflict.
The rules on proportionality are set in place for the protection of the
civilian population. Civilian casualties are a part of warfare but no attack
must be initiated which will lead to excessive civilian losses. Where a
military commander acts in violation of the rules on proportionality, he
may find himself liable for the crime of genocide. In modern armed conflict,
the persons usually charged with genocide are the president of the country
(usually military heads of state) as well as their superior commanders.233
This was the fate of the former President of Chile, Augustine Pinochet who
was charged with and sentenced for the crime of genocide. In similar fashion
the former President of Iraq, Saddam Hussein, was charged with and found
guilty of genocide amongst other crimes.
Protection of the civilian population and objects remains of paramount
importance in any armed conflict. Gone are the days when total war
was in vogue and both civilian and military objects were subject to
attack. The principles of distinction and proportionality help to ensure
that only military objectives are attacked and in event that civilian losses
are necessary, they must not be excessive in relation to the direct military
advantage anticipated. While military operations are often planned before
time, if it becomes apparent during the military operation that the civilian
losses will exceed the military advantage expected, the attacking forces are
required to retreat.234 War is to be aimed at bending the political will of
states which can be done by attacking only military objectives. Civilians
should only be seen as distant observers and not active participators in any
armed conflict.
233 This will depend on whether the superior commander are listed as parties to the said
234 uch retreat must be based on the command of the superior officer. A junior officer
retreating on his own according may be tried under martial law for mutiny
120
Legal Status of Prohibitions against Perfidy and Ruses of War

Article 37 API provides for the prohibition of perfidy. Perfidy is defined
under the API to mean:
Acts inviting the confidence of an adversary to lead him to believe
that he is entitled to, or is obliged to accord protection under the rules
of international law applicable in armed conflict, with intent to betray
that confidence.235
It is the deceptiveness attached to perfidy that makes it prohibited to kill,

injure, or capture an adversary by resorting to perfidy. Where there is intent
to deceive the adversary into believing in the existence of a state of things
which do not exist, and on which belief he acts to his own detriment, the
act of perfidy has been committed. This state of things as it relates to perfidy
may include:
a) the forging of an intent to negotiate under a flag of trice or of
a surrender;
b) the forging of an incapacitation by wounds or sickness;
c) the forging of civilian, non-combatant status; and
d) the forging of protected status by the use of signs, emblems or
uniforms of the United Nations or of neutral of other states not
parties to the conflict.236
With respect to (a) above, it is prohibited to use the flag of truce or
surrender as a guise to attack adversary forces. The use of a flag of truce is a
matter of military honour and hiding behind its protective nature to attack
adversary forces is a gross abuse of its functions. The flag of truce is only to
be used where either party desire to negotiate terms with the other and not
to be instill trust in the other party then betray that trust by attacking them.
Under (b), it is prohibited for individual members of the armed forces
or members acting as a unit feign incapacitation or sickness as a faade
to initiate attacks against the adversary. Such would be in violation of the
humanitarian law. While armed conflict is often between enemy states
each state is still bound by the rules of humanitarian law to refrain from
attacking persons who are hors de combat. It will be grossly unfair for
military personnel, believing they are carrying out the honorable objective,
235 Art. 37.1 API
236 ibid, it should be noted that the list of acts which constitute perfidy are not exhaustive
121
to be attacked by the pretentious adversary forces. The rules on perfidy thus

come to bear to maintain the principles of military honor and chivalry.
The feigning of civilian, non-combatant status under (c) represents
perhaps the greatest threat under acts of perfidy. Feigning the civilian status
includes dressing up like civilians and concealment of weapons. This makes
it very difficult for distinction to be made between military personnel and
civilian objects. The essence of military uniforms is to make distinction
possible and disguising themselves in civilian apparel not only makes
it harder to distinguish between military and civilian objects, but also
renders the deceived armed forces liable to unsuspected attack. There are
circumstances where it is permitted for belligerents to wear civilian clothes
e.g. guerilla fighters.
However, there should be extreme sanctions for the regular armed forces
when they not only guise themselves in civilian clothes but use them as a
guise to attack adversary forces.
It should be noted that perfidy is not prohibited in all circumstances.
Where the deception does not lead to the killing, injure or capture of the
adversary forces, perfidy will be permitted. For instance, wearing civilian
clothes to escape capture will be permitted under the humanitarian law
provided it is not used as a guise to harm the adversary troops.
Closely related to acts of perfidy are ruses of war. Under the API, ruses
of war are not prohibited.237 Ruses of war refer to acts intended to mislead
the adversary but they are not perfidious because they do not invite the
confidence of an adversary with respect to protection under the law. They do
not infringe on the rules of humanitarian law and has been in use since time
immemorial. Article 24 of the Hague Regulations also provides for ruses of
war and is to the effect that:
Ruses of war and the employment of measures necessary for
obtaining information about the enemy and the country are
considered permissible.
Perhaps the only contribution made by Art. 37 para 2 API to the pre-existing
Art 24 Hague Regulations was to give some examples of ruses of war vizthe use of camouflage, decoys, mock operations and misinformation. In line
with these examples of ruses of war, it is permissible to transmit misleading
messages, to fake retreat operations, use dummy weapons amongst other
ruses. There is indeed a very thin line between ruses of war and acts of
perfidy but the distinguishing element is the instilling of confidence with
122
intent to betray inherent in acts of perfidy. Ruses of war on the other hand
are military strategies intended to bring about a desired advantage by
deceptive reasoning. Ruses of war stops at the point of deceptive reasoning
and perfidy goes further with the aim to betray confidence instilled in the
adversary party.
In line with acts of perfidy and ruses of war, Article 38 prohibits the
improper use of distinctive emblems of the Red Cross, Red Crescent or
Red Lion and Sun as well as other internationally recognized protective
emblems. It is also prohibited to make use of the distinctive emblem of the
United Nations except its use is authorized.238
In similar fashion, it is prohibited to use in any armed conflict, the flags,
military emblems, insignia or uniforms of neutral of other states not party
to the conflict.239 With respect to the use of such symbols of the adversary, it
is prohibited to use them while engaging in attacks in order to shield, favour,
protect or impede military operations.240 The uses of the adversary symbols
do not constitute perfidy under Article 37.241 However, they are still not
permissible under the humanitarian law.
Deception of adversary forces is an effective military strategy and has been
proven to work time and again. The humanitarian law does not frown at all
forms of deception; it only goes against the principles of military honour
(perfidy). In any event, the humanitarian law has imposed restrictions on
what deceptive strategies are permissible and which are not.
Psychological Warfare
There are no express provisions relating to psychological warfare under API.
Psychological warfare consists of the dissemination of military and political
propaganda to reduce the adversarys will to fight. On the legality or
otherwise of psychological warfare, it appears that it is permissible to resort
to this method of combat. This will however depends on the circumstances
of each instance that is used. Article 23 of the Hague Rules of Aerial warfare
(HRAW) 1923 lends credence to the legitimacy of psychological warfare. It
provides that:
The use of aircraft for the purpose of disseminating propaganda shall
not be treated as an illegitimate means of warfare.
238
239
240
241
Art 38 para 2 API

Art 39 para 1 API
Art 39 para 2 API
Since they do not instill confidence as such
123
The US Department of Defence defines psychological warfare as

The planned use of propaganda and other psychological actions
having the primary purpose of influencing the opinions, emotions,
attitudes and behaviour of hostile foreign groups in such a way as to
support the achievement of national objectives.242
The United States Joint Chiefs of Staff during the 2nd world war offered a
broader definition of psychological warfare thus:
Psychological warfare employs any weapon to influence the mind
of the enemy. The weapons are psychological only in the effect they
produce and not because of the weapons themselves.243
The use of psychological warfare is rooted in ancient warfare. For

instance, Genghis Khan, the leader of the Mongols in 13th century AD
adopted various methods of psychological warfare to defeat the will of the
enemy. He employed tactics to make his numbers seem greater than they
were by ordering each of his soldiers to light three torches during nights
operation to give the illusion of an overwhelming army.244
Psychological warfare was widely adopted during World War II.
For instance, Adolph Hitler of Germany used microphone technology
to make himself seem god-like thus was exaggerating his presence.
Winston Churchill, then Prime Minister of Britain made similar use of
propaganda against the Nazi forces.245 In the wars since 1945, propaganda
has been known to be used. Common forms of propaganda include the
spreading information, the rumours, and the dissemination of misleading
information, the encouragement of enemy combatants to rebel or desert and
inciting the revolt of the enemy population against their government.246
While the use psychological warfare is recognized under the humanitarian
law, it is prohibited to use military or political propaganda for the incitement
of crimes and the breach of international law. Arguably, some elements of
242 Phil Taylor (1987). Glossary of Relevant Terms & Acronyms PROPAGANDA AND
PSYCHOLOGICAL WARFARE STUDIES University of Leads UK. University of Leads
UK. http://ice.leads.ac.uk/papers/vp.cfm? Outfit=pmt &folder=64&paper=665
Retrieved on 2008-04-19. From Wilkipedia. Retrieved on 13-08-09
243 From Overall Strategic Plan for the United States Psychological Warfare, 1st March
1943 JCS Records, Strategic Issues, Reel 11. Quoted Queens University Press. Pp. p. 131
ISBN 0773508007.
244 From Wilkipedia.com Retrieved 13-08-2009
245 ibid
246 Castrien, the Present law of War and Neutrality, 208-210
124
psychological warfare constitute crimes. For instance, incitement of armed

forces to desert the enemy is punishable under martial law. The crimes that
are envisaged here are basic crimes such as rape, murder or robbery. Spread
of information through radio or other media encouraging the commission
of such crimes will be against the principles of humanitarian law. During
the crisis in Rwanda, members of the Hutu population were incited
through radio propaganda to exterminate all Tutsi persons. Such form of
propaganda goes against the spirit of the humanitarian law. Incitement to
commit crimes like genocide and other crimes against humanity do not fall
within the permitted categories of psychological war.
Reprisals
Reprisals are coercive measures which would normally be contrary
to international law but which are taken in retaliation by one party to a
conflict in order to stop the adversary from violating international law.247
Reprisals are recognized under the humanitarian law as a legitimate means
of coercing other states to refrain from initiating more attacks against the
state carrying out the reprisal. In practices, one reprisal leads to another
and the situation may have the tendency of escalating into armed conflict
between the two states.
For a reprisal to come within the confines of the humanitarian law, it
must fulfill two basic conditions:
1) The reprisal must be proportionate to the initial attack.
2) There must be formal advance warning of an impending reprisal attack.
Apart from these, reprisals must only be carried out as a last resort. This is
primarily because reprisals have the tendency to escalate into full scale war
between the parties. They must also be armed at persuading the violating
state to desist from such acts in future.
Under the 1949 Geneva Conventions, several provisions have been put in
place with respect to reprisal and prohibit reprisals with respect to certain
objects. For instance, Article 46 of the GC I provide that:
Reprisals against the wounded, sick, personnel, buildings or equipment
protected by the convention are prohibited.248

248 Similar provisions are also made under Article 47 GCII, Art. 20 API
125
Other categories of prohibition against reprisals under the humanitarian

include prisoners of war,249 civilians,250 objects indispensable to the
survival of the civilian population,251 the natural environment,252 works
and installations containing dangerous forces253 and cultural objects.254
Perhaps the most important class of objects protected form reprisals are
civilians. APII makes it unequivocally clear that:
Attacks against the civilians population or civilians by way of
reprisals are prohibited.
The combination of the different categories of objects that may not

be attacked in reprisals makes it extremely difficult to carry out reprisal
attacks. Even where the first state attacked the civilian population of the
other state, the replying state may be prevented from attacking the former
civilian population. The only permissible objects against which reprisals
may be taken are military objectives and even then, the reprisal must be
proportionate to the initial attack.
Due to the delicate nature of reprisal and the effects they are bound to
have on the international relations between States, only the upper echelons
of political power may take decisions relating to reprisals. Individual
military commander & acting on their own may not carry out reprisals even
where they have been attacked initially. The decision to carry out a reprisal
must be authorized by the highest political level.
Over the years, reprisals have proven to be a very effective method of
combat. There are times where it is threats of reprisal that have preventing
states from initiating attacks against other states. In this regard, reprisals
may be seen as instruments of world peace. Whatever the situation, reprisals
still prove to be effective methods of combat in any armed conflict.
249
250
251
252
253
254
Article 13 para 3 GC III

Article 33 para 3 GCIV; Art 51 para 6 API
Article 55 para 2 API Art 54 para 2 API
Article 52 para 1, 53 lit c API, Art 4 para 4 Cultural Property Convention
126
CHAPTER
4
The Civilian Population and Its Protection
Introduction
The protection of the civilian population is of paramount importance in any
armed conflict. In ancient times, this protection was not readily available
as both civilians and military personnel were liable to be attacked, taken
prisoner or killed by the adverse party. Under the modern international
humanitarian law, safeguards have been put in place to guarantee the
protection of the civilian population during an armed conflict. In similar
fashion, the civilian population is also to be protected in a non-international
armed conflict from the effects of war. The rules designed to protect the
civilian population are embodied primarily in the Geneva Conventions
and the Law of The Hague. Customary International humanitarian law also
has a role to play in the protection of the civilian population as well as the
Additional Protocols of 1977 amongst other international agreements.
The protection available to civilians in non-international armed conflict
is provided for under Common Article 3 of the Four Geneva Conventions
as well as the provisions of the Additional Protocol II. Article 3 imposes
a duty on the parties to the non-international conflict to treat all persons
who take no active part in hostilities humanely without any distinction on
the basis of race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria. Civilian persons fall within the category of those who take
no active part in hostilities and as such should be treated humanely. Article
3 goes further to prohibit violence to life and person as well as outrages upon
personal dignity which include humiliating and degrading treatment. This
provision fortifies the protection available to civilians in times of internal
armed conflict.
The Additional Protocol II contains further provisions relating to the
protection of the civilian populace during internal armed conflict. For
instance, it provides that:
All persons who do not take a direct part or who have ceased to
take a direct part in hostilities, whether or not their liberty has
been restricted are entitled to respect for their person, honour and
127
The civilian population and its protection

convictions and religious practices. They shall in all circumstances be
treated humanely, without any adverse distinction. It is prohibited to
order that there shall be no survivors255
The categorization of persons who do not take a direct part in hostilities

similarly applies to civilian persons. The prohibition against ordering that
there shall be no survivors is a deliberate provision put in place to ensure
that the civilian population is protected. Any attempt to order that there be
no survivors may likely constitute acts of genocide under the humanitarian
law and punishable accordingly.
Despite the distinction made between international and non-international
armed conflicts, there shall be no distinction as far as rules governing
the conduct of military operations are concerned.256 For instance, where
the use of a particular means (or weapon) of warfare has been prohibited,
its use should not be permitted with regard to only one kind of conflict.
Similarly, methods of warfare adopted by armed forces which are in accord
with the rules of humanitarian law may be applied either in international
or non-international armed conflict. In theory, there is not much difference
between the rules governing international and non-international armed
conflicts as both are aimed at preventing the abuse of power and regulating
the conduct of armed conflict. However, certain rules such as those relating
to belligerent occupation are exclusively the preserve of international armed
conflicts. Conversely, the provisions of APII cannot be extended to apply
during international armed conflict.
Who is a Civilian?
The Additional Protocol II provides for the definition of a civilian thus:
A civilian is any person who does not belong to one of the categories
of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third
Convention and in Article 43 of this Protocol.257
This provision does not expressly define who a civilian person is and so
recourse must be had to the Article 4 A (1), (2), (3) and (6) GCIII and Article 43
APII mentioned above. Article 4 GCIII deals with prisoners of war who have
fallen into the power of the enemy. These include members of the armed
255 Article 4 APII
256 Fleck D, The handbook of International humanitarian law, p. 238
128
forces and militia or volunteer corps of a party to the conflict;258 members

of other militias and of other volunteer corps including those of organized
resistance movements;259 members of regular armed forces professing
allegiance to an authority unrecognized by the detaining power260 and;
inhabitants of non-occupied territory who take up arms to resist invading
forces.261
Article 43 of API deals with armed forces and provides as follows:
The armed forces of a party to a conflict consist of all organized
armed forces, groups or units which are under a command responsible
to that party for the conduct of its subordinates, even if that party
is represented by a government or authority not recognized by an
adverse party.
A joint reading of Article 4 A (1), (2), (3) and (6) of GCIII and Article 43
of API 1977 reveals all categories of armed forces which constitute military
objectives and as such are liable to be attacked. None of these categories
of persons may be termed civilians. Article 50 para 1 API adopts a negative
definition of civilians as persons who are not members of the armed
forces. This definition is apt in circumstances of armed conflict since by
determining who are armed forces (through their uniforms and open
display of weapons amongst other criteria), the rest of the populace may be
classed as civilians. In the case of any doubt whether a person is a civilian or
not, that person shall be considered a civilian.262
Civilians must be distinguished from combatants at all times during an
armed conflict. This is primarily because combatants are military objectives
and as such may be attacked the adverse party. When a person has acquired
the status of combatant, it means that such person may undertake military
operations provided such operations are within the confines of permissible
conducts during armed conflict. Combatants also have a license to kill in
accordance with the rules regulating armed conflict. Civilians are thus
prohibited from taking an active part in hostilities as this may entitle the
adverse party to treat them as combatants making them subject to attack.
When a person takes no active part in hostilities, it is easy to conclude
that the person is a civilian. However, circumstances arise where even
258
259
260
261
262
Art 4 A (1) GCIII

Art 4 A (2) GCIII
Art 4 A (3) GCIII
Art 4 A (6) GCIII
Art 50 para 1 API
129
though the person is not actively involved in hostilities, their close

association with military objectives may appear to grant them combatant
status. The humanitarian law however makes it clear that such persons are
still civilians despite their closeness to military personnel and operations.
For instance, persons that accompany armed forces without actually being
members thereof are to be treated as civilians.263 These include civilian
members of military aircraft crews, war correspondents, supply contractors
and members of labour units or of services responsible for the welfare of
the armed forces. Also, crew members of merchant ships and of the civil
aircraft of parties to the conflict are to be considered as civilians.264 For
these persons that accompany armed forces, they may be held as prisoners
of war pursuant to Art 4 GC III.
Closely related to war correspondents are journalists who are engaged in
dangerous professional missions in areas of armed conflict. As has already
been established, war correspondents are civilians. Despite their close
affinity to the military in any armed conflict, they are not military targets
and are not to be attacked. They are not to take direct part in hostilities and
will be held responsible under the humanitarian law if they do. To ensure
their protection, they are to be issued a special identity card confirming
their status.265 Furthermore, they are to be clearly identified as civilians.
Where war correspondents wear uniforms or are being conveyed in military
vehicles, they may be taken to have accepted the risk of being viewed as
military objectives and may be attacked by adversary forces. If they are
captured by the adverse party, they may be treated as prisoners of war.266
With respect to journalists, they are to be protected under the
conventions and the API provided that they take no action adversely
affecting their status as civilians.267 This is without prejudice to the right of
war correspondents accredited to the armed forces under Art 4 A (4) GC III.
Thus, Article 79 para 2 API does not create new law but preserves the legal
status of war correspondents. Its purpose is to confirm that journalists are
indeed civilians and the fact that they are engage in dangerous professional
missions will not alter their civilian character. As such, they are not lawful
military targets and may only be attacked where they take active part in
hostilities. Journalists are also to receive identity cards which confirm their
263 Art 4 A (4) GC III
265 Annex IV A to GC II
130
status as journalists and civilians by extension. This identity card should be

similar to the model in Annex II of the Protocol and shall be issued by the
government of the state in which the journalist is a national or in whose
territory he resides or where the news agency employing him is located.
In the course of any armed conflict, journalists and war correspondents
alike play a vital role in ensuring that the atrocities witnessed during any
armed conflict are brought to the international limelight. In the ICTY case
of The Prosecutor v. Radislav Brdjanin Momir Talic,14 the question arose as
to whether a journalist who witnessed atrocities during an armed conflict
may be compelled to testify in criminal proceedings against a person
allegedly responsible for international crimes. The facts of the case are that
the Appellant, Jonathan Randal, was a correspondent for the Washington
Post in Yugoslavia. He wrote an Article which was published on 11 February
1993 which contained statements attributed to one of the Accused, Radislav
Brdjanin; who was charged with 12 counts including crimes against
humanity and grave breaches of the Geneva Conventions of 1949 involving
deportation, forced transfer and appropriation of property. The prosecution
sought to have the Article admitted into evidence but this was objected
to by the defence. Subsequently, the prosecution requested that the trial
chamber issue a subpoena to the Appellant. The Appellant filed a motion to
set aside the subpoena with the prosecution also filing its response the same
day. The trial chamber heard oral arguments on this motion and upheld
the subpoena. In its decision, the trial Chamber refused to recognize a
testimonial privilege for journalists when the issue was not one of protecting
confidential sources.
On appeal, the appeals Chamber after considering all the evidence before
it, overruled the decision of the trial Chamber and held that a journalist may
not be compelled to testify in criminal proceedings against a person who
has been accused of an international crime. In effect, the appeal was allowed
and the subpoena was consequently set aside.
The distinction between persons who are civilians and those who are
not must be made at all times in any armed conflict. The protection of the
civilian population depends upon their identification as such which may
be determined prima facie by the clothes they wear and the absence of
weapons in their possession. Once they (civilians) take up arms, they lose
the protection available to them under the humanitarian law and may be
attacked or taken as prisoners of war in the event of their capture.
The status of civilians who work in military establishments is worthy
of mention here. These civilians are directly involved in the war effort
131
by working, for instance, at a nuclear weapons plant or any other arms

manufacturing establishment. Be that as it may, these civilians do not lose
their civilian character by reason of working in these establishments. They
remain civilians at all times and are entitled to the protections available
under the humanitarian law. In practice however, it is difficult to separate
these civilian persons from the military objectives where they work and as
such, they are susceptible to attack by the adversary armed forces.
The status of civilian advisors to the armed forces also merits
consideration here. There are persons who render their advisory opinions to
the armed forces by reason of their expert knowledge in military operations.
These may include retired members of armed forces or legal advisors who
contribute their expert opinions to the military effort. These persons,
despite their close affinity to military operations, still retain their civilian
status and as such may not be the subject of attack. However, they may be
held accountable in the event that the military actions of the party which
they advice are being called into question.
The civilian population is to refrain from taking direct part in hostilities.
This is the basic condition upon which the civilian population is entitled to be
protected. The protection will be lifted however in one circumstance where:
Inhabitants of a non-occupied territory who on the approach of
the enemy spontaneously take up arms to resist the invading forces,
without having had time to form themselves into regular armed units,
provided they carry arms openly and respect the laws and customs of
war.268
In this circumstance, the civilians are permitted to directly participate

in the hostilities. This category of armed units are known as levee en masse
which means a large conscription or mobilization of troops especially in
response to a threatened invasion.269 For the levee en masse to be successful,
it must be shown that the armed resistance took place in territory not
yet occupied. Furthermore, the arms must be taken up spontaneously
and not planned in advance. The civilians must also not have had
sufficient opportunity to organize themselves. In the event that civilians
spontaneously react to invasion as envisaged under Art 4 A (6) GC III, they
may be attacked by the invading party. They are liable to be attacked and
if caught, may be detained as prisoners of war. At all times, this class of

269 Black Law Dictionary 7th Ed., p. 919
132
combatants is to carry their weapons openly and must show respect for the
laws and customs of war.
The conditions under which a civilian will lose his or her protection under
the humanitarian law remain the same whether it is an international or noninternational armed conflict. As such, the civilian population shall enjoy
protection against the dangers of military operations in a non-international
armed conflict provided they do not take a direct part in hostilities.270 Even
where members of the civilian population directly take part in hostilities,
they are still entitled to humane treatment.271 Where these civilians by
taking up arms, have been involved in crimes against the humanitarian law,
they may be prosecuted under the relevant law. In any event, they will be
entitled to a fair trial as envisaged under the humanitarian law.272
Rights of Civilians in Armed Conflict Situations

In every armed conflict, the international humanitarian law takes over from
the human rights law as the lex specialis with regard to the conduct of war.
Despite being relegated to the background, the human rights law still has
validity during armed conflict since it operates both in peace and war time.
As such, there are rights which persons (civilians in particular) are entitled
to despite the fact that the parties are at war with each other. The adherence
to these rights is of paramount importance so as to further guarantee the
protection of the civilian population during any armed conflict.
Article 27 of GCIV is instructive with regard to protection of the civilian
population. It provides thus:
Protected persons are entitled in all circumstances, to respect for their
persons, their honour, their family rights, their religious convictions
and practices, and their manners and customs. They shall at all times
be humanely treated, and shall be protected especially against all acts
of violence or threats thereof and against insults and public curiosity.
Civilians fall within the category of protected persons during any armed
conflict and as such are entitled to the protection available under Article
27 GCIV. Civilians are to be respected which according to one author
means that all acts that might unjustifiably cause harm to a civilian must

271 Art 3 GCI-IV
272 Art 3 GCI-IV; Art 6 API
133
be avoided.273 They are entitled to this respect in all circumstances. This

buttresses the point that civilians are entitled to certain rights even during
armed conflict situations. Civilians are also to be protected, such protection
not being limited to the presence of military personnel for the protection of
the civilians. The protection envisaged under Article 27 may be extended
even to the evacuation of civilians to ensure their safety from military
operations of both sides of the conflict.
The basic rights to which civilians are entitled to under Article 27 GC IV
include: respect for their persons, their honour, their family rights, their
religious convictions and practices and their manners and customs. The
rights provided for here should not be taken as an exhaustive list of rights
available to civilians in any armed conflict.
Civilians are entitled to respect for their persons in any armed conflict.
This category of rights embodies both the physical and mental integrity
of civilians. They are not to be subjected to inhumane or dehumanizing
treatment as stated under Common Article 3 GC I-IV. They are not to be
tortured under any circumstances. Torture is considered as a crime against
humanity under the 1998 Rome Statute of the International Criminal Court.
It means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of
the accused and may not be taken to include pain or suffering arising from
lawful sanctions.274
As a corollary to this right, no physical or moral coercion shall be
exercised against civilians in order to obtain information from them or from
3rd parties.275 They shall not be physically compelled through acts such as
mutilation. Inhumane treatment is not to be meted out upon them. They are
not to be subjected to mental torture to get them to release information to
any of the parties to the conflict. Women are not to be threatened with rape
neither are their children to be threatened. Any person who acts in violation
of the right relating to the respect of persons will have to answer to the rules
on humanitarian law governing the subject matter.
Respect for honour as envisaged under Article 27 GC IV means that each
person is to be treated as a distinct individual and their position in society
must also be respected and protected. This right is closely related to the
respect of the civilians person and as such, acts which threaten the physical
and mental integrity of the civilian and which are likely to cause dishonor
274 Art. 7 para 2 1998 Rome Statute
275 Art 31 GCIV
134
to the civilian are prohibited. It is also expected that individual civilians

are not to be separated from their immediate families. This was a behavior
prevalent during the 2nd world war where men were separated from their
wives and children, some of whom never saw their families again. Families
have the right to live within the family unit and this right should not be
lightly toyed with in any armed conflict.
Individual civilians and the civilian population as a whole are also entitled
to respect for their religious convictions. They are not to be compelled to
profess allegiance to another faith. This rule is embodied in various national
constitutions under the right to freedom of religion. None of the parties to
the conflict is permitted to compel adherence to any particular religion.
Each individual is entitled to the respect of his religion and should be
entitled to practice it without fear of persecution. Such a course of conduct
will be against the principles of modern international humanitarian law.
Article 27 GC IV also provides that the manners and customs of
protected persons must be protected. The GC IV offers no definition of
manners and customs. However, this may be taken to mean that the way
of life of the civilian population or individual civilians are to be respected.
Human beings come from different cultures and as such are bound to act
differently. It cannot be expected that the Japanese man will act the same
was as on Austrian man in a given context. In a local scenario, the Ogoni
man and Yoruba man, both of tribes within Nigeria, cannot be expected
to act in similar fashion. What constitutes custom has been passed down
from generation to generation and indoctrinated in the persons within a
particular community or state. As such, manners and customs are bound
to differ. It will be breach of this right for one party to the conflict to try and
impose its manners and customs on the people belonging to the other party.
During the era of European colonization of the African continent, France
adopted a system of direct rule or assimilation which gradually eroded the
manners and customs of the colonies under their control, turning these
people into French men in the long run. While this example may not be a
classic armed conflict situation, the principles relating to the respect for the
manners and customs of the people appear to have been breached here.
As an extension of this rule, no civilian is to be forcefully removed from
their place of residence to be relocated elsewhere. This right is indeed of
great necessity as it serves to prevent the displacement of persons at the end
of any armed conflict. The only circumstance where it might be permissible
for civilians to be removed from where they are resident is where the
removal is for their safety. This exception accords with the primary purpose
135
of the humanitarian law being to guarantee the protection of the civilian

population during any armed conflict.
In addition to the rights envisaged under Article 27 GC IV, civilians are
also entitled to the protection of their property during armed conflict. The
Hague Regulations, provide that private property must be respected276 and
goes further to state that such property cannot be confiscated.277 Despite
this express prohibition, it will be difficult in practice to prevent the seizure
or confiscation of private property. Private vehicles for instance, may be
commandeered by armed forces and may never be seen again. In any event,
the provisions of Art 46 encapsulate the legal position with respect to private
property belonging to the civilian population. This protection of property
belonging to the civilian population, either individually or as a whole is also
provided for under the GC IV thus:
Any destruction by the Occupying Power of real or personal property
belonging individually or collectively to private persons, or to the state,
or to other public authorities, or to social or cooperative organizations,
is prohibited, except where such destruction is rendered absolutely
necessary by military operations.278
It is only where the destruction of private property is absolutely necessary

that such destruction will be permissible under humanitarian law. This
requirement of absolute necessity sets the bar high to prevent, as much
as possible, the destruction of private civilian property. Where there is
excessive destruction and appropriation of property not justified by military
necessity and carried out unlawfully and wantonly such destruction will
constitute grave breaches of the humanitarian law and liable to be punished
accordingly.279
The rights available to civilians in any armed conflict are present whether
it is an international or non international armed conflict. In either situation,
the rights of civilians are guaranteed under the humanitarian law. With
particular respect to non international armed conflicts, Article 13 para 2 AP
II provides that:
The civilian population as such, as well as individual civilians shall
not be the object of attack. Acts or threat of violence the primary
276
277
278
279
Art 46 para 1 Hague Regulations

Art 46 para 2 Hague Regulations
Article 53 GC IV
Article 147 GC IV
136

purpose of which is to spread terror among the civilian population
is prohibited.
It does not matter what kind of conflict is being faced. Civilians are not to
be the object of being attacks. Article 3 GC I-IV buttresses this provision by
stating that persons in non-international armed conflicts who take no active
part in armed hostilities shall be treated humanely in all circumstances.
Furthermore, acts or threat of violence aimed at spreading terror among the
civilian population, whether in international or non international armed
conflict, are prohibited.280
The presence of rights for the protection of the civilian population does
not avail in all circumstances. There are situations where the rights may be
suspended during the armed conflict and force may be applied against such
civilian(s). As has earlier been established, when the civilian population
takes up arms to resist invasion by the adverse party, they lose the protection
available under the humanitarian law and may be attacked. It should be
noted that even where some members of the civilian population have lost
their civilian status temporarily, the attacks initiated against them must
accord with the rules of proportionality. Another instance where the rights
will be lifted is where the civilian is suspected of committing an offence
against the humanitarian law. If the offence is one that will lead to the arrest
of the civilian, then he may be arrested by any of the parties to the conflict
even where such arrest may involve the use of force against him.
Circumstances may arise where the civilian population may disregard the
obligations imposed on them under the humanitarian law. Even where this
happens, the parties to the conflict still have legal obligations with respect to
the civilian population and civilians.281 They are still to be protected from
military operations and are not to be the object of attack. Indiscriminate
attacks against the civilian population are still prohibited282 even where the
civilians have disregarded the obligations imposed on them. Reprisals283
and the use of the civilian population as human shield284 are equally
prohibited. Article 51 para 8 further provides that the parties to the conflict
still have to comply with the legal obligation to take precautionary measures
as envisaged under Article 57 API.
280
281
282
283
284
Art 51.2 API; Art13.2 AP II

Article 51 para 4 & 5 API
137
The protection of the civilian population is of paramount importance at

all times, more so during armed conflicts. As such, these rights mentioned
above must be respected to properly safeguard their interests. The purpose
of war should be primarily to bend the political will of the other party
to the conflict. This may be achieved by the strategic attack of military
establishments without having to harm the civilian population. While it
is known that civilian casualties are inevitable in any armed conflict, such
losses must remain proportional to the military advantage sought to be
obtained. For civilians whose lives are not lost during the armed conflict,
they are entitled to rights which will serve to make their living conditions
better than deprived. The parties to any conflict must thus, ensure at all
times that the civilian population is being protected and that their rights are
not being trampled upon contrary to the humanitarian law principles.
Children are also entitled to certain rights during any armed conflict.
This is because of their peculiarly dependent and fragile nature. Depending
on their age and reasoning ability, some children may not even know why
they have to live in shelter camps or cannot play outside freely like the
children they see on the television. Children belong to a special category of
protected persons who are to be protected from the effects of war arguably
more than the average civilian.
The API contains several provisions relating to the protection of children
during armed conflict. It however refrains from giving a definition of the
word child and does not fix an age limit for ease of determining who a
child is. This appears to be a deliberate omission aimed at giving room for
the views under different cultures of who is a child and who is not.
During any armed conflict, children are to be the object of special respect
and shall be protected against any form of indecent assault. They are to
be provided with the care and aid they require by reason of their age or
otherwise.285 Where the children have been orphaned or separated from
their families, they are not to be left to their own devices. Their maintenance,
the exercise of their religion and their education are to be facilitated even
during the wartime.286
Article 77.2 API provides that the parties are to take all feasible measures
to ensure that children less than 15 years do not take part in hostilities.
This is not an express prohibition due to the use of the words all feasible
measures. The proper age restriction with respect to children is provided for
under Article 1&2 of the Optional Protocol on the Involvement of Children
286 Article 24 para1 GCIV
138
in Armed Conflict which sets the age limit at eighteen years either for taking
part in combat or the age of recruitment into the armed forces.
The parties to the conflict are to facilitate the reception of children to a
neutral country for the duration of hostilities.287 This should be with the
prior consent of the Protecting Power. With respect to the evacuation of
children, it will only be permissible as a temporary measure for compelling
reasons such as health or medical treatment or for the safety of the
children.288
Women are also accorded certain rights under the humanitarian law.
This comes in the form of special protection made available to them during
the duration of the armed conflict. The API provides that:
Women shall be the object of special respect and shall be protected
in particular against rape, forced prostitution and any other form of
indecent assault.289
Failure to comply with this provision will be considered a grave

breach under the humanitarian law in circumstances where the rule is
contravened.290 With respect to the arrest, detention or internment of
pregnant women and mothers with dependent infants, their cases are to
be treated with utmost priority and not with the time delay mechanism
associated with some other cases related to armed conflict.291 Where
such women mentioned above have been found guilty of offences against
the humanitarian law, the parties to the conflict shall endeavor to avoid
sentencing them to death.292 Article 76 para3 states it clearer thus:
The death penalty for such offences shall not be executed on
such women.
It appears that this provision is indirectly related to the protection of the

unborn children of the expectant mothers as well as the dependant children.
The effects of war are hash enough. The humanitarian law should not be
seen to impose harsher conditions of life on children who are unborn or
who remain dependant during the armed conflict.
287
288
289
290
291
292
Article 24 para 2 GC IV
Article 78 API
Article 76 API
Article 147 GC IV
139
When a person has been suspected of or has engaged in acts hostile to the
security of the state, such person loses the rights readily available to civilians
during an armed conflict.293 In any event, such persons are still entitled to
certain rights. Firstly, the person is entitled to be treated with humanity
and is not to be subjected to inhumane treated.294 Art 5 para 3 GC IV goes
further to state that such persons shall not be deprived of the rights of fair
and regular trial. The third right available for this category of persons is that
they are to be granted the full rights and privileges of a protected person.
Specific Prohibitions and Restrictions

The humanitarian law contains specific prohibitions and restrictions with
respect to the protection of the civilian population. These prohibitions
expressly outlaw certain kinds of conduct which will have deleterious
effects on the civilian population. For the restrictions, they do not expressly
prohibit conduct but lay limitations for certain conduct during any armed
conflict. Some of these prohibitions and restrictions will be considered here
in turn.
Collective Penalties
No protected person may be punished for an offence he or she has not
personally committed.295 Any attempt to punish a person for a crime
which he/she has not committed personally will be against the principles
of individual penal responsibility and will work contrary to the rules
guaranteeing free and fair trial of persons. When a crime is being prosecuted
at the municipal level for instance, each accused person is entitled to enter
a plea of guilty or not guilty. Also, different lawyers may represent different
accused persons for the commission of the same crime. These procedures
highlight the principle of individual penal responsibility otherwise all
accused persons would be treated as a whole and if one person was guilty,
all others would invariably be guilty. In line with the rules on fair trial, the
courts are required to apply only provisions of the law which were applicable
before the offence in question was committed and which accord with the
general principles of law.296 The prohibition against collective penalties and
the requirement for fair trial are reiterated under Art 75 para 4 (b) API thus:
293
294
295
296
Article 67 GC IV
140

No sentence may be passed and no penalty may be executed on a
person found guilty of a penal offence related to the armed conflict
except pursuant to a conviction pronounced by an impartial and
regularly constituted court respecting the generally recognized
principles of regular judicial procedure, which include the following:
a) ;There should be no collective prosecution and conviction of
accused persons
b) No one shall be convicted of an offence except on the basis of
individual penal responsibility.
Article 6 para 2 (b) also prohibits collective penalties and lays down the
principle of individual penal responsibility with respect to non international
armed conflicts.
Measures of Intimidation or Terrorism

All measures of intimidation or of terrorism are prohibited under the
humanitarian law.297 This general rule as envisaged under Article 33 which
prohibits all forms or acts of terrorism against the civilian population
of a state. Article 51 para 2 lends further credence to this prohibition by
providing that:
Acts or threats of violence the primary purpose of which is to spread
terror among the civilian population are prohibited.
Accordingly, every act which is designed to cause terror to the civilian

population is prohibited under the international humanitarian law. In
practice, it may be difficult to differentiate between when the acts causing
terror are secondary effects arising from the pursuance of a military
operation or where acts causing terror are primarily aimed at producing
that effect. It is only in the former instance that such acts which cause terror
will be permissible. Even then, the rules on proportionality of attacks still
have validity and it must be shown that the military advantage sought
does not exceed the threat to the civilian population. Where for instance,
a military installation (such as barracks) is located in the midst of the
civilian population, any attack on such an installation is bound to strike
terror in the mind of the civilian population. However, since the primary
aim of the attack is not to strike fear in the civilian population, such attack
297 Article 33 para 1 GC IV
141
will be permissible provided the principles of proportionality are taken

into consideration.
With respect to non-international armed conflicts, the APII also prohibits
acts which are designed to strike terror in the civilian population.298 Thus,
it does not matter what kind of conflict is taking place, the international
humanitarian law will step in to prevent and punish such kind of conduct
against the civilian populace.
Reprisals
The humanitarian law prohibits reprisals against protected persons as well
as their property.299 Civilians are not to be the object of reprisals. Where
civilians are targeted, such an attack goes beyond the scope of reprisals and
enters the class of acts of revenge. In traditional armed conflict, reprisals
against the civilian population were recognized. The current rules on
reprisals prohibit such conduct which has led to severe criticisms against
the prohibition.300 These criticisms were primarily based on the unduly
restrictive nature of the rules prohibiting reprisal under Art 51 para 6 API
which provides that attacks against the civilian population or civilians by
way of reprisals are prohibited. Where for instance one state attacked the
civilian population of the other in breach of humanitarian law, the latter
state could only reply by attacking military installations since reprisals are
prohibited. The provisions of Art33 para 3 GC IV and Art 51 para 6 API however,
are still of current validity and expressly prohibit acts of reprisal aimed at
the civilian population. Even where a state acting in reprisal deliberately
targets a military installation within the vicinity of the civilian population,
the rules on proportionality as they relate to the military advantage sought
must be taken into consideration.
Article 52 para 1 API restates the prohibition of reprisal and provides
that civilian objects shall not be the object of reprisals or of attack. With
respect to non-international armed conflict, there is no express provision
prohibiting reprisals against the civilian population under the API. Despite
this, civilians in non international armed conflicts are still entitled to the
general protections available to them under the humanitarian law.
298 Article 13 para 2 AP II

300 Greenwood, 20 NYIL (1989), 35-69.
142
Pillage
Pillage refers to the forcible seizure of anothers property especially in
a war.301 Under the international humanitarian law, pillage is formally
forbidden.302
The provision under Article 33 para 2 GC IV simply states that pillage
is prohibited. The property of the civilian population are not to be seized
unless in accordance with the principles of the international humanitarian
law. Each civilian person has the right to own property which must be
respected by all parties to the conflict. Article 46 para 2 also provides that
private property cannot be confiscated. This is in accordance with the rules
prohibitory of the act of pillage and should be adhered to by all parties to
the conflict.
Hostage Taking
The taking of hostages is prohibited.303 In the past, the taking of hostages
was viewed as a permissible method of combat. Person were held hostage
with a view to obtaining some benefit from the other party to the conflict.
In modern times, the humanitarian law has expressly prohibited such acts
through Article 34 GC IV. With respect to non international armed conflicts
Common Article 3 of the Geneva Conventions prohibits the taking of
hostages. This prohibition of hostage taking is reinforced under the API.304
Article 147 GC IV crowns these prohibitions by making the taking of hostages
a grave breach of the international humanitarian law.
In the Nigerian conflict between the Federal Government of Nigeria
and Niger Delta militants, the taking of hostages has been a predominant
feature. Expatriates, government officials and private individuals have not
been spared as there have been numerous instances of kidnap and hostage
taking in the Niger Delta region. From the perspective of these militants,
the taking of hostages is aimed at bending the governments will to grant
resource control to the states which produce oil and which have been
affected by the drilling of crude oil on their lands. Be that as it may, the
taking of hostages is expressly prohibited as a method of warfare. To this
end, the Rivers State of Nigeria House of Assembly passed a law which is
absolutely prohibitive of the taking of hostages and which makes persons
301
302
303
304
Blacks Law Dictionary 7th Ed p. 1168

Article 34 GC IV
Article 75 para 2 (c) API
143
found guilty of kidnapping and hostage taking liable to the death sentence.
Such an approach while viewed as extreme by some quarters is the proper
path to be taken towards ridding the world of the scourge of hostage taking.
Feasible Precautions in the Attack of Military Objectives

The API provides that those who plan or decide upon an attack shall:
Take all feasible precautions in the choice of means and methods
of attack with a view to avoiding, and in any event to minimizing,
incidental loss of civilian life, injury to civilians and damage to
civilian objects.305
Based on this provision, it is prohibited to use weapons of warfare which

are likely to have indiscriminate effects. Similarly, the methods adopted
must be such that minimize the loss to the civilian population. This
provision does not come as an absolute prohibition as it is now settled and
agrees that civilian casualties or collateral damage is inevitable in any armed
conflict. It would thus be absurd for any law to be set in place which would
prohibit methods and means of warfare which would affect the civilian
population. Such methods or means of warfare simply do not exist. The
precautions required to be taken are those that are in line with the principles
of distinction between military and civilian objects. Also, the rules on
proportionality come into play here as those who plan or decide upon the
attack (military commandeers and other top ranking officials) are required
to at least minimize injury to civilian and damage to civilian objects.
To further protect the civilian population, the API provides that the parties
to the conflict shall endeavor to remove the civilian population, individual
civilians and civilian objects within their jurisdiction from the vicinity
of military objectives.306 This provision like Article 57 is not an express
prohibition but more of an appeal to the parties to the conflict. Either way,
it is aimed at properly safeguarding the interests of the civilian population.
The parties to the conflict shall also avoid locating military objectives
within or near densely populated areas.307 Art. 58 (b) API encourages parties
to the conflict to take such preventative measures which will remove civilians
from areas likely to be attacked (military objectives). In practice, this
objective will be difficult to attain as military objects are often deliberately
305 Article 57 para 2 (a) (ii)
306 Art 58 API
307 Art 58 (b) API
144
located in the midst of the civilian population, making adversary parties to

the conflict to think twice before initiating attacks.
Article 58 (c) API provides further that the parties to the conflict take
other necessary precautions to protect the civilian population against
the dangers arising from military operations. This obligation to take
necessary precautions is not only limited to the population of a party to
the conflict but also to other civilians within its territory and control. The
conclusion that may be drawn from a reading of Article 57 and 58 API is
that the protection of the civilian population is of paramount importance.
In an ideal world, only military objectives would be attacked and civilian
objects would be completely spared. The humanitarian law recognizes the
impossibility of such a situation and thus offers compromises whereby the
parties to the conflict are to do everything feasible for the protection of the
civilian population.
Attacks in Excess of the Anticipated Military Advantage

The API considers as indiscriminate, attacks:
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 anticipated308
The underlined portion of Article 51 para 5 (b) API is directly related to the
rule of proportionality. The humanitarian law recognizes that civilian losses
are inevitable in any armed conflict. It will be impossible to make a law
which prohibits attacks leading to civilian losses. Thus, the humanitarian
law in this regard shows that it is not far removed from reality neither does it
base its provisions on abstract notions which exist only in utopian societies.
All civilian losses during a military operation must be proportional
to the military advantage sought to be obtained. Where the military
installation is located outside the vicinity of the civilian population, the
issue of proportionality poses a lesser cause for concern. Similarly, where
they are few or no civilians in a military establishment, the attack of such an
establishment would be less cumbersome. In either of these circumstances,
the military commander of the attacking party only has to concern himself
with ensuring that the attack does not violate other rules of humanitarian
308 Art 51 para 5 (b) API
145
law (e.g. unnecessary suffering) but does not have to bother about the rule
of proportionality.
Practice has however shown that military establishments are placed close
to the civilian population to make attacks more difficult for the adversary
party. Similarly, civilians may be deliberately placed in the military
establishment. The average military barracks for instance, does not contain
only military armed forces but also their families and children who are
civilians. In Port Harcourt Rivers State of Nigeria, most of the barracks are
built close to civilian residential areas. The Bori camp barracks is surrounded
by Ikwerre villages that have high concentration of civilians because of
its cosmopolitan nature. In initiating any attack therefore, the military
commander of the adversary party has to take feasible precautions309
minimize loss to civilian lives and objects.
A military commander cannot be expected to obtain all the information
necessary before any attack. The humanitarian law sets the benchmark for
information gathering on what is feasible in the circumstances. On the
meaning to be attached to the term feasible, several states in a declaration
submitted upon the ratification of the API were of the view that feasible
means:
that which is practicable or practically possible, taking into accounts
all circumstances ruling at the time including humanitarian and
military considerations.310
The decision to attack must be based neither on the information available

at the time of the attack and not on information which surfaces subsequently
nor of information during the actual attack. The liability or otherwise of the
military commander(s) who made the decision to attack will be based on
the information available at the time of the attack. If the attack was justified
on the basis of the information available at the time of the attack, there will
be liability on the commanders part and vice versa when the attack is not
justified. In the invasion of Iraq by the US in 2003, the attack was based
on prior information that Iraq had Weapons of Mass Destruction in their
possession. It turned out that the US intelligence erred on this point and so,
the attack on Iraq was not justified.
Where during the course of the attack, it becomes apparent that the
military advantage sought does not justify the damage to the civilian
309 As envisaged under Article 57 API
310 These declarations were signed by: Australia, Belgium, Canada, Egypt, Germany, Italy,
The Netherlands, New Zealand, Spain and the United Kingdom.
146
population, such an attack shall be cancelled or at least suspended.311 This

provision is great importance in the protection of the civilian population.
Once it turns out that the military advantage initially expected does not
justify the losses to the civilian population, the humanitarian law requires
that the adversary forces retreat and obtain more information before
initiating another account. Paramount importance is thus attached to the
civilian population whether before, during or after any armed attack.
To further ensure that the military advantage sought is not excessive in
relation to losses to the civilian population, civilians are to be warned in
advance of attacks which may affect them.312 This will however depend on
the peculiar circumstances of each military attack. In the invasion of Iraq
by the US in 2003, it was common knowledge that the US was sending their
troops to Iraq and this constituted ample warning. Where however, the
circumstances of the military operation are such that only a surprise attack
would ensure its success, then the requirement of effective advance warning
may be dispensed with.
At every point in time in the planning of an attack, the military
commander is required to weigh the military advantage sought on one
scale and the potential losses to the civilian population on the other. Where
the potential losses to the civilian population tip the scales, the military
action must be cancelled or suspended. On the other hand, the greater
the advantage, the greater the acceptable level of civilian casualties and
destruction.313 It should be noted however that even where the military
advantage sought is so great; there is still a ceiling of the permissible
losses to the civilian population. The humanitarian law does not in any
way condone total war against the civilian population and so military
commanders still have to exercise proper judgment in accordance with the
rules on proportionality.
The military advantage sought in any military operation must at all
times be considered hand in hand with the potential losses to the civilian
population. The humanitarian law imposes this requirement to ensure that
the civilian population is not unjustly sacrificed for the benefit of obtaining
military advantage in any military operations. Even if collateral damage has
become acceptable and legally justified in certain circumstances, there must
still be recourse to the rules on proportionality in a bid to ensure that the
civilian population is adequately protected.
311 Article 57 para 2 (b) API
312 Article 57 para 2 (c) API
147
Protected Areas and Zones

The humanitarian law makes provision for protected zones and localities. In
every armed conflict, hostilities are to be conducted within the area of war.
The establishment of protected zones and localities is aimed primarily at the
protection of the civilian population or persons who are hors de combat from
the effects of war. These zones and localities may be located close to the place
where fighting is taking place. Once a protected zone has been established
in accordance to the humanitarian law, the persons located within the
zones (civilians especially) are not to be attacked. Where however there is
a material breach of a condition upon which the zone was established, the
zone may lose its status but the civilians within will still be entitled to the
general protection available to civilians during armed conflict.
Article 14 GC IV provides that hospital and safety zones and localities
are to be established for the protection of wounded, sick and aged persons,
children under fifteen, expectant numbers and mothers of children under
seven. These classes of persons are essentially civilians thus distinguishing
this class of zones from hospital zones and localities established for the
protection of wounded and sick armed forces.314 These zones under Article
14 GC IV are to be established based on mutual agreement between the
parties. The Protecting Powers and the ICRC are also invited to lend their
good offices to facilitate the institution and recognition of hospital zones
and localities. Neutralized zones are also to be established to protect from
the effects of war:
a) wounded and sick combatants or non-combatants;
b) Civilians who take no part in hostilities and who, while they reside in
the zones, perform no work of a military character315
There are circumstances where it is difficult to distinguish between
one protected zone and another. This does not pose much difficult as the
primary aim of these zones is to protect the civilian population. Thus, it is
not unusual for persons to be located in protected zones where they are not
expected to be following the strict literal meaning to be attached to each
zone. In any event, the zones shall not shut their doors to civilian persons
who are in need of protection from the effects of war. An example of a safety
zone was the one established at the cathedral at Port Stanley during the
Falkland conflict.
314 Article 23 GC I
315 Article 15 GC IV
148
It is prohibited for parties to the conflict to attack non-defended

localites.316 Similarly, military operations are not to be extended to zones
which have acquired the status of demilitarized zones.317 Where there is
a breach of any of the conditions under which a non -defended locality or
demilitarized zone was established, they lose their privileged status but
continue to enjoy the basic protections available under the international
humanitarian law. Such breach will be shown to exist where either of the
following actions takes place:
1. All combatant as well as mobile weapons and mobile military
equipment have not been evacuated.
2. Hostile use is made of fixed military installations or establishments
3. Acts of hostility are committed by the authorities or by the population;
or
4. Activities in support of military operations have been undertaken.
For a demilitarized zone, it can only come into existence on the basis
of an agreement between the parties to the conflict. The zone is to be
marked especially on its perimeter and limits and on highways so that the
boundaries may be known at all times. Where a non-defended locality or a
demilitarized zone is attacked, which causes death or serious injury to body
or health, such act shall be regarded as a grave breach of the humanitarian
law.318
The importance of protected zones and localities is of great relevance
to the protection of the civilian population. Since the establishment of the
zones is often based on mutual agreement between the parties to the conflict,
it ensures that the zones are mutually respected. It is often better to establish
safety zones during peacetime or a situation of temporary cessation of
hostilities for the benefit of the civilian population. While these zones are
primarily for the protection of the civilian population, they are also for the
protection of persons who are hors de combat that cannot or can no longer
take part in armed hostilities. It is thus necessary to establish protected
zones and localities, whether in international or non-international armed
conflicts, as this will serve to further safeguard the interest of the civilian
population in times of war.319
316
317
318
319
Article 59 API
Article 60 API
Article 85 para 3 (d) API
For more on protected zones, see Areas of war in Chapter 2 of this book
149
Obligations relating to the protection of Civilians

The international humanitarian law imposes certain obligations on parties
to any armed conflict neutral states as well as international organizations.
These obligations are aimed primarily at the protection of the civilian
population and to safeguard their interests. Some of these obligations shall
be considered here.
Relief Actions
In any armed conflict, circumstances arise where relief supplies are necessary
to ensure the continued survival of the civilian population. Commercial
activities do not thrive in wartime as they do in peacetime and so when the
armed conflict has fully kicked into gear, basic necessities like food, medical
supplies and clothing become a rare commodity. For instance, during the
Nigerian civil war, it was said that members of the civilian population had to
eat all sorts of creatures and plants for the lack of anything better.
When such dire circumstances arise, it is only through relief actions that
the civilian population can continue to survive. Such relief actions are often
provided by neutral states or international organizations such as the ICRC.
The GC IV provides that:
Each High Contracting Party shall allow the free passage of all
consignments of medical and hospital stores and objects necessary
for religious worship intended only for civilians of another High
Contracting Party, even if the latter is its adversary. It shall likewise
permit the free passage of all consignments of essential foodstuffs,
clothing and tonics intended for children under fifteen, expectant
mothers and maternity cases.320
The obligation here is imposed on all the parties that are signatories to the
Convention. They are required to permit the free passage of relief supplies
through their respective territories. Members of the civilian population are
entitled to relief supplies as of right. Article 38 GC IV guarantees this right
by providing that protected persons (civilians) shall be enabled to receive
individual or collective relief sent to them. One reason behind this right is
that it should be unheard that military tactics involve the starvation of the
civilian population. Any acts intended to starve the members of the civilian
population is absolutely prohibited under the humanitarian law.32169 It
150
should be noted that the relief supplied depends on what is considered a

necessity in the particular area where war is taking place. While food and
medical supplies are necessary in all circumstances of armed conflict,
clothing may not attract such importance. But where for instance the war is
taking place in a cold region (e.g. Moscow), clothes become of great relevance
because without them, the civilian population may die from ailments like
frostbite or pneumonia.
Articles 69 & 70 API lends more weight to the provisions relating to relief
actions under the humanitarian law. Under Article 69, the Occupying
Power i.e. the adverse party shall endeavor to provide clothing, bedding,
and means of shelter or other supplies essential to the survival of the
civilian population. Where these supplies are not adequately provided,
relief actions shall be undertaken and offers of such relief shall not be
viewed as interference in the armed conflict or as unfriendly acts.32270
The relief convoys are to be allowed free passage through the territory of
another party to the conflict or even through a territory that is subject to a
blockade. Where the relief convoys are to pass through 3rd party states, the
joint effects of Art 23 GC IV and Art 70 API will compel the 3rd party state to
permit passage of supplies. Once the relief convoy has entered into 3rd party
territory or territory of another party to the conflict, the relief convoy may
be searched. Also, they are entitled to insist that the ICRC or the protecting
power distribute the relief supplies.
With respect to non international armed conflicts, Art 18 para 2 APII is to
the effect that relief actions of an exclusively humanitarian and impartial
nature are to be undertaken in circumstances where the civilian population
is severely lacking in supplies necessary to its continued existence.
The obligation for the provision of relief supplies rests on the shoulder of
the states parties. As such, the international Community of states is expected
to contribute to relief actions in any armed conflict once it is shown that the
civilian population is in need. In practice however, it is the ICRC that often
spearheads relief actions in any armed conflict. This is because despite the
express provisions under Art 70 API that relief action are not to be viewed as
unfriendly acts, states still have negative attitudes towards such relief and
view it as an interference in their affairs. The ICRC however has acquired a
status of neutrality and as such may undertake such relief actions but with
the consent of the parties to the conflict concerned.323
322 Article 70 API
323 Common Article 9 GCI-III; Art 10 GCIV; Article 81 API
151
Humanitarian Organizations
Humanitarian organizations such as the ICRC, the National Red Cross and
Red Crescent Societies as well as other private relief organizations have
significant obligations with respect to the protection of civilians during any
armed conflict. Article 9 of the GC I provides that:
The provisions of the present Convention constitute no obstacle to
the humanitarian activities which the International Committee of
the Red Cross or any other impartial organization may subject to the
consent of the parties to the conflict concerned, undertake for the
protection of wounded and sick, medical personnel and chaplains for
their relief.
The ICRC usually takes a central role in activities for the protection of the
civilian population. The ICRC operates on the basis of its seven fundamental
principles: Humanity, Impartiality, Neutrality, Independence, Voluntary
service, Unity and Universality. Its guiding force in the protection of the
civilian population is in its first three principles of humanity, impartiality
and neutrality. As such, the ICRC endeavors to prevent and alleviate human
suffering wherever it may be found. Furthermore, no discrimination is
made on the basis of nationality, race, religious beliefs class or political
opinions. The governing criterion is the needs of the civilian population at
any particular time. Finally, the ICRC aims to be neutral so that it may enjoy
the confidence of all and may not take part in hostilities nor engage itself in
controversies bordering on political, racial, religious or ideological issues.324
Among its numerous functions, the ICRC assists in the restoration of
family links. This is achieved through its Central Tracing Agency325 and
facilitates not only the exchange of correspondences, but may also trace
individuals lost or displaced due to the effects of armed conflict. The ICRC
also has programs in place aimed at responding to the specific needs of
girls and women during any armed conflict, especially those that have been
sexually abused.326
Representatives and delegates of the ICRC are entitled to go to all
places where prisoners of war may be particularly places of internment,
imprisonment and labour and shall have access to all premises occupied by
324 Bouchet Saulnier F, The Practical Guide to Humanitarian Law p. 360-361
325 Art 140 GCIV
326 Address by Angelo Gnaedinger on the protection of civilians in conflict- the ICRC
perspective 9-05-2007
152
prisoners of war.327 This is to enable them view the living conditions of the
prisoners of war and to ensure that they are not being subjected to inhumane
treatment. The ICRC in this regard, performs a vital role by safeguarding the
interests of prisoners of war, some of whom may be civilians. In the event that
the prisoners of war are not being treated in accordance with the principles
of humanitarian law, such crimes may be reported to the United Nations.
To the obligations imposed on the ICRC and other humanitarian
organizations, protected persons (civilians) have a corresponding right
to make application to these bodies for humanitarian assistance.328 These
requests must be facilitated by the ICRC in conjunction with the Protecting
Power. Whether the request is for relief or for some sort of intervention
which only the ICRC can provide, they must do all in their power to fulfill
this obligation.
In circumstances where the whole or part of an occupied territory is
inadequately supplied, the Occupying Power is to agree to relief schemes
on behalf of the population. These schemes may be undertaken by the
ICRC or any other impartial humanitarian organization and shall consist
of the provision of foodstuffs, medical supplies and clothing.329 The ICRC
may thus enter the occupied territory without being seen as a threat or as
interfering in the affairs of the other state. The right of entry by the ICRC
into any occupied territory can only be suspended subject to temporary
and exceptional measures imposed for urgent reasons of security by the
Occupying Power.330 The question of what will constitute temporary and
exceptional measures depends on what the Occupying Power considers as
such. Be that as it may, a balance has to be struck between making provision
for humanitarian assistance and the temporary security measures imposed
by the occupying power. What will happen where the civilian population
is in need of relief supplies but cannot be reached? It is submitted here that
the needs of the civilian population must always be taken into consideration
having in mind that starvation of civilians as a method of warfare is
prohibited under Article 54 para 1 API.
The AP II does not contain express provisions that compel parties to the
conflict to permit the entry of the ICRC and other impartial humanitarian
organizations in relation to non-international armed conflict. However,
Article 18 AP II provides that relief societies may offer their services for the
327
328
329
330
Article 126 GCIII

Article 30 GCIV
Art 59 para 2 GC IV
Art 63 GCIV
153
performance of their traditional functions in relation to victims of armed

conflict. The ICRC and its subsidiaries fit into this class of relief societies
but their intervention will be based on the acceptance by the parties to the
conflict. Article 3 Common to the Geneva Conventions also lends support
to this rule by providing that an impartial body such as the ICRC may offers
its services to the parties to the conflict.
When the Right of Civilians Will be Lost

It is not in all circumstances that the rights available to civilians during
armed conflict will be present. The international humanitarian law imposes
certain conditions on civilians during armed conflict. It is the failure to
comply with these conditions that will cause a civilian person to lose his
status temporarily or permanently and become liable to attack or other
kinds of treatment by the adversary armed forces.
The first circumstance where a civilian will not be entitled to all the
rights ordinarily available is where such person is reasonably suspected
of activities hostile to the security of the state.331 The category of persons
envisaged under this provision is spies and saboteurs. Article 5 para 2 GC IV
goes further to provide that:
Where in occupied territory an individual protected person is
detained as a spy or saboteur, or a person under definite suspicion of
activity hostile to the security of the Occupying power, such person
shall, in those cases where absolute military security so requires, be
regarded as having forfeited rights of communication under the
present condition.
The reason for keeping spies or saboteurs incommunicado is apparent.

Considering the delicate nature of their activities in enemy territory, any
form of communication with the state they belong to may give them the
opportunity to leak classified information obtained by them. The aim of
keeping them incommunicado is thus to ensure that they do not cause any
harm to the security of the detaining state.
Despite this provision, it appears that the provisions of Article 75 API on
the fundamental guarantees of persons in any armed conflict supersede the
provisions under Article 5 GC IV. Art 75 lays down the maximum conditions
to which detained persons are to be treated in any armed conflict. Spies and
saboteurs come within this category of detained persons protected under
331 Article 5 para 1 GCIV
154
Article 75 API lend further credence to the fundamental guarantees, the

identity of all detained persons must be reported to their respective states of
origin not later than two weeks after their capture.332 This provision of Art
136 para2 GC IV equally applies to spies and saboteurs and as such, news of
their capture must be reported to their states of origin. The communication
bar on such detained persons must however be lifted as soon as it is shown
that it is no longer necessary for security reasons. The matter of spies and/or
saboteurs laid to rest under the GC IV thus:
Such persons shall nevertheless be treated with humanity, and
in case of trial, shall not be deprived of the rights of fair and regular
trial prescribed by the present convention. They shall also be granted
the full rights and privileges of a protected person under the present
convention at the earliest date consistent with the security of the state
or occupying power as the case may be.333
The second category of civilians who loses the rights available to them
under the humanitarian law is those who take direct part in hostilities. The
distinguishing factor between civilians and military armed forces is the fact
that civilians are not to take part in hostilities. The fact that they take part in
hostilities does not make them combatants. They remain civilians but may
find themselves subject to attack by adversary armed forces once they take a
direct part in hostilities. Article 51 para 3 API embodies this rule thus:
Civilians shall enjoy the protection afforded by this section, unless
and for such time as they take a direct part in hostilities.
The right to take part in hostilities is the exclusive preserve of the

members of the armed forces of the parties to the conflict (Article 43
para 2 API). The humanitarian law recognizes that civilians do take part
in hostilities. One instance is found under Art 4 A (6) which recognizes
civilians who spontaneously take up arms to resist invasion as falling into
the category of prisoners of war. Civilians who are hired to carry out tasks
normally preformed by armed forces (e.g. maintenance of weapons systems,
protection of person or premises etc) may also take up arms during an
armed conflict. Such direct participation by civilians is not prohibited by
the humanitarian law. The civilians, who have, by taking part in hostilities,
committed crimes against the humanitarian law, will be held responsible for
their offences.
155
The idea of taking direct part in hostilities does not mean that all persons
who by reason of their work are located in military establishments actually
take part in hostilities. It is only those whose acts can either affect the military
activities of the adversary party or who directly cause death or injury to
persons, or the destruction of objects. As such, civilians persons who for
instance, are employed in armaments industries for the maintenance of
military installations will not be viewed as taking direct part in hostilities.
The presence of civilians in such establishments does not however deprive
them of their status as military objectives and as such, they may be attacked
by the adversary forces. During any attack on a military establishment
containing civilian personnel, the military commander ordering the attack
must take the rules of proportionality into consideration.
When hostilities have come to an end, civilians who committed crimes
against humanitarian law by taking up arms are to be held accountable.
Thus, the fact of hostilities coming to an end does not free civilians who
have violated the law from facing the music even though the civilian status
has been reinstated. In any event, such civilian persons are still entitled to a
fair and regular trial.334
With respect to non-international armed conflicts, civilians shall equally
enjoy the protections available to them under the humanitarian law unless
they take a direct part in hostilities.335 As with international armed conflicts,
civilians must be shown to have taken a direct part in hostilities before their
civilian status will be suspended temporarily.
The rights of the civilian population are not to be violated at will by the
parties to the conflict. They are to be protected from the effects of war and
are not to be attacked unless it is clear that they have taking direct part in
hostilities. There is no room for opacity as regards their direct involvement
in hostilities. Thus, where there are doubts as to whether a civilian is
participating temporarily in hostilities or has assumed more permanent
functions, the presumption will be in favor of such person still being
protected as a civilian. The parties to the conflict must thus determine
with certainty that a person has taken direct part in hostilities before the
protection available to him can be suspended.
334 Article 5 para 3 GC IV; Art 75 API

335 Article 13 para 3 AP II
156
Belligerent Occupation
The law of belligerent occupation is based on the relationship that exists
between a party to the conflict occupying territory of the adverse party (the
Occupying Power) and the residents of such occupied territory. At every
point in time during the armed conflict, it is necessary to determine the
rights and obligations of both the Occupying power and residents of occupied
territory in a situation recognized under the international humanitarian
law as one of belligerent occupation. In ancient times, residents under the
control of belligerents had no rights at all and as such they were subjected to
rape, beatings and were even killed. The modern humanitarian law however,
imposes some duties on belligerents which are intended for the safety of the
civilian population.
The modern law on belligerent occupation is set out primarily under
The Hague Regulations and the GC IV. It should be noted that the law on
belligerent occupation does not include nationals of the occupying power
(excluding refugees), nationals of states not bound by GC IV, and nationals of
a third, neutral state.336 Similarly, these laws do not apply to foreign citizens
that are unprotected under the humanitarian law while being resident in
occupied territories. For this category of persons the laws ordinarily available
to foreign residents will be applicable.337 Worthy of mention also is that the
law of belligerent occupation does not apply in non-international armed
conflicts. Where for instance, rebels take over a part/portion of a state, they
cannot be said to be the Occupying power since they are also residents and
citizens of that state. In the Niger Delta conflict in Nigeria, the different
militant groups while having control over the Niger Delta creeks, cannot be
said to be in the territory of the adverse party (the Nigerian Government), to
which they also belong. Situations of internal conflict do not fall within the
definition of belligerent occupation. On the other hand, the regular armed
forces of a state that recapture a region previously occupied by rebels cannot
be said to be in occupation. All they have done is to re-establish control over
territory which was originally theirs. In any event, rebels controlling part
of their states territory must abide by the laws relating to non-international
armed conflicts under Common Article 3 GC I IV and the AP II 1977.
The laws put in place to regulate belligerents in the territory of the
adversary state are primarily aimed at preventing colonization. Gone are
the days when powerful states conquered weaker states and territories were
336 Fleck D, op cit, p. 271-272
337 The Provisions of Article 13 26 GC IV and Article 75 API are instructive in this regard.
157
amassed for the benefit of ancient warlords and kings. Alexander the Great
of Macedonia conquered territories during his campaigns and would leave
some Greeks behind in each territory to inculcate the Greek culture in the
conquered peoples. In more recent times, the quest for the domination of
Africa led states like Britain, France, Portugal and Belgium to impose their
authorities on these weaker states and colonize them. The local resistance
in each of these African states had to be crushed to pave the way for
colonialism. The current laws on belligerent occupation do not outlaw such
acts since they are necessary incidents of armed conflicts between States.
It however, imposes conditions on the belligerent States for the protection
of the civilian population under its control. Such conditions did not exist
during or before the colonial era and so the conquered peoples were made
to suffer unjustly as well as being unable to control their respective polities.
The importance of the law on belligerent occupation has received a
boost in the light of the different instances where states have taken over
the control of territory belonging to the adverse party. These instances of
belligerent occupation are not often clear-cut as disputes as to whether
there is a state of belligerent occupation or not exist. The occupation for
instance of Nagorno-Karabakh in Azerbaijan by Armenia was disputed to
be a military occupation by the local population.338 Disputes also remain
as to whether the Gaza strip is still occupied despite the institution of a
unilateral disengagement plan by Israel in 2005. Similarly, it was disputed
that the West Bank capture by Israel in 1967 was a situation of belligerent
occupation. With respect to both the Gaza strip and the West Bank, is
disputed that they are not proper occupied territories since they do not form
part of the territory of any sovereign state. Other instances of occupation
(which remain unrecognized by the UN or unanswered) included: the US
invasion of Grenada (1983) and Panama (1989), Israeli invasion of Southern
Lebanon (1982) and 2006), the Soviet Presence in Afghanistan (1979 1989)
and the occupation of Georgian territories by Russia (1992 2008) including
the recent occupation of Iraq by the US army amongst others are said to
be illegal.
338 Mr. David Atkinson, United Kingdom, European Democrat Group, (Rapporteur). The
conflict over the Nagorno_Karabkh region dealt with by the DSCE Minsk Conference
parliamentary Assembly of the Council of Europe, 29 Nov. 2004 Retrieved from http://
wikipedia.com 24-08-2009.
158
The law of belligerent occupation received its greatest boost from the ICJs
Advisory Opinion of 2004 on the Wall in Palestine.33988 On the question
of the legality of the construction of the wall by Israel, the ICJ by fourteen
votes to one, found and held that the construction of the wall by Israel and
its associated regime are contrary to international law. It also held that Israel
is under obligation to cease the construction work of the wall, to dismantle
it, and to repeal all legislative and regulatory acts related to it. Israel was
also required to make reparation for all the damage caused by constructing
the wall. Furthermore, all states were put under obligation to refrain from
recognizing the illegal situation which arose from the walls construction
and were prohibited from rendering any assistance to maintain the
situation. By the Advisory Opinion, the ICJ has shown that annexation of
occupied territories by belligerent states is illegal. In the event that one state
takes over territory belonging to the other party to the conflict, it must show
that its acts are legal and should not attempt to annex or colonize territories
not belonging to it. The annexure of Kuwait by Iraq as one of its provinces in
1991 was resisted by the UN and the entire world.
Basic Rules on Belligerent Occupation

The basic rules on belligerent occupation are set cut in Articles 42 56 Hague
Regulations, Articles 2734 and 4778 of the GC IV, as well as customary
law and general principles of international law. Other provisions also exist
which are directly or indirectly related to the law of belligerent occupation.
For instance, Article 2 para 4 of the UN Charter which prohibits the use of
force by one state against another lends authority in the recognition of the
rule that foreign territory is not to be annexed. When one state takes over
control of territory belonging to another state, the takeover must be taken
to temporary. The occupying state does not acquire sovereign rights over
occupied territory but performs only an administrative function which can
be achieved, where possible, without changing the existing order.
The GC IV provides that:
The territory is considered occupied when it is actually placed under
the authority of the hostile army. The occupation extends only to
339 ICJ, Legal Consequences of the construction of a Wall in the occupied Palestinian
Territory, Advisory Opinion of a July 2004 89 in accordance with para 151 of the
Advisory Opinion.
159

the territory where such authority has been established and can be
exercised.340
This Article 42 GC IV embodies the basic rules in relation to belligerent

occupation. For territory to be occupied it must have been placed under the
authority of the invading army. As regards proof of such authority, it must
be shown that control has been shifted into the hands of the Occupying
Power. Where for instance, the invading army can issue directives (such
as imposing a curfew on the residents of occupied territory), this would be
prima facie proof of authority exercisable by the occupying state. Article 42
goes further to state that the rules on belligerent occupation will only apply
in territories where the authority of the Occupying Power has been clearly
established and can be enforced.
Still on proof of authority, the following criteria may aid in such proof:
1.) That the national authorities are no longer able to enforce their
authority in the territory; and
2.) That the invading forces are in a better position to enforce their
authority in the foreign land.341
Once these criteria are fulfilled, the law of belligerent operation kicks
into gear. As such, the invading forces are obliged under the international
humanitarian law to respect the rules on belligerent occupation at least for
the benefit of the civilian population. The Occupying power should not hide
behind flimsy excuses aimed at euphemizing what is actually a military
occupation. The litmus test is that the Occupying power controls territory
belonging to another sovereign state. Once this is shown to exist, it will not
matter what reasons were given for the entry into foreign lands, the laws
of belligerent occupation will take effect and the Occupying power will be
bound to abide by them.
Circumstances have arisen where the Occupying power did not consider
itself bound by the rules on belligerent occupation even where it had
invaded territory previously under the control of another sovereign State
party to the conflict. The instances of Israel in the Gaza strip and the West
Bank are apt here. The Gaza strip was occupied by Egypt in 1948. In that
same year, the West Bank was captured by Jordan and annexed in 1950. Both
the Gaza strip and the West Bank were occupied by Israel in 1967. From the
Israeli perspective, the provisions of GC IV relating to belligerent occupation
340 Article 42 GCIV 90
341 UK Manual (2004) para 11 -2
160
do not apply to their occupation of both regions. In its view, neither Jordan
nor Egypt can be said to be territorially sovereign with respect to these
territories and as such, Israel was not in occupation of a foreign territory.
It is submitted here that the argument by Israel has no proper foundational
basis and as such, they are bound by the rules relating to belligerent
occupation. Both the Gaza strip and the West Bank were under the control
of Egypt and Jordan respectively prior to Israels occupation. The residents
of these places were under the control of these governments at the time. As
such, Israels invasion takes on the character of a foreign intervention and so
any control they exercise over these regions must comply with the rules on
belligerent occupation.342
At the outset of the invasion of Iraq by US forces in 2003, the reason given
for the invasion was that Iraq has Weapons of Mass Destruction (Nuclear
Weapons) in its possession. These weapons were never found. Despite these
faulty reasons, the United States became the belligerent occupying power of
Iraq.343 While the Security Council never expressly mentioned that there
was a state of belligerent occupation in Iraq, the facts of the occupation and
the wordings of their resolutions made it clear that such a state did exist in
fact. With the signing of a Status of Forces Agreement (SOFA) between US
Ambassador Ryan Crocker and Iraqi Foreign Minister Hoshyar Zebari on
November 17, 2008, all U.S. troops were expected to leave Iraq by June 30,
2009. As at the time of writing, the deadline had been exceeded. However
the US is in a continuing state of effective withdrawal of its troops from Iraq.
Once a hostile army takes control of territory belonging to any other
party to the conflict, the sovereignty of the occupied state is suspended with
respect to the occupied territory pending such a time that the territory is
seized from or handed over to its rightful owners. The fact that there is a
suspension of the sovereign rights in the occupied territory does not mean
that the Occupying Power is a successor-in-title to the rights originally
vested in the government of the occupied state. As such the occupying state
is not to extend its sovereignty to the occupied territory. Article 43 of the
Hague Regulations goes further to provide that:The authority of the legitimate power having in fact passed into the
hands of the occupant, the latter shall take all the measures in his
342 Israels view has been rejected by all other states parties to the Geneva Conventions
directly or through international organizations. The UN, the ICRC and other
organizations have also rejected this view on the non applicability of GC IV to Israel in
respect of these occupied territories.
343 Formally recognized by UN SC Resolution 1483 of 22 May 2003
161
power to restore, and ensure as far as possible, public order and

safety, while respecting unless absolutely prevented, the laws in
force in the country
The requirement under Article 43 above is that the Occupying power,
having taken control over enemy or foreign territory, is not to change the
status quo existing prior to its invasion except where necessary and even
then, only little changes are permissible. Status quo as used here refers not
only to the legal status of the occupied territory but also its sociological
and political structures as well as the general public life of the occupied
civilian population. Where circumstances however make it necessary
for the occupying state to make regulations or orders to guarantee public
order and safety of the civilian population, they may be entitled to do so.
Similarly, acts of a more permanent nature (e.g. imposition of new taxes)
may be necessary particularly when the belligerent occupation has taken
a long time. Whether in temporary policy making or for more permanent
regulations, the interests of the civilian population must be placed first.
The laws put in place with respect to belligerent occupation are aimed
primarily for the protection of the civilian population in occupied territory.
They are entitled to the general protections available to civilians in any
armed conflict. In a situation of belligerent occupation, there are precise
rules that need to be observed by the Occupying power to further guarantee
the protection of civilians even in occupied territory.
Article 27 of the GC IV contains one of such basic protections available to
the civilian population in occupied territories. It provides that:
Protected persons are entitled, in all circumstances, to respect
for their persons, their honour, their family rights, their religious
convictions and practices, and their manners and customs344
The provisions under Article 27 GC IV accord with general human rights

principles under the international law. Civilians in occupied territories are
entitled to respect for their persons. As such, they are not to be subject to
any physical or mental torture.345 They are also entitled to respect for their
honour and so should not be subjected to derogatory treatment. Family
rights must be respected and this includes non-separation of members
of a nuclear family unit. The Occupying Power should not also be seen to
344 Similar provisions exist under Article 46 Hague Regulations
345 In cases of gross abuse, such derogation of right respecting persons may constitute
grave breaches under Article 147 GC IV
162
impose its religious beliefs on the civilians living in occupied territory. This
will not only be a breach of Article 27 GC IV but also of the general principles
of human rights law.
Finally, Article 27 GC IV requires that norms and customs must be
preserved. The Occupying Power must not impose its customs on the
persons residing in occupied territories. During the French colonization
in Africa, the French adopted a system of assimilation whereby all persons
in their colonies were inculcated in French culture. This gradually eroded
the local cultures and at present, members of these countries are arguably
French men. It is to avoid such a situation that Art. 27 GC IV expressly
provides that all norms, manners and customs of members of the occupied
territories must be respected and preserved.
Article 27 GC IV does not contain express provisions relating to the
protection of private property. The Hague Declaration is instructive in this
regard and provides expressly that private property cannot be confiscated.346
This prohibition related directly to situations of belligerent occupation.347
The Occupying Power cannot confiscate property belonging to the civilian
population either for their own use or for the benefit of some other party.
Such acts will be in violation of the international humanitarian law. Where
there is extensive destruction and appropriation of private property which is
not justified by military necessity and carried out unlawfully and wantonly,
such destructive acts will constitute grave breaches under the International
Humanitarian Law.348
Article 75 para 1 API is to the effect that persons in the power of a party
to the conflict (i.e. including a situation of belligerent occupation) are to be
treated humanely in all circumstances and are to enjoy as a minimum:
The protection provided by this Article without any adverse
distinction based upon race, colour, sex, language, religion or belief,
political or other opinion, national or social origin, wealth, birth or
other status, or on any other similar criteria.
This Article 75 para 1 API supplements the provisions under Article 27

GC IV dealing also with the general prohibition against discrimination. No
person is to be treated favourably or adversely on the basis of the different
categories of discrimination mentioned above. Every person is entitled to
346 Article 46 Hague Regulations.
347 Article 46 falls under section III of The Hague Regulations 1907 dealing with military
authority over the territory of the hostile state
348 Article 147 GCIV
163
equal treatment and the Occupying Power should endeavour to ensure that
its acts are not seen to give preference to one class of persons over another.
To lend more support to the provisions on discrimination, the API considers
practices of apartheid and other inhuman and degrading practices based on
racial discrimination as grave breaches of the international humanitarian
law.34998 During the 2nd World War, it was the anti-semitist attitude of the
German forces that led to the massacre of millions of Jews. Such acts are
now considered as grave breaches of the humanitarian law and constitute
valid grounds for prosecution of the crime of genocide.
Reprisals against protected persons and their property are prohibited.35099
No civilian persons within the territory controlled by an Occupying Power
may be the target of reprisals. Reprisals are only lawful when they are aimed
at military objectives and even then strict conditions must be fulfilled before
a reprisal attack will pass the test of legitimacy. Threats of reprisal attacks
are also outlawed under the humanitarian law as such would constitute
threats of violence whose primary purpose is to spread terror among the
civilian population.351100
Collective penalties and all measures of intimidation or of terrorism
are also prohibited under the law.352101 No person may be punished for a
crime he or she has not committed personally. The humanitarian law only
recognizes individual penal responsibility as the basis upon which a person
may be tried and convicted for violations during any armed conflict. In
practice, such collective penalties may come hand in hand with measures of
intimidation and terrorism. Thus for instance, a family may be punished as a
whole for the offences of a single family member. The Occupying power has
a duty towards the civilian population in occupied territory to ensure that
they are not subjected to collective penalties neither are they intimidated or
terrorized either by the Occupying Power itself or some other 3rd party.
Acts of pillage which involve seizing or stealing property during any
armed conflict are also prohibited.353102 The Occupying Power must not
forcefully seize property belonging to the civilian population. In similar
light the Occupying Power has a duty to respect cultural property located in
the occupied territory in accordance with the Cultural Property Convention
1954. The era of looting and the amassing of spoils of war by reason of
349
350
351
352
353
Article 85 para 4 lit C API

Article 33 para 3 GC IV. Similar provisions exist under Article 20 and 51 para 6 API
Article 33 para 1 GCIV
Art. 47 Hague Regulations; Art 33 para 2 GC IV
164
conquering a new territory are long gone. The modern humanitarian law is
absolutely prohibitive of any acts which may constitute pillage.
At every point in time during a period of belligerent occupation, the
residents of the occupied territory are to be protected from all acts of
violence. The GC IV in Part II deals with the general protection of populations
against certain consequences of war. In effect, the provisions of Article 13
26 are aimed primarily at guaranteeing this general protection. Article
27 GC IV goes further to provide that protected persons shall be treated
humanely at all times and are to be protected especially against all acts or
threats of violence. The Occupying power thus has a duty to ensure that the
civilian populations under its control are not subjected to acts or threats of
violence. All organs or units acting under the authority of the Occupying
Power must refrain from applying violence to the civilian population unless
the circumstances make it necessary. Such units may include members
of the armed or police forces belonging to the Occupying Power. In the
Guantanamo Bay Detention Facility in Cuba, some of the members of the
US Armed forces have been suspected of allegedly committing breaches of
human rights law against the detainees there. Such conduct is unacceptable
under the humanitarian law. The Occupying Power must take necessary
measures to prevent acts of violence not only by its own forces but even from
other 3rd parties.
The humanitarian law also prohibits the taking of hostages in occupied
territory.354103 The peculiar nature of belligerent occupation (i.e. the
Occupying Power being in control of the territory belonging to the hostile
army) makes hostage taking even easier as the civilian population are
directly under the control of the Occupying Power. As such, hostages may
easily be taken and used as bargaining chips in their negotiations with
the other party to the conflict. However, the humanitarian law expressly
prohibits hostage taking in all respects. This prohibition is universal and
extends even to non-international armed conflicts.355104 The prohibition
against hostage taking is further supplemented by Article 147 GC IV which
makes the act a grave breach of the international humanitarian law.
All the rules put in place to be applied during situations of belligerent
occupation are aimed primarily at guaranteeing the protection of the
civilian population. This protection continues even at the end of hostilities
as the parties to the conflict are required to forward information of persons
354 Article 34 GCIV
355 Common Article 3 GC I-IV
165
who are in its power and control.356 Information must also be forwarded
with respect to the wounded, sick, shipwrecked and dead357 as well as
for prisoners of war.358 In any of these situations, the humanitarian law
requires that an Official Information Bureau is to be established to facilitate
the search for and location of all protected persons. All parties to the
conflict are obligated to establish such bureau. In practice, such information
bureaus are not known to exist. The duty characteristically falls on the
Central Tracing Agency of the ICRC to perform these functions based on the
authority granted to them under the humanitarian law.359
The law of belligerent occupation will continue to operate until the
Occupying Power is no longer in control of the occupied territory and its
residents. The occupation may be terminated either when the party originally
in control regains such control of the territory or where there is a voluntary
withdrawal by the Occupying Power or in a situation of debellatio.360 The
fact that military operations have ceased does not automatically mean that
the state of belligerent occupation has ceased as well. The rules on belligerent
occupation will continue to apply until one year after the general closure
of military operations.361 If the state of belligerent occupation continues to
exist after the 12 months, the Occupying Power will only be bound to abide
by the fundamental rules listed under Article 6 paragraph 3 GCIV.11362
It is submitted here that such distinction on the applicability of the laws
of belligerent occupation is unacceptable. Why should the entire body of law
not apply until the end of the occupation? There is no proper justification for
the 12 month ceiling placed on the full application of the laws on belligerent
occupation. These laws are aimed primarily at the protection of the civilian
population and to remove this protection even while the state of occupation
still subsists is not in the best interests of the residents of occupied territory.
The civilian populations in occupied territory are protected persons and
should be entitled at all times to every possible protection available under
the humanitarian law.
The law on belligerent occupation is essential to the survival of the civilian
population resident in occupied territories. Without such rules, there would
356
357
358
359
360
Article 136 GC IV
Article 16 GC I; 19 GC II
Article 122 GC III
Article 140 GC IV; Article 33 para 3 API
This refers to a situation where a party to the conflict has been so defeated that it is its
adversary alone that can decide the fate of its territory.
361 Article 6 paragraph 3 GC IV.
362 The rules are set out in Articles 112, 27, 2934, 47, 49, 5153, 6177 and 143 GC IV.
166
undoubtedly be intense hardship and losses suffered by the residents under

the control of the Occupying Power. The humanitarian law thus imposes
this duty on the Occupying Power aimed at guaranteeing the protection of
the civilian population at all times. Their rights must be respected by the
Occupying Power. Similarly, they are not to be subjected to inhumane or
degrading treatment. The living conditions of the civilian population are
of paramount importance during the duration of the conflict and are to be
properly safeguarded by the Occupying Power.
Legal Status of the Civilian Population

The rights available to members of the civilian population as protected
persons are guaranteed under the international humanitarian law. Even
during an armed conflict, these rights are not to be derogated from unless
circumstances make such derogation unavoidable and even then, strict
conditions must be fulfilled. The rights of the civilian population are so
highly placed that they themselves may not even renounce these rights. As
such, the GC IV provides thus:
Protected persons may in no circumstances renounce in part or in
entirety the rights secured to them by the present Convention, and
by the special agreements referred to the foregoing Article ,363 if such
there be.364
Any purported renunciation of the rights ordinarily available under the

GC IV will be considered null and void. The rights are sacrosanct and even
the Occupying Power cannot compel members of the civilian population to
renounce their rights for fear of harm.
Members of the civilian population in an occupied territory are not to
be deprived of any of the benefits ordinarily accruing to them whether by
agreements concluded between the Occupying Power and the authorities of
the occupied territories nor by any annexation by the Occupying Power of
the whole or part of the occupied territory.365 Article 47 GC IV steps in to
ensure that no such agreement is honoured even where the local authorities
are being pressurized by the Occupying Power. This provision is aimed at
protecting the population of protected persons from losing their rights and
also to prevent a situation of annexation of territories. In 1990, Iraq invaded
363 Article 7 GCIV
364 Article 8 GCIV
167
and annexed Kuwait under the Saddam Hussein regime. These actions were
condemned by the US which, being authorized by the UN Security Council,
led a coalition of 34 nations which fought the Gulf War and successfully
reinstated Kuwait as an independent nation. The humanitarian law frowns
at such acts of annexation thus expressly prohibiting any acts which could
lead to the annexation of territories.
Article 49 para 1 GC IV provides that:Individual or mass forcible transfers, as well as deportations of
protected persons from occupied territory to the territory of the
Occupying Power or to that of any other country, occupied or not are
prohibited, regardless of their motive.
This general prohibition is aimed at ensuring that protected persons are

not forcefully removed from their places of residence. The motive of the
Occupying Power in displacing these persons is irrelevant. Similarly, the
fact that the protected persons consented to such transfer does not matter. It
is only when there is a legitimate request for resettlement that this transfer
may be considered and even then, all conditions precedent to facilitate the
transfer must be fulfilled.
To this general prohibition against the forcible removal of protected
persons are exceptions provided for under the GCIV.366 By Article 49 para
2 GC IV, total or partial evacuation of an occupied area may be permitted
if the security of the population or imperative military reasons renders it
necessary. Such acts of evacuation must be temporary as evacuated person
are to be returned to their homes once the hostilities have quelled. In the
event that protected persons are removed from their places of residence,
the Occupying Power must take proper steps to ensure that they are well
accommodated in accordance with Article 49 para 3 GC IV. Even where
evacuation is necessary, persons are not to be removed outside the vicinity
of the occupied territory. They may only be moved to either the territory
of the Occupying Power or any other 3rd party where it is impossible to
guarantee the safety of the evacuees without such removal.
The Occupying Power is also to ensure that the removals to other
parts within or outside the occupied territory are effected in satisfactory
conditions of hygiene, health, safety and nutrition, and that members of the
same family are not separated.367116 The civilian populations are entitled to

168
respect to their family rights and as such should be permitted to remain

within the family unit.
Where there has been a transfer or evacuation of protected persons from
their places of residence, the Protecting Power (i.e. the bona fide authorities
of the occupied territories) must be informed as soon as the transfer has
taken place.368 Article 49 para 5 GC IV provides that:
The Occupying Power shall not detain protected persons in an area
particularly exposed to the dangers of war unless the security of the
population or imperative military reasons so demand.
If it becomes necessary to detain protected persons, the Occupying Power

should endeavor to detain them in places that are less likely to be exposed to
the effects of war. To achieve this, detention centers should be located, where
possible in areas where the effects of war are minimized. It is only where the
security of the population depends on the location that the international
humanitarian law will permit detention in places closer to the conflict.
Even then, it must be clear that there is no other alternative to guarantee the
populations security. Where there is an alternative which is reasonable and
practicable in the circumstances of armed conflict, the alternative should
be adopted.
The Occupying Power shall also refrain from deporting or transporting
parts of its own population into occupied territory.369 This act may be seen
as annexing the territory of the Protecting Power which is prohibited under
the humanitarian law. Between 1967 and 2002, Israel created 157 settlements
in the West bank and the Gaza strip and transferred approximately 385,000
settlers to colonize and settle on Palestinian land.370 These acts where aimed
at changing the character of the occupied territory through annexation and
colonization into Israeli territory. In 1967, the UN Security Council adopted
a resolution on their position regarding illegal occupation of territory
through forceful means and called on Israel to withdraw from Palestinian
territories. The resolution called for the:
Withdrawal of Israeli armed forces from territories occupied in the
recent conflict; termination of all claims or states of belligerency
and respect for and acknowledgement of the sovereignty, territorial
integrity and political independence of every state in the area and
368 Article 49 para4 GC IV
369 Art. 49 para 5 GC IV
370 Abed-Rabbo S, The Legal Status of Israelis settlement activities in the Palestinian
occupied territories, http://www.ccun.org., May 26 2009
169

their right to live in peace within secure and recognized boundaries
free from threats or acts or force.371
Despite this Resolution, Israel only withdrew from Sinai in Egypt while
remaining in occupation of Syrian and Palestinian territory. By 1980,
another UN resolution was adopted to settle the question of transfer and
settlement. This resolution determined that:
all measures taken by Israel to change the physical character,
demographic composition, institutional structure or status of the
Palestinian or other Arab territories occupied since 1967, including
Jerusalem, or any party thereof, have no legal validity and that
Israels policy and practices of settling parts of its population and
new immigrants in those territories constitute a flagrant violation of
the Fourth Geneva Convention relative to the protection of civilian
persons in time of war and also constitute a serious obstruction to
achieving a comprehensive, just and lasting peace in the Middle
East.372
The resolution further called on the Government and people of Israel

to rescind all measures aimed at restructuring these occupied territories
by dismantling all existing settlements and to cease the establishment,
construction and planning of settlements in Arab territories. As at the time
of writing, Israel had not complied with the UN Resolutions 242 and 465.
It is submitted here that these acts by Israel constitute flagrant violations
of the humanitarian law. Article 49 para 5 GC IV makes it abundantly clear
that the Occupying Power is not to transfer members of its population into
the occupied territory but Israel has to chosen to violate this obligation. The
arguments by Israel that the provisions of the GC IV do not apply to them in
the Israeli-Palestinian conflict hold no water as it is clear from the facts that
Israel is a foreign power and as such, is required to comply with the laws of
belligerent occupation.
In addition to the provisions under Article 49 paragraph 5 GC IV, Article
8 (viii) of the 1998 Rome Statute of the International Criminal Court (ICC)
recognizes as war crimes:
the transfer, directly or indirectly, by the Occupying Power of parts
of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied
territory within or outside the territory.
371 Resolution 242 UN Security Council
372 UN Security Council Resolution 465
170
The underlined portion of Article 8 (viii) relates directly to the situation

in Palestinian territories generated by the Israeli Government. Transfer of
its own population to settle in the West bank and the Gaza strip constitute
war crimes and as such, all persons responsible for this violation are to be
held accountable under the humanitarian law.
The civilian population in occupied territory is entitled to the full
protection of the humanitarian law. Their rights are not to be easily toyed
with by the Occupying Power. It is only where circumstances make it
impossible that the civilian population may suffer some restrictions on
their rights but even then, it must be in full compliance with the principles
of the international humanitarian law. Acts which are intended to oust
members of the population from their places of residence are prohibited
under the humanitarian law. They are not to be moved into the territory
of the Occupying Power neither are civilians belonging to the Occupying
Power to be settled in occupied lands.373 The legal status of protected
persons (particularly civilians) in occupied territory must be certified and
guaranteed at all times during the armed conflict.
Appropriation of Civilian Resources

by the Occupying Power
Once the adversary army has taken over the control of a territory as an
Occupying Power, they are transformed into administrators or managers of
the occupied territory. As such, they are entitled in certain circumstances to
demand requisitions in the form of taxes, tariffs, dues or other contributions
in kind and services from the civilian population. They may also appropriate
certain property in the occupied territory to their own use. Despite these
managerial benefits, they are still subject to some restrictions under the
Where the Occupying Power collects taxes dues and tolls for the benefit of
the state, the collection must be in accordance with the rules of assessment
and incidence in force.374 In the case of Abu Aita et al v. Commander of
the Judea and Samaria Region et al.,375 the question arose as to whether
new taxes may be introduced in the occupied West Bank territory. The
Supreme Court of Israel held that such taxes may be introduced for the
purpose of integrating the occupied territories economy with that of Israel.
373 Art. 49 para 2 and 5 GC IV respectively.
374 Article 48 Hague Regulations
375 H. C. 69/81, Judgment of 4 April 1983, reprinted in 13 Isr YHR (1983) 348 359
171
If the Occupying Power levies any extra contributions on the population

in the occupied territory, Article 49 Hague Regulations provides that
such levy must only be for the needs of the army or for administering the
occupied territory.
The populations in occupied territory are not to be subjected to general
penalties which are based on acts of individuals acting alone. This rule under
Article 50 Hague Regulations accords with the principle of individual penal
responsibility enshrined in Article 33 GC IV and Article 75 para 4 (b) API. It
is only where members of the civilian population are shown to be jointly
and severally liable with the individual offenders that such general penalties
may be inflicted. While contributions may be imposed by the Occupying
Power, they may not be collected except under a written order issued by
the commander in chief and receipts must be issued to persons who have
contributed in accordance with Article 51 of the Hague Regulations.
Article 52 para 1 of the Hague Regulations provides that:
Requisitions in kind and services shall not be demanded from
municipalities or inhabitants except for the needs of the army of
occupation. They shall be in proportion to the resources of the country,
and of such a nature as not to involve the inhabitants in the obligation
of taking part in military operations against their own country.
The effect of this provision is that requisitions in kinds and services will
be permitted in an occupied territory, where it is demanded to meet the
needs of the occupying armed forces. It must be noted at all times however,
that the needs of the civilian population in occupied territory takes priority
over the needs of the occupying armed forces. Article 55 para 1 GC IV
provides that the Occupying Power has the primary duty of ensuring that
the civilian population under its control has the necessary food stuffs and
medical supplies. The requisition may be made for the occupying armed
forces only if the requirements of the civilian population have been taken
into account.376
The Occupying Power is further required to make requisitions that are
proportionate to the resources of the country. It is submitted here that the
requirement of proportionality should be based on the resources available
in the region under the control of the Occupying Power and not the entire
country. For instance, in Nigeria the mainstay of the economy is crude oil.
This oil is primarily produced in the Niger Delta region which is in the
Southern part of the country. Should a neighboring country invade and take
172
control of the Northern part of the country (whose resource capability is

less then the south), it will be grossly unfair for the Occupying power to
make requisitions based on the resources of the whole country instead of
limiting their requisitions to the areas they control. No matter the situation,
the Occupying Power must make proportionate demands on the resources
of the occupied territory.
Requisitions made in kind or services must not be of a nature that
would involve inhabitants in occupied territory taking part in hostilities
against their own country. The fact that they are within the territory of
their adversary and are subject to some conditions imposed by this same
Occupying Power does not make them willing tools to be used in pursuance
of military operations for the benefit of their adversary. Individuals have
rights to belong to states and they are not to be deprived of such rights save
for circumstances where they actually renounce their status as citizens. The
Occupying Power may not incorporate them into the armed forces neither
are they expected to work for the military advantage of the Occupying Power.
With respect to government property, the Hague Regulations provide that;
An army of occupation can only take possession of cash, funds
and realizable securities which are strictly the property of the state,
depots of arms, means of transport, stores and supplies and generally,
all movable property belonging to the state which may be used for
military operations.377
Government properties which have been seized by the Occupying Power

become spoils at war under the international humanitarian law. It should
be noted that only the movable property of the state may become spoils of
war for the benefit of the Occupying Power. With respect to immovable
property such as public buildings, real estates, forests and agricultural
estates belonging to the State whose territory is occupied, Article 55
Hague Regulations regard the occupying State as an administrator of the
immovable property and not actual owners. They may however, manage
these structures until possession is transferred to the true owners (i.e.
the authorities of the occupied state). The proceeds from managing the
government property may be used for administering the occupied territory.
With respect to private property, Article 46 para 2 is clear that such
property cannot be confiscated. The Occupying Power has a duty to respect
private property and its wanton destruction may constitute a grave breach
pursuant to Article 147 GC IV. In a situation of belligerent occupation,
377 Article 53 para 1 Hague Regulations
173
property belonging to private individuals may be seized but must however

be restored at the end of the occupation. In appropriate circumstances,
compensation will be paid.378 Article 53 para 2 lists out means of transport,
appliances for news dissemination as well as depots of arms and war material
as objects which may be seized by the Occupying Power. In the Israeli
occupation of Palestinian territories, the occupying authorities have seized
private land for the establishment of settlements for transferred members
of the civilian population. It is submitted here that such acts do not accord
with the spirit of the humanitarian law. In the words of a distinguished
author, such an overstretched concept of a security based exception to the
protection of private property rights clearly contradicts international law.379
The protection afforded to the civilian population and to their property in
particular must be guaranteed by the Occupying Power. To seize civilian
property for the benefit of the Occupying Powers own population is a gross
abuse of the international humanitarian law and should be treated as a
crime against humanity.
Despite the existence of rights for the requisition of civilian resources,
the requisition, destruction and damage of cultural property in occupied
territory is prohibited. This prohibition is by virtue of Article 56 Hague
Regulations and Article 5 of the Cultural Property Convention 1954. The
Occupying Power has a duty to respect all forms of cultural property as
the circumstances may permit. These may include institutions dedicated to
religion, charity and education, the arts and sciences as listed under Article
56 of the Hague Regulations.
The requisition of civilian hospitals by the Occupying Power is permitted
under the international humanitarian law.380 However, Article 57 GCIV
makes it clear that the requisition must be temporary and is only permissible
in cases of urgent necessity for the care of the military wounded and sick.
There is also an overriding condition that suitable arrangements must also
be made to cater to the needs of the civilian population. This condition is
supplemented by Article 14 para 2 API which provides that the Occupying
Power shall not requisition civilian medical equipment etc as long as
they are necessary for the provision of medical services and continuing
medical care for the benefit of the civilian population. Human resources
fall within the category of civilian resources from which requisition may
be made. The Occupying Power is entitled to make certain demands on the
378 Article 53 para 2 Hague Regulations
379 Fleck D., op cit, p. 293
174
civilian population under its control in some circumstances. In others, the

Occupying Power is absolutely prohibited under the humanitarian law.
One instance where the Occupying Power may make demands on the
civilian population is found under Article 51 GC IV. The Occupying Power
is entitled to compel civilians under the age of eighteen years to work either
for the benefit of the occupying armed forces or for the civilian population
at large. This is the effect of Article 51 para 2 GC IV and the fact of working
for the Occupying Power does not rid civilians of their civilian status or
their nationality.
The circumstances in which the Occupying Power may compel civilians
under its control are limited. No protected persons may be compelled to take
part in any work that would constitute taking part in military operations.
Civilians compelled to work may not be forced to do so for the benefit of
the Occupying Power. The construction of barricades, fortifications etc
will definitely be contrary to the requirements of Article 51 para 2 GC IV.
With respect to objects which are not exclusively military objects but
which may be used to contribute to military operations, the position is
less straight-forward. According to one author, work connected with
facilities such as public transportation, telephone facilities, reconstruction
of bridges or roads, which assist the military forces may be permitted in
certain circumstances.381 In the absence of clear words prohibiting all work
for the benefit of the occupying armed forces, this species of work may
be permissible.
With respect to facilities whose primary purpose is for the benefit
of the civilian population, the legal position is less cumbersome. These
projects which may be for agricultural purposes, the re-establishment of
public utilities such as water or electricity supply, are permitted under the
humanitarian law. At all times however, the work must be carried out within
the occupied territory as envisaged under Article 51 para 3 GC IV.
Apart from the compulsion of workers above eighteen years of age and
in non-military establishments, the Occupying Power is prohibited from
making any other demands from the members of the civilian population.
Article 51 para 1 GC IV for instance, provides that:
The Occupying Power may not compel protected persons to serve in
the armed or auxiliary forces No pressure or propaganda which aims
at securing voluntary enlistment is permitted.
381 Pictet 7, Commentary, Vol. IV, 294
175
This provision is an extension of the customary international law

rule expressed in Article 23 para 2 Hague Regulations which forbids the
compulsion of nationals by the occupying belligerent to take part in military
operations against their own country. The extension under Article 51 para 1
GC IV is that even the recruitment of nationals is prohibited. All forms of
pressure or propaganda aimed at securing voluntary enlistment are also
prohibited. Compelling a protected person to serve in the forces of a hostile
power is considered a grave breach of the humanitarian law under Article
147 GC IV.
It is equally prohibited for the Occupying Power to employ members
of the civilian population under its control to work outside the occupied
territory.382 This was a practice employed by the German authorities during
the 2nd World War where they compelled non-civilians to work in Germany.
Such acts are frowned upon by the humanitarian law. The employment of
civilians must be carried out only in the occupied territory and the workers
shall be paid a fair wage by the occupying authorities.
The Hague Regulations provides that:
A belligerent is forbidden to force the inhabitants of territory occupied
by it to furnish information about the army of the other belligerent or
about its means of defence.383
This prohibition under Article 44 Hague Regulations is supplemented

by Article 31 GCIV which provides that no physical or moral coercion shall
be exercised for the purpose of obtaining such information. Acts instigated
by the Occupying Power in this regard will constitute grave breaches under
Article 147 GCIV.
The Occupying Power may make demands on persons and facilities
within the occupied territory. Requisitions are permitted in so far as they
are within the limits imposed by the humanitarian law. Civilians may be
compelled to work but the work must be within the occupied territory
and must not be of a nature as to support the military operations of the
Occupying Power. In all categories of appropriation of civilian resources,
the interests of the civilian population must be given top priority. The
Occupying Power should endeavour to make appropriations which do not
totally alter the living and working conditions of protected persons even
after the state of occupation has come to an end.
383 Article 44 Hague Regulations
176
Rights and Obligations of the Occupying Power

Once there is a state of occupation, the authorities in control of the occupied
territory are entitled to certain rights. With these rights come duties and
obligations which are imposed upon the Occupying Power by the relevant
provisions of the humanitarian law. These rights and obligations are for the
benefit and burden of the Occupying Power from the moment they enter
into occupation of the occupied territory till the occupation comes to an end
and the territory is handed over to the original authorities.
Article 43 of the Hague Regulations provides that:The authority of the legitimate power having in fact passed into the
hands of the occupant, the latter shall take all the measures in his
power to restore, and ensure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in
the country.
The Occupying Power is expected to respect the laws in force in the

occupied territory. The fact that the Occupying Power is in control of the
territory does not vest in it automatic law-making capabilities since it is
merely an administrator of the occupied territory. It is not a successor-intitle to the rights of the authorities of the occupied territory and as such,
is required to take measures in accordance with the laws in force in the
occupied territory. The principle under Article 43 Hague Regulations is
supplemented by the provisions of Article 64 GC IV.
Article 64 GC IV provides exceptions to this rule commanding respect for
the national laws of the occupied territory. Where it is shown that the laws
in force constitute a threat to the security of the Occupying Power, they may
be suspended or repealed by the occupying authorities. The suspension as
permitted under Article 64 GC IV should not be extended to the suspension
of all the national laws in the occupied territory. Where the national laws
in place are equally shown to pose an obstacle to the application of the
humanitarian law, such laws may also be repealed or suspended by the
Occupying Power. These exceptions available under Article 64 GC IV fall
within the class of rights available to the occupying authorities. In any
event, great care must be taken in suspending or repealing national laws to
ensure that they do not go contrary to the humanitarian law requirements.
As a corollary to these rights, the Occupying Power may enact laws for
the purpose of maintaining public order and safety of the members of the
civilian population. This right is based on the interpretation of Article 64
GCIV. Once the occupying authorities have suspended or repealed national
177
laws of the occupied territory, they are required to put new laws in place to
restore and guarantee the public safety. In all situations of law making, the
laws made by the Occupying Power must be justified by considerations of
military necessity or public order and safety.
While the Occupying Power is recognized as an administrator in occupied
territory, the day-to-day administration of the territory is to be facilitated
by the administrative and judicial officials of the occupied territory. This
is based on Article 43 of the Hague Regulations which is to the effect that
the public order will be preserved unless absolutely prevented by certain
circumstances. The rationale behind this principle is that the uprooting
of all administrative and judicial officials will work great difficulty in the
operation of the occupied territory. For instance, the success of indirect
rule in Northern Nigeria was due to the maintenance of existing executive,
legislative and judicial structures. The British colonialists did not attempt
to rule directly but controlled the ruling class from the background. On
the contrary, indirect rule failed in the Eastern part of Nigeria because the
colonialists attempted to impose chiefs on the Igbo population who were
used to an egalitarian society characterized by age grades and family heads.
Attempts to uproot the existing administrative and judicial machinery in
the occupied territory will lead to upheavals and uprisings which may lead
to losses for the civilian population.
Where there is no administrative or judicial machinery in the occupied
territory (probably because the officials are unwilling or unable to perform
their functions), the occupying authorities may set up their own bodies to
perform these functions. This is to safeguard the public order and ensure
safety of the civilian population in occupied territory. The establishment of
new bodies however, should not be used as an opportunity by the Occupying
Power to completely erode the pre-existing order through the laws that
establish the administrative or judicial bodies. The bodies established by the
occupying authorities are only to exist alongside the national institutions of
the occupied territory.
With respect to public officials and judges, the GCIV provides that:
The Occupying Power may not alter the status of public officials or
judges in the occupied territories or in any way apply sanctions to
or take any measures of coercion or discrimination against them,
should they abstain from fulfilling their functions for reasons of
conscience.384
178
Public officials as used here may include persons serving in executive,

legislative or judicial capacity whether appointed or elected and performing
a public function. The rationale for maintaining the status quo as regards
public officials and judges is to ensure that the population is not bothered by
the foreign power in the day-to-day administration of the occupied territory.
Also that the members of the civilian population have a feeling of security
that the administration of the territory is in their interests
The operation of the administrative and judicial bodies in an occupied
territory may be likened to the operation of such bodies during a military
regime or dictatorship. Circumstances are bound to rise where the
Occupying Power is in conflict with the normal procedure obtainable and
acceptable in the occupied territory prior to its invasion. It is only where the
Occupying Power limits its actions within the confines of the humanitarian
law, and accepting responsibility for its violations that the frictions bound to
exist may be reduced.
The Occupying Power may not compel public officials or judges to
perform their duties. Article 54 para 1 GCIV ensures that they are not to be
subjected to sanctions or any other measures of coercion or discrimination
for refusal to perform their functions. The delicate situation brought about
by belligerent occupation may make judges and public officials refuse to
do their jobs as a matter of conscience. The Occupying Power must respect
these personal decisions and refrain from acts which would be detrimental
to the officials. Judges and public officials are civilians within the meaning
of GCIV and as such are entitled to its basic protections. In line with the
protections available under the GCIV, judges or public officials as civilians
shall not be the object of attack as envisaged under the API.385
Since the Occupying Power cannot compel public officials or judges to
perform their functions, this will definitely create some difficulty in the
administration of the occupied territory. In the case of public officials,
they may be removed from their posts.386 With respect to judges, the
independence of the judiciary is guaranteed even in times of belligerent
occupation. The only thing the occupying authorities can do is to
appoint new judges who will be willing to perform their duties under the
dispensation of the Occupying Power.
The national laws in place in occupied territory before the invasion of the
Occupying Power must be respected as much as possible. The Occupying
Power is not to erase the pre-existing laws neither is it to render all pre385 Article 51 para 2 API
179
existing administrative and judicial bodies redundant. The humanitarian

law recognizes that the Occupying Power may have to put laws in place to
guarantee the public order and safety of the population in occupied territory.
Such newly made laws will only be permissible where shown to be absolutely
necessary. The rights of public officials and judges must be jealously guarded
to ensure the proper working of the administrative and judicial machinery.
At all times, the interests of the protected persons in the occupied territory
must be taken into consideration.
Relief Supply in Occupied Territory

The Fourth Geneva Convention provides that:
To the fullest extent of the means available to it, the Occupying
Power has the duty of ensuring the food and medical supplies of the
population; it should, in particular, bring in the necessary foodstuffs,
medical stores and other articles if the resources of the occupied
territory are inadequate.387
From the wording of Article 55 para 1 GC IV, the supply of relief is a

duty imposed on the occupying authorities for the benefit of the civilian
population. This however, is not an absolute imposition and so the Occupying
Power is only required to provide relief supplies to the fullest extent of the
means available to it. Article 69 of the API supplements this provision by
adding that the Occupying Power without any adverse distinction, shall
ensure the provisions of clothing; bedding, means of shelter, (and) other
supplies essential to the survival of the civilian population of the occupied
territory and objects necessary for religious worship.
The requirement of acting to the fullest extent of the means available to
it ensures that the Occupying Power is not required to fulfill all the relief
needs of the civilian population under its control. Be that as it may, the
Occupying Power still has a responsibility for the protection of the civilian
population which should not be shirked for unconvincing reasons. By
taking over the control of a territory, the duties ordinarily incumbent on
the national authorities of the occupied territory, fall on the shoulders of the
Occupying Power. The Occupying Power must endeavour to supply these
materials where they are shown to be lacking in order to avoid a situation
180
where they are viewed as deliberately starving the civilian population which
is contrary to the humanitarian law.388
By Article 55 para 2 of the GC IV, available foodstuffs, articles or medical
supplies available in the occupied territory may not be requisitioned except
for use by the occupation forces and administrative personal. Even then, the
needs of the civilian population must have been taken care of. This provision
places the interests of the civilian population before and above those of
the occupying armed forces. It will be unfair for the civilian population
in occupied territory to suffer unjustly while the Occupying Power satisfy
their interests first and even the interests of their own population in
some circumstances.
When the Occupying Power is unable to cater for the supply needs of the
population under its control, the onus shifts to either the authorities of the
unoccupied part of the country, or to a neutral party, or to a recognized
humanitarian organization. The Occupying Power is not obliged to accept
offers of relief from any of these sources when the population is adequately
supplied. However, the occupying authorities are advised to do so in the
interests of protected persons in the occupied territory. Where they refuse
to accept relief from these sources, perhaps for reasons of security, the GCIV
provides that the protected persons in occupied territory are permitted to
receive individual or private relief consignments sent to them.389
Where the relief supplied is still not sufficient to cater for the needs of the
civilian population, they are obliged under the humanitarian law to allow
aid from other states or humanitarian organizations. The relief activities
from any other source must be facilitated by the Occupying Power. Despite
this, they (the occupying authorities) may impose restrictions such as
determining what routes the relief supplies must pass through and may
search relief vehicles for their protection.
All contracting parties (which need not be involved in the armed
conflict) must permit the free passage of relief supplies and guarantee their
protection.390 The interest of the civilian population in any armed conflict
supersedes all laws that restrict the movement of persons and objects in and
out of sovereign territory. Third party states must permit the free passage of
relief supplies intended for the civilian population in occupied territory. To
ensure their protection, these third party states are entitled to search relief

389 Article 62 GCIV
181
vehicles so that they may not be used to convey illegal substances such as
hard drugs or weapons into their territory.
From the requirement of the GCIV, the Occupying Power as well as other
neutral states has a duty to provide relief supplies for civilian persons in
occupied territory. In practice however, it is the International Committee
of the Red Cross (ICRC) that undertakes this function. Over the years, the
ICRC has proven itself to be a neutral organization and it does not make any
adverse distinctions in the distribution of relief supplies. Furthermore, the
ICRC is not often seen as interfering with the government of the Occupying
Power which is also due to its neutral status. The ICRC further enjoys legal
backing under Article 63 GCIV which permits them to pursue their activities
even in occupied territories unless subject to temporary and exceptional
measures imposed for urgent reasons of security by the Occupying Power. It
should be borne in mind that relief materials do not carry themselves. They
are to be transported by relief personnel and these persons are afforded
protection under the API.391
The legal backing available to the ICRC and other humanitarian
organizations under Article 63 GC IV apply equally to the National Red
Cross or Red Crescent Society. In fact, it is these latter bodies that are
expressly mentioned by Article 63. However, since the ICRC is responsible
for the recognition of these societies, they may also rely on Article 63 GC
IV. They are required to pursue their duties in accordance with Red Cross
Principles of Humanity, Impartiality, Neutrality, Independence, Voluntary
Services, Unity and Universality. The Red Cross Societies must be guided
by these principles (impartiality and neutrality in particular) in the course
of carrying out relief operations for the benefit of the civilian population
resident in occupied territories.
Article 56 of the GC IV imposes on the Occupying Power, the duty of:
ensuring and maintaining, with the cooperation of national and local
authorities, the medical and hospital establishments and services,
public health and hygiene in the occupied territory
As with the general relief supplies (food, clothing etc), the Occupying
Power is duty bound to provide the necessary medical care. This may be
achieved through the maintenance of the existing medical infrastructure and
personnel. In circumstances where the pre-existing medical establishments
are inadequate as well as the medical supplies, the Occupying Power is
required to provide them with the fullest amount of the means available to
391 Article 71 API
182
it. If it is unable to provide them, it is obligated to receive medical supplies

from neutral parties or recognized humanitarian organizations.
The Occupying Power is required to take further steps with particular
respect to the adoption and application of the prophylactic and preventive
measures necessary to combat the spread of contagious diseases and
epidemics. In the history of armed conflict and war, the spread of contagious
diseases is known to be a leading cause of death to members of the civilian
population. In some circumstances these diseases are even generated as
biological weapons of warfare against the civilian population as well as
their livestock. It is thus necessary and imperative for the Occupying Power
to take all measures which will serve to prevent the spread of contagious
diseases in occupied territory. Where they cannot acquire the necessary
vaccines to curb the spread of diseases, they are obliged to receive relief
supplies from other sources.
By taking over the control of occupied territory, the duty of ensuring
that the civilian populations do not die of hunger shifts to the occupying
authorities. The Occupying Power must act to the fullest extent of the
means available to it to provide necessaries for the civilian population. To
further safeguard the interests of the population, the Occupying Power is
obliged to accept relief consignments from neutral states and humanitarian
organisations. The pride of the Occupying power should not constitute a bar
to the adequate provision of necessaries for the survival of the population in
occupied territories.
Punishment for crimes under the Humanitarian Law

The Fourth Geneva Convention provides that:
The penal laws of the occupied territory shall remain in force with the
exception that they may be repealed or suspended by the Occupying
Power in cases where they constitute a threat to its security or an
obstacle to the application of the present Convention.392
Article 64 para 1 shows here that the national laws of the occupied
territory remain valid even in a state of belligerent occupation. The only
circumstances in which the application of the domestic penal laws may be
suspended or repealed are either where:
1. They constitute a threat to the security of the Occupying Power; or
183
2. They constitute an obstacle to the application of the GC IV.

With respect to (2) above, the domestic laws may be suspended where
they constitute obstacles to the application of the humanitarian law as a
whole and not just the GC IV.
Where circumstances make it necessary (e.g. for maintaining orderly
government or ensuring the Occupying Powers security), the Occupying
Power may enact penal laws.393 Such enactment must be in accordance
with the general principles of law as they relate to law making. As such,
retroactive legislation which punish persons for offences committed before
its formulation, are not to be enacted by the Occupying Power. This is in line
with human rights principles as enshrined in the International Covenant on
Civil and Political Rights 1966 thus:
No one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence, under
national or international law at the time when it was committed.394
Similar provision also exists under Article 75 para 4 (c) of the API.
Retroactivity should never be used as a means to ensure that persons are
punished. In addition, a heavier penalty than the one applicable at the time
the offence was committed is not to be imposed. All penal laws enacted
by the Occupying Power shall not come into force unless they have been
published and brought to the knowledge of the population in occupied
territory in their own language.395 This requirement of Article 65 GC IV is
very necessary as it serves to propagate the knowledge of the new laws as
well as guarantee observance on the part of the civilian population.
Any breach of the penal laws enacted by local authorities prior to the
invasion of the Occupying Power is to be prosecuted by the local courts. This
makes it easier for the civilian population to submit to the courts authority
as they recognize these courts as their own. It is only where the indigenous
courts refuse or are unable to perform their duties effectively that the courts
established by the Occupying Power may replace them.
With respect to offences committed before the invasion of the Occupying
Power, the courts established by this foreign power may, as a general rule,
refrain from prosecuting crimes committed by the civilian population before
the occupation. The exception to this general rule is set out under the GC
IV which provides that the Occupying Power may prosecute in cases of the
394 Article 15 ICCPR 1966
184
breaches of the laws and customs of war396 These may include crimes against
humanity as well as grave breaches envisaged under Article 147 GC IV.
Where there is a breach of the penal laws enacted by it, the Occupying Power
may hand over the accused to its properly constituted, non-political military
courts. Such courts must however, sit in the occupied territories.397 The courts
established by the Occupying Power are usually military courts and as such,
the judges are members of the armed forces. Circumstances may arise where
a person convicted of crimes against the law wishes to appeal this decision. By
Article 73 GC IV, convicted persons have the right to appeal pursuant to the
laws applied by the court. To satisfy this situation, the Occupying Power may
establish an appeal court. In the absence of an appeal court, the convicted
person may appeal to the competent authority of the Occupying Power. In
all legal proceedings before a court established by the Occupying Power, the
principles of the rule of law shall be the governing criteria.398
Article 67 GC IV is to the effect that the penalty imposed on any accused
person must be proportionate to the offence committed. This provision
is of great relevance in situations of belligerent occupation to prevent the
Occupying Power from imposing harsh penalties for lesser offences. Article
68 para 1 GCIV goes further to provide for minor offences. From the wordings
of the Article, acts which do not constitute bodily harm to the occupying
armed forces and which do not damage the property of the Occupying
Power are minor offences liable to simple imprisonment or internment.
For more serious offence like espionage, acts of sabotage or international
offences causing death of one or more persons, the Occupying power may
impose the death penalty.399 However, it must be shown that such offences
were punishable by death under the law of the occupied territory in force
before the occupation began. In any case where the death penalty is imposed,
Article 68 para 4 GC IV provides that it shall not be pronounced against a
protected person who was under eighteen year of age at the time the offence
was committed. The API in Article 76 para 3 goes further to provide that the
death sentence shall not be executed against pregnant women or mothers
having dependent infants.
In no case shall persons condemned to death be deprived of the right of
petition for pardon or reprieve.400 Where the petition is granted, the penalty
396
397
398
399
400
Article 66 GC IV
Article 67, 69 75 GC IV; Article 75 API
185
which the accused person would have been subjected to will be lifted. This is
in accordance with the general principles of law recognized among civilized
nations. As a corollary to this rule, Article 75 para 2 provides that no death
sentence shall be carried out until 6 months have passed after the sentence
was issued. This is to give the convicted person the opportunity to appeal to
a higher authority for pardon.
Article 76 GC IV provides that protected persons accused of offences
shall be detained in the occupied territory and shall serve their sentences
therein if convicted. While in detention, they shall enjoy food and hygiene
conditions necessary for good health and which will at least be equal to
those obtainable in other prisons in the occupied territory. In addition to
this, detained persons are entitled to the following treatment:
1. To receive medical attention required by their state of health (Article
76 para 2)
2. To receive any spiritual assistance they require (Article 76 para 3)
3. Women are to be confined to separate quarters and under the
supervision of women (Article 76 para 4)
4. Special treatment for minors (Article 76 para 5)
5. To be visited by the delegates of the Protecting Power and the ICRC
(Article 76 para 6)
6. To receive at least one relief parcel monthly (Article 76 para 7)
At the end of the state of belligerent occupation (which may be occasioned
by different means), protected persons who have been accused or convicted
are to be handed over to the authorities of the liberated territory. This is
the effect of Article 77 GC IV and it is aimed at ensuring accountability on
the part of the Occupying Power and also that persons who have allegedly
or actually violated the law are held responsible even after the Occupying
Power has handed over the occupied territory.
Aliens in the territory of a party to the conflict

Section II of Part III of the GC IV deals exclusively with aliens who find
themselves in the territory of a party to the conflict. By Article 35 GC IV, aliens
who desire to leave the territory where hostilities are taking place are entitled
to do so. However, they may be prevented where such departure is contrary
to the national interest of the state. The state may exercise wide latitude in
the determination of what constitutes the national interest. According to
186
Pictet, economic considerations may be proffered to prevent persons from

leaving the state on the grounds of national interests.401 Whatever the case,
the application of alien persons who decide to leave the state must follow
regularly established procedures. It should be noted that all departures must
be carried out in satisfactory conditions of safety, hygiene, sanitation and
food as provided for under Article 36 GC IV.
Where aliens in the territory of a party to the conflict have been confined
pending proceedings or are already serving a sentence, they are to be treated
humanely. This is the effect of Article 37 GC IV. When they have been released
from incarceration, they may also ask to leave the territory in accordance
with Article 35 GC IV.
While in the territory of the party to the conflict, alien persons are entitled
to some fundamental rights and guarantees. These rights are provided for
under Article 38 GC IV and are similar to those available to members of
the civilian population in occupied territory. The following rights shall be
granted to them:
1) They shall be enabled to receive the individual or collective relief that
may be sent to them.
2) They shall, if their state of health so requires, receive medical attention
and hospital treatment to the same extent as the nationals of the
state concerned.
3) They shall be allowed to practice their religion and to receive spiritual
assistance from ministers of their faith.
4) If they reside in an area particularly exposed to the dangers of war, they
shall be authorized to move from that area to the same extent as the
nationals of the state concerned.
5) Children under fifteen years, 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.
These rights are not to be denied under any circumstances by the state in
whose territory they are located. It should be noted that these rights are not
exhaustive as aliens are also entitled to the general rights available under the
humanitarian law in the course of any armed conflict.
At the end of hostilities, all restrictive measures imposed on protected
alien persons shall be cancelled as soon as possible. Such measures
which may also have affected their property shall equally be cancelled in
401 Pictet, Commentary, Vol. IV, 236.
187
accordance with the law of the detaining power as soon as possible after the
close of hostilities.402
The rules on the protection of the civilian population has evolved from
an era where rules were non-existent or grossly inadequate to the current
situation under the humanitarian law which have numerous provisions
to safeguard civilian persons in any armed conflict. The primary purpose
of armed hostilities within and between nations shall never be to cause
unnecessary harm and suffering to the members of the civilian population.
Only military objectives are to be attacked. It is only where individual
civilians or members of its population act in breach of certain protections
available to them that the civilian status may be lifted temporarily. While
the hostilities persist, the civilian population is entitled to several rights
which must be guaranteed despite the presence of hostilities.
Specific prohibitions are put in place to prevent certain acts against
members of the civilian population. Similarly, special protection is available
to some categories of persons such as children, pregnant mothers and
mothers of dependent children. Once a person is shown to be a civilian, the
general requirement of humane treatment immediately becomes applicable
to that person.
The ICRC, the National Committees of the Red Cross and Red Crescent
Societies have specific obligations in relation to the protection of the civilian
population. Other international and national humanitarian organizations
also have similar duties with respect to the civilian population. These
functions and duties must be performed without fear or favour to further
guarantee that the members of the civilian population are catered for even
during armed conflict situations.
Despite the extensive provisions relating to the protection of civilians,
there is still room for improvement of the existing laws. Stiffer penalties
are necessary with respect to certain violations are detrimental to the
existence of the civilian population. The gap between law making and
its implementation must be narrowed down to guarantee protection of
the civilian population and reduce violation of the humanitarian law.
Compliance to the laws must be ensured and failure to comply must not be
treated lightly by the United Nations and states around the world.
402 Article 46 GCIV
188
CHAPTER
5
Protection of the Wounded, Sick and Shipwrecked
I. Introduction
The protection available for the wounded, sick and shipwrecked during
armed conflicts has a long history in various traditions and cultures.403
Notwithstanding, however, much as in other areas of international
humanitarian law to be specific and public international law generally
speaking, the basis of the codification in international legal instruments
of this universal idea lies in Europe. It was also in Europe, that the first
ever general multilateral convention, the 1864 Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field,
took shape. The 1864 Convention was the brainchild of Henry Dunant, a
Swiss businessman. Having witnessed the fate of those wounded during the
battle of Solferino in 1859 and having personally attended to them alongside
other volunteers, he wrote Un Souvernir de Solferino (1862) in which he
chronicled and recorded the lack of arrangements made for those who had
been wounded in battle.
Two fundamental and laudable suggestions as to the measures, which
should be taken to alleviate the situation: the setting-up of relief societies
for the purpose of giving care to the wounded in wartime by enthusiastic,
committed and highly competent volunteers404 and to formulate some
international principle, backed by a convention inviolate in character,
which, once it has been agreed upon and ratified, may form the basis for
societies for the relief of the wounded in the different European countries.405
No doubt, his book had an overwhelming impact on the political elites and
the public generally in Europe and the two suggestions he made saw the
light of the day afterwards. The years 1863 and 1864 saw the establishment of
International Committee for Relief of the Wounded (which later became
the International Committee of the Red Cross in 1876) and Geneva
403 Henry Dunant Institute (Ed.) International Dimension of Humanitarian Law (2007)
117-125
404 Dunant, H The Battle of Solferino, (Geneva: ICRC 1986)
405 Ibid, at 30
189
Protection of the wounded, sick and shipwrecked
Convention for the Amelioration of the Condition of the Wounded in

Armies in the Field was adopted respectively.406 The nitty-gritty of the 1864
Convention was anchored on three broad principles.
First, it spelt out the fundamental obligation of States parties to collect
and care for wounded or sick combatants, irrespective of their state of
origin.407 Secondly, Articles 1-5 centered on the neutrality and inviolability
of medical personnel and persons living the country who bring help to the
wounded, as well as of medical establishments, units and equipment.
Thirdly, the 1864 Convention introduced the distinguishable sign of
the Red Cross on a white background for the purpose of identification of
hospitals, evacuation parties, ambulances and medical personnel.
The 1864 Geneva Convention is the basis of what has since become
known as Geneva Law (that is the law of protected persons). It remains the
precursor to a number of subsequent treaties, which built on and develop
the three underlying principles of the 1864 Convention. Most of the treaties
mentioned are applicable in international law408. Since the adoption of
Common Article 3 and Additional Protocol II 409, the law that regulates noninternational armed conflict also incorporates a number of treaty rules,
which provides protection for the wounded, sick and shipwrecked.
The staff of National Red Cross Societies and other Voluntary Aid
Societies duly recognized and also recognized by their Governments rank
pari passu to military medical personnel provided that their activities are
circumscribed by military laws and regulations.410 Additional Protocol I
broadens the range of activities of the National Societies in time of war, in
that it expressly permits them, in ambushed or occupied areas to provide
needed help to the population on their own initiative. The parties to the
conflict may also engage the services of these societies to collect and care for
the wounded, sick and shipwrecked and no one shall be in danger of been
harmed, prosecuted, convicted or punished for such humanitarian acts.
In this chapter, we shall attempt to take a deep examination of protection
of the wounded, sick and shipwrecked with particular emphasis on the
wounded, sick and shipwrecked persons, dead and missing persons, medical
406 Moorehead, C.` War, Switzerland and the History of Red Cross `(London: 1998), PP
1-22
407 Article 6
408 Rules 25-26, 28-30, 35, 109-117 Customary International Humanitarian Law
particularly
409 Part 111, Articles 7-12 Additional Protocol II
410 Article 26
190
units, Transport and Personnel, Medical Aircraft, Hospitals, Safety zones

and Neutralized Zones and the characteristic emblem.
II.
Wounded, Sick And Shipwrecked Persons
The wounded, the sick and the shipwrecked are taken care of under the
Geneva Conventions. The Geneva Convention for the Amelioration
of the Condition of the wounded and sick to Armed Forces in the Field
(First Convention), Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (second
convention) and Convention Relative to the Protection of the Civilian
Persons in Time of War part II (Geneva Protection of Populations against
Certain Consequences of War), and Additional Protocol of 1977, Part II
(wounded, sick and Shipwrecked).
It is instructive to note that two different set of rules are brought into
application under the Geneva Conventions depending on whether the
wounded, sick or shipwrecked persons are members of the armed forces
or only civilians. However, Protocol I did away with this distinction and
came up with just one law for both categories which essentially simplifies
the practical application of the provisions. There are now only wounded
and sick, whether military or civilian and only medical units whether
under military or civilian administration. As a result of this, a civilian
wounded can be treated in military hospitals and combatants equally in
civilian establishments.
Article 8, Additional Protocol I provides that wounded and sick mean
persons, whether military or civilian, who because of trauma, disease
or other physical or mental disorder or disability, are in need of medical
assistance or care and who refrain from any act of hostility. These terms
also cover maternity cases, newborn babies, and other persons who may
be in need of immediate medical assistance or care, such as the infirm or
expectant mothers, and who refrain from any act of hostility.
Shipwrecked persons are those classes of persons, whether military or
civilian, who are in danger at sea or in other waters as a result of misfortune
and who desist from all known acts of hosstility411
Clearly, the definition of persons protected under the various treaties
for the protection of the wounded, sick and shipwrecked came about
from the adoption of the 1864 Geneva Convention, which applied only to
combatants. It was the 1906 Geneva Convention that widened the scope of
411 Article 8, Additional Protocol I
191
application to include other persons officially attached to the armed forces,

and the 1929 Geneva Convention in the same vein referred to officers and
soldiers and other persons officially attached to the armed forces. As it
concerns warfare at sea, the Hague Convention (111)412 applied to sailors
and soldiers who are taken on board, whereas the 1907 Hague Convention
(X) added to the definition other persons officially attached to fleets or
armies in allusion to the Geneva Convention of 1906. By reason of the person
or persons concerned, GC I and II are wider and broader in their scope.
Succinctly, Article 13 of GC I and II stipulated that the two Conventions
apply to all wounded, sick and shipwrecked persons. As a result, if they fall
into hands of the enemy, they are expected to be protected by GC I, II and III,
even though the applicability of the latter Convention will only materialize
in full once wounded and sick military personnel are brought back behind
the lines and are on the way to recovery and care413
GCIV is the first treaty, which governs some aspects of the protection
of wounded and sick civilians. The infirm, expectant mothers and other
civilians in need of medical attention are included in the rules provided by
GCIV.414 GCIV in addition laid down other rules on the treatment of more
specific categories of civilians, viz wounded and sick in captured territory
and those who are incarcerated.415 As it has been said earlier, before the
adoption of Additional Protocol I, international humanitarian law only
recognized a two-fold system of protection: An almost identical regime
under GC I and II for both wounded and sick on land and wounded, sick and
shipwrecked at sea on the one hand, and a more basic system of protection
for civilians under GC IV.
The generic nomenclature of sick wounded, and shipwrecked in GCI and
II and Additional Protocol I also extends to air forces.416 This in effect means
that a wounded member of the air force enjoys or should enjoy the protection
of GCI and Additional Protocol I if seen on land, and the protection of GCII
and Additional Protocol I if found at sea. Members of the armed forces
who are forced to make emergency landing at sea or from aircraft are to
be considered shipwrecked.417 Article 42 Additional Protocol I provide
protection for persons who are parachuting from an aircraft from being
412 1899
413 Pictet, J.S Commentary GC I, 159 (Actually referring to latent P.O.W)
414 Articles 14-22 GC IV
415 Articles 57, 76, 81, 91, 106, 127, 132 GC IV (for illustration)
416 Pictet, J.S Commentary GC II, p86
417 Article 12 GC II
192
attacked during their descent and upon landing in territory controlled and
occupied by an enemy. They must also be given the opportunity to surrender
before being attacked, unless it is undoubted that they are involved in a
hostile act.
Where a person engages in hostile activities, such a person ceases to enjoy
the protection available for those that are wounded, sick or shipwrecked,
even if he/she is in dire need of medical attention or is in danger at sea or
other waters. Such a person is not protected from being made the object of
attack within the ambit of international humanitarian law. It is however not
clear what acts would be considered hostile as the law is not unequivocal
about that. However, hostile acts are those which by their nature and
purpose are intended to be actually harmful to the personnel as well as
equipment of the enemy armed forces.418 Acts in this category will include
vandalization of installations and military equipment, firing of shots, a
planned attempt to escape or to communicate with the party to the conflict
to which the wounded, sick or shipwrecked person belongs, except this
communication affects the wounded and sick who need assistance from the
partys medical services.419
As soon as a person in need of medical attention or in danger at sea or
in other waters stops committing hostile acts, that person automatically
becomes entitled to be protected as a wounded, sick or shipwrecked person.
This does not however affect any possible prosecution for a war crime of
perfidy, provided the conditions of Article 37 Additional Protocol I are met.
To qualify or enjoy the protection open for the wounded or sick
person, a person must therefore be in actual need of medical aid or care
occasioned by trauma, disease or other physical or mental disorder or
disability.420
Invariably, this definition in Additional Protocol I extend also to persons,
who are not sick or wounded in the literal meaning of these words,
which is evident from the inclusion of new born babies and pregnant
mothers into the definition. 421 The word shipwrecked has been given a
rather broad definition by Additional Protocol I. it is not limited to those in
danger at sea but also include those in peril in other waters.
418 16 International Committee of the Red Cross, Commentary p.618

419 Ibid 118-119, 488-489
421 ICRC Commentary, 117
193
Article 10 of Protocol I under the title Protection and care states

as follows:
All the wounded, sick and shipwrecked, to whichever party they
belong shall be protected. In all circumstances they shall be treated
humanely and shall receive, to the fullest extent practicable and with
the least possible delay, the medical care and attention required by
their condition. There shall be no distinction among them founded on
any grounds other than medical ones.
The Article obliges the belligerents to take the following measures

regarding the wounded, sick and the shipwrecked:
Respect: To respect a person is to pay proper attention or consideration
to that person.422 Defenceless persons must be treated as their condition
requires, and always with humanity. The duty imposed on the belligerents
to respect requires parties to an armed conflict and their individual
collaborators to refrain from acts that would endanger a wounded, sick or
shipwrecked person or further cause more harm on him/her. The respect
obligation also extends to civilians and the civilian population.
Protect: Defenseless persons must be shielded from injustice and danger
i.e. the effects of hostilities and against possible assaults on the hostilities of
their persons. Suitable and adequate measures must be taken to guarantee
such protection.
To protect according to Pictet423 means that parties to an armed conflict
must take active steps to ensure that the rights of a person are safeguarded.
The duty to protect and respect is the basis of the protective regime
established by the GCs, Additional Protocol I and II, as well as customary
Humane Treatment: Generally speaking, commissions or omissions that
cause mental or physical suffering represent attacks on bodily or mental
integrity or on human dignity, do not obviously fit into the description. In
this regard, humane treatment requires in general terms that the person
affected is treated in order to lead an acceptable existence in as normal a
manner as possible.424
It is instructive to note that the four Conventions preface their provisions
with a directive that the defenseless should receive humane treatment, the
wording in each case being adapted to the specific categories of persons
422 Collins English Dictionary, p. 744
423 Commentary GCI pp. 134-35
424 Pictet J. S The Fundamental Principles of the Red Cross (1965) p I
194
covered by the Convention. As an illustration, the first Convention, the

Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick to Armed Forces in the Field in paragraphs 1 to 4 of Article 12 states
as follows:
Members of the armed forces and other persons mentioned in the
following Article, who are wounded or sick, shall be respected and
protected in all circumstances. They shall be treated humanely and
cared for by the party to the conflict in whose power they may be,
without any adverse distinction founded on sex, race nationality,
religion
Medical Care and Attention: The requirement that wounded, sick and
shipwrecked are also to be cared for is derived from the duty to protect:
it requires belligerent parties and individual soldiers to make sure the
medical care and attention required by the person is duly given to him/
her. These persons are entitled to medical care, and should not be neglected
as enemy persons on account of their origin. However, the clear instance
of complying with the duty to provide such care is circumscribed by the
material practicability to do so.425
A visitor who came into Nigeria and stopped over in Gbaramatu
Kingdom, in Delta State to be precise, sometime in May, 2009 would think
that the Nigerian Army was at war with a foreign foe. The relevance of
that epic showdown to our discourse is that it raised a lot of humanitarian
issues. A humanitarian crisis of immense proportion brewed in the raided
Niger Delta communities of Nigeria where reports have it that thousands
of persons including women and children are stranded in the bush.426
Following this inhumane treatment the Committee for the Defence of
Human rights (CDHR) in the state called for restraint by the feuding groups
to assuage the suffering of innocent civilians, women and children caught
up in the fighting. It is quiet shocking that a matter, such as flushing out
of militants, assumed an unspeakable dimension. The issue is why didnt
the Nigerian Army respect all known International humanitarian laws in
engaging the militants with cross fire? A situation where women, children,
and indeed defenseless civilians were not respected, protected, cared for,
no access to medical care falls short of humane treatment. It was therefore
not a surprise that foremost human rights group, Amnesty International
called on members of the Armed Forces and militants engaged in the
425 Article I0
426 The Nation, Monday 18, 2009 p.4
195
ongoing fight in the Niger Delta not to trigger human rights abuses. The
group in a strongly worded statement urged the soldiers and armed group
not to forcibly displace people and ensure unlimited access to those in need
of medical attention. The statement tagged Nigeria: unlawful killings/
displacement/access to medical care:, reads partly: Amnesty International
is calling on the Joint Task Force (JTF) and armed groups to use force only
in a way that does not result in human right abuses, not to forcibly displace
people and ensure free access to those in need of medical care.
Since 13 May, 2009, thousands of villagers have been displaced and
thousands more are trapped in the cross fire between the JTF, which is
composed of troops of the Army, Navy, Air Force and the mobile police set
up in 2004 to restore order in the Niger Delta and armed groups in Delta
State in Southern Nigeria.
The JTF offensive began on 13 May after the JTF was reportedly attacked
by armed groups in Delta State. The JTF has been conducting land and
air strikes on communities across the Warri South and South-West local
government areas where the Nigerian government believes the camps of the
armed groups are located. Hundreds of people are feared dead427
It is very fundamental at all times for belligerents to respect humanitarian
law as it has to do with the protection of civilian population and civilian
establishment. Failure to adhere to this will make mockery and nonsense of
all known international humanitarian law doctrines.
The obligation to respect and protect wounded, sick, and shipwrecked, it
must be borne in mind, is applicable in all circumstances. The postulation
means that parties to an armed conflict cannot invoke military expediency
as a justification for preventing the wrongfulness of non-compliance,
except the appropriate rule is overly subject to a number of exceptions on
grounds of military necessity.428 Article 10 Additional Protocol I provide an
example of openings for considerations of military expediency in the area
of the protection of the wounded, sick, and shipwrecked, but do not have a
collective suspensory effect429
Any contrary distinction between wounded, sick and shipwrecked
on other basis other than medical ones is forbidden. The reason for that
prohibition is to ensure that the wounded, sick and shipwrecked, be it a
friend or foe, military personnel or civilian, are to enjoy the same protection,
427 The Nigerian Nation Newspaper, Friday, May 22, 2009 pp 2 and 3
428 Kalshoven/Zegveld Constraints pp. 37 and 84
429 McCoubrey, H. The Nation of the modern doctrine of military Necessity (1991), 215252 (229)
196
respect and care, to the extent and if they are in need of it. The rules
already mentioned in GC I and II and in Additional Protocol I are a further
manifestation of the general principle of non-discrimination, which is at the
heart of humanitarian law as a whole.430 It is pertinent to emphasize that
the principle only forbids adverse distinctions, but does not in any way
prevent special treatment and care for those in more precarious and urgent
need of medical attention than some others.431 Such special or preferential
treatment and care may be occasioned by the very nature of the wounds
of the protected person, but also by some other features (physical).432 The
preferential treatment for women is made mandatory by Article12 GC I and
II on the condition that they shall be treated with all consideration due to
their sex. In terms of criteria for the justification of treating one protected
person differently from another person, international humanitarian law
does not stipulate a standard set of medical grounds or reasons. Such
criteria instead are derived from standards of medical ethics and practice.
Duty to search, collect and evacuate the

wounded, sick and shipwrecked
Article 15 GCI 433 in summary states that:
All possible measures shall be taken at all times to search for, collect
and evacuate the wounded, sick and shipwrecked and to ensure
adequate medical assistance.
The parties to an armed conflict are under the sacred duty to search
for, collect and evacuate the wounded, sick and shipwrecked, provided
circumstances allow them to so act. That obligation is compelling on them
especially after engaging in armed conflict. Article 15 also enjoins parties to
an armed conflict to arrange for a cease fire, local arrangement or armistice
with the aim of removing, exchanging and transporting the wounded left
on the battlefield. The obligation imposed on parties to take all possible
measures to search for, collect and evacuate and to ensure the prompt
medical assistance of the wounded, sick and shipwrecked equally means that
parties to an armed conflict, which are evidently unable to do so themselves
430 Rule 88 CIHL Other examples on the prohibition of adverse distinction as it concerns
the protection of the wounded, sick and shipwrecked Article 9, Additional Protocol I
and Article 9 Additional Protocol II
431 Rule 110 CIHL
432 Pictet J. S Commentary I, 138
433 Article 18 GC II, Article 19 GC II, Article 16 GC IV
197
must permit humanitarian organizations e.g. The International Committee

of the Red Cross to actualize that duty or aid in that pursuit.434 Additionally,
by Article 18 GC I, the military authorities may appeal to the civilian
population to collect and care for the wounded, sick, and shipwrecked and
the civilian population may also do so on its own initiative.
As it concerns the evacuation of prisoners of war, GC III provides for the
general obligation in its Article 19 for their evacuation away from the combat
zone, whether they are hale and hearty or wounded, sick or shipwrecked.
Article 19 however creates an exception by allowing the wounded and sick
prisoners of war to be kept in a danger zone if an evacuation appears to be of
greater risk to their health than to remain where there they are.
Parties to an armed conflict must take steps and see to it that protected
persons be guarded and where necessary, defended against pillage and illtreatment; this is the thrust of the obligation to protect the wounded, sick,
and shipwrecked against pillage and ill-treatment. The word pillage, which
is synonymous with looting or plunder, means illegally appropriating of
property by individuals for personal or private use without first seeking and
having the consent of the rightful owner. The forcible seizure of anothers
property, especially in war, especially the wartime plundering of a city or
territory has been defined to mean pillage.435 Sometimes, it is suggested
that such appropriation is actually required to be systematic and violent in
order to amount to pillage.436
Prohibition against Inconsistent and Generally

Unacceptable Medical Standards
Article 11437 summarily states that:
It is prohibited to subject wounded, sick, and shipwrecked persons
who are deprived of their liberty as a result of an armed conflict or
occupation to any medical procedure not consistent with generally
accepted medical standards.
By this provision, the wounded, sick, and shipwrecked persons are

insulated against abusive and degrading medical procedures contained in
the Geneva Conventions, which forbid biological test or experiments and
the creation of certain conditions through which persons are exposed to
434
435
436
437
Jean-Maria Henckaerts, Customary International Humanitarian Law, VOL. I, 398 p.402

Blacks Law Dictionary, Seventh Ed. P. 1168
Verri, P., Dictionary of the Intl law of Armed Conflict p. 85
Additional Protocol I
198
contagion and medical and scientific tests not justified by the persons state
of health. The condition would have been met where for example; parties
to an armed conflict take all hygienic steps to prevent a concerned persons
wounds from becoming infected. Commentary on the Additional Protocols
(ICRC 1987)438 equally provides that medical experiment, which adversely
affect the mental capacity of protected persons are prohibited. In addition,
Article 5 Additional Protocol II expressly prohibit any procedure in the
field of medicine, which is not signaled by the state of health of the person
involved and which is contrary to universally accepted medical standards
which will be applied under identical medical circumstances to persons
who are by no means denied of their freedom.
All persons who are in the power of adverse party or who are incarcerated,
detained or deprived otherwise of freedom arising from international armed
conflict or occupation are also prohibited. Civilian internees, persons who
have been denied permission to have the territory occupied of the adverse
party, prisoners of war, persons living in the territory occupied by the
adverse party or who are one way or the other in the power of the adverse
party will enjoy the protection offered in Article II Additional Protocol I. It
is instructive to note that a violation of Article II Additional Protocol II in
the form of acting or failing to act which grievously endangers the physical
or mental health or integrity of any person, result in grave breach of the
Article only if the victim is a person who is in the power of a party other
than the one on which he depends.439 But Solf440 has argued that violations
of Article II Committed against a partys own nationals do not amount to
grave breaches.
The generic obligations in Article II Additional Protocol II has been
translated into a number of more precise rules on the protection of these
persons within the context of their medical treatment by the law of
international armed conflict. Physically mutilating or carrying out medical
or scientific experiments and removing tissue organs for transplanting is
not permitted, even where the person subject to such treatment permits
same, unless when these acts can find justification. Each party to the armed
conflict must maintain a medical record of blood donation.441
438 Sandoz, Y./Swinarski, C/Zimmerman, B (Eds) p. 152

439 Article II, Para. 4
440 Solf, W.A. Protection of Civilians against the Effect of Hostilities under Customary
International Law and under Protocol I (1986) p. 242
441 Article II para 6 Additional Protocol I
199
Prohibition of Reprisals against the Wounded,

Sick and Shipwrecked Persons
Article 46 GC I is to the effect:
Reprisals against the wounded, sick and shipwrecked persons and
against persons or objects protected by GC I and GC II API are prohibited.
The prohibition of reprisals is holistic is as much as it does not only

contain reprisals against the wounded, sick and shipwrecked, but also
extends to personnel, buildings, vessels or equipment protected by GC I
and GC II. All conventions that protect the wounded, sick and shipwrecked
which came before the 1949 GC s, were not decisive on the issue of reprisals
in sharp contrast to the express prohibition of reprisals against prisoners
of war in Article 2 of the 1929 Convention that deals with the Treatment of
Prisoners of war. However, Kalshoven442 has contended that since that move
to revise the 1929 Convention was a failure, explicit treaty prohibitions of
reprisals against the wounded, sick and shipwrecked persons and against
protected personnel, buildings or equipment were first introduced into GC
I and II, even though it was on the understanding that these prohibitions
meet a generally accepted rule.
Obligation to Keep a Record in Respect of Each

Wounded, Sick, Shipwrecked or Dead Person
Article 19 GC II 443 states that:
Parties to the conflict shall record in respect of each wounded,
sick, shipwrecked or dead person of the adverse party falling into their
hands, any particulars which may assist In his identification.
Important particulars in respect of each wounded, sick, or dead person,

which parties to the armed conflict are obligated to record, where necessary,
include but not limited to the description of the power on which he relies,
regiment, surname, first name, army, date of birth; any other details
supplied on his identity card. The date and place of capture or death and
particulars relating to wounds or illness, or what caused the death.444 The
method of recording particulars of wounded, sick and shipwrecked persons
442 Kalshoven, F. Belligerent Reprisals p. 263
443 Similar wordings can also be found in Article 16 GCI
444 Article 16, GCI
200
and the dead and communicating same via information bureau has a nexus
with the system under Articles 120 and 122 of GC III.
Iii. Dead And Missing Persons

Prefatory Note
Families have the unfettered right to know what befalls their relatives. This
is central to the rules of international humanitarian law as it concerns the
dead and missing persons. The obvious distinction between the rules relating
to the dead and missing person is nebulous; even though a point may be
established at which missing persons can be equal to dead persons if they can
be taken to have died. Rule 88 Customary International Humanitarian law
makes it irrelevant whether the dead and missing persons are combatants
or civilians or whether and on whose account they took part in hostilities.
In other words, the rules apply equally to dead and missing persons without
any unnecessary distinction.
Duty to Search for, Collect, Identify and

Prevention from Despoiling
By Article 15 GC I445
The dead are to be searched for, collected, identified, and prevented
from being despoiled.
Article 20 GC II then provides:

Burial or cremation of the dead shall be preceded by a documented
examination of the bodies.
While Article 120 GC III states:

The dead must be disposed of in a respectful manner and their graves
respected and properly maintained.
It is inconsequential whether the parties to an armed conflict is recognized

as international or non-international (entity), what is of paramount
importance is the duty placed on them to take all possible measures to
search for the dead whenever circumstances permit, and especially after an
engagement.446
445 Similar provisions can be found in Article 18 and GCII Article 16 GCIV
446 Article 15 GCI (Para. I)
201
That obligation does not prejudice the obligation placed on them to

search for the wounded, sick, and shipwrecked. A lacuna exists as per the
arrangements between the belligerent parties as it has to do with removing
the dead. Customary international humanitarian law and Additional
Protocol I have closed this gap by establishing the duty to earnestly agree on
arrangement for teams to search for, identify as well as recover the dead from
the field of battle.447 Article 33 Additional Protocol I provide protection and
respect for these terms, who may be accompanied by the personnel of the
adverse party while carrying out these missions in areas controlled by the
adverse party. Searching for and collection of the dead alone is not enough
as they must be identified. It is doubtful if the law of non-international
armed conflicts also has the identification clause. Fundamentally, parties to
an armed conflict must prevent the despoliation of dead. The prohibition of
despoiling the dead has judicial support in United States v Pohl and ors, Us
Military Tribunal at Nuremberg 1947.
The dead, as a general rule are to be buried in graves except on religious
grounds or the consideration of hygiene require that they be burnt. Funerals
must in any case take place in a dignified and honorable manner and in line
with the religious beliefs and rites of the deceased after a close examination
to confirm death and establishing identity has been carried out. Proper
maintenance and marking of graves and arranging them according to the
nationality of the deceased must be done. Before the hostilities start, the
parties to the conflict must set up an Official Graves Registration Service,
whose duty will inter alia, be the subsequent digging and identification of
bodies or ashes and their transportation to their home state.
It is indeed a thing of shame that these provisions are flagrantly abused.
What we witness especially in Africa after a non-international armed conflict
is a further desecration of the dead, like what happened in Sere lone and
Liberia during the armed conflicts. Human (dead) bodies were seen kept in
the most despicable circumstances and they were allowed to rot. Similarly,
how do we explain the scenario where soldiers invade a community, loot
(pillage) the community, unlawfully kill defenseless civilians and rape
innocent women? The Nigerian Army was alleged to have given mass burial
to defenseless civilians during their May 2009 bombardment of Gbaramatu
Kingdom. It is against humanity to treat the dead with disrespect. Owing to
these numerous atrocities it is always difficult to find genuine reconciliation
even after the dastardly act must have ended.
447 For the Customary status, the summary of Rule 112 of Customary Intl humanitarian
law should be examined.
202
Persons killed in naval warfare are to be treated as described in Article 20
GC II which provides:
Parties to the conflict shall ensure that burial at sea of the dead,
carried out individually as far as circumstances permit, is preceded
by a careful examination, if possible by a medical examination of the
bodies, with a view to confirming, establishing identity and enabling a
report to be made. Where a double identity disc is used, one half of the
disc should remain on the body.
However, where no funeral at sea takes place, the regulations of the GC I

apply immediately dead persons are landed.
Duty to Search As Soon As Circumstances Allow

Article 33, Additional Protocol I states in summary:
Each party to the conflict must search for missing persons as soon
as circumstances permit and shall transmit all relevant information
concerning such persons.
In order to smoothen the search for missing persons, parties engaged

in armed conflict must keep the particulars of persons held captive for
more than two weeks and facilitate and carry out the search for and the
recording of information involving persons who became deceased in other
circumstances as a result of hostilities or occupation. By Article 33 Additional
Protocol I the information gathered and requests for such information are
transmitted through the power protecting the Central Tracing Agency of
the ICRC or the other national Red Cross Societies.
IV.
Medical Units, Transport And Personnel
According to Article 27:448

Medical units and medical transport must be respected and protected
at all times and shall not be made the object of attack.
As far as possible, medical units shall be so sited that attacks against

military objectives do not imperil their safety.449
448 Para.I Hague Reg; Article 18 GCIV

449 Article 19, GCI
203
It must be emphasized that medical units, medical personnel and medical

transports are covered under all the conventions which are placed under the
neutral protection. Medical units are protected but they should not be used
for other purpose or vulnerable to attack. Such medical unit includes fixed
or mobile hospitals, field hospitals or other installation used for medical
care like pharmaceutical stores. For easy identification, civilians medical
units, particularly hospitals, must be marked as such by the concerned
state authorities.
The enemy party must respect medical units at all times they must not
be the object of any attack or hindered in their functions. The protection
will only cease if such a unit is improperly used to perpetuate acts injurious
to the opposing party outside their originally intended humanitarian
function. Where wounded combatants are housed in medical units together
with their arms and equipment, the protection does not ipso facto cease.
The presence of armed guards particularly does not strip off a hospital of its
protected status.
At sea, hospital ships perform the same functions of hospital on land.
They are all protected under the Second Convention provided that they are
designated as such and that their attributes have been communicated to the
parties to the armed conflict.
Provisions are also made to quicken medical transports.450 Military
or civilian vehicles engaged in transporting the wounded and sick enjoy
total protection. This equally applies to the transport of medical personnel
and supplies. Vehicles used for such purposes may not be attacked under
any guise. They are not to be used for other purposes other than medical
transportation. The resultant effect of any misuse like disguising an
ambulance to carry combatants, weapons, or ammunition can usually not
be quantified, since once trust in the enemy party is lost it is not easy to reestablish.
At sea, all types of ships may be used to convey the wounded and sick and
to rescue the shipwrecked, as long as the ships are properly identified.
The definition of wounded, sick and shipwrecked which is
also applicable to civilians, the definition of medical units in article 8
Additional Protocol I, enlarges the coverage compared to Article 19 GCI.
While the provision in Article 19 GC I refers only to fixed establishments
and mobile units of the medical services the former defines as medical
unit all establishments and other units, whether belonging to the military
or civilians, arranged for medical purposes, viz search for, collection,
450 Article 35 Chap. VI GCI
204
transportation, examination or treatment including first aid treatment of

the wounded, sick and shipwrecked, or for the prevention of disease. The
nature of these medical units is that they can be fixed or mobile, permanent
or temporary.451 This all encompassing definition also goes beyond the
protection offered in Article I 8 GC IV as long as that provision only covered
civilian hospitals. For civilian medical units to be truly considered as
medical units and entitled to the respect and protection, the requirement in
Article 12 is for them to either belong to one of the parties to the conflict, be
duly recognized and authorized by the proper authority of one of the parties
to the conflict, or be permitted in accordance with Article 9, Additional
Protocol II.452
In order to further solidify the safety of medical units, parties engaged
in an armed conflict are, by Article 12 Additional Protocol I, to inform each
other of the location of their fixed medical units. Failure of notifying the
adverse party, does not deny medical units of their respect and protection.
In order to reduce the probability of medical units being trapped in the
fighting, the parties at war are obligated to station medical units away
from military objectives whenever it is praticable.453 The intentional use
of medical units in an attempt to guard military objectives from attack is
indeed prohibited expressly.
The mere fact that medical units and medical vehicles are protected
does not mean that they cannot be requisitioned. A number of significant
limitations, however, apply in such instances. The reason for these limitations
is that the medical needs of the affected wounded and sick persons remain
satisfied. By Article 21 (read together with Article 8 Additional Protocol
I), the personnel of already requisitioned medical units must be given the
permission to, without any hindrance undertake duties, provided the power
capturing has not itself ensured the needed care of the wounded and sick
discovered in such units . Put differently such personnel enjoy protection
as part of the medical unit, irrespective of additional rules, which apply to
them more directly as medical personnel. Materials, building and stores
belonging to the units of the armed forces of the enemy may not be put into
another use provided they are needed for the care of the wounded and sick.
This is circumscribed by the exception that commander in the field may
elect to make use of them, in the event of urgent military necessity, even
though they may only act that way if prior arrangements are in place for the
451 Article 8 Additional Protocol I
452 Article 27 GCI may also be complied with
453 Article 12 Additional Protocol I (par. 3)
205
well-being of the wounded and the sick that are nursed in them.454 Property
belonging to aid societies like the Red Cross may not be seized unless it
can be shown that the case was of urgent necessity, only after the ensuring
of the welfare of the wounded and sick. The law that governs occupation
subjects the power of an occupying power to seize medical units to stiff
conditions. The bedrock of this regulatory guideline is the collective duty of
an occupying power for ensuring and maintaining the medical and hospital
establishments and services, health relating to the public and hygiene in area
occupied by it.455 Resulting from this, where occupying power seizes civilian
hospitals in occupied territory, such requisition may only be for a while and
must be of urgent necessity for the care of military wounded and sick. In
addition, seizing civilian hospitals based on the conditions aforementioned
can only be permitted if and when proper arrangements are made timeously
for the care and treatment of the victims and for the wants of the civilian
population for hospital accommodation. Seizing of civilian medical units
and the resources attached to them is legal only if arrangements are made
presently to ensure that the medical needs of the civilian populace and those
of any wounded and sick receiving treatment who are affected by the seizure
is continuously satisfied.
Medical Personnel
Articles 24-26 GC I456 in summary provide:
Medical personnel mean those persons assigned, by a party to the
conflict, exclusively to medical purposes or the administration
of medical units or to the operation or administration of medical
transports. Such assignments may be either permanent or temporary.
The term includes:

i) medical personnel of a party to the conflict, whether military
or civilian, including those described in the first and second
Conventions, and those assigned to civil defence organizations;
ii) medical personnel of national Red Cross (Red Crescent) Societies and
other national voluntary aid societies duly recognized and authorized
by a party to the conflict;
454 Article 33 GCI (paras. 1 and 2)
455 Article 56 GCIV. This duty is restated in Article 14 Additional Protocol.
456 Similar provisions are provided in Article 36 GCII, Article 8 Additional Protocol I
206
iii) Medical personnel made available to a party to the conflict for

humanitarian purposes by a neutral or other state which is not a party
to that conflict by a recognized and authorized aid society of such a
state; and by an impartial international humanitarian organization.
Medical Personnel including those employed in the search and or the
collection of wounded, are to be respected and protected, irrespective of
whether they are civilian or military. They may not be attacked and they
must in principle be allowed to continue performing their duties if they fall
into the hands of the enemy. Captured military medical personnel must be
employed to cater for prisoner of war. Personnel who are not listed for such
duties shall be repatriated.
Additional Protocol I for the first time in the history of international
humanitarian law contains detailed provisions concerning the nature
of medical duties spelt out. Under no condition shall any person be
reprimanded for executing medical activities compatible with medical
ethics and profession irrespective of whether or not the person derive
benefit from it. Consequently, no doctor may be forced to carry out acts
contradicting the rules of the ethics of the medical profession or to disclose
the identity of the persons in his care, unless as stipulated by the law of his
own party. Military and civilian religious personnel are equally protected
since their status is identical to that of medical personnel.
The staff of National Red Cross Societies and that of other Voluntary Aid
Societies, duly recognized and equally recognized by their governments are
equivalent to military medical personnel as long as they subject to military
laws and regulations.457 Additional Protocol I widen the scope of activities
of the National societies in wartime in that it expressly permits them, in
occupied areas, to render help to the population on their own ingenuity.
The parties to the conflict may also engage the services of these societies to
collect and cater for the wounded, sick and shipwrecked and no one shall be
harmed, prosecuted, convicted or reprimanded for such humanitarian acts.
It is however doubted, if the spirit and letter of these enviable provisions
are complied with. It was widely reported that during the Liberian Civil
war, medical personnel were not allowed to care and maintain civilians who
were in dire need of medical attention. In Sierra Leone, the story was not
different as medical personnel were detained and prosecuted for daring to
treat suspected enemies. In places like Monrovia, some medical personnel
were allegedly murdered by government agencies, which saw them as spies.
457 Article 26 GCI
207
The definition of medical personnel given in Articles 24-26 GC I is

derived from Additional Protocol I and the similar definition contained in
customary international humanitarian law. It harnesses and enlarges the
definitions provided in GC I and II and instruments earlier made, which
only limited to medical personnel was serving the armed forces.458 It gives
further above the protection contained in accordance with Article 20 GCIV,
which was only made to apply to the medical personnel of civilian hospitals.
To qualify and be protected as medical personnel under Article 8 Additional
Protocol I, persons must perform those medical functions which are
enumerated in connection with the definition of medical units in Article
8. These purposes are the search for, collection, transportation, examination
or treatment of the wounded, sick, and shipwrecked or for preventing the
outbreak of diseases. In order to avoid abuse of the distinctive emblem for
military or other related purposes, these classes of persons must be tasked
with the already mentioned duties exclusively. Additionally, persons who
are charged with the administration of medical units or to its functioning
or administration of medical transport, equally qualify to be protected
as medical personnel. Persons who are not engaged to medically care for
others, who are not members of the armed forces, may not instantly be taken
to also meet that duty when placed side by side with the wounded and sick
during armed conflict. It is curious that the civilian population and other
aid agencies that collect and care for the wounded and sick on their own
prompting will not be offered protection by the competent authority. This
provision (Article 177 Additional Protocol I) with due respect is wanting.
To hold that because an aid society voluntarily undertook the care for and
maintenance of injured persons to the conflict without actually obtaining
such permission to do so by a competent authority will neither be respected
nor protected is quite unfortunate. It means in effect that voluntary aid
societies who initiate such moves may be doing so at their own peril. The
lacuna in this provision must be remedied to further encourage the active
participation of other not expressly authorized and societies in times of
armed conflict to come in and ameliorate the sufferings of the people.
Article 8 Additional Protocol I listed three categories of medical
personnel. The first category is those medical personnel of a party to the
conflict. In this regard, if for instance there is an armed conflict between
country X and Y, the medical personnel of X will be those personnel who
will be involved in the search for, collection, transportation, diagnosis
or treatment of the wounded, sick and shipwrecked persons who are
458 Articles 24, 25 and 26 GCI. Also provided in Article 36 GCI
208
natives of country X. Included in this category (of medical personnel) are

permanent medical personnel of the armed forces and supplementary
medical personnel related to the armed forces made mention of in GCI.459
This category is also made up of civilian medical personnel attached to
civil defence organization. Civil defence organizations will only enjoy the
protection of medical personnel only if they are assigned by the party to the
armed conflict to carryout medical services. 460
The second category offers protection to personnel of national Red Cross
Societies and other acknowledged relief agencies. What criteria are these
societies to meet in order for their medical personnel to come within the
purview of medical personnel as defined in Article 8 Additional Protocol
I? The provision, it appears require any such organization to be national
societies; been national means that they must be set up within and not
outside the territory of the party to armed conflict concerned. They must
also be recognized as well as authorized by the party. These conditions
will not be met where in our example an aid society purporting to act for
country X, is not recognized or authorized by country X. the aid society will
only be acting legally where country X either impliedly permits it so to act.
It appears that both the recognition and authorization confer legality on the
acts of civil aid societies.
The third category has three other sub-categories of permanent medical
personnel which are handy to a party to the armed conflict by third parties
or states or neutral or impartial international humanitarian organizations
with the prior consent of both their government and the other party to the
armed conflict.461 The first two sub-categories largely tallies with medical
personnel of a state and of a national aid society, while the third category
extends the definition to medical personnel who must be an impartial
international humanitarian organization. For the organization to be
considered as impartial it must make no unfair differentiation based on any
ground like religious beliefs, nationality, class, race or political ideologies
and that the only allowable ground for discriminating between persons is
the exigency and seriousness of need of medical care.
459 Articles 24-25

460 Article 61 Additional Protocol I contains other tasks of civil defence organizations.
461 Article 9 Additional Protocol I should be read together with Article 27 GCI (Para. I)
209
Duty to Respect and Protect

Medical personnel shall be respected and protected in all circumstances.462
While by Article 16:463
It is prohibited to punish persons for carrying out medical activities
compatible with medical ethics or to compel persons engaged in
medical activities to perform acts or to carry out work contrary to the
rules of medical ethics.
Additional Protocol I spelt out the duty to give all available assistance
required by civilian medical personnel in areas where there has been
disruption of medical services as a result of feuding activity. Similarly, an
occupying power is under an obligation to assist civilian medical personnel
in occupied areas.
Article 16 Additional Protocol I and Article 10 Additional Protocol II
provide a comprehensive protective arrangement for medical personnel to
act in consonance with medical profession. The arrangement (framework)
is made up of three prohibitions: the prohibition of reprimanding medical
personnel for carrying out their medical duties, the prohibition of forcing
them to act in dissonance with their duties and the prohibition to force
them to reveal information related to the wounded and sick if they consider
that information to be detrimental to the patients or their families.
The issue of medical ethics raise the question as to what these ethical
standards really contain. Accordingly, the chief duties of a medical
personnel are to his/her patient and he/her is, among other things, obligated
to constantly exercise his/her discretional independent professional
judgments and maintain the highest standards of professional decorum;
respect a fit patients right to either accept or decline treatment; not allow his/
her judgments to be prejudiced by personal gain or unfair discrimination;
be committed to giving standard medical service in full professional and
moral independence, with love, compassion, and respect for the dignity
of humans and also act in the patients best interest whenever the need to
provide medical services arise.
462 Articles 24 and 25 GCI

463 Additional Protocol I
210
Retaining of Medical Personnel

Article 28 GC I provide:
If military medical personnel and protection personnel of recognized
national relief societies fulfilling the same duties fall into the hands of
the adversary, they may be retained as long as the state of health and
the number of prisoners of war so require. They will not themselves
be regarded as prisoners of war. They will nevertheless benefit at least
from all the provisions of GC III.
Military medical personnel (mentioned in Articles 24 and 25 GC I) are

members of the armed forces but they have no right to take part directly
in hostilities. They and protection personnel of recognized national relief
societies, who perform similar duties, may be retained if war requires it.
In that case, permanent medical personnel belonging to the armed forces
and protection personnel of recognized national relief societies are not seen
as prisoners of war. They assumed the status of prisoners of war as long as
treatment under GC III is to their benefit. While in detention, they must
continue performing their medical duties for prisoners of war.
Article 32 GC I is to the effect that the aid personnel of societies belonging
to the neutral states shall not be retained if they are found in the hands
of the opposing party to the armed conflict. The moment the retention of
medical personnel for the care of prisoners of war is no longer needed, they
shall be repatriated. Discrimination should not be applied when personnel
are selected for repatriation.
V Medical Aircraft
Article 39 GCII 464 is to the effect that:
Medical aircraft are military or civilian aircraft, designed exclusively
for medical transport on a permanent or ad hoc basis and subordinate
to a competent authority of a party to the conflict. As well as the
national emblem they must carry the distinctive emblem on their
wings and hull and may not be attacked.
Medical aircraft are basically used for the removal of wounded, sick
and shipwrecked and the transportation of medical personnel and their
equipment. They can be the subject of ownership of the armed forces, seized
or be owned by a relief society. Where they are wholly used for medical
464 Also found in Article 26 and 29 Additional Protocol I
211
transportation without been used for other purposes, they are seen as
perpetual medical aircraft.
The protection of medical aircraft is only effective if they are flying at
the agreed altitude and time by the parties to the armed conflict. But where
no such agreement exists, they may not fly over enemy territories already
occupied by enemy.465 Protection and respect of medical aircraft is not made
dependent on any agreement (whether oral or in writing) surrounding areas
regulated by an opposing party to the conflict. To be on the safe side when
flying in the areas, a party to the armed conflict is obliged to inform the
adverse party, especially when the aircraft is within what they technically
call, the surface-to-air weapons systems of the adverse party. Within the
contract zone which are controlled physically by friendly forces and those
areas where control is not firmly established, it remains that protection for
medical aircraft can only be fully efficacious by an already existing between
the competent authorities of the parties to armed conflict.466 In the absence
of any prior agreement, medical aircraft operate at their own peril; however
they shall be respected as soon as they have been recognized.
The scenario becomes quite complicated where a medical aircraft flies
over an area controlled by the enemy violating the terms of the agreement
or have not entered into any contract. This can arise probably owing to
navigational defect or as a result of an exigency affecting the safety of the
flight. The way out of this quagmire for the medical personnel on board, is
to identify themselves and to intimate the adverse party of the situation. The
moment recognition is accorded such medical aircraft, it is incumbent on
the enemy to take sensible efforts which permit it to either land or alight on
war. Also it has to take other reasonable measures to protect its own interests
and equally give time to the aircraft for compliance before attacking.467
Marking medical aircraft with the distinctive emblem in addition to
the national colors is a very fundamental requirement that must be taken
seriously. This is for purely identification purposes. In the illustration
involving countries X and Y, where the medical aircraft of country Y is not
properly identified (by marking) or not marked at all with the distinctive
emblem on their lower, upper and lateral surfaces, the adverse party to the
conflict, in this case country X, has no option but to take all reasonable steps
and measures to safeguard its own interests. Any other markings or means
of identification shall also be made available. But this must be agreed upon
465 Article 39, GCII (para.3)
212
by the parties to the conflict. Other means of identification include flashing

of blue light, using radio signal, and the use of Secondary Surveillance
Radar System.468
Prohibition against Gaining Advantage

Article 28 Additional Protocol I provide:
The parties to a conflict are prohibited from using their medical
aircraft to gain any military advantage over an adversary. The presence
of medical aircraft shall not be used in an attempt to render military
objectives immune from attack.
Under no guise should medical aircraft (e.g. hospital ships, and protected
vessels) be used to perpetuate acts injurious to the adverse party. This
principle, though customary in nature, has found its way into Article 28
Additional Protocol I. They automatically lose their protection if they
convey any equipment meant to collect or pass on intelligence data. They
shall not carry with them any form of arm except acquiring small arms for
the purposes of self defence. A medical aircraft may only be attacked where
no other route for landing, inspection and search and possible capture;
there is no other available method for controlling military regulations; the
non-compliance is very serious that the aircraft is assumed to be a military
object and the civilian casualties is not equal to the military benefit derived.
Obligation to Seize
Article 30469 states:
If inspection discloses that the aircraft has not met the requirements
for special protection or has acted in breach of its obligations, it may
be seized. An aircraft which has been assigned as a permanent medical
aircraft and is seized may be used thereafter only as a medical aircraft.
A breach of the condition for protection, automatically leads to loss of

exemption of medical aircraft. It is at this stage that they may be captured
and utilized by the captor.
It must be noted that before 1949, it was sufficient to protect medical
aircraft by painting them with red crosses. However, it became obvious and
acknowledged in 1949 that such painting was only a mirage since aircraft
468 Annex I to Additional Protocol I
469 Additional Protocol I (para. 4)
213
could be shot down before they were visible. Protection for such aircraft was
made subordinate to any agreement between the belligerents, as it has to do
with the means of identification and the routes to be taken by planes.
It was in 1977 that a more realistic view was achieved in Additional
Protocol I to the Geneva Convention. By this time, science has supplied a
panacea for the evil which it created, because, contrary to what had been
supposed, identification of aircraft in flight is now a possibility. A highly
technical annex to this Protocol provides a system with three types of
signals which has already been mentioned.
VI.
Hospitals, Safety Zones and Neutralized Zones
Prefatory note: Humanitarian law has established various means to

define areas or zones in which special protection will be made available for
populations in imminent danger and in which no fighting may occur. The
Geneva Conventions and the Protocols made particular distinction between:
Hospital and safety zones and localities;
Hospital zones and localities ;
Non-defended localities
Demilitarized zones
Neutralized zones
Relevant principles of humanitarian law confer comprehensive right and
obligations. This includes, inter alia, an exact sharing of responsibilities for
protecting the individuals who may have converged in the zones meant for
their safety.
The UN Security Council has included new concepts of secured havens
meant to serve as protection for civilians, known as safe areas or secure
humanitarian areas, for example. However, these are merely based on the
Geneva Convention idea of safely zones but do not meet the yardstick set by
humanitarian law.
Non-defended localities are any inhabited section adjacent a zone where
armed forces to the conflict are in contact with themselves and are subject to
enemy occupation in order to forestall combat and distraction.
Demilitarized zones are zones that expressly prohibit parties to the
conflict to carryout military operations. Hospital zones and localities are
set up in line with Article 23 GC I and are specifically meant to provide
protection to the wounded and sick and also medical personnel. The
214
regulation of hospital and safety zones and localities as contained in Article

14 GC IV is akin to hospital zones and localities. The difference is that hospital
and safety and localities are setup also for other classes of persons who are
not wounded or sick strictu sensu, viz expectant mothers, aged persons,
children under the age of fifteen and mothers of children under seven.
Those to benefit from the second type of protected zones, neutralized
zones provided for in Article 15 GC IV, are even wider than those in the
former category. The establishment of neutralized zones to provide shelter
for the wounded and sick combatants or non combatants will equally cover
all civilians who carryout no work pertaining to the military while living in
the neutralized zone.
Parties to a non-international armed conflict are not precluded from
establishing such zones even though treaty provisions on the establishment
of protected zones are not readily available in the law applicable to
such conflicts.
Agreement to Establish Hospital and Safety Zones and Localities

The parties to an armed conflict may agree to establish hospital and
safety zones and localities to protect from the effects of the conflict the
wounded and sick as well as personnel entrusted with the organization
and administration of these zones and localities and with the care of
the persons assembled therein
The establishment of hospital and safety zones and localities can be done
in peace time or when the war commences and when the hostility is on.
Nevertheless, the special protections they enjoy in times of conflict are
dependent on what the parties to the conflict have agreed on.
In line with the Draft Agreement contained in both GC I and IV, persons
living in a hospital and safety zone must desist from engaging in any work
directly linked to military activities or the manufacture of materials meant
for war. In addition, it is within the exclusive power of the authority setting
up such a zone to ensure that they restrict persons who have no right of
residence in the zone from entering it. Significantly, by the tenor of the Draft
Agreement, four conditions which a hospital and safety zone must fulfill
appear to have emerged.
470 Annex I GCI
215
First, the composition of persons living in such zone must be made up

of a small part of the territory controlled by the authority which has set it
up.471 The rule is aimed at preventing parties to an armed conflict protecting
large portion of territory, which they control, from military activities by
setting up a hospital and safety zone. The second condition is to the effect
that the population of hospital and safety zones must be sparse as it relates
to the viability of accommodation in them. Where there is however sudden
surge in the number of persons, parties to an armed conflict can reach a
compromise by establishing neutralize zone in line with Article15 GC IV.
Thirdly and without any iota of doubt, hospital and safety zones must be
divested and insulated from all military operations or huge industrial or
administrative establishments47270. Fourthly and lastly, hospital and safety
zones may not be sited in a place, which in all probability, may appear vital
for the conduct of war.47371 However, it is not an easy exercise to determine
whether a given area is one which may become important.
Adding to the already mentioned conditions are two further obligations
which must be complied with by hospital and safety zones. The first is that
communication lines and mode of transport possessed by them must not
in any way be utilized for transporting military personnel or material. The
second obligation is that hospital and safety zones should never be protected
by military.
Special commissions are set up with the intention of verifying if zones
meet the conditions and obligations provided in the Draft Agreement. The
members of the special commission must have unfettered access to the
zones and be allowed to inspect the facilities.
Establishment of Neutralized Zones

Neutralized zones may be set up in regions where fighting is actually
on. Such zones are meant to provide shelter for the wounded and sick
combatants or non-combatants, and civilian persons who participate in
hostilities from the effects of war without distinction. The initiative to
establish a neutralized zone can either be from the parties to the conflict or
neutral states or humanitarian organizations.
471 Article 4 Draft Agreement to GCI and IV

472 Article 4 Draft Agreement, Annex 1 GC1 and 1V
473 Article 4 (lit. d.)
216
By Article 15:474
Parties to an armed conflict may propose to establish, in the regions
where fighting is taking place, neutralized zones.
There is a clear distinction between neutralized zones and hospital and

safety zones and localities. Neutralized zones are actually set up in the place
where fighting is on, while hospital and safety zones and localities are to
be very remote from such fighting. The agreement to establish neutralized
zone has to be in writing and must be endorsed by the agents of the parties
to the armed conflict. It has to clearly indicate the commencement and
termination of the neutralization of the zone. These formal steps and
procedure enunciated in Article 15 GC IV (para.2) have been suggested to be
mere recommendation rather than being an obligation. Arising from this,
the neutralization of a zone may become so exigent that complying with the
procedural and formal conditions should not in any way disadvantage those
who are to benefit from neutralized zones. Any neutralized zone which fails
to meet the procedural and formal requirements as provided in Article 15
GC IV is nonetheless availed the general protection provided for civilian
persons, as long as they are qualified. This is also the case with hospital and
safety zones and localities.
Obligation Not to Attack Hospital and Safety

Zones and Localities And Neutralized Zone
Article II, Annex I475 provides:
Hospitals and safety zones and localities and neutralized zones shall
not be the object of attack. They must be protected and respected at
all times.
Article 23 GC I and Articles 14 and 15 GC IV do not in any language out

rightly forbid attacks on hospital and safety zones and localities and
neutralized zones, this contrast sharply to the rules on wounded, sick
and shipwrecked, medical units and transports and medical personnel.
However, such a prohibition is deduced logically from the special protection
that they are entitled to enjoy within the pervious of international
humanitarian law and the general protection available for civilian objects.
The ultimate beneficiaries of the setting up of hospital and safety zones and
474 GC1V
475 GC I and GC IV
217
localities and neutralized zones are the wounded and sick and civilians of
certain categories.
The Diplomatic Conference476 has to its credit the reinforcement of the
rule that belligerents must make a distinction between military objectives,
on the one hand, and civilians and civilians object on the other. This
obligation is aptly expressed in Article 40477 as follows:
In order to ensure respect for and protection of the civilian
population and civilian objects, the parties to the conflict shall at all
times distinguish between the civilian population and combatants
and between civilian objects and military objectives and accordingly
shall direct their operations only against military objectives
It is submitted that in as much as they and persons and objects that are
pivotal to ensure that the medical care they get is respected and protected
no matter the situation, so also must the zones in which they are with the
aim of shielding and providing shelter for them from the consequences of
the war. The only express provisions to that effect in Article II of the Draft
Agreement added to GC I and GC IV, is only a form of suggestion as to the
most likely content of an agreement to set up a hospital or safety zones or
locality. It is never compulsory for the parties to the armed conflict to add
this establish hospital and safety zones or localities not to talk of neutralized
zones. Where the parties involved in the armed conflict for reasons best
known to them decide not to add the sample provisions in Article II of the
Draft Agreement into another agreement to set up such zones, they would
be prohibited from launching an attack against the zone and requested to
respect and protect same.
It should however be noted that the gathering of vulnerable populations
into protected locations may add to their vulnerability and the risk they
face. They may, for instance, see themselves exposed and defenseless to
military activities. It is therefore of utmost importance to find out in limine
who has the legal and military responsibility to protect persons domiciled
there and the zone itself.
To illustrate this, the safe areas established by the UN in the defunct
Yugoslavia and the secure humanitarian areas set up in Rwanda failed
the yardstick set up by humanitarian law for the safety zones. They instead
were the fall out of diplomatic and military compromise entered into by
the UN Security Council. The issue of who was in charge of protecting the
476 1974-1977
218
populations remained largely nebulous, and the mode of enforcement of

such protection were insufficient. The gory tale of the individuals gathered
in these areas show the need of analytically examining the concept of
such zones.
In every case, relief societies working in such areas must be vigilant on
the protection guarantees offered to the populations, as well as on the chain
responsibility and the various available resources in such operations.
VII.
The Characteristic Emblem
Article 41 GCII 478 states:

The distinctive emblems of the Geneva Conventions and Additional
Protocols are the Red Cross, the Red Crescent, or the red crystal (a red
frame in the shape of a square on edge) on a white ground
Prior to the adoption of the 1864 Geneva Convention, quite a number

of symbols were used by the medical arm of the armed forces in times of
armed conflict. These symbols were however largely unrecognized by the
adverse party to the conflict and failed to enjoy any legal backing. It was not
until 1864 that the Geneva Convention acknowledged for the first time a
red cross on a white background as a distinctive, characteristic and general
sign to be used in ambulances, hospitals and those on evacuation mission.
The distinctive emblem has undergone rapid changes after then. Thus, its
attribute and function has evolved. However, what has remained unchanged
is its underlying idea.
Responding to how the Ottoman Empire practiced the use of the Red
Crescent on a white background instead of the red cross itself when it was
at war in 1876-1878 with Russia, both the red crescent and the red lion and
sun became acknowledged as distinctive emblems adding to the red cross.
It should however be noted that the use of the new distinctive symbols
was limited to states already using them. During the drafting of the 1949
Geneva Convention, attempts were made (which was not successful) to
bring into existence one new single symbol, thereby reverting to using the
single symbol of the red cross and acknowledging a new emblem to add the
already existing. Historically, the red lion and sun became useless for all
purposes because only Iran ever used and it subsequently replaced it with
the Red Crescent in 1980. The other two distinctive emblems generated
controversy. The main bone of contention in the controversy was the desire
478 Identical provisions are found in Article 38 GCI, Article 12 Additional Protocol II
219
of some state to make use of the two recognized distinctive emblems or not
use any one at all. Further, some parties to an armed conflict inaccurately
saw the emblems as having political, national and religious flavour; thereby
watering-down the respect other states have for their neutral status. These
set-backs culminated, in 1992, to the call by the International Committee
of the Red Crescent which in addition requested for the establishment of a
working group to provide a comprehensive and lasting solution acceptable
to all parties in terms of substance and procedure.479 It was Article 2 of
Additional Protocol III that gave birth to an additional emblem together
with the Red Cross and Red Crescent. Thus, a new emblem (called the Red
Crystal) emerged and it is made up of a frame in the mould of a square on
edge on a white ground. It can be utilized for the exact purpose and in the
same situation as the Geneva Conventions distinctive emblems.
By Article 44480 identical respect and equal status are to be accorded the
distinctive emblems.
Emblems and signs are to be used for identifying and guiding specific
humanitarian or peaceful activities, persons or places. As has been
mentioned, the Geneva Conventions and their Additional Protocols
enumerate these distinctive symbols which are the signal that the persons or
objects putting on or carrying the signs gain from particular international
protection and must not be targeted for any attack or act of violence.
The Different Emblems

The first 1977 Additional Protocol Annex to the Geneva Conventions listed
and elucidated the shielding role of the distinctive emblems:
The Red Cross (or Red Crescent) on a white background provides
protection for all medical services, like medical and religious
personnel, medical units and mode of transportation.
The letters IC (meaning internment camp) and POW (for prisoners
of war).
Three bright orange circles of proportionate size in group, juxtaposed
with the distance between each circle which is approximately a
radius, guides works and fittings containing hazardous forces.
479 Resolution 3 was adopted by the 27th Intl Conference of the Red Cross and Red
Crescent 31 October to 6 November 1999 in Geneva.
480 GCI
220
Oblique red stripes on a white background describe medical and

safety zones and localities.
A white flag is the truce flag and is reserved for persons who have
the authority to negotiate directly with the adverse party (i.e.
parlementaires).
An equilateral blue triangle on an orange background is meant to
protect civil defense personnel, installations and material.
A shield which consists of a royal blue square and triangle and two
white triangles describe cultural property or objects.
The Red Cross, Red Crescent, and Red Crystal Emblems

Different conditions govern the use of emblems in times of war and
peace. The third emblem, the red crystal was adopted in December 2005
by the Movement of the Red Crescent and the Red Cross in a Diplomatic
Conference. This emblem has no political or religious undertone. It is akin
to a red square put on its head, on a white background. This third emblem
is recognized in the third Additional Protocol to the Geneva Conventions.
Whenever the emblems are used for indicative purposes, whether there is
armed conflict or not, they mean that a person or place has a connection
with the International Red Cross and Red Crescent Movement. In war
times, the large emblems function as a means to ensure protection. Utilizing
them, clearly indicate that the medical personnel, services, installations, or
material putting on the emblem is protected under humanitarian law.48178
Any calculated attack on persons or objects bearing the emblems is a war
crime under the statute of the International Criminal Court.
This
protective emblem is not a property of the Red Cross Movement; as such
it may also be used by other organizations for the protection of medical
activities. The ICRC can at all times make use of the emblem either for
protective or indicative purposes. National Red Cross Societies do not have
an absolute right to use the emblem for protective reasons in times of war.
Their use of it is circumscribed by a set of rules which have been adopted by
the ICRC in 1991, which clearly spelt out the condition under which they are
to make use of the emblem.
481 Article 38-44 GC I; Article 41-43 GC II
221
General Criteria Governing how Distinctive or

Protective Emblems should be used
It is prohibited, in an armed hostility, to make use of the military emblems
or flags, uniforms or insignia of States or parties who are neutral to the
conflict.482
This offense is committed where (in our example) country X uses the flags
or military emblems, insignia or uniforms of country Z who is a neutral
party or who appears to be a neutral party in the conflict involving countries
X and Y. This is a very dangerous thing to do as country Z would be seen
by country X as an enemy accept, as soon as possible, a statement aimed at
clarifying the issue is made by country Z.
It is prohibited to wrongly use internationally acknowledged protective
emblems, signs or signals in an armed hostility. The flag meant for truce and
the protective emblem of cultural property of object is also included.483
It is also prohibited to fake intent to negotiate under the cover of a flag
of truce or of surrender.484
It is prohibited to use the flags or military emblems, insignia or
uniforms of adverse parties, whether when an attack is on or in a bid
to cover, protect or truncate military operations.485
The difference between the present point and the one discussed (above)
in point one, is that whereas the first point talked about using the
flags or military emblems e.t.c. of a neutral party, the present one
talks about using that of the adverse party.
It is prohibited to improperly use the distinctive emblem of the Red
Lion and Sun, Red Cross, Red Crescent or any other signs, signals or
emblems contained in the Convention or in Protocol I.486
It is equally prohibited to use the distinctive emblem of the United
Nations, unless there is an authority to do so by that organisation.487
482
483
484
485
486
487
Article 39 Additional Protocol I

Article 38, Additional Protocol I
Article 38, Additional Protocol
222
Obligation to Supervise the Use of the

Distinctive Emblems and Signals
The use by individuals, societies, firms or companies either public
or private, other than those entitled thereto under the present
Convention, of the emblem or the designation Red Cross or Geneva
Cross, or any sign or designation constituting an imitation thereof,
whatever the object of such use, and irrespective of the date of its
adoption, shall be prohibited at all times
Any use of the distinctive emblem which is not properly done is out
rightly forbidden. As a way of enforcing this prohibition, states must take
all incidental measures including making use of the legislative instrument.
These obligations, which are for the prevention and repression of abuses
of the distinctive signs, is incumbent upon states notwithstanding
whether the abuse relates to the protective or indicative aim served by the
distinctive emblem. Where the misuse touches on the protection function
of the emblem, the consequences is more severe, including the compulsory
criminalization as a breach of Additional Protocol I, if the improper use
results into an act of perfidy.
Article 53 provides a number of specific prohibitions, which border on the
improper or misuse of the distinctive emblem and the arms of Switzerland
as the sign very identical with it. Flowing from this, no individual, society,
company or firm, which has no authority to do so by virtue of the Geneva
Conventions or Additional Protocols, may be allowed to use the distinctive
emblem. Similar prohibition affects the description Red Cross or Geneva
Cross and the alternatives Red Crescent and Red Crystal.489 Imitating
the two distinctive emblems and the descriptions are equally not allowed.
The motive behind the use or imitation of the emblem or description is
immaterial as the prohibition still applies in such cases. The prohibition
equally affects commercial purpose, no matter how will intentioned it was
meant. A doctor, who for instance, purports to act for any of the parties to
the armed conflict and who makes use of the distinctive emblem without
any authorization is guilty no matter how well intentioned is mission will
appear. It follows therefore that obtaining the consent of the appropriate
authority is a sine qua non in the use of the distinctive emblem.
488 GC I; Article 45 GC II
489 Article 53 GC I (para. 4)
223
The prohibitions are never relaxed. In other words, the prohibitions apply
at all times both during peacetime and armed hostilities as it relates to
previous practices of misuse and in relation to misuses of the present and
future. It will therefore afford no excuse to a party who uses the distinctive
emblem during peacetime without obtaining the consent of the appropriate
authority. The same applies also during armed conflicts.
To clear any doubt or uncertainty, the misuse of the arms of Switzerland
by individuals private in nature, firms or societies or imitating those
arms is prohibited with equal force. The prohibition is however related to
the use of the arms of Switzerland forming part of registered trademarks
or commercial marks or putting it into use for a purpose which is against
commercial honesty or in other circumstances which could injure Swiss
national sentiment.490.
Visibility
It is important to note at this juncture that the identification of medical

units, personnel and mode of transport is heavily dependent on the
distinctive emblem.491
The other technical way of identification provided in chapter III and IV of
Annex I to Protocol I are complementary in nature and aimed at facilitating
the identification of protected mode of transportation. The distinctive
emblem does not automatically confer protection in itself but having an
effective protection or cover without it is very difficult.
The distinctive emblem is meant to be a conspicuously visible
manifestation of the right to protection; hence it must be unmistakably
visible and easily identifiable when in use. In other words, identifying it
from a distance should pose no problem. The normal distance can change
rapidly depending on the class of weapon used: artillery, guns, tanks, air
and sea weapons.
In the past 125 years, the medical personnel, units and transports enjoying
protection under the Geneva Conventions have been purely identified by
virtual means. Advancement in technology has yet altered the means and
methods of modern armed conflict to such a height that using the Red Cross
or Red Crescent emblem as the only way of identification is no longer tenable.
Armed conflict in modern times depends highly on the use of very
advanced technology which paves for destroying a target long before
490 Article 53 (para. 2)
491 The use of the emblem is provided in chapter VII GCI (Articles 38-44) and Article 18
Additional Protocol I to the 1949 GCs
224
it becomes visible. Mechanizing the means of combat and the general

utilization of electronic mode of observation and to an extent shooting,
especially of air and sea weapons, have comparably prolonged the range and
speed with which weapons can be shot and their pace. Consequently, it is
now very difficult to recognize and acknowledge at the earliest opportunity
personnel and material carrying on the distinctive emblems. To achieve
effective protection of medical establishments and mode of transportation,
it is therefore vital to upgrade the visibility of the distinctive emblem.
No doubt, the emblems visibility has been of utmost concern to the
International Committee of the Red Cross. As a result of aerial warfare
adopted by the parties to the armed conflict (especially bombing), the
leaders of the ICRC some 50 years ago tested its visibility from air.
It was not until the 1970s during which time the Diplomatic Conference
on the Reaffirmation and Development of International Humanitarian Law
Applicable on Armed Conflicts was in the preparatory stage, the visibility of
the protective emblem was put to test in some ways especially using the very
active infrared (IR) electro-optical observation.
As a result of these test, which were done in collaboration with the
Swiss Army, ideas emerged on how to upgrade active IR observation of
the Red Cross emblem in times of warfare. At that time, the tests were
not extended to the passive IR means of observation, popularly called: the
thermal imaging.
As Cauderay492 remarked: unlike active observation, observation using
passive electro-optical equipment cannot be detected by the enemy, which
explains why armies prefer it.
The ICRC never intended to repeat all the tests carried out in the past 40
years, but only restricted it to specific tests utilizing the thermal imaging
cameras (thermal IR), image-intensifying signet systems and aerial visual
and passive IR employed in the observation of distinctive emblems of
vehicles and medical persons.
Adding to the distinctive emblem, the ICRC equally conducted other tests
on the flashing blue lights used in identifying medical aircraft49390, which so
far have shown not to be completely satisfactory.
To carryout these tests, the ICRC make use of standard Red Cross and
Red Crescent flags and also stickers. The tests are however carried out in
approximating real operations.
492 Cauderay, G. C., International Review of the Red Cross (no. 277) p. 295-321
493 Article 6 Annex I to Additional Protocol I
225
Some tests were also carried out with customized Red Cross and Red
Crescent boards to check various types of paint and production processes
aimed at ensuring optimum visibility at night, in bad weather or making
use of electro-optical means of observation.
Lastly, visibility tests were carried out at sea with a coastal rescue craft
that had a Red Cross flag on the bridge, two stickers of the Red Cross
unequal in size in its sides and a flashing blue light firmly positioned at the
top of the mast.
Penalties
The perfidious use of the distinctive emblem of the Red Cross, Red
Crescent Red Crystal, Red Lion and Sun or other protective symbols known
to Geneva Conventions and protocol amount to a serious violation of the
laws of war. This in other words means committing a war crime which falls
under the principle of universal jurisdiction.494
As it concerns the Red Cross and Red Crescent emblems, parties to the
Geneva Conventions are under the obligation to subscribe to laws and
sanctions to be enforced in their national courts, which precludes and
equally reprimand the perfidious use of these emblems in either peacetime
or during armed conflict. To execute such steps, home-grown laws must be
adopted to facilitate the integration of the protection of these emblems.
226
CHAPTER
6
Prisoners of War and their Protection
I. Introduction
The protection enjoyed by prisoners of war is purely premised on military,
ethical and political considerations. Since captured combatants no longer
pose any form of threat to the lives of those who captured them, there is
therefore the belief to treat them humanly. The types and procedures of
treatment will however be tied to the former conduct of the prisoner during
combat. In any case, standard rules of protection apply since they are firmly
established in international humanitarian and human right law.
The treatment of prisoners of war equally has military considerations. No
doubt, prisoners are of military value to the enemy party. They are often
used as a source of gathering information or to mount pressure on their
comrades who are very much in the battlefield.
For the most part of human history, taking into cognizance the culture of
the winners combatants who are on the receiving end in an armed conflict
could expect to be massacred or put into slavery thus bringing economic
and social gains to the victorious party. There was no clear-cut distinction
between combatants and civilians, even though women and children are
in all cases more likely to be spared. At times, the aim of a battle, if not
an armed conflict, was to take women into captivity, a practice known and
recognized as raptio;495 the Rape of the Salines was a well recognized mass
capture by the founders of Rome. It was typical to hold then that women
had no rights and were held legally as Chattel and would not be taken back
by the families of their birth the moment they have produced children to
persons who had murdered their mothers, brothers and fathers.
In the same manner, the difference between Prisoner of War (POW) and
slave is nebulous. Some of the Native Americans captured Europeans and
forced them as both labourers and bargaining chips.
During the middle Ages, a number of religious wars were fought
ferociously. In Christian Europe, exterminating the heretics or non
495 The Latin term raptio (in archaic or literary English rendered as rape) means the
abduction of women
227
Prisoners of war and their protection
believers was believed to be appropriate. In this class, examples include

the 13th century Albigensian Crusade and the Northern Crusades.496 In the
same breath, the inhabitants of captured cities were regularly slaughtered
during the crusades against the Muslims in the 11th and 12th centuries.
Noblemen always hoped to be ransomed; their families in order to facilitate
their release would have to send to their abductor huge sums of money
proportionate to the social standing of the captive. In Japan, especially in
the Samurai dominated area, the custom of ransoming prisoners of war
(who were summarily killed) was not in operation.497 Muhammad however
changed this custom during the early reforms under Islam. He made the
Islamic government responsible in the provision of food and clothing, on a
fair ground, to captives irrespective of their religious beliefs. But where the
prisoners were in the hands of an individual, then the responsibility solely
rest on that person.498 He formulated the rule that prisoners of war must be
fully guarded and not maltreated, and that when the armed conflict ceases
the prisoners were to be freed or ransomed. The exercise of freeing prisoners
was highly acknowledged as a noble and philanthropic gesture. It was in the
city of Mecca that the benevolent code was first applied. But those who were
not Muslims (especially Christians) who were captured in the Crusades
were sold as slaves if they were unable to pay the ransom.499
In 1648, the Peace of Westphalia that terminated the thirty Years` War
firmly formulated the rule that prisoners of war should be freed without
having to pay any ransom at cessation of the armed conflicts and that they
should have the liberty to safely return home.500
In the 19th Century, concerted efforts were made to improve the
condition and processing of prisoners. The long period of conflict during
the Revolutionary and Napoleonic Wars (1793-1815), closely followed by the
Anglo-American War of 1812, resulted in the emergence of a cartel system
for exchanging prisoners, even when the warring factions were still at the
battlefield. Usually, a cartel was arranged by the different armed service for
exchanging equally ranked personnel. The idea behind this was aimed at
reducing the number of prisoners held hostage, while in that same instance
assuaging inadequate skilled personnel in the home country.
496
497
498
499
500
Davis, N. History of Europe p. 362

Samurai, Warfare and the State in early Medieval Japan, The Journal of Japanese Studies
Maududi, Introduction of Ad-Dahr, Period of Revelation (1967) p. 159
Nigosian, S.A (2004) Islam. Its History. Teaching and Practices Indiana Uni. Press
Prisoner of War Encyclopedia Britannica
228
Much later, as fallout of these nascent Conventions, quite a number of

international conferences were held. The Brussels Conference of 1874
was the first with nations reaching an agreement that it was desirable to
forestall inhumane treatment of prisoners and the use of sophisticated
weapon leading to unmitigated damage. Even though no agreements were
endorsed immediately by the nations present, work however continued that
culminated in new Conventions being adopted and becoming acknowledged
as international law that clearly indicates that prisoners of war are to be
treated in humane and diplomatic manner.
To be relevant and effective, the precise provisions of existing international
humanitarian law and any move to bring new rules into existence must
settle five mind-boggling questions:
- Who qualifies to be a prisoner of war?
- What sort of treatment should be meted out to prisoners of war?
- Are there any fundamental rights both of the prisoner of war and
power detaining?
- What length of time and under what conditions would protection
offered to the prisoner of war be firmly assured?
- Which institution is authorized to supervise this treatment and to that
extent campaign for the enforcement of the protective provisions?
In this chapter, we shall examine who a prisoner of war is, commencement
of captivity and conditions in captivity, absconding of prisoners of war
and the end of captivity. The discussion shall not be limited to or made
exhaustive by these items alone, as other incidental issues arising will be
equally examined.
II.
Who is a Prisoner of War?
The Third Geneva Convention Relative to the Treatment of Prisoners of war

spells out and defines classes of persons who are to enjoy the prisoners of
war status:
Prisoners of war are persons belonging to one of the following categories,
who have fallen into the power of the enemy:
1. Members of the armed forces of a party to the conflict as well
as members of militias or volunteer corps forming part of such
armed force.
229
2. Members of other militias and members of other volunteer corps

including those of organized resistance movements, belonging to a
party to the conflict and operating in or outside their own territory,
even if the territory is occupied, provided that they meet the
following criteria:
(a) that of being commanded by a person who is responsible for
his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of openly carrying arms;
(d) that of conducting their operations in line with the laws and
customs of war.
3. Members of the regular armed forces who profess allegiance
to a government or any other authority not recognized by the
Detaining Power.
4. Persons who accompany the armed forces without actually being
members themselves, such as civilian members of military aircraft
crews, war correspondents, supply contractors, members of labour
units or services responsible for the welfare of the armed forces,
provided (as always), that they have received authorization from the
armed forces which they accompany, who shall provide them for that
purpose with an identity card (for proper identification).
5. Members of crews, including masters, pilots and apprentices, of the
merchant marine and the crews of civil aircraft of the parties to the
(armed) conflict, who do not benefit by more favourable treatment
under any other provisions of international law.
6. Inhabitants of a non-occupied territory, who on the approach of
the enemy spontaneously take up arms to resist the invading forces,
without having had time to form themselves into regular armed
units, provided they carry arms openly and respect the laws and
customs of war.501
The following shall likewise be treated as prisoners of war under the
present Convention:
1. Persons belonging or having belonged to the armed forces
of the occupying country, if the occupying power considers
501 Article 4 A GC IV
230
it necessary by reason of such allegiance to intern them,

even though it has originally liberated them while hostilities
were going on outside the territory it (presently) occupies, in
particular where such persons have made an unsuccessful
attempt to rejoin the armed forces to which they belong and
which are engaged in combat, or where they fail to comply with
a summons made to them with a view to interment.
2. The persons belonging to one of the categories enumerated
in the present Article, who have been received by neutral or
non-belligerent Powers on their territory and whom these
powers are required to intern under international law, without
prejudice to any more favourable treatment which these powers
may choose to give.().502
Additional Protocol I broadened the definition of prisoner of war to take
into cognizance the now familiar idea of combatants, linked to the new
military tactics. By this novel definition, prisoner of war status may equally
be granted to armed groups that do not previously belong to the regular
armed forces503 and to those (civilians included) who partake in the conflict.
The definition given to armed forces and combatant was enlarged:
The armed forces of a conflict consist of all organized armed forces,
groups and units which are under a command responsible to that
party for the conduct or its subordinates, if that party is represented by
a government or an authority not recognized by an adverse party.504
Any person who participate in an armed conflict and fall into the power
of an enemy party shall be taken to be a prisoner of war. The person will
be protected under the Third Convention only if he claims the status of
prisoner of war, or if he reasonably appears to be a beneficiary of such status,
or if the party he relies on claims such status on his behalf by intimating the
Protecting or Detaining Power. In case there is any uncertainty surrounding
any such person as to his/her prisoner of war status, he/she will continue to
enjoy the protection afforded such status until the time when his/her status
will be determined by a competent tribunal.505 It is in this light that using
the nomenclature unlawful combatants to prevent some combatants from
502
503
504
505
Article 4.B GC III

Articles 43, 44, Additional Protocol I
Article 43, Addition Protocol I
Article 45.1 Additional Protocol I
231
benefiting from the status or the protection it affords prisoners is rendered

legally baseless in humanitarian law.
How prisoners of war were treated before the 19th Century

The treatment meted out to prisoners of war before the nineteenth century
depended largely on the geographical location, parties involved in the armed
conflict and the conflict itself. This treatment principally arose from the fact
that it was quite difficult distinguishing between civilians and combatants.
However, it was Rousseau in his Du Contract Social (1762) that took the
first bold step that led to the eventual drafting of protective provisions for
prisoners of war. The Treaty of Amity of 1785 and trade relations involving
the king of Russia and the United States of America included the duty of
the contracting parties to shield prisoners of war from further effects of
the war since they presumed to be harmless. Historically too, the Lieber
Code of 1862 contained comprehensive provisions to provide protection for
prisoners of war. A well researched report on the general issues involving
how the prisoners of war should be treated was first presented in the IRC
Conference in Paris in 1867. It should be remembered that the 1861 Lieber
Code which out rightly prohibited any form of inhumane treatment of
prisoners of war had a significant impact on the policy and practice of the
Europeans in the nineteenth century. The first twelve articles that provide
protection for prisoners of war during armed conflict were the brainchild of
the 1874 Conference in the Belgian capital, Brussels. The Brussels Conference
to a large extent influenced and became the backbone for the protective
provisions found in the Hague Conventions of 1899 and 1907 even though
the final act of the Conference itself did not become a treaty.
The Rules of The Hague

The Hague Regulation506 provided the first specie of multilateral treaty rules
on how prisoners of war are to be treated. These rules spelt out the classes
of persons to be taken as prisoners of war and mentioned the principle
of `human treatment`. The Hague regulation, without any contradiction,
stated that as a follow up to the finalization of peace, prisoners of war were
to be sent back to their home states as fast as possible.
506 This is annexed to HC IV
232
The 1929 Geneva Conventions

A conference was organized in 1921 under the auspices of the ICRC which
adopted a Convention on draft form on how prisoners of war are to be
treated. This draft clearly draws the line between the protection of prisoners
of war and the Hague Laws. The new draft became the bedrock for the
subsequent discussions between the ICRC and the concerned states parties in
the 1920s. The direct effect of this is the Geneva Convention concerning the
treatment of prisoners of war, whose negotiation was done by some fortyseven states. Even though the Geneva Convention was largely a reflection
of the appropriate rules of the Hague Regulation, it may nevertheless seen
as the starting point of a new time of protection for prisoners of war. The
Convention of 1929 was very emphatic when it provided that prisoners
must at all material times be treated in a humane manner and be offered
protection, especially against insults, abuses, public curiosity, molestation
and acts of violence. Needed inclusions to the already existing rules were
equally formulated, for instance, prohibiting reprisals against prisoners
of war. In all, the 1929 Convention was the first to provide for an effective
regulation mechanism.
The Period of the Second World War

Some forty-six signatories endorsed the Geneva Convention of 1929. Some
of these signatories507 had already done the ratification before the Second
World War broke out. The defunct Soviet Union was however the only
country in the big five that did not ratify. This singular act brought about
many legal problems during the Second World War as it relates to the
protection of prisoners of war among the key parties to the armed conflict.
The 1929 Convention thus formed the legal foundation on how Germany
related with its Western foes, while the provisions that were applicable
between the Germans and the Soviet Union were those related to the 1907
Hague Conventions and the rules of customary laws.
The Second World War witnessed sharp breaches of the existing
regulations in all the cases that have been clearly identified above.
Ascertaining individual/personal violations in addition to a total disregard
for the humanitarian basis of the provisions of the 1929 Geneva Convention
became highly desirable. Adolph Hitlers Commissar Order of 1941, for
example, heavily negates the Hague Regulation and denying of prisoners of
war status to the political commissars who belong to the Red Army and the
507 The signatories include France, Germany, United States and Great Britain
233
directive to murder them is devoid of any legal foundation in international

law. Grave breaches of international law were further perpetrated by
the Germans on the way and manner they treated prisoners of war by
ordering for the summary execution of Commando units carrying out
operation behind German lines without putting on uniforms who were
taken hostage.508 The Allies also encountered some difficulty as it concerns
recognizing of the prisoner-of-war status of individuals who may be in the
armed conflict. For illustrative purpose, some members of the Wehrmacht
who voluntarily gave in to Allied armed forces as a result of capitulation
effected on 8 May 1945 were sadly deprived of prisoners-of war status and
given the appellate Surrender Enemy Personnel (SEP). Unfortunately, SEP
prisoners were not meant to enjoy the protection available for prisoners of
war of the Geneva Convention of 1929. In like manner, the Soviet Union
denied prisoner-of-war status to some Germans whom they labeled as
war criminals.
Parties to the conflict freely exercised reprisals against prisoners of
war during the Second World War. This constituted further threats to
prisoners of war. The Convention of 1929 may have succeeded in out rightly
prohibiting reprisals against prisoners of war, but as between signatories to
the Convention breaches of protective regulations were wrongly judged to
be a justifiable reprisal. For instance some eighty German prisoners of war
were murdered by the French as a reprisal immediately after the German
occupying authority had slaughtered eighty French captives adjacent the
city of Lyon in 1944.509
Prisoners of war during the Second World War repeatedly faced execution
for breaching the laws of war or laws of the detaining power which may not
be to their knowledge. This is adding to the inadequate care provided for
them. The Convention of 1929 allows for death penalty for specific offences
perpetrated by the prisoner of war, an unbiased trial for suspected prisoners
was never in sight. For instance, prisoners were not afforded the opportunity
to defend themselves or to support their defence with relevant evidence.
Between 1945 and 1955, the controversial issue about the returning of
prisoners of war to their home states constituted a major impediment in the
restoration of a harmonious relationship between the Germans and Soviet
Union. In the year 1950, or there about, the Soviet Union made a statement
to the effect that about 12,000 German prisoners of war were held hostage.
Of the 12,000, 9,000 were labeled criminals.
508 Kalshoven, Belligerent Reprisals pp. 184-193
509 ICRC, Report an Activities during second world war Vol. 1 522-3
234
Advancement in the Law after World War II

The uncountable breaches of the 1929 Geneva Convention rules had exposed
the need for extending and clarifying the protection available for the victims
of war. The International Committee of the Red Cross took the bull by the
horn after the Second World War just like it did after the First World war.
As a result, between 1946 and 1948 a good number of drafts were put into
discussion with the representatives of both states and national Red Cross
Societies actively involved. The Third Geneva Convention (GC III) enlarged
and upgraded the provisions of the Convention on Treatment of Prisoners
of War in 1929. Admittedly, GC III represents one of the most comprehensive
documentations of international humanitarian laws. Previous experiences
on the breaches of the 1929 Convention of humanitarian regulations,
crucial rules meant for the protection of prisoners of war were made clearer,
enlarged and where the case so requires, totally reviewed.
In most armed hostilities since the 1949 breaches and at times serious
violations, of the content of GC III of 1949 were predictable. Just as it was
it in Second World War, breaches of vital provisions meant for protecting
prisoners of war were at the front burner. On their part, the concerned states
failed to respond to these breaches by going for additional codification.
Customary Law and the Protection of Prisoners of War

There is a general consensus amongst the concerned states and some
internationally acclaimed lawyers that the fundamental provisions of GC III
can pass as a valid customary law. It is therefore not surprising that some
provisions are acknowledged as jus cogens. Owing to how they are generally
applied nowadays, the idea of placing the fundamental provisions of GC
III as rules of customary law remains of negligible importance for their
application by states.
Prisoners of War and Their Human Right Protection

The 1957 Standard Minimum Rules for the Treatment of prisoner510 which is
a fundamental human rights of people to be enjoyed by persons in detention,
have clearly referred to the human rights protection of prisoners of war.
510 1957 Standard Minimum Rules for the Treatment of Prisoners (UN DOC. A/CONF/611
Annex 1, E.S.C Res 663C (XXIV) 31 July 1957
235
Sanctions for Violations

The issue as to which breaches of GC III should be regarded as war crimes and
should consequently be universally punished is very fundamental. GC III in
its Article 130 enumerated acts and conducts which are deemed to be serious
violations of the Convention. Article 85 Additional Protocol I in its own
spelt out severe violations of the Protocol. Intentional killing and torture,
inhumane treatment, denying prisoners of war the rights of unbiased and
regular trial and delay in reparations (which is not justified) are some of the
acts prohibited by the Protocol.
A state party thus commits a war crime and a grave breach if it subjects
prisoners of war in their care to inhumane and degrading treatment, willful
killing and torture.
Aim of the Captivity

The intended reason of holding a prisoner of war hostage is not explicitly
stated in GC III. It remains in the best interest of the detaining power to
disallow adverse combatants from further participating in military
activities. Persons in this category who can be taken as prisoner transcend
the enclosed description of soldiers. In this category are persons that have
fallen into the hands of the detaining power as provided in Article 4 GC III
and Article 43, Additional Protocol I. For instance, supply contractors and
war correspondents are also to be deemed as prisoners of war only if they
have acquired the identity card needed for their operations and provided
also that they have the authorization to embark on their operations by the
armed forces which they follow. It would be recalled that in 2003, during
the war in Iraq, a novel practice relating to journalists came up. Journalists
and other television crew were given the permission to monitor and report
about the hostilities that went on between the U.S led allied and Iraqi forces
while safely attached in units of the US Forces. Permission was also given
to journalists to give an accurate report on the armed conflict in the city
of Baghdad.
Ignoring the issue of who is or who has the responsibility of engaging in
fierce armed conflict, legitimate military activities in armed hostilities do
not negate any known international law on war. As a result, the other party
to the armed conflict can launch an offensive against military objectives
of the adversary provided the offensive is executed by legitimate means of
combat. There is no known sanction in the books provided by international
law against such behaviour. Capturing an adversary combatant prisoner
236
does not ipso facto represent reprimanding but only serve to deter further
participation in military activities against the detaining power. As a result of
this important understanding of legitimate activities in course of the armed
conflict, the conditions in which prisoners of war are to be detained must be
different from persons who have been convicted by a competent tribunal.
GC III only allows prisoners of war to be incarcerated in prisons only in
rare cases. In a situation where, say, a prisoner of war has been sentenced
to imprisonment for acts he/she perpetrated before his/her capture, he/
she may nevertheless still be remanded in prisons if members of the armed
forces of the detaining power would receive similar treatment.
Prisoners of War are not Prisoners of the Capturing Unit

Prisoners of war are in the hands of the enemy power, but not of the
individuals or military units who have captured them. Irrespective of
the individual responsibilities that may exist, the Detaining Power is
responsible for the treatment given them.
Regarding prisoners of war as prisoners of a state or Detaining Power has

nexus with the fact that armed hostilities have since time immemorial no
longer been regarded as a perennial struggle of human against human but as
a war between two States bent on settling scores. However, the consequences
of this principle in practice is of dual dimensions: first, it intends to provide
protection for prisoners of war, who must not be degraded to face acts which
are adverse by the enemys combatants who capture them. It affords no
excuse that the lives of the prisoners of war were in peril some few minutes
before their capture, the capturing party is not to regard or see the captives
as its personal or private prisoners. The treatment meted out to prisoners
of war forms the basis of the principle that prisoners of war are prisoners
of the state. It therefore behooves on the detaining power to, as a matter
of obligation, direct its other arms to fully comply which the rules of
international law on how prisoners of war are to be treated and to create
the enabling environment for the application of these rules. The detaining
power must take responsibility in international humanitarian law for the
treatment received by prisoners of war, notwithstanding any unacceptable
behaviour by individual soldiers in course of capturing or actually dealing
with prisoners of war. Any arising claim as it concerns the unacceptable
511 GC III (para. 1)
237
conduct of its arms can only be directed against the detaining power as
contained in the well known principles of international responsibility.
Protection of Persons Whose Status are in Doubt

Should any doubt arise as to whether persons, having committed a
belligerent act and having fallen into the hands of the enemy, belong
to any of the categories enumerated such persons shall enjoy the
protection of the present Convention until such time as their status
has been determined by a competent tribunal512
To deem a person as a prisoner of war when the status of that person is

not very convincing is crucial for two reasons. First for maintaining the
hallowed rule of international humanitarian law as it concerns the detaining
power and the humanitarian protection of individuals in detention. Denying
prisoner-of-war protection at will may soon prove counter-productive for
any move to establish post conflict order.
The ICRC s request of determining competent status and temporary
protection in case there is any form of doubt was included in GC III. Some
decades later, additional modifications were introduced alongside Article
45, Additional Protocol I (para. 1): the temporary protection enjoyed by the
prisoner of war and the status of the prisoner of war and the criterion to
determine the status of the person by a well constituted and fit tribunal will
only apply:
i. Where the detaining power is uncertain whether or not the person
should enjoy such status;
ii. Where the party on which the person involved relies claims the
prisoners of war status on his/her behalf; and
iii. Where the person concerned claims prisoner of-war status.513
Interestingly, Article 45 Additional Protocol I (para. 2) provided a novel
adjectival right for prisoners of war who have been tried for a crime resulting
from the armed conflict, to emphatically state that the person was entitled
to the status of prisoner of war before a competently established judicial
tribunal and to have that issue litigated, when it is practicable, prior to the
commencement of trial of the crime.
512 Article 5 GC III (para. 2)

513 Commentary of ICRC on Article 45 Additional Protocol I paras. 1730-49
238
The competent tribunal which should be qualified to make such

determination remains only a mirage as both GC III and Additional Protocol
II made no mention of such a tribunal. The clear distinctions made in Article
45 Additional Protocol I between judicial tribunal established for persons
tried for a crime and competent tribunal in regular instances make it
conclusive that in a case before a competent tribunal`, the requirement
for the decision of the court is absent. Even where states choose to set-up
government commission for the sole aim of making such decision, the
doctrine of the rule of law allows for the following of established principles
of procedure with a chance to appeal against such a decision.
Humane Treatment of Persons not benefiting

from more favourable Treatment
Article 75514 provides:
Persons who are in the power of a party to the conflict and who
do not benefit from more favourable treatment shall be treated
humanely in all circumstances and shall enjoy, as a minimum, the
protection provided
The guarantees of Article 75 Additional Protocol I are of utmost

significance for those detained who do not yet enjoy the protection offered
to prisoners of war or whose status is surrounded by uncertainty. These
guarantees provided in Article 75 are flavoured with customary law515 and
they can equally be enforced under appropriate human rights Conventions.
In the event where foreigners are held captives, their national authorities
must be contacted promptly and duly intimated, and be afforded the chance
to personally visit them, unless the foreigner being detained has voiced out
a contrary wish.516
The legal right of persons remanded in custody to be aided by a legal team
must be respected and occasional review of the detention must be firmly
guaranteed. It will therefore amount to a breach where the detainee is
denied access to a legal counsel.
The scope of application of Article 75 Additional Protocol I include
incarceration in any other situation of mayhem and any detention
administrative in nature which is regarded as really needed for obvious
515 Customary International Humanitarian Law Rules 87-105
516 Vienna Convention on Consular Relations, very mandatory even in times of war,
Article 36
239
security reasons. Incarceration or detention aimed only at gathering

intelligence fact without the detainee involved exhibiting a genuine threat
to security is unjustifiable. It becomes justified where the person involved
presents a real threat to security.
Transfer of Prisoners of War to another Power

By Article 12 GC III:517
Prisoners of war may only be transferred by the Detaining Power to
a Power which is a party to the Convention and after the Detaining
Power has satisfied itself of the willingness and ability of such
transferee power to apply the Convention. When prisoners of war
are transferred under such circumstances, responsibility for the
application of the Convention rests on the Power accepting them
while they are in custody
Transferring of POW
The transfer of prisoners of war has remained a common and acceptable

practice in previous years under international armed conflicts. The reasons
for transferring prisoners of war no doubt might vary. In some instances,
the practicability of detaining and catering for a huge number of persons
influenced the transfer. In other cases, transfers have been facilitated on
the ground of alliance policy. In the period of the Second Gulf war, the
American forces transferred Iraqi prisoners of war to Saudi Arabia.518
For a transfer to be effective three criteria must be met:
i) The detaining power is circumscribed to only transfer prisoners
of war to a state party who must be signatory to GC III. A transfer
will therefore not be deemed to have taken place if, for example, the
receiving power has signaled that it will back-off, whether completely
or partially, from applying the relevant provisions of GC III.
ii) The other partys enthusiasm to apply the relevant provisions of GC III
must be made clearly manifest.
iii) Preconditions for applying the provisions must be fulfilled objectively.
However, where shelter is scarce or not readily available, insufficient
camps or where transferring of prisoners of war becomes impossible. By
517 Para. 2
518 Department of Defence,Conduct of the Persian Gulf War: Final report to Congress
(1992)/www.ndu.edu/library/eputs/cpgw.pdf>
240
the decision of the European Parliament of 14 February 2007, transferring

prisoners of war to other states who are not directly or indirectly a party to
the armed hostilities for the sole aim of quizzing them is illegal.
The requirements for an open transfer are normally ascertained in treaties
concluded by the states thereto. To illustrate this point, the United States,
during the second Gulf War reached transfer agreements with France, Great
Britain and Saudi Arabia. These treaties covered every area of the transfer
guideline, beginning with the hostage taking of Iraqi soldiers, via their
interrogation and medical care and up to their transfer to prison camps
setup by the receiving state.
Qualified Receiving Powers
The conditions stated above apply mutatis mutandis to the transfer of

prisoners of war from the hands of the detaining power to the other power.
No other requirement is provided. For instance, GC III does not in any way
indicate if the receiving power must be a party to the armed conflict. Where
no contrasting provision is available, the assumption can therefore be made
that any party to GC III can serve as a receiving state provided the conditions
described are met. The 1978-1989 Afghanistan Conflict for instance, saw
Switzerland agreeing to receive Soviet soldiers who had been held hostage
by Afghan insurgents.519
Perpetual Duty
The mere act of transferring prisoners of war to another power does not
ipso facto absolve the transferring power of its duty or responsibility for the
prisoners. The transfer is clothed with legitimacy and becomes effective
only when the receiving state without any dilution applies GC III in all its
fundamental respects. Where there is a breach of these rules, the power
transferring does not only have a right, as suggested by Article 12 (para. 3),
but also a responsibility to adopt effective steps in order to provide a panacea.
The USA, it will be recalled, altered the way they transferred prisoners of war
to the south of Vietnam during the Vietnam armed conflict when breaches
of the letter and spirit of GC III by South Vietnam during the stage which led
to the transfer that were made public. The detaining power should not and
cannot escape responsibility by siting the prisoner-of-war camp in another
locality outside its territory or by deliberately allowing the detained persons
519 UN doc. 47/428 of 16 Dec. 1992, Prisoners of war and persons missing as a result of
war in Afghanistan
241
longer period on ships or planes. Where the transferring States ask for the
return of prisoners of war, such demand may not be turned down.
The Statutes of the International Criminal Tribunal for the Former
Yugoslavia52024 and International Criminal Court generate issues as to the
nature of the responsibilities of States under GC III. These statutes provide
that States that have suspected criminals of war in their control are under
obligation to transfer these suspected criminals to the tribunal 521 or take a
decision about the request for surrendering. The United Nation not being a
signatory to the Geneva Conventions, there is inconsistency in this statutory
duty as it negates Article 12, GC III (para. 2).
Important Rules on How Prisoners of War are to be treated
Prohibition against treating prisoners of war dishonorably or inhuman;

Discriminating prisoners of war on the basis of religious beliefs, race,
nationality, political opinions etc is illegal;
Launching reprisals against prisoners of war is out rightly forbidden.
Prohibition Against Inhumane Treatment
Article 13 GC III states:

Prisoners of war must at all times be humanely treated. Any
unlawful act or omission by the Detaining Power causing death or
seriously endangering the health of a prisoner of war in its custody
is prohibited
While Article 14 of the same Convention provides:

Prisoners of war are entitled in all circumstances to respect for their
persons and their honour.
Prisoners of war must be humanely treated at all times. However,

controversies surround what actually constitute inhumane treatment
as it cannot be found in the Geneva Conventions of 1929 or in the Hague
Regulation. As a result of interpretation problems that arose during the
Second World War, the provision of Article 13 GC III has attempted to fill
this lacuna by providing some instances. Acting or failing to act which
results in the demise of the prisoner of war or grievously putting the health
of the prisoner of war in danger are manifest breaches of the principle that
520 25th May, 1993
521 ICC Statute, Article 89
242
guides humane treatment. It amounts to inhumane treatment where there

is physical mutilation or medical or scientific tests on the prisoner of war,
except the condition of the prisoner of war requires these acts and they are
carried out to protect his/her interest.
There is no circumscription whatsoever as to the applicability of the
humane treatment. The principle of humane treatment applies at all times.
The 1929 Geneva Convention does not however expressly provided for this
term. As a result of what was experienced in wars especially during World
War II, the terminology found its way into the Convention. Consequently,
it is not permissible for the detaining power to justify inhumane treatment
on the pretence of the circumstances of the armed conflict, what led to the
hostilities or related issues especially the security of the detaining power
and the presumed length of the hostility.
The requirement of humane treatment does not only mean that the
detaining power should refrain from acts considered to be inhumane but
also by the wording of Article 13 (para.2), the detaining power has further
duty to prevent such act to be perpetrated by other parties. Protection is
afforded prisoners of war against intimidation, insults, violence and public
curiosity. Resultantly, prisoners of war are not to be transported via the
streets of a town to avoid being subjected to acts of violence or intimidation.
It was therefore wrong for German forces to have paraded French prisoners
of war during the Second World War. The Vietnam War witnessed Allied
pilots been displayed in Hanoi. Captured Allied pilots were also openly
paraded in the towns and streets of the Iraqi capital of Baghdad in 1991
during the Second World War.522 Acts of violence or intimidation may
not be pronounced, in such cases it must be investigated whether there is a
breach of the prohibition of exposing the prisoners of war to public curiosity
and ridicule. Some displayed photos of detained persons from Guantanamo
saw them kneeling and blindfolded putting on surgical masks and earmuffs.
These acts they were subjected to have been heavily criticized as a violation
of the prohibition to expose prisoners of war to public curiosity.523 With
respect to the treatment of detainees in Guantanamo, USA who were
the detaining power can be said to have committed serious breach of
Although such cases may not have been envisaged during the
negotiations for GC III in 1949, nevertheless, the nitty-gritty of rules on
humane treatment forbids any transmission of pictures involving prisoners
522 Fisher, H./Wallenfels, M., Bildberichersttungpp. 28-46
523 The Independent, 22 January, 2002 p.1
243
of war by the detaining power. It is most likely that only two known cases
may be allowed. First if the photographic reports or the photograph do
not make way for the identification of each prisoner, then there is no
violation of the principle of humane treatment. The second permitted case
is on making a report on prisoners and their conditions in captivity by the
protecting power, ICRC or other internationally acclaimed organizations.
In such exceptional instances, even though the prisoners are exposed to
public curiosity, making a report about them facilitates the enforcement of
international humanitarian law and to better the conditions in captivity. The
defunct Yugoslavia instance of reports on prisoner-off-war camps, further
exemplify the requirement to balance the protection of prisoners vis--vis
the rule that forbids their exposure to public curiosity. Where the report is
carried out by international observers, then in that case, the protection of
prisoners prevails.
Discrimination Prohibited
Treating prisoners of war equally must be guaranteed by the detaining

power especially where there are clear cut differences of nationality,
race, political opinion, religious belief and the other already mentioned
characteristics. GC III unmistakably takes a clear position on equality of
prisoners of war. However, an exception can be found in Article 22 GC III
(para.3) which contains a rule on positive discrimination to wit:
The Detaining Power shall assemble prisoners of war in camps or camp
compounds according to their nationality, language and customs
Such assemblage is only feasible if the concerned prisoners are known by

that faith alone, separated from the armed forces in which they were serving
before the hostage taking took place, unless their consent is sought.
The treatment of women as provided in Article 14 GC III (para.2) is also
another positive obligation. The Article provides:
Women shall be treated with all the regard due to their sex and shall
in all cases benefit by treatment as favourable as that granted to men.
244

Prohibition of Reprisal Attack
Article 13 GC III (para.3) provides:

Measures of reprisal against prisoners of war are prohibited.
This is an absolute prohibition. There are no created exceptions to this

principle. Serious breaches of GC III by the adversary do not warrant the
detaining power to launch a reprisal against prisoners. Humanitarian law
unlike other branches of international law is not regulated by the principle
of reciprocity. Echoing this assertion is common Article 1in which the
high contracting parties are committed to respect the Convention in all
ramification. Breaching the provisions of GC III cannot be justified with
breaches by the opposing party. This unequivocal provision on prohibition
of reprisals has always been abused in hostilities since 1949. During the Iran
and Iraq war, for instance, both parties justified some activities by making
reference to breaches by the opposing side.
Admittedly, the conduct of both Iran and Iraq, in this example, was
purely premised in idea of reciprocities and reprisals. The Second Gulf War
provided a shining example that the provisions of GC III can be respected
even in the midst of the most serious breaches. The allied pilots received
maltreatment from the Iraqi forces but this did not make the allied forces
launch a reprisal. And as the Department of Defence524 recorded that
in course of the war on land the Iraqi prisoners were still treated in strict
compliance with GC III.
The Protecting Powers
Protecting prisoners of war no doubt is one of the most significant

obligations of a protecting power. To ensure the protection of the general
population in times of conflict, humanitarian law setup a system of
protecting powers, aimed at protecting and safeguarding the interests
of the persons offered protection by the Geneva Conventions and their
Protocols.525
The system was established to enable the opposing parties to the
armed hostilities to sustain a dialogue as it affects the protection of
their populations.
The Conventions expressly state that, from the period the conflict
commences, the parties have separate duty to appoint a Protecting Power
to make room for the implementation of the Conventions and Protocols.
524 Conduct of the Persian Gulf war
525 GC I-III Articles 8-11; Additional Protocol I Article 5; GC IV Articles 9-12
245
The appointed delegates of the Protecting Powers are subject to the approval
of the opposing party with which they are to collaboratively carryout their
respective duties.
The Protecting Powers mandate is to closely observe and protect the
interest of the parties to the conflict and their nationals. In this regard, they
benefit from certain particular rights and duties:526
The right to supervise the distribution of relief materials;
The right to ensure that judicial guarantees are respected, in case of a
trial, especially in cases that has to do with death penalty;
The right to evaluate their living conditions in cases of internment or
in occupied areas;
The right to pay a visit to persons generally protected by the Geneva
Conventions and their Additional Protocols
Persons who are protected have the right to refer their cases to
Protecting Powers;
The duty to ensure that humanitarian activities are of a civilian and
unbiased nature and to prevent this relief from being hijacked for
military purposes;
The right to supervise the concrete execution of protective measures
for protected persons mostly in cases of internment, detention and
occupied territory.
In theory at least, Protecting Powers are representatives of states that
are not in any way involved in the armed conflict at hand and that agree to
confirm that humanitarian law is not being disrespected in the territory of
a given party to the conflict. In reality, however, since the adoption of the
Geneva Convention in 1949, no state has ever taken this role for any of the
armed conflicts that have taken place. On this evidence alone, it is quite clear
that states lack the needed commitment to actually defend the execution
of humanitarian law. The Geneva Conventions foresaw this diplomatic
lethargy and established various provisions for replacement mechanisms.
Since no state has ever accepted the role of a Protecting Power, a substitute
became inevitable. The ICRC is one of the substitutes to undertake this role.
The ICRC s mediation task is strongly established in the Conventions. It must
request each party to the conflict to make available a list of five states that
526 GC IV Article 30 and 143
246
it would deem acceptable as a Protecting Power in relation to an opposing

party.527
If in spite of this meditative role, the parties to the armed hostilities do
not record success in nominating a Protective Power, the Conventions
provide that the ICRC will act as replacement Protecting Power and takeover
its functions. There is also the possibility of other unbiased humanitarian
societies or organizations to take on the role of protecting Power if the
appropriate parties accept their offer to that effect.
In such instances, the substitutes cease to be states but organizations;
exhibiting all guarantees of fairness and effectiveness. The moment they
have been acknowledged by the parties to the conflict, these organizations
can now perform the duties of the Protecting Powers: observing the
implementation and defence of the Geneva Conventions for protected
persons.528
It is apt to note that this arrangement of substitution is conditioned on
the reciprocal consent of the parties involved in the armed conflict and can
therefore be a futility. When this arises, the Geneva Conventions impose
the presence and operations of humanitarian organizations on the parties
to the armed conflict529
Still supposing that an armed conflict is on between countries X and
Y and the parties to the conflict (in this case countries X and Y) fail to
nominate a Protecting Power or substitute of their own agreement, they are
notwithstanding under the duty to:
Demand that an organization in the mould of the ICRC assume the
humanitarian duties meant to be undertaken by Protecting Powers
under the Geneva Conventions and
Not to decline or reject offers of services of such an organization.
In reality however, the role is undertaken almost exclusively by the ICRC.
The copious provisions as it relates to a Protecting Power or substitute create
a gap for the humanitarian protection that will be filled by international
and non-governmental organizations that are on the spot in case of armed
conflict.530
527
528
529
530
GC III Article 8; GCIV Article 9; Additional Protocol I Article 5

GCI-III Article 11, GCIV Article 12 and Additional Protocol I Article 5
GCIV Article 30 and 143
GCI-III Article 10, GC IV Article II and Additional Protocol I Article 5.4
247
Protecting Powers and Weakness of GC III

A fundamental weakness is inherent in the system under GC III which
makes approval a necessity from the detaining party before the already
appointed delegate by the Protecting Power can perform their duties.
General obligation in accepting the appointed delegates is clearly absent
and to add to that no guidelines for the selection of Protecting Powers by
parties to a conflict are generally made readily available. Detaining powers
can therefore cripple the arrangement of protecting powers totally by failing
to approve the delegates. However, the adoption of Additional Protocol I in
1977 changed the situation to an extent. In this regard, Article 5531 provides:
It is the duty of the parties to a conflict from the beginning of
that conflict to secure the supervision and implementation of the
Conventions and this Protocol by the application of the system of
Protecting Powers
The beginning of operations by this Protecting Power, is however

dependent on its acceptability by the enemy party. Article 5 Additional
Protocol I established a guideline aimed at quickening the choice of a
substitute Protecting Power in a situation where the appointed Protecting
Power is not accepted. This contrasts sharply with Article 9 GC III
which provides:
The provisions of the present Convention constitute no obstacle to the
humanitarian activities with the International Committee of the Red
Cross or any other impartial humanitarian organization may, subject
to the consent of the parties to the conflict concerned undertake for
the protection of prisoners of war and for their relief.
Even at that, Article 5 para 4 provides that the substitute protecting power
must also be accepted by the parties to the armed conflict prior to beginning
its functions.
The principal role of the delegates of the protecting powers is to pay a visit
to the prisoners of war and to quiz them without persons witnessing same.
In order to ensure that delegates get a full and clear notion of the scope to
which the provisions of GC III are being fulfilled, they can, going by the
rules, pay a visit to places where prisoners of war are being held captive.
This is not only applicable to prisoner-of-war camps but also to some
other areas of detention and or, points of departure, transit and arrival of
248
transferred prisoners of war as well. The duration and number of times of

visit is exclusively left for the delegates representing the protecting powers
to decide. Arranging of visits by the delegates as it relate to their location
and timing may only be circumscribed by the detaining power for obvious
military reasons which should be only for a while. The obvious military
reasons adduced should not be given all the time. Visits shall not be denied
transit camps provided the delegates do not obstruct military activities of
the detaining power and are not periled by their visit.
The protecting powers further partake in resolution of disputes. As
Article 11532 puts it:
In cases where they deem it advisable in the interest of protected
persons, particularly in cases of disagreement between the parties
to the conflict as to the provisions of the present convention, the
protecting powers shall lend their good offices with a view to settling
the disagreement.
The protecting powers mediative roles are however not limited to these
cases alone.
Since the Second World War, the arrangement of protecting powers has
been utilized scarcely. In 1956, during the Suez crisis, protecting powers were
nominated by Israel but Egypt did not give them the go ahead to carryout
out their tasks. The consent of the detaining power is a sine qua non to the
protecting powers delegates kick starting their operations, is a considerable
infringement on the proper working of the system of protecting powers in
A further development in the understanding of the function of protecting
powers arose as a result of the response of the international community
to the armed conflicts in the defunct Yugoslavia. Such duties may be
undertaken by international organizations and specially created organs.
For example, delegations of the Conference for Security and co-operation in
Europe paid a visit to the prisoners of war camps in the defunct Yugoslavia.
A person visiting a prisoner of war camp should have at least a general
idea if not detailed knowledge of what the Third Geneva Convention or
individual regulations relating to camp activities require. Some idea about
the law should make it unattractive for a capturing power to prevent the
outside world with a faade of compliance while, in reality, it is breaching
the precepts of the law.
532 GC III
249
Switzerland has a long history serving as a protecting power in many

conflicts. During the Franco-Prussia War533 it effectively represented the
interests of the Kingdom of Bavaria and the Grand Duchy of Baden in
France. During the First World War, Spain took on more protecting power
representational duties than Switzerland, and the Netherlands also took
carriage of mandates.
However, in the Second World War, both Spain and the Nazi controlled
Netherlands were effectively unable to serve as a protecting power and
instead Switzerland took on the task of representing quite a number of
belligerent states. At a point, Switzerland represented the interests of over
35 states in their adversaries capitals, including the Allies in Axis capitals
and Axis in Allied capitals simultaneously, equaling around 200 mandates.
The Swiss could cover divergent matters between the prisoners of war,
the welfare of Rudolf Hess after his arrival in Scotland and subsequent
notification of Japans acceptance of unconditional acceptance.534
Since the Second World War, Switzerland has been given over 67
protecting power responsibility during several armed conflicts, including
the Falklands War, Kosovo Conflict, Suez Crisis and the Congo Crisis. In
Havana, Switzerland undertook the representation of eleven Latin interests
and North American states just after the Cuban revolution that forced these
states to withdraw diplomatic relations (since restored in some cases), and
Switzerland was effective in the resolution of conflict relating to hijackings
and refugees between Cuba and the United States. As a result of the Yom
Kippur War in 1973, Switzerland undertook further responsibilities in the
Middle East and had at a time 25 tasks, the highest number since 1945.
Switzerland provided protecting power role between India and Pakistan
until both states undertook the formalization of diplomatic relations in
1976 and monitored the movement of over 320,000 refugees between these
countries.535
Switzerland now only has four protecting power duties- to represent
the governments of Cuba and the United States in each others capitals
and represent the United States in Iran and to represent Iran in Egypt.
Agreements were reached and signed that Switzerland is going to represent
the governments of Russia and Georgia in each others territory.
533 1870-1871
534 Probst, R. (1989) Good offices in the Light of Swiss Intl Practice and Experience
Fischer, T. (2002) Switzerlands good offices: a changing concept 1945-2002
535 Fischer, T. (2002) Switzerland`s good offices: a changing concept 1945-2002
250
Although the duty of the protecting power is to guarantee legal assistance

to prisoners of war, it acts in circumstances mandatory of the power in
whose armed forces the prisoner of war served and which is ultimately
responsible for providing defence for members of its own forces. Since
a state of war prevents it from taking action through its own diplomatic
representatives, it resorts either to a neutral party, which consents to act on
its behalf, or if there is none available, to the intermediary of a humanitarian
organization.536
At the Conference of Government Experts, however, it was pointed out
that Article 60 of the 1929 Geneva Convention Contained Certain technical
loopholes which had been remarked during the Second World War by all
who had to apply that Convention.
It is germane to note at this point that certain countries may have reached
an agreement to provide limited consular services to the citizens of other
countries. This ipso facto do not necessarily constitute a protecting power
relationship as the host country may not have formally acceded to that and
there may in fact be diplomatic relations between the host country and the
third country but no physical representation.
As a substitute protecting power, the ICRC has some responsibilities on
its shoulder. The role of the ICRC is clearly enumerated in treaty law and
custom. It can undertake the roles assigned to protecting powers fewer than
two situations. The detaining power can in the first instance request the ICRC
or some other humanitarian organization to carryout protecting powers
duties. A second possibility is for the ICRC, for example, to offer its services
under the arrangement of protecting powers; this has to be accepted by the
detaining power first before such services can be performed. In both cases
however, the ICRC activities as it relates to the protecting powers depend on
either the detaining power inviting or accepting same. Such acceptance can
be quickened and even replaced in some instances. For example, during
the conflict in Bosnia- Herzegovina, the Security Council asked all parties
involved to permit international humanitarian organizations, especially the
ICRC the freedom to access camps, prisons, and centre meant for internment
in the defunct Yugoslavia territory.
In the main, we have identified a protecting power as any state instructed
by one of the parties to a conflict to safeguard and protect its interest. They
can be selected from among its diplomatic or consular representatives, its
nationals or the nationals belonging to other neutral powers. The party
to the armed conflict must endorse the delegates being appointed. Under
536
Report of the ICRC on its activities during the Second World War vol. 1 p. 352
251

GC III any organization that is clearly impartial and very effective can
act as a protecting power. The organization can be international or noninternational states. Finally, before an organization can undertake the
duties of the protecting power, the parties therefore must first confer such
duties on it.
III.
Commencement of Captivity
The status of prisoner of war starts the moment a combatant or some

other person with identical status and hors de combat falls into the hands
of the adverse party. An enemy, having surrendered his arms, or becomes
defenseless or is otherwise not able to engage in the hostility or defend
himself shall no longer be made the object of attack. He shall subsequently
be taken as a prisoner of war.537
The Nexus between Combatant and Prisoner of War

Article 44 Additional Protocol I provide:
Any combatant who falls into the power of an adverse Party shall
be a prisoner of war.
While all combatants are obliged to comply with the rules of
international law applicable in armed conflict, violations of these rules
shall not deprive a combatant of his right to be a combatant or, if he
falls into the power of an adverse party, of his right to be a prisoner
of war
The obvious connection between combatant and prisoner-of-war status

is amongst the most important principles of international humanitarian
law. The Article quoted above has re-echoed this by connecting the status
of prisoner of war with that of combatant in a categorical way. The one precondition provided for the applicability of prisoner-of-war protection: the
combatant must have been held hostage or captured by the enemy party
to the armed conflict. The various definitions ascribed to combatants in
GC III and Additional Protocol 1 and the Hague Regulation will form the
determinant as to which class of persons should as of right make claim to
the protection as prisoner of war. The links setup through customary law
537 Article 4 and 6 GC III; Article 44 and 45 Additional Protocol I; Article 23 Hague
Regulation (para. 1)
252
and treaties between the parties to the hostilities are the basis for granting
combatant status.
No doubt, humanitarian law has further advanced by Article 43 Additional
Protocol I, which equally altered the constitutive pre-requisites for the
nomenclature as a combatant. Resulting from this, problems are bound to
crop up in the area of uniformly applying international humanitarian law
in any armed hostility involving different states but only some of them
are subject to Additional Protocol I. In a situation where only party to the
armed conflict is bound by the provisions of Additional Protocol I, members
belonging to its armed forces shall be taken and treated as prisoners of war
irrespective of whether or not they only bear their arms openly before an
attack. Rosas538 has however vehemently made the point that for parties to
the hostility only bound by GC III, the scenario will obviously not be the
same in order that prisoner of war status is not claimed.
A novel controversy arose during the Second Gulf War as when and what
action can entitle persons to becoming members of the armed forces. Can a
mere inclusion on a reserve list present one as a member of an armed force?
The United Kingdom detained students of Iraqi descent who were scholars
in London and held them as prisoner of war. The U.K. justified its action on
the suspicion that the students were duly registered on a list of Iraqi reserve
forces. This position adopted by the British was heavily criticized for failing
to distinguish between passive and active reservists. It is the responsibility
of states to independently determine how their armed forces are to be
composed. Thus, the time when service in the armed forces is begun and
when it ends must be determined in accordance with the national law of the
state concerned.
Persons not involved in the combat are also entitled to enjoy the prisoner
of war status. The term may suggest otherwise but in reality, they are not
part of the civilian population are rather members of the armed forces who
have been delegated special non-combatant roles. As a result, whenever they
are captured, they shall enjoy the treatment offered to prisoners of war.
Capturing Prisoners of War

The prisoner of war status only begins when capture had taken place.
However, clarity has to be made on the time and by what act a person falls
into the hands of the enemy. Hors de combat was defined as:
A person is hors de combat if:
538 Rosas, A. The legal status of prisoners of war (1976) pp. 342-43
253
a) he is in the power of an adverse party;

b) he clearly expresses an intention to surrender; or
c) he has been rendered unconscious or is otherwise incapacitated by
wounds or sickness and therefore is incapable of defending himself.539
This definition clearly pre-supposes that the detaining power has firmly
stamped its authority over the person. In the battle front, the meaning
ascribed to this is that soldiers have either given in to the adversary or fall
under the adversarys power after been unable to carry on with the fight as a
result of wound sustained.
Article 12 GC III (para. 2) imposes the responsibility on the detaining
power to cater for prisoners of war in the following words:
Prisoners of war may only be transferred by the Detaining Power to
a power which is a party to the Convention and after the Detaining
power has satisfied itself of the willingness and ability of such
transferee power to apply the convention. When prisoners of war
are transferred under such circumstances responsibility for the
application of the Convention rests on the power accepting them
while they are in its custody.
By this provision, prisoners of war, falling into the hands only arises
if the combatants are taken hostage or interned by the appropriate State
organs. Merely remaining on the enemys territory does not meet the
requirement of falling into the hands. This is illustrated by the Iraqi
soldiers example of surrendering to journalists in the desert. However, they
were not still recognized as prisoners of war not before they were handed
over to the Allied Armed forces to the conflict. In other words, custody of
a prisoner of war only begins with the performance of an act by a proper
State arm. It is inconsequential if the prisoners of war surrendered to the
adversary as a result of halting of their States military activities. Any other
person held captive after the surrender of their power are equally deemed to
be in the hands of the adversary. They are not to be treated differently; they
shall equally be taken and treated as prisoners of war.540
539 Article 41 Additional Protocol I (para. 2)

540 Levie, H. Prisoners of War (1978) p. 35
254
Captured Criminals of War

The limitation of the 1929 Convention was quite evident as it made no
obvious provisions on the status of war criminals captured in the battlefield.
But after the Second World War, courts set up by the allies denied prisonersof-war status to Japan and German soldiers who were then in the thick of
unlawful war operations. GC III makes provision in Article 85 that:
Prisoners of war prosecuted under the laws of the Detaining Power
for acts committed prior to capture shall retain, even if convicted, the
benefits of the present convention.
By the provisions of Article 85 therefore, a detaining power lacks the

power to deny prisoner-of-war status to adverse combatants on the excuse
that they had already perpetrated war offences. In spite of this provision,
various armed conflicts since the Second World War have denied persons
prisoners-of-war protection for this very reason. This was what happened
in North of Vietnam. The provisions of Article 85 did not however go
down well with the Soviet Union and a number of other States after the
ratification of GC III. The reservation expressed was meant to change the
legal consequences of that Article. The reservation is simply to the effect that
persons who have been already convicted of war crimes or crimes against
humanity should not be protected under GC III. McCoubrey541 has however
opined that this reservation can no longer be permitted nowadays. It has
remained the general consensus of authors that even combatants who have
perpetrated war crimes prior to being taken as prisoners are to benefit from
the provisions of GC III, irrespective of any penal and disciplinary sanctions
in line with Article 82 -108 GC III. In principle however any doubt as to the
status of prisoners must be resolved to favour them.542
In addition, even where the state for which combatants were fighting
ceases to exist or its territory now belonged to the state which is keeping
the soldiers prisoner, combatants may still not be denied of prisoner-of-war
status on such ground. The detaining power has an unlimited right to search
and disarm prisoners of war. It is also the responsibility of the detaining
power to find out the nature of objects the prisoners of war are bearing.
Tying up of prisoners of war has no express provision in GC III. It is
therefore not certain whether or not prisoners of war may be tied up
following their being held captive. Some German soldiers belonging to the
541 McCoubrey H. International Humanitarian Law (1998) p. 105
255
German armed forces were captured and tied up by a combined team of

British and Canadian forces adjacent Dieppe at the French Channel coast.543
They were claimed to stop them from damaging military documents. A
reprisal was launched, following this incident, by the allied prisoners of war
in German camps and also German prisoners of war in allied camps were
tied up. The Second Gulf war also saw the tying of prisoners of war as a
security measure. The whole world saw some pictures of Iraqi soldiers in the
desert of the Saudis with their hands firmly tied to their backs.
Undoubtedly and generally speaking, binding or tying up prisoners of
war in camps is forbidden. Some other methods might be adopted in the
battlefield, since the first aim of the detaining soldiers is to stop the prisoners
of war from absconding (as it happened in 1942 in Dieppe) or to prevent the
damaging of vital information.
The argument against granting permission for the tying of prisoners of
war in conditions at the battlefield is easily discerned from the responsibility
imposed on the detaining power to provide care for the prisoners of war.
Tying of prisoners of war, it is submitted, is viewed as breaching the rule
that prisoners of war shall not be faced with superfluous dangers before
being moved from the battlefield, since prisoners of war need freedom of
movement on the battlefield with the intention of avoiding any perilous
situation. The inhumane and degrading practices perpetrated during the
Second Gulf war must therefore be clearly seen as grave breaches of GC III.544
Keeping of Articles of Personal use by Prisoners of War

Article 18 GC III provides:
All effects and articles of personal use, except arms, horses, military
equipment and military documents, shall remain in the possession of
prisoners of war, likewise their metal helmets and gas masks and like
articles used for protection. Effects and articles used for their clothing
or feeding shall likewise remain in their possession, even if such effects
and articles belong to their regulation military equipment.
Article 18 GC III places a restriction on the right to loot (booty) which

has been a significant part of the law of war. This obviously takes into
cognizance the security interests of the prisoners of war and the detaining
power not leaving out the events of captivity. Article 18 does not regulate or
543 ICRC, Report on its Activities during the Second World War vol. 1,368-370
544 Ipsen, A. Report of the US Dept. of Defense on the Gulf war p. 43
256
concern itself with ownership of items bore by prisoners but on the use of
the objects to cause damage to the prisoner. Articles relating to personal use,
irrespective of whether they are possessed by his/her state of descent may
not be seized. Also included in this list are clothing and food items which
form part of the prisoners military equipment may not be carted away. It is
equally important for the safety of prisoners of war that gas masks, helmets
and other similar items used for their personal safeguard are not taken away
but left with them.
Paragraph 3545 listed some personal items which are not also to be
confiscated. Wedding rings fall into this group. It is not all articles of
personal or sentimental value that have been confiscated by the detaining
power. In this regard, the GC III adopted a less flexible approach than the
1929 Convention which did not allow any objects of value to be carted away.
However, as provided above, the seizing of arms, horses, military equipment
and military data is allowed, whether or not the items are the personal
acquisition of the prisoner of war.
Where the issue is whether prisoners of war need permission to safeguard
objects which could aid in the absconding, the security interest of detaining
power and the interest of providing protection for the prisoner of war must
be taken into cognizance. Seizure is only allowed if these conditions are
fulfilled: the objects must be directly connected for the escape. In other
words, it must aid or facilitate the escape and they should have substitute
objects made available by the detaining power. For example, where there is
similarity between the prisoners clothes and that of the civilian population,
the detaining power has the discretion to replace same with other clothing.
Setting-up of Information Bureau for Prisoners of War

Upon the outbreak of a conflict and in all cases of occupation, each of
the parties to the conflict shall institute an official information bureau
for prisoners of war who are in its power.
Notifying the relatives of prisoners of war would not be a reality

without placing a responsibility on the detaining power to make available
information concerning what will befall prisoners of war. The Article just
considered enumerated the comprehensive provision relating to prisoners of
war and their welfare which the detaining power shall communicate. It takes
545 Article 18 GC III
257
care of personal data like names, designation, first name, place and full date
of birth, army, personal or serial number etc; useful information concerning
the health status of seriously indisposed prisoners, and information of relief,
repatriation, escape, admissions to hospital etc. The extent of compliance
with the obligation by the detaining power relating to the personal data is
dependent on the conduct of the prisoners of war. The detaining power can
only relay this information if they provide details beyond what is needed in
Article 17. But where the prisoners of war are unable to furnish the detaining
power with such details, the ambit of the GC III regulation provided in
Article 122 cannot be held against the latter.
The setting-up of an official Information Bureau does not foreclose
the obligation imposed on the detaining power to provide information.
Armed with the relevant rules of GC III, the detaining power can engage
the services of prisoners of war to work in the bureau. The principal role of
the bureau is to send the information gathered to the state of the prisoner
of war. This is usually done without further delay. In previous conflicts,
the issue as to which party bears the financial burden for sending such
communications by international mail and telegraph service was of hot
contention. This controversy may be slowly fading away under todays
technological sophistication.
The obligation to forward the information to the home state can either
be undertaken by the Central Prisoners of War Information (CPWI) Agency
or the protecting power. This agency (CPWI) was established by the ICRC in
Article 123 GC III. Its duties are not only limited to the forwarding and receipt
of information from the national information Bureaux, but it also receives
all information and sometimes undertake to perform the mediating task.
The issue relating to persons missing as a result of armed hostilities
and other situations evoking armed mayhem has led to ever rising
problems, notwithstanding the appreciable advancement of modern
information technology.
During the Second World War, and in most of the conflicts, parties to
the conflict flagrantly breached their duties as provided in Article 122 GC
III to gather and send information. Serious breaches took place for instance
during the territorial crisis in 1962 involving India and China, the Vietnam
War and the Korea War.546 In a bid to correct breaches of the responsibility
to duly report, States most times finalized agreement, the moment conflict
tare resolved, to plan for the combined search for missing war victims
and prisoners of war. In other conflicts, the parties involved fail to fulfill
546 Levie, H. Prisoners of War (1978) pp. 156&157
258
the fundamental pre-requisite for gathering information viz registering

prisoners of war. The war involving Iran and Iraq serves as an apt example.
Sums of Money and Valued Articles are not to

be taken away from Prisoners of war
Sums of money carried by prisoners of war may not be taken away
from them except by order of an officer, and after the amount and
particulars of the owner have been recorded in a special register and
an itemized receipt has been given, legibly inscribed with the name,
rank, and unit of the person issuing the receipt.547
This regulation relating to articles of value and money is a clear exception

to the prohibition contained in Article 18 GC III (para. 1). It provides only for
a momentary taking of money and articles of value. The security provided
for the prisoners of wars articles of value as provided under the Convention
of 1929 remains firmly intact under GC III, even though it is now allowed
to cart away money from prisoners of war in the stipulated manner all the
time. The detaining power has the discretion to take articles of value on
security grounds. Also, the detaining power must determine if articles of
value like jewelry could facilitate the escape process.
Two serious problems have arisen as a result of applying the provisions
of Article 18 GC III (para. 4), even though they have been properly handled.
The first has to do with securing the money and articles of value, the
issuance of receipt, the registration process and returning at the end of
captivity. The procedure stipulated is relevant in principle for facilitating the
return of money and articles of value after the cessation of hostilities. The
detaining power is further required to administer and apportion the money
to accounts. This may not be possible especially during the first stage of a
conflict as well as in instances of great financial requirement of the parties
to the armed conflict.
The scenario will be quite different if the prisoners of war possess money
in the currency of the detaining power or a neutral state. In that case, it
may be questioned if this money is subject to Article 18 GC III. From the
provision of Article 18 GC III, it appears that the Article does not make a
distinction between different currencies. It is submitted with due respect
this provision is quite deficient because prisoners of war may have gotten
money through pillage or getting it from their home state for the sole aim
259
of escaping. Interestingly, in the time of war, it will be almost impossible to

decide the root of money and it will be difficult as well for all prisoners of war
to convince someone on that point if special information is not provided.
For instance, if the prisoners of war are involved in the hostage-taking of
soldiers of the detaining power, it could signal an illegal acquisition. The
detaining power is only allowed to deviate from its responsibilities where
there are obvious indications that the money has been acquired unlawfully.
Evaluation of Prisoners of War

Prisoners of war shall be evacuated, as soon as possible after their
capture, to camps situated in an area for them to be out of danger.
Only those prisoners of war who owing to wounds or sickness would
run greater risks by being evacuated then by remaining where they are
may be temporarily kept in a danger zone.
Prisoners of war shall not be unnecessarily exposed to danger while
awaiting evacuation from a fighting zone.
The moment captivity begins; the detaining power becomes responsible

for the welfare of the prisoners of war. This is not limited only to the
obligations to desist from some acts but it also places on the detaining
power, a duty to act with the aim of protecting the lives of prisoners of war.
The duty to evacuate is an integral element of the responsibility to take
action. The fundamental task to evacuate is supported by the care providing
responsibility aimed at protecting the lives of the prisoners of war, from the
moment they were captured up till the time they are evacuated. This does
not in any way imply that the detaining power has to strategize and execute
its conflicts mainly with the securing of the prisoners of war in mind. The
expectation however remains that the dangers which already exists for the
prisoners of war are assuaged as they are captured.
Evacuating prisoners of war from the battlefield does not offer any
complete assurance and total safety from the consequences of the conflicts.
For instance, during Gulf War II, air raids by the allied forces as well as the
use of long-range missiles transferred the whole territory of the adversary
into a combat zone. Arising from this, it remains controversial whether the
term combat zone in Article 19 GC III reflects the requirement of warfare
today. It is therefore doubted if the accommodation of allied pilots in hotels
260
in Baghdad during the Second Gulf War is the same as an internment in

camp in line with Article 19 GC III. This is because Baghdad was vulnerable
to attack at any time, for example, by sea launched cruise missiles that could
come from allied ships.
As it concerns evacuation, the detaining power has no unlimited
discretion; the evacuation must be effected as soon as practicable. It follows
therefore that the detaining power would not be charged with any wrong
doing where the evacuation is stalled as a result of supervening events.
Forces of the detaining power may have concluded to evacuate some
prisoners of war on a given date but that arrangement can be frustrated
if the government of the forces gives a contrary order. The interpretation
on the time for evacuation depends to a large extent on the surrounding
circumstances of the particular capture and the strategic and tactical battle
condition. A waiting period is clearly provided by GC III for prisoners of war
who have been captured. Article 19 GC III (para. 3) places an obligation on
the detaining power to prevent unnecessary dangers before evacuation. It is
equally important to bear in mind that the detaining power has an interest
in interrogating the prisoners of war on the battlefield with the intention of
getting information which can be useful especially to the military.
It is not clear what transport facilities have to be maintained in any armed
hostility by the detaining power in order to meet the responsibility provided
in Article 19. For instance in the Second Gulf War, the surrendering of some
large number of Iraqi soldiers resulted in delays in their evacuation from the
frontline and from make-shift camps. This does not amount to breaching
of GC III as the composition of Iraqi prisoners of war was not foreseen. A
violation of the obligation only arises where the detaining power does
not provide any mode of transportation or where it provides, it is grossly
insufficient. What however will amount to insufficient capacity will depend
on individual cases and circumstances of the conflict. It will not afford
any excuse to the detaining power where it holds that available transport
(vehicles) was needed for its military activities. This cannot therefore be used
by the detaining power to avoid its responsibility as provided under Article
19 GC III. If there is no availability of transport or where the detaining power
cannot guarantee a timeous evacuation, it has to be guided by the provisions
of Article 41, Additional Protocol I which provides inter alia:
When persons entitled to protection as prisoners of war have fallen
into the power of an adverse party under unusual conditions of
combat which prevent their evacuation they shall be released and all
feasible precautions shall be taken to ensure their safety.
261
Humane Evacuation of Prisoners of War

and the Supply of Necessaries
The evacuation of prisoners of war shall always be effected humanely
and in conditions similar to those for the forces of the Detaining
Power in their changes of station.
The Detaining Power shall supply prisoners of war who are being
evacuated with sufficient food and portable water and with the
necessary clothing and medical attention.
Transport conditions during the Second World War were very appalling
as it created unimaginable difficulties in the treatment of prisoners of war.
In most cases, prisoners of war became deceased on their way from the
place they were captured to the camps owing to insufficient care. The ugly
experience of the Second World War facilitated the provisions in Article
20 GC III, which clearly underscores the requirement of humane treatment,
stipulated express and total limitations on the treatment meted out to
prisoners of war in course of their transportation. It can be argued that since
Article 13 GC III contains the general Principle of humane treatment, Article
20 GC III only provides a specific example of this general principle. The
nexus between Article 13 and 20 reveals that treatments which are forbidden
by article 13 are equally prohibited during transportation. The allusion to
clothing, sufficient food and medical care provides three obvious examples
of areas vital to humane treatment.
The argument has been made that in armed conflicts, it is most unlikely
that the transport of prisoners of war will be executed in a similar manner
to the transfer of forces of the detaining power,549 even though this standard
is needed by the provision of Article 20 GC III. Transporting own troops
is of necessity different from those for the transport of prisoners of war.
Referring to the requirements of transport of the detaining powers troop
can only be comprehended as providing back bone for the creation of
humane treatment. The fact that the detaining power transports its own
troops with inadequate care is not a justification for inhumane treatment of
prisoners of war.
Apart from insufficient care, excessively prolonged everyday marches
have also led to the death of a good number of prisoners of war both in
548 GC III
549 Levie, H. prisoners of war (1978) p. 101
262
the Korean War and world war II. The 1929 Geneva Convention expressly
prohibited marches above 20 km per day but prisoners of war were compelled
to cover longer distances. In spite of other available modes of transport
open to every army, marches played an integral role in the evacuation and
transfer of prisoners of war. However, Article 20 GC III which contrasts
sharply with the 1929 Geneva Convention does not stipulate a maximum
number of kilometers the prisoners of war can be required to march each
day. The argument against this avoidable lacuna is that by not specifying a
maximum kilometer prisoners of war can march per day, the prisoners of
war can be made to march for even longer distances. The consequence of
such long marches is that it would result in more deaths when this happens;
there is a severe violation of the Geneva Conventions. The present position
remains that today; a limit for prisoners of war of about 20km or 12 miles
each day is advanced for marches.550 This was the same figure provided in
the 1929 Convention.
No matter the distance or kilometer that the prisoners of war are to cover
in practice however, the physical fitness of the prisoners of war, their neutral
capability, clothing, and the geographical and climatic conditions will be
the decisive factors as to the required marching distance.
In transit camps, the detaining power is also under a duty to humanely
treat prisoners of war. The two transit camps are permanent establishments,
housing prisoners of war pending when they are to be relocated to
other camps.
Prisoners of war are to be protected from any attack by the civilian
population. This obligation is a general principle of the treatment of
prisoners of war. This is equally applicable during the transport stage which
period the prisoners of war are likely to come into contact with the civilian
population. Attacks on prisoners will include any real attacks, defamations,
insult and abuse. Parading of prisoners of war shall be taken as a forbidden
violation as it is never allowed to expose prisoners of war to public curiosity.
550 Hingorani, Prisoners of War (1982) p.132
263
Treatment of Prisoners of War with

Unusual Conditions of Combat
Article 41551 Additional Protocol I states:
When persons entitled to protection as prisoners of war have fallen
into the power of an adverse party under unusual conditions of
combat which prevent their evacuation they shall be released and all
feasible precautions shall be taken to ensure their safety.
Article 41 Additional Protocol I provide an important inclusion as

it relates to the treatment of prisoners of war. Whereas Article 19 GC III
provides a responsibility to set free or repatriate prisoners of war in course of
an armed hostility which it restricted to instances of injury and sickness and
it is dependent on the physical condition of the prisoners of war but Article
41 Additional Protocol I applies notwithstanding the physical condition of
the prisoner of war. Where the lives of prisoners of war become increasingly
difficult to protect because evacuation has not been effected, they must be
released on that ground. There is an additional responsibility provided by
Article 41 Additional Protocol I on the obligation to evacuate and provide
care for prisoners under Article 19 GC III. If an evacuation is no longer
tenable as a result of the events that surround the combat, the prisoners
must be set free. The use of the term unusual conditions of combat
connotes instances that may have arisen from a normal battle situation,
where atmospheric conditions would make it impossible to provide care for
or to actually evacuate the prisoners of war over a period longer than the
one contemplated.
Merely releasing of a prisoner of war does not meet the obligation arising
from Article 41 Additional Protocol I. the security of the prisoners of war as
a result of their release shall equally be taken into cognizance. It is required
that the releasing party takes positive action. It is however unclear which
acts can be envisaged. The argument has been canvassed that international
customary law has the requirement that the prisoners of war are afforded
sufficient amounts of food and portable water to ensure their survival. In
the event where all food supplies are needed for an extended operation,
Article 41 Additional Protocol I (para 3) should therefore not be interpreted
as demanding that some of these supplies be given to the prisoners of war
being set free.552
551 Para. 3
552 Solf, W. New Rules (1986) p. 224
264
Right to Question Prisoners of War and its Limits

Article 17 GC III provides inter alia:
Every prisoner of war, when questioned is bound to give only his
surname, first name and rank, date of birth, and army regimental,
personal or serial number, failing this, equivalent information.
No physical or mental torture, nor any other form of coercion, may
be inflicted on prisoners of war to secure from them information of
any kind whatever. Prisoners of war who refuse to answer may not be
threatened, insulted, or exposed to unpleasant or disadvantageous
treatment of any kind.
The questioning of prisoners of war shall be carried out in a language
which they understand.
Forming part of the best known rules of GC III are the provisions on the
right to question and the limits placed on this right. The detaining power
has a solid interest in retrieving information about military planning of the
adversary. Prisoners of war however cannot decide how the quizzing officer
would respond if denied information. They would be seen as not loyal and
unpatriotic to their state if they venture to give information about military
operations of their units and armed forces. The information relating to
name, personal or serial number, army etc allows the detaining power
to know the prisoner of war and to communicate the information to the
relevant and official information Bureau in line with Article 122 GC III.
The detaining power is not restricted to ask further questions unlike
the limitation imposed on the prisoner of wars obligation to provide
information. This in effect means that whereas the detaining power has an
unlimited right to ask questions, the answers or responses to be given by the
prisoner of war is limited. This particular provision is somewhat strange.
Of what use is the unlimited right to question when the respondent has
just limited answers? The manner of questioning is regulated particularly
as to the procedure of questioning, the responsibilities placed on the
prisoner of war to assist and most likely reactions of the detaining power.
The interrogation must be done in such a way that prisoner of war is able to
provide answers to the questions asked. It is therefore fundamental that a
language understood by the prisoner must be chosen for the interrogation.
It will not be out of place to use the native tongue of the prisoner of war
if he does not speak and comprehend any other language. Resorting to
coercion by those questioning with the aim of securing vital information
265
from prisoners of war is prohibited. Article 17 (supra) prohibits resorting

to physical and mental torture as forceful measures. It is in this direction
that the beating and bullying of allied pilots kept as prisoners of war by Iraq
during the 1991 Gulf war was rightly adjudged as a breach of Article 17 GC
III.553
There is nowhere in Article 17 where other kinds of influence, apart from
coercing prisoners of war to get information, were mentioned. The use of
psychological gimmicks would most likely not be a violation of Article 17 GC
III. The interpretation given is a fair reflection of what is obtainable during
armed conflicts in which parties strive to obtain information from prisoners
of war. Any information about the morale of enemy troops, for example,
plays a pivotal role in the conduct of hostilities. But using psychological
quizzing methods which result in inhumane treatment are forbidden.
Any questioning method adopted should not erode the fact that the
questioning method must be religiously observed in order to meet the
intention and object of Article 17. The home states of prisoners of war
could reprimand them for divulging information to the detaining power,
irrespective of whether this information was obtained by adopting proficient
procedure of interrogation. They can equally be punished by other prisoners
in the same camps for the divulged information, if they get to know about it.
Questions relating to crime perpetrated by the prisoners in course of or prior
to the conflict have to be in line with the same rules and restrictions, even
where the national criminal law (e.g. the Criminal Code Act Cap 38 Laws of
the Federation of Nigeria 2004) would allow physical or psychological force
to obtain information. Necessities of national security cannot be pleaded by
states to deviate from their international treaty obligations.
The prohibition guarding against forcing prisoners of war does not
circumscribe the detaining power`s right to prosecute them for acts
perpetrated before their capture as Article 85554 puts it:
Prisoners of war prosecuted under the laws of the Detaining Power
for acts committed prior to capture shall retain, even if convicted the
benefits of present convention.
553 Dept. of Defense, Conduct of the Persian Gulf war, Appendix 0-19
554 GC III
266

IV.
Conditions in Captivity
Article 21555 provides inter alia:

The Detaining Power may subject prisoners of war to internment. It
may impose on them obligation of not leaving, beyond certain limits
the camp where they are interned, or if the said camp is fenced in,
of not going outside its perimeter prisoners of war may not be held
in close confinement except where necessary to safeguard their health
and then only during the continuation of the circumstances which
make such confinement necessary.
While Article 19556 states:

Prisoners of war shall be evacuated as soon as possible after their
capture, to camps situated in an area far enough from the combat zone
for them to be out of danger.
Also Article 23 GC III (para.1) provides:

No prisoner of war may at any time be sent to, or detained in areas
where he may be exposed to the fire of the combat zone, nor may
his presence be used to render certain points or areas immune from
military operations.
Article 23 GC III further strengthens the usual duty of the detaining power
to intern prisoners of war to prevent them from taking further part in armed
conflicts. The movement of prisoners can be restricted by the detaining
power, but this will solely depend on the organization of particular prisonerof-war camps. This could have a coincidence with the borders of the camp.
The movement of prisoners of war may not be restricted, as they may be
granted greater freedom of movement. However, they may be detained in
cells as a corrective or final measure. Binding (tying) of prisoners of war in
designated camps is highly prohibited.
The right to internment connotes that the detaining power equally has a
right (even though as a last resort), to make use of weapons against prisoners
of war. An apt example is escape and attempted escape expressly provided in
Article 42 GC III. It will be safe to conclude that the use of weapons against
prisoners of war who riot is not prohibited bearing in mind the aim of the
detention and the detaining powers general responsibilities towards the
prisoners of war. Using of weapons is dictated by the actual necessity to use
555 GC III
556 GC III
267
same. This in other words means that if an individual prisoner of war uses
force against guards, this action alone does not entitle them to use weapons.
Greenspan 557 has however suggested that the only time that the guards are
allowed to shoot at prisoners of war is when they are in grave peril. There
is no regulation on what precaution the guards have to follow. However,
even where the prisoners are seen to be rioting, excessive use of force is to
be avoided. Shooting a prisoner of war who has already surrendered while
fleeing is also prohibited as the intention for using arms no longer exists.
Before the guards resort to using weapons, such intention must be
followed by an appropriate warning. Firing a warning shot will suffice as
reasonable warning. The vital point remains that the prisoner of war can
decode the warning for what it stands for. The argument has however been
made that setting up of so-called death lines, the crossing of which results to
the instant firing of the prisoner of war without any form of warning is not
allowed.558
The duty to meticulously decide on which location is to be used for the
camps has two resultant effects for the detaining power. The detaining power
is not allowed to use camps with the aim of getting a military advantage. The
second factor is the distance from the combat zone. There is no definition
ascribed to certain points or areas by Article 23 559 which can be rendered
protected from military activities by the presence of prisoner of war camps.
Referring to the definition of military objectives contained in Article 52560
no doubt gives the impression that only military objectives of the detaining
power are part of it, as other premeditated attacks against other civilian
objects have already been prohibited by international humanitarian law.
Using prisoner of war camps as a cover for civilian objects can therefore be
by-passed by definition. There was a clear breach of Article 23 GC III when
some US prisoners of war were interned at the headquarters of the Iraqi
secret service in Baghdad which was itself a military objective.561
557
558
559
560
561
Greenspan, M. The Modern Law of Land Warfare (1959) p. 104

Harvey, A.H, The Maintenance of Control over Prisoners of War II (1963) pp 127-151
GC III (para1)
Additional Protocol I
Dept. of Defense, Conduct of the Persian Gulf War, Appendix 0-19
268
Minimum Criteria
Prisoners of war may be interned only in premises located on land
and affording every guarantee of hygiene and healthfulness.
Article 23 GC III equally provides inter alia:

Prisoners of war shall have shelters against air bombardment and
other hazards of war, to the same extent as the local civilian population.
Whenever military considerations permit, prisoner of war camps
shall be indicated in the day time by the letters PW or PG, placed so as
to be clearly visible from the air. The powers concerned may however,
agree upon any other system or marking.
It arises from the requirement of the protection of prisoners of war that

suitable conditions of hygiene for prisoner-of-war camps must be fulfilled.
Article 22 GC III (quoted above) refers to localities providing every assurance
of hygiene and health instead of restricting hygiene conditions within the
camps only. This is a direct consequence of the provision and from the nexus
between Articles 22, para.1, 22 para. 2 and 29 GC III explains the relationship
between the minimum requirements and the geographical location of the
camp. Additionally, the requirements for camps as it concerns cleanliness
and health are explicitly provided in Article 29 GC III which states:
The Detaining Power shall be bound to take all sanitary measures
necessary to ensure the cleanliness and healthfulness of camps and to
prevent epidemics.
Prisoners of war shall have for their use, day and night, convention
which conform to the rules of hygiene and are maintained in a
constant state of cleanliness
Also, apart from the bath and showers with which the camps shall be
furnished, prisoners of war shall be provided with sufficient water and
soap for their personal toilet and for washing their personal laundry
The responsibility provided in Article 29 GC III will not be fulfilled in

instances where the detaining power fails to make available any or sufficient
facilities that will promote personal hygiene in the prisoner-of-war camps.
The provision of separate conveniences for female prisoners of war is equally
562 GC III (para1)
269
recognized in para.2 of the Article. The following instances are practical

situations where Article 22,563 GC III is breached:
The establishment of camps in areas which are chemically polluted;
The setting up of a camp in an area in which there is scarcity of water
and to which sufficient amounts of portable water cannot be brought.
Air Raids Protection for Prisoners of War

Since the inception of air warfare, the protection of prisoners of war against
air raids has brought about unmitigated hardships. There was no single rule
provided by the 1929 Convention to provide protection for prisoners of war
against air raids, nor did it provide for marking of prisoner-of-war camps
for identity purposes. There is nothing in Article 23 GC III (para. 2) to suggest
that that Article placed an absolute duty on the detaining power to guard
the camps with air raid shelters. The detaining powers obligation to protect
prisoners of war has a direct connection with the protection provided to the
civilian population. The provision of shelter for prisoners of war shall be
done only to the same extent as that provided for the civilian population.
Two most likely instances could emerge for prisoners of war in camps to be
situated near towns. It has been argued by Preux564 that the same shelters
must be established for prisoners of war as for the civilian population or
the already existing shelters meant for the civilian population should also
be utilized by the prisoners of war. The other alternative can be found in
Article 23 GC III (para.2, second sentence).
As it relates to camps situated adjacent inhabited areas, GC III provides no
requirement that the building of any shelters in prisoner of war camps should
be divorced from residential areas of the civilian population. Providing
prisoners of war with protection against attacks in such instances can be
achieved by the marking of the camps. The detaining power is not presented
with any alternative as to other measures of protection, as the benefits are
equally for the prisoners of war as well as for the civilian population.
Duty to Distinctively Mark Prisoner-of-war Camps

The dangers posed by air warfare necessitated the introduction of the duty to
mark prisoner -of-war camps by GC III after the Second World War witnessed
563 para. 1
564 Preux, J. D. Geneva Convention Relative to the Treatment of Prisoners of War (1960)
p.176
270
the death of on estimated 1,000 prisoners resulting from air raids. The
prisoners of war camps were marked with letters PG (prisonniers de guerre)
or PW (prisoners of war).565 The powers concerned may however, agree
upon any other system of marking. This duty is however made subject to the
words when the military situation permits. The issue could arise whether
the marking is left to the unfettered whim and caprice of the detaining
power. The position it appears, has been stated correctly that marking is not
dependent solely on the requirements to be decided by the detaining power
alone.566 In reality however, during the world the marking of prisonerof-war camps resulted into hardships the rule in GC III notwithstanding.
During the Korean War, United States aircraft attacked designated Korean
prisoner-of-war camps. This led to the death of US soldiers.
Obligation to Assemble Prisoners of War

The Detaining Power shall assemble prisoners of war in camps
or camp compounds according to their nationality, language
and customs
The responsibilities that bind the detaining power as it relate to

the treatment of and supplies for prisoners of war in camps includes
accommodating them following their nationality, language and customs.
Where several allied parties are involved in an armed conflict, Article 22
GC III then becomes particularly significant. No discretion is placed on the
detaining power as to the manner of detention, but rather an absolute duty
which the detaining power must satisfy.
The importance of assembling prisoners of war according to language
is that it serves mainly to better their conditions of captivity. It also assists
the detaining power to fulfill its responsibilities in the area of dietary
requirements of prisoners from diverse cultures and unidentical customs
and to equally meet their religious needs. The categorization under Article
22 GC III equally serves to balance personal relationship as between the
individual prisoners. It must be remembered that this obligation to assemble
prisoners of war according to their nationality etc will not be possible where
such prisoners are separated from prisoners of war belonging to the armed
566 Preux, J.D op. cit p. 190
567 para. 3
271
forces which they were serving at the time of their capture, unless they give
their consent.
Provision of Sufficient Food for Prisoners of War

The basic daily food rations shall be sufficient in quantity and variety
to keep prisoners of war in good health and to prevent loss of weight or
the taken of the habitual diet of the prisoners.
This Article imposes a general responsibility on the detaining power to

protect the lives of the prisoners in food, medical care and clothing matters.
Article 26 GC III does not relate the amount and quality of food needed to be
made available for the troops of the detaining power; this sharply contrasts
with Article II of the 1929 Convention. The Second World War afforded
some of the parties to the armed conflict the opportunity to greatly reduce
or out rightly denying the provision of food to prisoners of war by referring
to the inadequate supplies of their own troops in a bid to justify their deeds
by clinging to the provisions of the 1929 Convention.
What is to be considered as a sufficient food has not been left by GIII to the
detaining power to determine. The Article provides that the food must be
sufficient to sustain prisoners of war in good health condition and to prevent
loss of weight and deficiency symptoms. GC III does not in any way create
exceptions to the responsibility to provide care. Insufficient care is not to be
provided for prisoners of way on grounds of their religion or affiliation with
an aggressor state.
The importance which GC III attaches to the nutritional needs of the
prisoners of war is equally typified by Article 26 which expressly prohibits
the detaining power from imposing collective disciplinary measures by
withholding food meant for prisoners for war. By this provision, prisoners
of war are thus offered protection against reductions of food supply for
disciplinary reasons, which can be triggered by the prisoners but adversely
affect other members in the group.
It remains a controversy whether food may be used to enforce discipline
in the camp. For example, is it allowed to provide prisoners of war who
are rioting with food only in restricted areas of a camp with the aim of
inducing them to return to those areas? No doubt, this measure could be
less injurious to the health of prisoners of war when compared to the lawful
568 GC III (para.1)
272
use of weapons by guards under Article 42 in order to maintain discipline

and order in the camps in the event where there is uprising.
The responsibility to provide clothing on the other hand is not directly
connected to the medical condition of the prisoners of war thus contrasting
with the provision of food. The intention behind the provisions for the
treatment of prisoners of war in captivity is to ensure their survival and
respect for their dignity. Clothing must therefore fit in this purpose. This
is affirmed generally in areas with severe atmospheric conditions. If the
climate poses greater health challenge to the prisoners of war, then the
requirements become even stricter for the detaining power to make available
adequate clothing for prisoners of war.
The crucial responsibility to provide prisoners of war with medical
attention is laid down in Article 15 GC III which states:
The power detaining prisoners of war shall be bound to provide free
of charge for their maintenance and for the medical attention required
by their state of health
This provision is complemented by the special duties for preventing and

treating illness provided in Article 29-31 GC III. The fundamental provisions
of Chapter III GC III center on the prevention of illness as well as its care.
Prisoners of war should at the first instance be treated by doctors of their
own state. They could also be treated by doctors of the detaining power but
this is only an ancillary to the first one.
Article 31 GC III has a direct link with Article 13 GC III, which lays down
the duty of humane treatment as it has to do with providing medical
treatment. The treatment of indisposed prisoners of war generally prohibits
medical or scientific experiment. However, the experiment can only be
endorsed if justified by the medical treatment of the prisoners of war and
is for their own good. In reality however, complication has arisen because
of the rule that medical experiments of whatever kind are forbidden unless
they can be instrumental for the survival of a particular prisoner of war. Be
that as it may, there is ample freedom afforded to doctors to use all possible
treatment for prisoners of war without running the risk of being convicted
of a war offence.
273
Religious and Other Intellectual Activities for Prisoners of War

Prisoners of war shall enjoy complete latitude in the exercise of their
religious duties, including attendance at the service of their faith, on
condition that they comply with the disciplinary routine prescribed
by the military authorities.
Owing to the mental well-being of prisoners of war, the duty to ensure

freedom of worship is one of its pre-requisites. It is of paramount significance
that during hostilities in which soldiers of diverse religious beliefs fight
against one another that freedom to practice their religion is permitted.
However, religion can only be practiced subject to whatever disciplinary
routine that would be stipulated by the military authorities. The term
disciplinary routine and what it contains could give rise to interpretation
problems. Be that as it may, under no guise may the disciplinary routine
render the practice of religion impracticable or greatly hampered. It is for
the benefit of the prisoners of war and the detaining power that there is
arranged to usher in discipline and order so as to allow prisoners of war to
carry their religious obligations. This greatly supports Article 34569 GC III
which requires the detaining power to make available adequate premises for
religious activities.
As a follow up to the obligation to ensure freedom of worship, Article 35
GC III provides the duty of chaplains. They are allowed to minister to the
prisoners of war and the detaining power shall grant them the access to
the needed facilities. It is the duty of the detaining power to provide the
means of transportation for the chaplains, where the chaplains show care
for prisoners of war located outside of the camp.
Responsibility and Right to Work

Article 49570 provides inter alia:
The Detaining Power may utilize the labour of prisoners of war who
are physically fit, taking into account their age, sex, rank and physical
aptitude, and with a view particularly to maintaining them in a good
state of physical and mental health.
569 para.2
570 GC III
274
The 1929 Convention and GC III also mandated the detaining power to
employ prisoners of war for work, thus amplifying the same provision in the
Hague Regulations. By Article 49 GC III (para.3), the detaining power has the
right to force prisoners of war to work.
In the past world wars, the importance of the labour of prisoners of war
to the detaining powers economy became an issue. This is because work was
initially regarded from the angle of its significance to the health condition
of the prisoners of war. The detaining power is not expressly mandated to
provide work for prisoners of war. The provision of Article 49 GC III is rooted
on the entitlement of the detaining power. In line with Article 49 GC III, a
specially arranged work can be done to keep the prisoners of war in a good
frame of physical and mental health. The obligations of the detaining power
as provided in Articles 29 and 38 GC III do not in any way provide that the
prisoners of war have the right to work.
The detaining power has an unlimited right to utilize the labour of
prisoners of war. However, only healthy prisoners of war are obliged to
work. While compelling them to work, the detaining power must take into
account their sex, rank, age and physical aptitude. Utilizing indisposed
prisoners of war for labour is forbidden. Also the use of feeble prisoners
of war for hard physical work is prohibited. Women are provided special
protection in this regard.
The nomenclature of work allowed and the working environment of
prisoners of war are provided in detail in the Convention of 1929. Employing
prisoners of war in industries that are of military significance is prohibited.
Article 49 GC III further provides exceptions from the obligation to work
for officers. This provision has firmly preserved the varying treatment which
has been widely acknowledged since the nineteenth century. Definition as to
the meaning of supervisor work, which non-commissioned officers may be
asked to perform is not provided by GC III. However, the general consensus
has been that manual labour does not fit into this. It has been submitted
that the special rules affecting officers were adhered to for most part during
World War II.571
Where a prisoner of war has been assigned certain functions to perform,
then such a person is exempted from the responsibility to work. Prisoners of
war, who are doctors and nurses and are not part of the medical service of
their armed forces, may be tasked with the duty of caring for other prisoners
571 Levie, H., Prisoners of War (1978) p 224 provides instances where Japan breached
this rule.
275
by the detaining power. When that happens, they are equally exempted
from the duty to work.
Respecting the Will of Prisoners of War on Labour Matters

According to Article 52 GC III:
Unless he is a volunteer, no prisoner of war may be employed on
labour which is of an unhealthy or dangerous nature.
No prisoner of war shall be assigned to labour which would be
looked upon as humiliating for a member of the Detaining Powers
own forces.
The removal of mines or similar devices shall be considered as
dangerous labour.
The provisions of Article 52 GC III preclude the detaining powers right

to employ prisoners in labour. The right is however circumscribed in three
instances. The prisoner of war, in the first case, may not be used for unhealthy
or hazardous work. The 1929 Convention also has this provision. It is still
controversial which work should be viewed as unhealthy or dangerous as
the Conference of 1949 failed to agree on the classes of work that should be
regarded as such. In Article 52,572 mention was only made to the evacuation
of mines or similar devices as dangerous work. The specific mention of
mine-clearing added to the feasibility of willingly performing such work is
the fallout of intense debates at the diplomatic conference of 1949.
The category of work regarded as not healthy or dangerous are confined
to the permitted types clearly identified by Article 50. It follows that work
in agriculture which is remotely connected with healthy conditions can be
prohibited within the ambit of Article 50. This is equally applicable with
respect to work in industries that could put the lives of prisoners of war
in peril. For example, during the Second World War, the ICRC vehemently
protested against the work of German prisoners of war in plantations in
the United States. This protest resulted from the fact that the prisoners
were made to stay under the scorching sun in the tropical climate all along
without any form of protection provided.573 In any event if prisoners of war
volunteer to do, undertake or perform the unhealthy or dangerous work,
the detaining power may employ their services in this regard. This is a clear
572 para.3
573 ICRC Report on its Activities during the Second World War vol.1 333-334
276
exception to the prohibition of dangerous labour. For the pre-conditions

contained in Article 52 GC to be met, positive and overt action by the
prisoners of war is needed. The detaining power cannot however presume
consent to employment in unhealthy or dangerous work. Where prisoners
of war consent to perform an unhealthy or dangerous work, they must be
made to know the danger or health risks attached therein. On its part, the
detaining power must disclose to the prisoner of war the risks involved
in the work. When all the conditions are met then the maxim volenti non
fit injuria operates to bar the prisoners of war from making any claim. In
The Prosecutor V Naletilic and Martinovic,574 the International Criminal
Tribunal for the former Yugoslavia (ICTY) decided that arduous unpaid
work spanning from morning to night with insufficient food and water over
a prolonged time and in scorching weather conditions amounted to war
offence or crime.
Applying prohibition in case of humiliating work rests solely on how the
work is categorized by the detaining power. The test will be if the humiliating
work can equally be undertaken by members of its own armed forces. Where
it is humiliating for the armed forces of the detaining power to carryout
such tasks, then prisoners of war may not be engaged to perform same too.
Unlike unhealthy or dangerous work, prisoners of war cannot under any
guise accept to do humiliating work. In other words, under unhealthy and
dangerous work, prisoners of war who so consent can perform such tasks
but consenting and embarking in humiliating work by prisoners of war in
not allowed.
Duty to Communicate and Notify

Article 70 GC III states inter alia:
Immediately upon capture, or not more than one week after arrival at
a camp every prisoner of war shall be enabled to write direct to his
family and to the Central Prisoners of War Agency informing his
relatives of his capture, address and state of health.
To ensure the enforcement of GC III, establishing contact with the outside

world is very crucial as well as for the well-being of prisoners of war. The
rule is that prisoners of war are allowed to send and receive correspondence.
However, it lies with the detaining power to restrict the volume of letters and
574 Case No. IT-98-34-T, Trial Chamber Judgment of 31st March 2003 (para.323)
277
postcards sent. Notwithstanding, two letters (at least) and four postcards
monthly must be allowed.
The permitted quota of letters and postcards is divorced from the
notification to the family and the Central Prisoners of War Agency about
the capture in line with Article 70 GC III. The card affords the prisoners
of war the opportunity to communicate with their relative and also with
the Central information agency set up by the ICRC. The detaining power
cannot hinder or delay this communication. The message must equally be
forwarded by the fastest means provided. The first message meant for the
families and the information agency or normal correspondence may be
hampered for reasons other than discipline. This is equally applicable to
both incoming and outgoing post. The correspondence no doubt establishes
contact between prisoners of war and their relatives; hence, it is illegal for
the detaining power to improperly utilize the post for calumny purposes.
Complaints of Prisoners of War

By Article 73 GC III:
Prisoners of war shall have the right to make known to the military
authorities in whose power they are, their requests regarding the
conditions of captivity to which they are subjected. These requests
and complaints shall not be limited nor considered to be a part of
the correspondence
In the spirit of observing the provisions of GC III the detaining power

must be aware of the conditions in the camps of the prisoners of war. To
this end, Article 78 GC III requires prisoners of war to make an appeal to
the detaining power as it concerns all matters incidental to the conditions
of captivity. GC III requires that prisoners of war apply in writing to the
military authorities. This means that an oral appeal will not be entertained.
The requests and complaints by the prisoners of war may not be restricted
and must be communicated at once. Article 78 GC III para.2 provides that
the right for prisoners of war to present requests and complaints through
representatives of the protecting power. Consequently, prisoners of war
can make an appeal through the representatives of the protecting power
or directly through their representative. The contact person as named in
Article 78, para.2 will undertake the responsibilities of the representative of
the protecting power.
Punishment for requests and complaints made by prisoners of war is
not permitted. In other words, the detaining power is not permitted to
278
reprimand POW because of their request or complain. Even where assertions

in the request and complaints are malicious and unfounded, they may not
result into any form of punishment. Punishing prisoners of war by way
of disciplining them and adopting other penal measures against them for
exercising their right under Article 78 is forbidden.
Representatives of Prisoners of War

In all places where there are prisoners of war. the prisoners shall
freely elect prisoners representatives entrusted with representing
them before the military authorities, the Protecting Powers, the
International Committee of the Red Cross and any other organization
which may assist them.
Difficulty sometimes arises where the prisoners of war choose to

communicate with the members of the detaining power and with the
delegates of the protecting power or the ICRC. This can be as a result of the
large number of prisoners of war in camps. Not only that, often times, it is
equally difficult for prisoners of war to clearly state their needs. GC III has
however filled this lacuna by providing for the election of prisoners of war
representatives whose main duty will be promoting the moral, physical and
mental condition of the prisoners of war. These representatives, who are
eligible for re-election, are elected every six months by the democratic means
of free and secret ballot. Simple and logical requirements have been set by
Article 79 GC III on the election of prisoners representatives. First it provide
that in the camps meant for officers and mixed camps, the most senior
officer (by way of ranking) who has to be a prisoner of war automatically
assumes the duties of the prisoners representative. On the other hand in
mixed camps, the representatives assistant shall be elected from among
the prisoners of war who in that case, are not officers. The choice of officers
further cements and facilitates communication between the detaining power
and the protecting power since officers are more proficient and experienced
in negotiation then other prisoners of war. Without the endorsement of
the detaining power, both elected and recognized representatives cannot
function. It therefore rests with the detaining power to take a decision on
when prisoners representatives are to begin duties. Any failure on the part
of the detaining power to endorse or approve, has to be communicated to
the protecting power.
279
Sanctioning Prisoners of War

Article 82 GC III is to the effect that:
A prisoner of war shall be subject to the laws, regulations and orders
in force in the armed forces of the Detaining Power; the Detaining
Power shall be justified in taking judicial or disciplinary measures in
respect of any offence committed by a prisoner of war against such
laws, regulations, or orders. However, no proceedings or punishments
contrary to the provisions of this Chapter shall be allowed.
In course of the captivity prisoners of war, who normally are subject to

the national laws of their home state, are under the legal rules of detaining
power which is also applicable to its armed forces. This subjection however
terminates after the captivity either by escape or release. The same rule
applies where a prisoner of war is transferred from one detaining power to
another in accordance with Article 12 GC III. When the prisoners of war are
eventually transferred, the applicable law will be the law that applies to the
armed forces of the new detaining power.
Applying the law that governs the armed forces of the detaining power to
prisoners of war, require that the prisoners of war are not kept in the dark as
it concerns the applicable rules. Obligation is placed on the detaining power
to under Article 41575 inform prisoners of war of the rules that regulates
their conduct. The Article provides:
Regulations, orders, notices and publications of every kind relating
to the conduct of prisoners of war shall be issued to them in a language
which they understand. Such regulations, order and publications
shall be handed to the prisoners representative. Every order and
command addressed to prisoners of war individually must likewise be
given in a language which they understand.
For this provision to be met, two conditions must be satisfied. The

information must be given in a language comprehended by the prisoners
of war and exhibited conspicuously in locations in the camp where all
prisoners of war can peruse them.
The detaining power has the liberty to make a choice between two types
of punishment where there is a breach of the aforementioned provisions.
Prisoners of war are in a very special situation, hence Article 83 GC III
requires the authorities of the detaining power to opt for disciplinary instead
of judicial measures whenever it is practicable. Some offences perpetrated by
575 GC III (para.2)
280
prisoners of war while trying to abscond are subject wholly to disciplinary

measures. When national laws or regulations of the detaining power are
breached, only disciplinary measures shall be used as a form of punishment.
In instances such as this, this detaining power cannot resort to some other
ways of punishment. For instance, where there is a breach of administrative
rules of a prisoner of war camp, the detaining powers own troops may only
be reprimanded by disciplinary means by the commanders of the camp.
By the wordings of Article 85 GC III, a special ground for prosecution
of prisoners of war exists. The detaining power is granted the permission
to prosecute prisoners of war for acts perpetrated before their being held
captive. It follows that prisoners of war can be made to account for both war
crimes and for criminal related offences by the detaining power. The law
was clearly stated in United States V Noriega576 that any criminal offence
perpetrated before the capture of a prisoner of war including crimes related
to terrorism can be prosecuted.
The following rules regulate both penal and disciplinary sanctions:

Affording prisoners of war an opportunity to present their defence
In other words, the audi alteram partem rule must be complied with. This
is on the basis of fair hearing. The basis and connotation of the principle
of fair hearing is that fairness is the determinant for the application of the
principle of natural justice. In other words, natural justice is fair play in an
action. Therefore, the hearing of a matter in court cannot be said to be fair if
any of the parties appearing before the court is refused a hearing or denied
the opportunity to present his case or call evidence in support of his case.
However, the principle of fair hearing is satisfied if the party complaining
was given the opportunity to be heard.577
The fundamental requisites of due process are the opportunity of all
parties to be aware that a matter is pending, to make an informed choice
whether to acquiesce or contest the matter and to be heard on it. Procedural
fairness therefore entails affording parties in a matter the right to be heard
before the court decides the matter. That is the principle of natural justice
which embodies the rule that the other party must be heard.578 The rule of
fair hearing and natural justice is equally codified in Article 9 GC III (para.4)
which provides:
576 Case No. 88-79 CR U.S, District Court for the Southern District of Florida. Judgment
was delivered on 8 June 1990
577 Uzoho v N.C.P (2007) 10 NWLR (pt. 1042) 320
578 Ibid at 327
281

Before any disciplinary award is pronounced, the accused shall
be given precise information regarding the offences of which he is
accused and given an opportunity of explaining his conduct and of
defending himself.
Prohibition of collective punishment for individual acts and cruel

punishment.579
Sentencing prisoners of war only on penalties provided in respect
of members of the armed forces of the detaining power for the same
acts.580
Prohibition of punishing or disciplining a prisoner of war more than
once for the same act.581 This is double jeopardy which basically is
the fact of being prosecuted twice for substantially the same offence.
The rule against double jeopardy is well recognized in the 1999
Constitution of Nigeria (Cap 23 LFN 2004) which provides in Section
36 (9) as follows:
No person who shows that he has been tried by any court of competent
jurisdiction or tribunal for a criminal offence and either convicted or
acquitted shall again be tried for that offence or for a criminal offence
having the same ingredients as that offence
Also the double jeopardy clause is inserted in the American Constitution.

The U. S constitution ensures that no American can be tried twice for the
same offence. However, a drama seems to be unfolding in Washington
over whether that constitutional protection applies to a U. S soldier. After
his February Court martial ended in a mistrial, Lt. Ehren Watada, the first
decorated officer to decline serving in Iraq, seemed certain to face a second
court martial. But the Supreme Court of that country relying on United
States v Scott dismissed the case by holding:
The underlying idea, one that is deeply ingrained in at least the
Anglo-American system of jurisprudence, is that the state with all its
resources and power should be allowed to make repeated attempts to
convict an individual for an alleged offence582
579
580
581
582
Article 87 GC III (para.3)

Article 87 GC III (para.3)
Article 86 GC III
http://www.zmag.org/znet/view Article/15604
282
Procedural guarantees ensure that the detaining power does not

endanger the life and health of prisoners of war using judicial decisions as
its excuse. The experiences of World War II, which led to breaches of the
1929 Convention as it affects punishment of prisoners of war, necessitated
the establishment of procedural guidelines for both disciplinary and judicial
procedure by GC III.
Apart from the guarantees of criminal law, Article 84 GC III also provides
for the composition of the trial court. In general terms, it shall be a military
court. Civil courts are only allowed to try prisoners of war in clearly spelt
out cases. A prisoner of war shall not be tried under any circumstances by a
court which is not independent, impartial and unbiased.
Still as it affects the sanctioning of prisoners of war, Article 96 GC III
provided inter alia:
Acts which constitute offences against discipline shall be investigated
immediately.
Disciplinary punishment may be ordered only by an officer having
disciplinary powers in his capacity as camp commander, or by a
responsible officer who replaces him or to whom he has delegated his
disciplinary powers.
In no case may such powers be delegated to a prisoner of war.
Disciplinary rules are more readily breached by prisoners of war than

offences against criminal law. This clearly informed GC III setting out not
only the general and known procedures for disciplinary punishment,
but also who does the ordering of such punishment, what likely form the
punishment may assume, and how it shall be implemented. Owing to
the largeness of prisoner of war camps, GC III needs an instantaneous
examination of crimes against discipline. The aim of the rule is to ensure
the safety of prisoners of war from ill-advised treatment by the camp
commanders or fellow prisoners of war.
The representatives of the detaining power are not at liberty to choose
any disciplinary punishment. Permissible disciplinary punishments are
comprehensively provided in Article 89 GC III. If the detaining power
punishes a prisoner of war by sentencing him to a permitted form of work,
this could result to inhumane treatment if the prisoners physical condition
cannot withstand it. Withholding of food and correspondence by mail as a
disciplinary punishment for prisoners of war is not allowed.
283
V. Absconding of Prisoners of War

By Article 91 GC III:
Prisoners of war who have made good their escape in the sense of this
Article and who are recaptured shall not be liable to any punishment
in respect of their previous escape. The escape of a prisoner of war
shall be deemed to have succeeded when:
(1) he has joined the armed forces of the Power on which he depends or
those of an allied Power;
(2) he has left the territory under the control of the Detaining Power, or
an ally of the said Power;
(3) he has joined a ship flying the flag of the Power on which he depends,
or an allied Power, in the territorial waters of the Detaining Power,
the said ship not being under the control of the last named power.
The regulating tenure of prisoners of war is premised on the detaining

power exercise of total control over them. If this is no longer tenable,
captivity as it is known in international law comes to an end. The 1874
Brussels Declaration provides a rule on the cessation of captivity by escape.
Since that time, the novel principle has not formed part of any meaningful
debate. The only difficulty is defining what a successful escape is.
Defining what a successful escape could be is premised on the feasibility
of actually exercising control, be it on land or at sea. For example, the simple
fact that a prisoner of war has reached the high seas with a rowing boat
does not ipso facto translate into a successful escape. Where some escaped
prisoners of war carry on their escape collectively or if they identify with
a unit of their own armed forces which could be captured at any time, the
express requirements of Article 91 GC III (para.1) cannot be said to have been
met as there was no real obstruction. The condition precedent in Article
91 GC III will only be met and become relevant only if prisoners of war
are recaptured by the detaining powers troops and penal or disciplinary
punishment is considered for acts perpetrated in course of their escape.
284
Restrictive Punishment of Prisoners of

War Who Attempt to Escape
Article 92 GC III (para.2) provides:
A prisoner of war who attempts to escape and is recaptured before
having made good his escape shall be liable only to a disciplinary
punishment in respect of this act, even if it is a repeated offence.
A total prohibition on the punishment of prisoners of war in instances

of attempted escape is imposed by Article 92 GC III. During World War II,
prisoners of war who made an attempt to escape were subjected to harsh
punishment and some were even killed in the process. This is only an
instance why penal and other non-disciplinary punishments are prohibited.
The use of weapons in order to prevent an escape is not excluded by Article
92 GC III. To prevent the use of weapons the moment the escape has been
brought to the fore and in order to enjoy the privilege of Article 92 GC III,
prisoners of war should indicate unambiguously that they will not still carry
on with their attempt to abscond.
Prisoners of War shall not be judicially prosecuted

Article 93 GC III states inter alia:
offences committed by prisoners of war with the sole intention
of facilitating their escape and which do not entail any violence
against life or limb, such as offences against public property, theft
without intention of self-enrichment, the drawing up or use of false
papers, or the wearing of civilian clothing, shall occasion disciplinary
punishment only.
An isolated case of disciplinary punishment of prisoners of war leading

to an attempted escape is specially singled out by Article 92 GC III (para.2).
Judicial prosecution is not in any way allowed in these cases. Acts that can be
reprimanded shall merely result in the disciplinary punishment of prisoners
of war except they are not related or concerned with criminal intent.
Where theft is involved, the prisoner of war ceases to enjoy the privilege
if he equally formed the intent to enrich himself. For instance, if a prisoner
of war is involved in the stealing of a car with the sole aim of assisting him/
her to abscond after escaping, Article 93 GC III in such cases does not forbid
his/her criminal trial.583 It is quite difficult if not untenable to know what
583 Frey, H. (1948) 95-97
285
they intend if prisoners of war damage property owned collectively by the

public possibly hampering their planned escape. Harvey584 has argued that
demolishing a bridge or destroying telephone equipment can make it more
difficult to trail the escape and thus speed-up the escape. Exhibiting such
acts could be viewed as unnecessary acts of causing damage. In the second
instance, punishment in line with the criminal law of the detaining power is
a possibility. The permission granted to combatants to execute legal acts of
war cannot be readily used by prisoners of war as an excuse. Unless captivity
has come to an end by either the release or escaping of the prisoner of war,
prisoners remain bound to the legal order of the detaining power to similar
extent as the troop belonging to the detaining power.
Where the acts carried out by the prisoner of war is violent and against
life or limb, the privilege would be lost. It is not in dispute that the right the
detaining power has relating to disciplinary punishment for acts linked to
the escape is not reactivated following the recapture. Apart from this case,
the detaining powers right to reprimand will still persists for other offences.
For example, if a prisoner of war commits murder while escaping, he/she
would be made answerable after recapture.
VI.
The End of Captivity
A successful escape terminates captivity. When this occurs, the detaining

power is absolved from all responsibilities provided in GC III concerning
the captivity. Releasing of prisoners of war connotes the repatriation of
seriously sick and grievously injured prisoners of war during the conflict as
well as the release and repatriation of prisoners of war after the termination
of the armed conflict. In both scenarios, the responsibilities of the detaining
power cannot be said to have been met by the mere release of the prisoners,
but the release cannot be divorced from the repatriation of the prisoners
of war.
The death of a prisoner of war, officially terminates captivity. As a result of
the detaining powers crucial obligation to care for prisoners, the provisions
of Article 121 require an enquiry and report to be made. The Article provides
inter alia:
Every death or serious injury of a prisoner of war caused or suspected
to have been caused by a sentry, another prisoner of war, or any other
person, as well as any death the cause of which is unknown, shall be
immediately followed by an official enquiry by the Detaining power.
584 Harvey, A.H. op cit 146
286
The United States, in fulfillment of the obligation to carry out an official

enquiry into what caused the death of some prisoners of war and with
the aim of informing the protecting power, forwarded enquiry reports
concerning three deaths in Saudi Arabian camps meant for prisoners of war
to the Red Cross.585
Repatriation of Prisoners of War

Parties to the conflict are bound to send back to their own country,
regardless of number or rank, seriously wounded and seriously sick
prisoners of war, after having cared for them until they are fit to travel.
Article 109 GC III provides a clear exception enjoyed by the detaining

powers right to detain prisoners of war as long as the conflict lasts. Article
110 then provides three classes of wounded and sick prisoners of war who
shall be repatriated:
1) incurably wounded and sick whose mental or physical fitness seems to
have been gravely diminished.
2) Wounded and sick who according to medical opinion, are not likely to
recover within one year, whose condition requires treatment and whose
mental or physical fitness seems to been gravely diminished.
3) Wounded and sick who have recovered but whose mental or physical
fitness seems to have been gravely and permanently diminished.
The main aim for the imposition of the duty to repatriate is connected to
the health condition of the prisoner of war. The detaining power is under
obligation to send these prisoners of war back to their home-state without
further delay. Other prisoners of war who are wounded and sick and whose
physical condition is less alarming, with the discretion of the detaining
power, are to be transferred to neutral states for hospitalization.586 It is the
expectation on transfer that by detaining a prisoner of war in a neutral state,
the prisoners of war will recover or speedily recover or that a challenge to
health from continued captivity can be nipped.
The repatriation laid down in Article 109 GC III for prisoners of war during
hostility add to the danger that, on recovering, the prisoners will again take
585 U.S. Dept. of Defense, Conduct of the prisoner Gulf War, Appendix 0-18
586 The First World War saw some prisoners of war detained in Switzerland in an agreement
between the parties to the conflict.
287
part in conflicts by joining the armed forces of their own country. This is
why captivity aims to prevent prisoners of war from further participating
in the hostilities against the detaining power. This informs the reason why
Article 117 GC III expressly forbids the employment of repatriated persons
still active in military service. During the Vietnam War in 1972, Falk 587
states that, the United States actually respected this obligation following the
repatriation of some pilots by the Northern part of Vietnam.
The assumption is made that the prisoners of war cannot be made to
answer for any breach of Article 17 if recaptured by the detaining power
since this obligation is properly addressed to the home state. It is unlikely
that prisoners of war will be charged with war crime for getting involved in
the hostilities again.
Release of Prisoners of War

Article 118 GC III requires that:
Prisoners of war shall be released and repatriated without delay after
the cessation of active hostilities.
The general duty of the detaining power to release prisoners of war is

provided and contained in Article 118 GC III. However, there are a number of
instances where this duty is clearly qualified:

The prisoners of war are entitled to be released the moment active

hostilities cease. This touches on the timing of releasing prisoners
of war. This explains why the Article prohibits the detaining power
from ascertaining particular time for the release;
The duty placed on the detaining power to repatriate is not disturbed

by peace negotiations. This means peace negotiations cannot be
used as an excuse to repatriate prisoners of war. Even where peace
negotiations are on, it should have no bearing at all on the duty to
repatriate. Doing otherwise will be a disregard and violation of GC III;
Retaining of prisoners of war by parties in order to use them to

tackle man-power insufficiency as a result of the hostilities is not
permitted;588
587 Falk, R. International Law Aspects of Repatriation of Prisoners of War During

Hostilities. (1973) pp 465-478
588 New York Times, Red Cross officials to Discuss P.O.Ws still Alive in North Korea,
August 23, 2005
288
In international law, the duty to release is not dependent on the

reciprocal conduct of the adversary. However, experience has shown
that States do base their conduct on such reciprocal gesture;
The phrase without delay elucidates that the duty to release is in

force directly after the halting of active hostilities.
The duty to release is closely tied with the duty to repatriate. Merely
releasing a prisoner of war after the cessation of active hostilities does not
meet this obligation as the two terms are linked by the wording of Article
118 GC III (para.1). Repatriation entails a well worked out arrangement which
may be finalized either by consensus among the parties to the conflict, or
may be set-up by the detaining power. Repatriating of prisoners of war
without having a well thought plan is not permitted by Article 18 GC III. To
this end, a repatriation plan must set out:
The type of repatriation
The time frame and
The prisoners of war involved.
The requirements provided in Article 119 become very useful during
repatriation. Articles of importance or that are valuable must be restituted
to the prisoners before repatriation. They are allowed to take along their
personal effects, money, and other parcels they received during internment.
The actual cessation of hostilities automatically paves the way for the
duty to release prisoners of war. The meaning of cessation of hostilities
and who decides when it eventually occurs remains vague. However,
Schwarzenberger589 formulated that hostilities ceases if neither side expects
a resumption of hostilities. By this definition, parties to the conflict allowed
to estimate subjectively the intention of the enemy. More specifically,
State parties that are ideologically antagonistic may always claim that a
resumption of hostilities is still a part of the other partys political chicanery.
To provide protection for prisoners of war, it is apposite to make reference
to the military circumstances following the halting of hostilities and to
choose a practical approach. It should be noted that an armistice agreement
does not necessarily mean cessation of hostilities within the contemplation
of Article 118 GC III. The surrounding circumstances of each individual case
will signal whether an armistice appears to have ushered in lasting peace or
a mere interruption of the armed conflict. A solid way of assuring that the
armistice would eventually lead to a lasting peace is when it is monitored
589 Schwarzenberger, G. International Law (1968) p.134
289
by peace-keeping forces. This will equally involve the demobilization of

the parties to the conflict. Other indications of the cessation of active
hostilities are:
Withdrawing troops from the battle line;
Complying with various demands and
Final resolution of controversial issues.
A mere occupation of territory even when fighting has stopped does not
negate cessation.
Repatriating prisoners of war after every conflict since 1945

The Iran-Iraq, Vietnam, Korean and the Second Gulf Wars as illustrations,
has not always been easy as some prisoners of war have personally refused
repatriation. For other connected reasons, large number of prisoners of war
have opted, by requesting to remain in the territory of the detaining power
or in a third party state not involved in the armed hostility. The issue still
lingers whether Article 118 GC III places a duty on the detaining power to
repatriate in instances where the prisoners of war are willing to remain. It is
most likely that the wording indicates this duty by providing that prisoners
of war shall be released and repatriated.
However, humanitarian related issues arising from forced repatriation of
prisoners of war must be taken into cognizance. The provisions of Article
10959093 GC III which forbids repatriating the sick or wounded prisoners of
war contrary to their will during an armed conflict, has often been cited
as a reference point in this regard. The issue of meeting the requests of the
prisoners of war and at the same time avoiding abuse by the detaining power
has largely remained unsolved. State parties practice in this regard has not
helped matters.
To Gasser, however, it is the ICRC delegates alone who are in a position to
decide whether prisoners of war chose to still stay in the state of the detaining
power, or in the state of a third party, instead of making a return to their
home country. When this is properly considered, the duty the detaining
power has to repatriate under Article 118 GC III cannot be circumscribed.
The obligation remains total.
Even though the detaining power is obligated to release prisoners of war,
exception to the duty to release is provided in Article 119 GC III (para.5)
which states:
590 para.3
290

Prisoners of war against whom criminal proceedings for an
indictable offence are pending may be detained until the end of such
proceedings and until the completion of the punishment.
As the Article expressly stated, the same is applicable to prisoners of war

already found guilty of an indictable offence. Prisoners of war cannot under
any circumstance be retained by the mere reason that the detaining power
is suspecting them until compelling evidence can be found which permits
proceedings to be begun. As a rule therefore, the detaining power has the
power to put on hold the release until there is full compliance with the
punishment imposed if proceedings have been issued or if prisoners of war
are serving a sentence already.
291
CHAPTER
7
The Law of Neutrality
I. Introduction
Neutrality as defined by International Law is to the effect that a state is
not party to an armed conflict in as much as that state does not in any
ramification involve itself in acts of hostilities among the parties to the
conflict, or render help or assistance of any form to belligerents. Since such
state does not partake in any way in the armed conflict,591 they are not to
be adversely affected by the armed conflict or hostilities. Neutrality laws are
laws governing a States abstention from participating in a conflict or aiding
a participant of such conflict and it also imposes a duty on participants to
refrain from violating the territory, seizing their possession or hampering
the peaceful commerce of such neutral state, so long as the neutral state does
not partake in hostilities and are impartial.592 The right of the neutral state
not to be adversely affected connotes that the relationship between neutral
and belligerent states is governed by the law of peace. Particularly, neutral
states must tolerate certain control in the area of Maritime commerce.
The duty of non participation and impartiality of neutral States suffices
that such neutral states must entirely abstain from supporting parties to
the conflict. Once a State decides on a position of neutrality, it must take
steps to prevent its territory from becoming a base for military operations,
organizing of military personnel, the organizing of military expeditions,
and the constructing, outfitting, commissioning and arming of warship
for belligerent use. The duty of impartiality furthermore enunciates
that a neutral State is under no obligation to eliminate difference in the
commercial relations between itself and each of the parties to the conflict.
Such State is under no obligation to prevent private persons or companies
from advancing credits or selling commodities to belligerents. Thus, it
can continue existing commercial relations and such sales are not illegal
under the international law of neutrality. However, a change in commercial
591 R. Bindschedler, 111 EPIL, 549 et seq; Kussbach, 35 Annales de troit International
Medical (1991), 82.
592 Hague Convention Nos. V and X111 of 1907.
292
The law of neutrality
relationship favoring one of the belligerents (parties to the conflict),

may likely constitutes taking sides in a manner that is incompatible with
neutrality status. In more general terms, impartiality means that the neutral
state must apply the adequate and specific measures it takes on the basis of
the rights and duties derived from its neutral status in a substantially equal
way as between the parties to the conflict.593
It is very pertinent to establish a clear distinction between neutral and
belligerent states because international law prevents more states from being
drawn into conflicts. Neutral states may help parties to a conflict to maintain
or establish relations which may mitigate the suffering of victims and finally
smooth peace process. The USA considered itself as a non belligerent before
World War 11, but not as a neutral State, because it supported Great Britain
in a way which was not compatible with the duty of non participation under
the Laws of Neutrality.594 Recently, during the 2003 US-Britain intervention
in Iraq, Italy issued a proclamation of non-belligerency.595 Though there
exists a number of cases of declared or undeclared belligerency, there is no
sufficiently uniform general practice which would justify the conclusion
by customary international law. If a non-belligerent State violates the law
of neutrality, it must bear the consequences which may include retaliation,
reprisals, etc. A claim of non-belligerency status may not be sufficient
justification for a breach of neutrality laws. Violation of the law of neutrality
occurs even where it does not amount to participation in the conflict.
Neutrality is not optional in the sense that each State is free to violate single
duties of neutrality laws as it is or to declare them irrelevant without having
to fear a countermeasure taken by the adversely affected state.
The sources of the international law of neutrality are chiefly customary
laws and international treaties such as the Hague Conventions V & VIII.
The essential aspects of neutrality were developed through state practices
in modern times.596 Since neutrality was viewed as a legal status of non
participation in hostilities between belligerents, its basic scope was fixed
by the end of the eighteenth century. The development subsequently
continued in the nineteenth century in two folds. On the one hand, it
entrenched greater protection of neutral commerce between neutral States
and belligerent States, while on the other hand, a legal duty of permanent
593 Article 9 HC V, Article 9, HC X111
594 Politakis, Modern Aspects of the Law of Naval Warfare and Maritime Neutrality, 458
et seq.
595 Ronziti in Ragazzi; International Responsibility Today, 2005 @ 21
596 Castren, The present Law of War and Neutrality, 1954, 421et seq
293
neutrality as an essential element of the maintenance of peace and balance of

power in Europe was established by the recognition of the neutrality status
of Switzerland, Belgium and Luxembourg. During World War I (1914-1918),
and World War II (1939-1945), and in subsequent conflicts of international
status, the law of neutrality retained its significance. The development
of the prohibition of the use of force legally however offered reasons to
differentiate between the aggressor and the victim of the aggression. Also,
the political polarization after World War II, which had an impact on many
conflicts, made the impartiality of neutral states a politically doubtful rule.
These developments gave rise to customary laws which is still an essential
source of the law of neutrality. Following the modification of State practices,
customary laws also underwent changes and introduced distinctions which
only modified some rules of the law of neutrality, not generally revoking the
whole body of laws.
The essential parts of the law of neutrality were codified during the
nineteenth century and the early twentieth century. Significant steps in the
development of the law of neutrality were the Paris Declaration of 1856,597
and the Hague Conventions of 1907 namely;
Convention VRespecting the rights and duties of neutral states and
persons in cases of war on land, and
Convention XIII Concerning the rights and duties of neutral powers in
Naval Warfare.
Other Treaties exists which relates to the law of war because they contain
specific provisions concerning the rights and duties of neutral states,
particularly, the four Geneva Conventions of 1949 and Protocol 1 Additional
thereto of 8 June, 1977. However, there has been no comprehensive
codification of the law of neutrality since the Hague Convention of 1907.
Some of the rules of the Hague Convention have been rendered obsolete
by modern practices therefore making the need for a new codification
very pertinent.
The Charter of the United Nations completed the development of the
international legal prohibition of the use of force and established a system
of collective security by the reaction of the international community
against breaches of peace. The traditional law of neutrality with its duty of
impartiality, which prohibits discrimination between parties to the conflict,
seems to be incompatible with internationally recognized neutrality laws.
The Charter of the United Nations provides a right to collective self defense
597 Scinder/ Toman, The Law of Armed Conflict 4th Ed. 2004, 1065 et seq
294
which is the right of all States to assist a victim of aggression but not a duty
to do so. Thus, it is lawful if a State does not support a victim of aggression
by remaining impartial and neutral. This negates the impartiality principle
as postulated by neutrality laws.598 The situation may differ only if and to
the extent that the Security Council uses its powers under Chapter VII of
the Charter to oblige states to conduct enforcement measures (Articles 41,
42, 43 and 48 UN Charter 1945). This inherently means that the traditional
duty of non participation and impartiality has in no way been revoked by
the Charter. When taking such a decision on impartiality, the Security
Council may also differentiate the supporting duties imposed on particular
states.599 Thus, the issue of distinguishing between enforcement measures
in the strict sense and measures undertaken by the United Nations under
the directive of the Security Council from military operations undertaken
by one or more States and authorized by the Security Council has to be
clearly elucidated. It is important to distinguish between the authorization
to conduct military operations and authorization given only to States co
operating with the government. A good example is the invasion of Kuwait
by Iraq and subsequent military operations against Iraq by the UN Security
Council. This clearly implies the legal admissibility of non participation
and non military enforcement measures against Iraq. In particular, the
interruption of commercial relations and of monetary transactions imposed
as a duty to deviate from the principle of Courant normale to the extent that
there was a modification of the rules of neutrality. The authorization given
by the Security Council to take military actions against Iraq also modified
the duty of non participation.
It is trite to note here that every State, being independent and sovereign
is free to participate in armed conflicts but only on the side of the victim of
the an armed attack (collective self defense), not on that of the aggressor.
Also, permanent neutrality is a status under which a State undertakes in
peacetime, a legal obligation to remain neutral in case of an armed conflict
between two other States. This status requires the neutral State in peacetime
not to accept any military obligations and to abstain from acts which will
render the fulfillment of its obligation of neutrality impossible should the
armed conflict occur.
A clear distinction should be made between such a legal obligation to
remain neutral and neutrality policy. The legal neutralization of certain
states was one of the political tools used for the maintenance of balance
598 Scindler Loc.cit; no. 8
599 Torrelli, 35 Annales de droit Internationnale Medicale (1991) 38 et seq
295
of power in Europe under the European Concert during the last century.
The States that still posses a legally based status of permanent neutrality
are Switzerland and Austria.60010 The permanent neutrality status of
Switzerland is based on mutual unilateral declarations made by Switzerland
and by the most important European powers in connection with the Vienna
Congress in 1815. The international legal basis of permanent neutrality of
Austria is also a unilateral act namely, the Austrian Notification of the
Federal Constitution Act of 26 October, 1955. Whether and to what extent
both states are under an international legal duty to maintain this status of
permanent neutrality is not clear.
During peacetime, a state which is permanently neutral e.g. Switzerland
and Austria, may not accept any obligation which would render it
impossible to fulfill in times of armed conflicts, i.e. neutrality duties. Thus, a
permanently neutral state may not become a member of a military alliance.
In relation to Austria, there was a lively discussion as to whether the
economic obligations involved in Austrian membership of the Economic
Commission will be incompatible with its status of permanent neutrality.
In clear concise terms, permanent neutrality means a renunciation of the
right of collective self defense i.e., the right to grant assistance, but not a
renunciation of the right to accept help from others if the permanently
neutral State is attacked. Except for those rules which are legally based,
permanent neutrality applies in times of peace. Neutrality in war times
begins with the outbreak of armed conflict or hostilities of significant scope
between two other States.601
The Law of Neutrality leads to considerable modifications in the
relationship between the neutral and belligerent States, i.e. States involved
in armed conflicts and States not involved in hostilities. There exists a
traditional thesis which is defended till date to the effect that the application
of the law of neutrality requires the existence of war in the legal sense.602
There is still a widespread opinion that in addition to the objective existence
of harmed hostilities, there must be a subjective element; the intent to
conduct war (animus belligerandi). If this were correct, a State could impose
upon a party to the conflict by the law of neutrality. States not party to the
conflict which have not reached the threshold of the application of the law
of neutrality are not neutral in the legal sense, i.e. they are not bound by the
particular duties of the law of neutrality. In those fields, where the rules of
600 R. Bindschedler 111 EPIL, 1011 et seq.
601 Bother N. Dekker/ Post(Eds), 205 et seq.
602 Castren Greenwood, Dekker /Post (Eds) 212 et seq.
296
International Humanitarian Law have a lower threshold of application than

the law of neutrality, the use of the other State not party to a conflict in the
logical sense could escalate the conflict.
The application of the law of neutrality requires the existence of an
international conflict. There is no neutrality in relation to non-international
armed conflicts. According to a traditional rule of international law, support
given to insurgents constitutes unlawful interference in the internal affairs
of a state. If it reaches certain intensity, this support is considered equivalent
to an unlawful armed attack. Support given to an established government
in whatever way was in former times regarded as legal since each state was
free to request the assistance of other States in order to maintain its internal
order. This however is no more because there have been a number of cases
where the legitimacy of the government requiring such assistance was
subject to doubt. Examples are Afghanistan603 and Vietnam.604 Presently,
there exists a growing tendency to consider the assistance given to parties
of a civil war even in the form of an intervention by invitation, as being
generally inadmissible.605 Foreign intervention, whether lawful or unlawful
can change the status of any internal conflict, thus, ensuing it into an
international dimension of conflicts. If such occurs, the law of neutrality
will then have a role to play.
It is pertinent to note here that once the armed conflicts between
belligerents ceases, neutrality status also ceases, except in instances of
permanent neutrality. This rule raises lots of questions because actual
cessation of hostilities does not always lead to a modification in relation
between parties to the conflict which would render the law of neutrality
inapplicable. For instance, the resumption of arms export during an
armistice could prompt the resurgence of armed conflicts, thus making
the positive effect of the law of neutrality futile. On the other hand, an
armistice may lead to the pacification of a situation which after several years
can no longer be distinguished from normal peacetime relations. Within
the meaning of the law of neutrality, a conflict will be termed terminated
where after the cessation of active hostilities, there is a degree of normalcy
in relations, commercial or other otherwise, between parties to the conflict.
603 The Afghan government requesting Soviet help in 1979
604 The South Vietnamese government cooperating with the United States since the mid
fifties was not universally recognized as the government of a separate state of South
Vietnam, nor was the state as such. That government had to face an internal rebellion
by the Vietcong which was actively supported by North Vietnam. Thus, the armed
conflict had both an internal and international aspect.
605 Akehurst, EPIL 597.
297
In the course of armed conflict between belligerents, a neutral state may

by any act or omission, become a party to the conflict. Firstly, it could be that
either a party to the conflict or a neutral state which is bound by neutrality
laws, by unequivocal acts or declarations changes its existing status. A very
good example of this was when Germany and Italy during World War 11,
by their declaration of war against the United States which at that time was
neutral but was not acting in accordance to neutrality laws, commenced
active hostilities against that state, or Germany by its invasion of Norway.
As long as States do not legally characterize their acts by declarations, the
mere fact that hostilities are present between a neutral State and a party to
the conflict must be evaluated in a different way. Thus in the above example,
the massive support rendered by the United States to the States at war with
Germany and Italy did not render the United States a party to the conflict
until the declaration of war was mentioned. Even before the declaration of
the USA, it doubtful if their so called neutrality could have been sustained in
the light of their close relationship with Britain and France at the time. Thus,
it is trite to state here that the duty of a neutral state is to defend its neutrality
status and not being on the sides of any of the parties to the conflict. Where
a party to the conflict tries to occupy parts of the neutral territory (which
includes the land mass, air and territorial waters) for use as a base for
hostilities, the neutral State is bound to take military countermeasures. If
this is adequately done, it can be said that the state is still maintaining its
neutrality status, despite the hostilities it wages with one of the parties to
the conflict because of unlawful occupation into the neutral states territory
with the intent of hostilities against the other party to the conflict.
Where a neutral State violates the law of neutrality by supporting a party
to the conflict or in any other way, the affected party to the conflict has the
right to make reprisals against that hitherto neutral state which are then
subject to the general rules as relates to reprisals, in particular, the principle
of proportionality. According to traditional international law, reprisals may
involve the use of military force against the state violating the neutrality
law. Armed reprisals are generally unlawful. A reaction against violations
of neutrality which would involve the use of force against another State is
permissible only when the violation of the law triggering that reaction itself
constitutes an illegal armed attack. Support of the aggressor is illegal not
only under the law of neutrality but also under the law prohibiting the use of
force. Illegal support for aggression, however it may seem is not necessarily
equivalent to an armed attack. Therefore, the victim of an aggression
298
reacting to a non neutral service in favor of the aggressor is still subject to

the prohibition of the use of force.606
If a neutral State renders its support to the victim of aggression, it is
contrary to the law of neutrality but not a breach to the prohibition of the
use of force. In such a case, the neutral state could if it wishes claim the right
to collective self defense and thus become a party to the conflict without
prohibition of the use of force. Like international humanitarian law, the
law of neutrality can effectively fulfill its functions of restraining conflicts
only if the question of which the party is the aggressor and which the victim
remains irrelevant for the evaluation of certain acts in the light of the law
of neutrality. Thus, reprisals taken against a State supporting a victim of
aggression is admissible under the law of neutrality. There exist countries
that still maintain neutrality status till date. Austria, now a member of the
European Union has been a neutral state since 1955, to maintain external
independence and inviolability of borders. Finland is also neutral based
on the military doctrine of competence and credibly independent defense,
thus not desiring any outside support or desire to remain in international
conflicts. On the other hand, Japan is constitutionally forbidden from
participating in wars but maintains heavily armed self defense forces and
a military alliance. While Sweden has not fought a war since ending its
involvement in the Napoleonic wars in 1814 and a short war with Norway,
thereby making it the oldest neutral city in the world, the Vatican city signed
the Lateran Treaty in 1929 with Italy which imposed perpetual neutrality in
international relations and to abstain from mediation in a controversy unless
specifically requested by all parties.
II.
Rights and Duties of Neutral Parties
The basic and most fundamental rule in the law of neutrality is found
in Article 1, HC V which provides that the territory of neutral powers
is inviolable. This is to the effect that any act of hostility carried out in
whatever capacity in the territory of a neutral state is prohibited. Thus,
formulating a fundamental right of neutral states to remain outside the
armed conflict and not to be adversely affected by it. Parties to the conflict
may not in any way use the neutral territory for its military operations,
transit or for similar purposes. It should be noted here that the right of self
606 For example, during the Iran-Iraq war, the un-neutral services rendered to Iraq by the
United States, Saudi Arabia and Kuwait did not entitle Iran to adopt measures against
those states involving the use of military force.
299
defence does not in any way legitimize the use of any means contrary to
the laws of war, neither does it legitimize military measures against States
which have not committed aggression themselves. The right of self defence
does not constitute a comprehensive right of self help against innocent third
states. The inviolability of neutral territory applies not only to neutral land
but also neutral waters which includes internal waters which are waters
within the territorial sovereignty of a state, territorial sea, and the airspace
of such a neutral territory.
The inviolability of neutral territory is also to the effect that the neutral
state must not be affected by the collateral effects of hostilities. The parties
to the conflict do not have any right to cause damage to neutral territory
through hostilities. It is unlawful for the effects of attacks directed against
belligerents (i.e. the other party to the conflict), to be felt in a neutral
state. In recognition to this rule, allied governments paid compensation
for damage occurring during World War II in Switzerland (which is a
neutral state), caused by attacks on targets in Germany which had impacts
in Switzerland. To every rule they say exists an exception. Therefore the
inviolability of neutral territory exception applies only where for instance
in maritime warfare, certain impact of hostilities occurs in a neutral states
interest. As regards land warfare, there is no rule of customary law which
would lower the normal standard of peacetime protection against transboundary impact.
Article 5, HC V provides that
A neutral power must not allow any of the acts referred to in Articles
2 4 to occur in its territory.
Article 2 states that

Belligerents are forbidden to move troops or convoys of either
munitions of war or supply across the territory of a neutral power.
Article 3 on the other hand provides that

Belligerents are forbidden to;
a.) Erect on the territory of a neutral power, a wireless telegraphy station
or other apparatus for the purpose of communicating with belligerent
forces on land or sea.
b.) Use any installation of this kind established by them before the war in
the territory of a neutral power for purely military purposes and which
has not been opened for the service of public massages.
300
Article 4 HC V states that

Corps of combatants cannot be formed nor recruiting agencies
opened on the territory of a neutral power to assist belligerents
The above obligations however are limited by the international legal

prohibition of the use of force. The use of military force to defend neutrality
is permissible only if it is legitimate self defence against an armed attack
by belligerents. The duty of a neutral State to prevent parties to the conflict
from using its territory for military operations is limited to the defense
feasible for the neutral state. To what extent then can neutral State undertake
military efforts? If a neutral state defends its neutrality, it must respect the
limits which international law imposes in military violence. There is no need
for international legal justification of military measures which a neutral
State takes on its own territory. For instance, if there exists a hypothetical
conflict between Ghana and Nigeria and Cameroon is a neutral country.
If Cameroon allows its troops probably acting in self defence out of its
territory, they are admissible only to the extent that the violation constitutes
an armed attack within the meaning of Article 51 of the UN Charter.607
In other words, the Charter of the United Nations grants the right to use
counter force. The law of neutrality may under certain circumstance impose
an obligation for exercise of these rights.
The principle of non participation is also very essential. The neutral state
must abstain from any act which may have impact on the conflict. A neutral
State must not assist belligerents (i.e. parties to the conflict). Article 6 HC
VIII provides that
The supply, in any manner, directly or indirectly, by a neutral power
to a belligerent power, of warships, ammunition, or war material of
any kind water is forbidden.
Massive financial support by a neutral state to a party to the conflict also

constitutes non neutral service. This was the case with some Arab States
during the conflict between Iraq and Iran. Iran gave substantial financial
607 Article 51 United Nations Charter provides that nothing in the present Charter shall
impair the inherent right of individual or collective self defence if an armed attack
occurs against a member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self defense shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
301
support to the war effort of Iraq. The supply of arms by western states to Iraq
was objectionable under the law of neutrality. This prohibition on supplies
is absolute and applies also where assistance is given to both parties to the
conflict. The supply of any war material is forbidden except where expressly
stated by the Security Council that such is adopted for the maintenance
of peace.
Article 14 HC V provides that
A neutral power may authorize the passage over its territories of the
sick and wounded belonging to the belligerent armies, on condition
that the means of transport bringing them shall carry neither
personnel nor war material.
In such a case, the neutral power is bound to take whatever measures

for safety and control where necessary for the purpose. The sick, and
wounded brought under these conditions into neutral territory by one of
the belligerents, and belonging to the hostile party must be guarded by the
neutral power so as to ensure their not taking part again in the military
operations. The same duty shall devolve on the neutral state with regard to
wounded or sick of the other armed forces who may be committed to its
care. From the above, humanitarian assistance for victims of the conflict
does not constitute a violation of neutrality even where it is for the benefit
of only the party to the conflict. This is because, the only criterion for such
assistance is need and not equal benefit for the parties to the conflict. This
idea was clearly formulated in Article 70 of Additional Protocol I of June 8,
1977 to the Geneva Convention of 1949 which states that
Humanitarian assistance may not be considered as an inference
in the conflict. Any assistance whose purpose is not to mitigate the
need of victims but to provide military advantage to one party of the
conflict is not humanitarian.
The traditional law of neutrality distinguished between unlawful

assistance by private persons or enterprises belonging to a neutral state.
Assistance by private enterprises was not attributed to the neutral state
and there was no obligation on the state to prevent it. The separation of the
state and private armament industry is artificial and does not correspond
with political reality these days because arms production and trade are in
many ways managed, promoted and controlled by the State. Thus, it would
be unrealistic if one did not attribute to the State, the export of that states
official arms industry. Cognizance must be taken on the kind of effort a state
302
will make to prevent the export of war material, because one has to assume
that besides arms exports controlled by the state, there is a black market
which evades State control. The more stringent the controls, the greater the
incentive to undertake transfer to circumvent them.
Discussion about the supply of equipment for the production of chemical
weapons in Libya and Iraq is a typical example. In the field of chemical
weapons, the new Convention on the Prohibition of Chemical Weapons
entails specific duties of export control. In the area of nuclear weapons, the
Non-Proliferation Treaty has a similar function of the non-nuclear weapon
owing states.
While the troops of a neutral state may not take part in any war operations,
it cannot and is not required to prevent its nationals from entering the
service of a party to the conflict on their own initiative and responsibility.
Article 4 HC V expressly provides that
Corps of combatants cannot be formed nor recruiting agencies
opened in the territory of a neutral power to assist the belligerent.
Therefore there must be distinction between government assistance

and private assistance. If the State tolerates the establishment of volunteer
corps, which is a common practice, this amounts to a non neutral service.
All acts and omissions of States are prohibited so long as they are viewed
to further the military effort of a party to the conflict. Further duties of
prevention results from the Convention against Recruitment, Use, Finances
and Training of Mercenaries, opened for signature and ratification by the
General Assembly of the United Nations on December 4, 1989. It must
however be noted that the members of regular armed forces of a party to
the conflict are not mercenaries within the meaning of the Convention.
Recruitment for activities within the regular armed forces of another State
thus does not constitute any activity which must be punished according to
the Mercenaries Convention.
Land Warfare
War on land can be referred to the acts of combat within the land mass
of parties to the conflict or within the territories of their States. It is trite
knowledge that combat activities should be within the territories of the
parties to the conflict. Article 2 HC V makes it known that troops or supply
movements must not be carried out on a neutral territory. Thus any act of
combat between belligerents carried on neutral land violates the principles
of the law of neutrality. Article 14 HC V provides that;
303

The neutral state may allow the transit of wounded persons and
relief goods.
This provision is a consequence of the prohibition of non neutral services

aforementioned and also of the prohibition against the use of a neutral
territory for the military purposes of party to the conflict. Prohibited
transports across neutral territory include cases where a party to the conflict
is granted landing rights for supply flights. This was a major issue during
the US-British intervention in Iraq in 2003.608 During the Second World
War, the prohibition of transit was in some cases not respected by neutral
states under the pressure of circumstances. Neutral states have granted the
right to transit to belligerents in different ways. In most cases, this was the
first step towards a neutral State being drawn into the conflict. On the other
hand, states refusing transit rights were attacked.
It is difficult to clearly define, if supply movement presents difficulties.
Transport of weapons belongs to this category. On the other hand, the
movement of medical supplies or of raw materials for the war industry
would be permitted. Thus wounded persons and relief supplies are also an
exception. There is a general principle of the law of war behind this rule
namely that humanitarian assistance to the victims of conflict as a rule does
not constitute non-neutral service. Articles 11 and 12 HC V states amongst
others that neutral states must intern forces of the parties to the conflict
trespassing on neutral territory. Also Article 13 HC V provides that
Escaped prisoners of war who are allowed to remain in the territory
of the neutral state may be assigned a specific place of residence.
Thus, if the whole unit of the armed forces of a party to the conflict arrives
on neutral territory, it would be a violation of the duty of non-participation
should the neutral state be permitted to take part again in the hostilities.
Therefore, those troops must be interned. War materials also have to be
withheld until the end of the conflict. On the issue of prisoners, the neutral
state has to prevent escaped prisoners arriving on its territory from taking
further part in the hostilities. Articles 13 HC V expressly states inter alia that
the escaped prisoners must remain free. Certain authors conclude from
this that they must be permitted to go back to their home country. This is
however unclear but it should supported. Helping the escaped prisoners
608 The decision of the Irish High Court of April 28, 2003, HORGAN V. TAOISEACH (2003)
468, 2 IR.
304
of war to get back to their home does not vitiate or diminish the status
of neutrality.
Naval Warfare
Cognizance should be taken of Article 1, HC XIII609 which states that

Belligerents are bound to respect the sovereign rights of neutral
powers and to abstain in neutral territory or neutral waters, from any
act which would if knowingly permitted by any power, constitutes a
violation of neutrality.
Thus the internal waters,610 archipelagic waters611 and territorial sea612 of

neutral state must be respected.
Secondly, it is prohibited to commit any act of war in such waters (internal,
archipelagic and territorial). Article 2 HC XIII provides that
Any act of hostilities, including capture and the exercise of the
right of search committed by belligerent warships in the territorial
waters of a neutral power constitutes a violation of neutrality and is
strictly forbidden.
In essence the maritime territory of a neutral state is inviolable and may

not be used for the purpose of conducting hostilities. This rule however,
has an exception because unlike the strict enforcement of the rule of
inviolability in land warfare, there is a right of innocent passage as regards
territorial sea.613 Article 5 HC VIII also provides that
Belligerents are forbidden to use neutral ports and waters as a base
of naval operations against their adversaries and in particular to
erect wireless telegraphy station or any apparition for the purpose of
communicating with the belligerent forces on land or sea.
609 Rights and Duties of Neutral Powers in Naval War of October 18, 1907 (Hague XIII).
610 Any natural or artificial body or stream of water within the territorial limits of a country
canal (Blacks Law Dictionary, Seventh Edition, edited by Bryan A. Garner
611 All maritime waters within archipelagic baselines which are neither internal waters
nor territorial waters but can be controlled by the archipelagic state (Law of the sea by
Robin Rolf Churchill and Alan Vaughan, Lowe, Manchester University Press 1997)
612 Self of coastal waters extending at most, twelve nautical miles from the baseline of a
costal state (1982 UN Convention on the Law of the Sea).
613 Paras 31 33 San Remo Manual on International Law Applicable to Armed Conflicts at
Sea, 12 June, 1994.
305
Thus, acts of war are prohibited in neutral waters to the same extent as
they are forbidden on neutral territory. Forbidden acts of war includes the
exercise of the law of prize such as stop, visit and search, orders to follows a
specific course, capture of merchant ships, etc. The jurisdictional water to
be respected consists of the territorial sea and the internal waters belonging
to the sea.614 The exclusive economic zone and the sea area above the
continental shelf do not constitute neutral waters. Therefore acts of war are
as a matter of principle permitted in such areas. This is because the exclusive
economic zone615 and the continental shelf, constitute a freedom of the use
of such waters like navigation because they are international waters. The
parties to the conflict must however, in conducting hostilities, take into
account the economic interest of the neutral coastal state in whose exclusive
economic zone, hostilities are taking place. Article 3, para 1 HC XIII provides
that
When a ship has been captured in the territorial water of a neutral
power, this power must employ, if the prize is till within its jurisdiction,
the means at its disposal to release the prize with its officers and create
and to intern the prize crew.
This raises a pertinent issue of the duty to defend neutrality. If the right
of prize is exercised in neutral waters contrary to the laws of neutrality, the
neutral state must make an effort to undo this violation by freeing the prize
captured in its waters. This liberation of the prize is consistent with the
prohibition of the use of force, since it constitutes an exercise of sovereign
rights in the states own jurisdictional area where the justification of self
defence is not required.
Article 3, para 2 HC XIII emphatically states that
If the prize is not in the jurisdiction of the neutral power, the captor
government, on the demand of that power must liberate the prize with
its officers and crew.
This is to the purport that a neutral state may demand the release of a ship
captured within its waters even if the ship has already left the neutral waters.
614 Article 8 of the United Nations Convention on the Law of the Sea
615 The Exclusive Economic Zone extends for 200 nautical miles (300km) beyond the
baselines of the territorial sea, thus including the territorial sea and its contiguous zone.
Right of control of all economic resources is permitted. However it cannot regulate
or prohibit passage or loitering above, on or, under the surface of the sea, whether
innocent or belligerent within that portion of its exclusive economic zone beyond its
territorial sea.
306
It is a secondary obligation derived from the primary rule and the prize (i.e.
the ship) must be taken.
Article 15 GC II states that
If the ship of a neutral state takes wounded, sick or shipwrecked
persons on board, it must to the extent required by international law;
ensure that these persons take no further part in hostilities.
As a matter of principle, combatants who fall into the power of a neutral

state must be prevented from taking further parts in the hostilities. In law
warfare, the transit of wounded and sick persons through neutral territory is
permitted. The general rule applies that any further participation of military
personnel in hostilities must be prevented. Only those seriously sick or
heavily wounded whose complete recovery is unlikely may be repatriated.
This rule also applies for prisoners of war who are disabled.
Article 4 paragraphs 1 and 2 HC VIII provides among others that neutral
powers which lay automatic contact mines off their coasts must observe the
same rules and take the same precautions as are imposed on belligerents.
The neutral power must inform ship owners, by a notice issued in advance
where automatic contact mines have been laid. This notice must be
communicated at once to the governments through the diplomatic channel.
Therefore from the above provision defensive laying of sea mines constitutes
a lawful protective measure. However, the neutral state must then take
the same precautionary measure in the interest of third parties which the
parties to the conflict are required to take. With the current ban on mines
production in Ottawa, the laying of protective mines by neutral States can
be presumed to be illegal.
Innocent Passage through Territorial Sea and Archipelagic Water

Article 10 HC XIII provides that
The neutrality of a power is not affected by the mere passage through
its territorial waters of warships or prizes belonging to belligerents.
Ordinarily there are no such rights of innocent passage outside waterways

but Article 38 and 53 of the United Nations Convention on the Law of the
Sea616 allows for innocent passage of foreign vessels through archipelagic
waters. The principle of innocent passage constitutes an exception to the
general rule of land warfare that a neutral state may not acquiesce the
616 Signed December 10, 1982, effective November 16, 1994
307
presence of armed force of a party to the conflict in areas subject to its

jurisdiction. Parties to the conflict also enjoy rights of transit passage
through international straits and archipelagic shipping lanes. The right of
transit or innocent passage is subject to a number of specific limitations
designed to prevent the exercise of those rights from developing into the use
of neutral jurisdictional areas for the purpose of conducting war contrary to
the law of neutrality.
Another issue for consideration as regards innocent passage is that in
accordance with Article 12, HC XIII which states that
In the absence of special provisions to the contrary in the legislation
of a neutral power, belligerent warships are not permitted to remain
in the ports, roadsteads, or territorial waters of the said power for
more than twenty four hours, except in the cases covered by the
present convention.
and Article 14, HC XIII which also provides that

A belligerent warship may not prolong its stay in a neutral port
beyond the permissible time except on account of damage or stress or
weather. It must depart as soon as the cause of the delay is at an end.
The twenty four hour rule is the most important exception to the rule
that the rights of passage or transit existing in peacetime apply equally in
times of armed conflicts. The reason being to prevent parties to the conflict
from using neutral waters as a refuge from enemy warships. According to
the text of The Hague Convention the twenty four hour rule applies. This
was the case during the Second World War in the Altmark case where a
German auxiliary warship has spent two days passing through the coastal
waters of Norway, which at the time was still neutral, in order to avoid being
capture by the British fleet. At that time, Norway claimed that the twenty
four hour rule did not apply to mere passage. The view has not prevailed.
An exception to the twenty four hour rule applies where the passage
through neutral waters is not possible within twenty four hours. This will
be the case particularly for archipelagic shipping lane passage in such a
case; the rule is modified to the effect that the time required for the shortest
possible passage is permitted. The assistance permissible during a stay of
ships of a party to the conflict in neutral wars constitute a compromise
between the prohibition of assisting armed forces of the belligerents and the
requirements of seafaring solidarity. Sea faring solidarity requires granting
such help to a ship which is necessary, taking into account the seaworthiness
308
of the ship, navigational difficulty caused by weather and provision of food

and fuel. Assistance must be strictly limited to those essential sea faring
requirements. Article 17 -20 Hague Conventions XIII makes some provisions
as regards permissible assistance.
Article 17 provides that
In neutral ports the road stead belligerent warships may only carryout
such repairs as are absolutely necessary to render them sea worthy
and may not add in any manner whatsoever to their fighting force.
The local authorities of the neutral power shall decide what repairs are
necessary and these must be carried out with the least possible delay.
Article 18 is to the purport that the warships of belligerents may not use
neutral ports, road steeds or territorial waters for replenishing or increasing
their supplies of war material or their armament or for completing
their crews.
Article 24 HC XIII amongst other things provides that if a belligerent
warship does not leave a port where it is not entitled to remain, the neutral
power can take such measures as it deems necessary to render the ship
incapable of taking the sea and command the officer of the ship to stop any
such measures. The crews and officers should also be detained. Officers may
be left at liberty on giving their word not to quit the neutral territory without
permission. Therefore if a warship of any of the parties to the conflict stays
longer than the permissible time which is 24 hours, it violates the Laws of
Neutrality and in accordance with the above provision shall be invoked.
Article 16 HC XIII provides that
When warships belonging to both belligerents are present
simultaneously in a neutral port or road steed, a period of not less
then twenty four hours must elapse between the departure of the ship
belonging to one belligerent and the departure of the ship belonging
to the other. The order of the departure is determined by the order of
arrival, unless the ship which arrived first is so circumstanced that an
extension of its stay is permissible.
The reason for a fixed period between the departures of warship belonging
to different parties to the conflict is to prevent confrontation between
them immediately after they leave neutral waters. Otherwise the order of
departure may influence the outcome of the conflict.
In Article 25 HC XIII, the prohibition of non-neutral series was modified
in the interest of navigational safety. It provides that a neutral State is bound
to prevent within its means at its disposal, any violation of the rules of
309
neutrality within its waters and to exercise such surveillance as is required

for this purpose.
The neutral duty of impartiality is clarified in Article 9 HC XIII which
provides that
A neutral power must apply impartially to the two belligerents the
conditions, restrictions or prohibitions made by it in regard to the
admission into its ports, roadsteads or territorial waters of belligerent
warships or of their prizes.
It further provides inter alia that a neutral power may nevertheless forbid
a belligerent vessel which has failed to conform to the orders and regulations
made by it or which has violated the law of neutrality to enter its ports or
roadsteads. Thus, in armed conflict, the neutral State may regulate passage
through its waters and any stay therein by imposing its own rules. It may
limit passage rights or impose other limitations so long as it does not create
more advantageous conditions for one party to the detriment of the other.
Nevertheless, in specific geographic circumstances, one party to the conflict
may benefit from such rules than the other.
Another pertinent issue is as regards control by the parties to the conflict.
The control of neutral commercial shipping by parties to the conflict is
very important. The state of international customary law is controversial in
many details concerning the extent of this control. The London Declaration
of 1909 which codified these rights of control was not ratified. In recent
conflicts, such rights of control were exercised without objection although
certain specific measures and some status were controversial. Warships of
a party to the conflict are entitled to stop, visit and search merchant ships
flying the flag of a neutral state on the high seas and control the contents
and destination of their cargo. The control by the parties to the conflict of
neutral shipping constitutes an essential exception to the principle that the
existence of an armed conflict. The purpose of such control is to impede
the provision of goods imported for the war effort to the other party to the
conflict. It is the right of warship of a party to the conflict to stop neutral
commercial ships and to search them in order to find out whether they
have goods aboard which could assist the war effort of the other party to
the conflict.
As a last resort, warships of a party to the conflict may use force but only
that which is necessary against neutral merchant ships to exercise such
control only such force is permissible which is indispensable to enforce
the right of control in particular to prevent a merchant ship from evading
310
such. Any merchant ship which although subject to control by a party to

the conflict, but resist inspection may be damaged or destroyed if it is not
possible to prevent them from continuing their voyage by other means. The
captain of the neutral ship shall be previously warned in all appropriate
manners. After the destruction, rescue of shipwrecked persons must
be ensured.
To simplify the inspection, parties to the conflict may, subject to the
approval of the neutral state concerned, issue an inspection document
(navicert) to the neutral vessel in the port of loading. A navicert issued by one
party to the conflict is not binding on the other party. The navicert makes
it possible for the neutral ship to prove in the case of control by a warship
of a party to the conflict, by a document issued at the port of loading by
that party to the conflict (usually by its diplomatic representative), that it is
not carrying contraband. The fact that the ship carries a navicert of another
party to the conflict does not justify any more far reaching measures
of control.
A navicert is only accepted by the party which issued it. During World
War II, it was argued that carrying a navicert which places a neutral
merchant ship under the partial control of one belligerent constitutes a non
neutral act because it favors the belligerent exercising this control. If this
were so, neutral commerce would be unreasonably endangered because it
could not protect itself against control claims of the parties. The argument
however did not prevail because it is only accepted by the party which
issued it.
The right of control shall not apply to merchant ships flying neutral
flags and escorted by a neutral warship (convoy). The right of convoy was a
controversial one to the effect that warships of the parties to the conflict may
control neutral merchant ships but not neutral warships. In the Gulf conflict
between Iraq and Iran, convoys of merchant ships flying neutral flags were
indeed placed under the protection of warships of neutral states. Thus, the
neutral states did not accept the right of control of the parties to the conflict
especially, Iran which they tolerated. In a lawful convoy, control is exercised
by requiring the commander of the neutral warship to provide information
concerning the type and destination of the cargo to the warship of the party
to the conflict.
A warship of a party to the conflict may request the commander of the
neutral warship to specify the type and destination of the cargo. If the
cargo contains goods essential for war which are destined for the port of an
adversary, such goods may be captured by the warship of the party to the
311
conflict (absolute contraband). Any goods destined for the administration

of conflict or the armed forces of the opposing party to the conflict will
likewise be deemed contraband (conditional contraband). The first question
to be asked in this respect is, what kinds of essential war goods are subject to
this power to prevent further transportation (contraband)?
Section VI, para 148 San Remo Manual617 defines contraband as goods
which are ultimately destined for territory under the control of the enemy and
which may be susceptible for use in armed conflict.
It is pertinent to create a distinction between absolute and conditional
contraband. Absolute contraband comprises all war goods that are
essential. Parties to the conflict have some discretion as to determine what is
considered essential for war. The distinction must always take into account
the specific circumstances of the conflict. Absolute contraband are goods
which by their very nature must be considered as essential for war and
must be distinguished from conditional contraband which comprises those
goods destined for the administration and armed forces of the adversary,
whether or not they otherwise serve essential purposes of war. Article 24 of
the London Declaration of 1909 refers to food and clothing as conditional
contraband. If such items are shipped for the purpose of humanitarian
relief actions, they may not be considered as contraband.618 A ship carrying
contraband as well as the cargo is subject to capture. A captured ship (prize)
must be brought as safely as possible to a port of a party to the conflict
or of a State allied with that party. In that port, the permissibility of the
capture of ship and cargo will be reviewed by a prize court. Ship and cargo
may be confiscated by the order of a price court. The legality of the capture
must be reviewed in a judicial procedure as soon as possible. Cargo may be
confiscated only after the judgment of a price court, same applies to the ship
carrying that cargo except the contraband constituted more than half of the
cargo whether by value, weight, volume or freight.619
If the suspicion that a ship is carrying contraband, which led to control
measures, proves unfounded, and if the neutral ship has not contributed
to that suspicion, the party to the conflict is obliged is compensate for any
damage caused by the delay. It is worthy to note here that Article 4 HC XIII
provides that;
A prize court cannot be set up by a belligerent on neutral territory or
on a vessel in neutral waters.
617 1994
618 Article 23, 59 GC IV, Article 70 AP
619 Articles 39 and 40 of the London Declaration 1909
312
This rule adds further precision to the principle that neutral territory may
not be used for any act which causes damage to the enemy.
Protection of Neutral Merchant Shipping

Warships of neutral states may escort merchant ships flying the flag of the
same or another neutral state. The experiences in the conflict between Iraq
and Iran proved this. Impeding neutral shipping from a political point of
view has obvious benefits because the other party will benefit from this
shipping. Fuel constitutes contraband only if it is destined for a party to the
conflict not if it comes from a party to the conflict which uses revenue from
sale of fuel to finance its war efforts.
The formation of convoys has proved to be an efficient means of
protection because those convoys represents the state so that attacks against
them constitutes attacks against a neutral state which may trigger its right
of self defence. Convoys operates within the applicable law of the sea and in
particular must respect the rules concerning innocent passage and transit
passage. The fact that the formation of a convoy also demonstrate military
power does not mean that it constitutes a violation of the prohibition of the
use of force as was the decision of the ICJ in the Corfu Channel case.62030
The formation of convoys may constitute a non neutral service if merchant
ships of party to the conflict are placed under the protection of a neutral
warship. On international shipping routes and on high seas, warships
of neutral states may sweep mines to the extent necessary to protect and
maintain neutral shipping. Such minesweeping operations do not constitute
a non neutral service for the benefit of the adversary of the mine laying
party. This attained considerable practical significance during the conflict
between Iraq and Iran. For the purpose of legal evaluation, minesweeping
in the jurisdictional waters of a party to the conflict and similar activities
on the high seas must be distinguished. On the high seas the Law of the Sea
is relevant and thus conducting hostilities is a lawful use of the high seas
although this is not explicitly stated in the Law of the Sea Convention. In
this respect, mine sweeping constitutes a kind of self help against a lawful
activity. On the other hand, the high seas should be free from shipping and
this right has a great weight. The conduct of hostilities also limits the freedom
of navigation of other states. Minesweeping therefore involves balancing
two freedomsfreedom to the neutral parties to the conflict and freedom
to conduct hostilities on the high seas. Unilateral minesweeping operations
620 ICJ Reports 1949, 4, 28
313
in the water of a party to the conflict is illegal because it constitutes a

violation to the prohibition of the use of force. However, where one party to
the conflict lays mines in shipping lane through which there exists right of
transit which the minesweeping State is bound to keep open, no violation of
the provision of the use of force will occur where it is forcefully opened. This
was the state practice during the conflict between Iraq and Iran.
Aerial Warfare
As a general principle, the airspace of a neutral territory is inviolable.

Article 40 HRAW 621 provides that;
The airspace of a neutral state is inviolable.
This rule is very important because in this age of modern technology

where the use of missiles and other air warfare technique is rampart,
violations of airspace are easily committed.
The territorial jurisdiction of a neutral state extends to the atmosphere.
The outer space above a neutral territory is not subject to the neutral states
jurisdiction and as such over flights by satellites and missiles moving in outer
space therefore do not constitute a violation of neutrality. The delimitation
between airspace and outer space is still one of controversy. Practically
and theoretically, two trends exists which however possesses a number of
variations. According to the Functional Theory, satellites in orbit are typical
space objects, thus crossing a specific territory or stationary. A satellite on a
fixed point over the territory of a state does not constitute a violation of the
territorial sovereignty of the respective state. To this theoretical school also,
missiles only constitute typical space vehicle where they are at least partially
brought into orbit around the earth where the attraction of the earth as well
as the force of the air balance each other. The other theory which is based on
spatial concepts tries to create a demarcation between air space and outer
space at a particular altitude of about 100 kilometers.
Article 40 HRAW provides among others that parties to a conflict
are forbidden to send military aircraft, rockets or other missiles into
neutral airspace.
This rule was provided for because of the inviolability of neutral airspace.
Thus, the parties to the conflict are not allowed to penetrate the airspace
of neutral territories by aircraft or other flight object. For aircraft attacking
targets at large distances, significant detours may be involved. Worthy of
note is that over flight by civilian aircraft does not constitute a violation of
621 HRAW Hague Rule of Aerial Warfare
314
neutrality. The neutral state however must exercise all due controls so as to
prevent the over flight of civilians from being used for military purposes.
Permission is required for over flight and stopover. A neutral State has the
right to place conditions and restrictions on over flight.622 Medical as well
as war aircrafts are not permitted to penetrate into neutral airspace without
authorization. In that respect, such aircraft, even medical may require
specific authorization, the granting of this is discretionary to the neutral
State. Where such permission is granted by the neutral State, conditions
may be attached especially as regards routes which must be followed and
necessary stopover. Article 31 paragraphs 2 AP I provides that
At a stopover an aircraft may be inspected to verify that it is
medical transport.
If the neutral state authorizes and imposes conditions on medical flight,

the duty must be equally treated. Identical treatment is not required but
equal treatment is pertinent. Often times, geographical factors may result
in one party using a transit flight while the other uses another. A neutral
state is not bound to tolerate unauthorized flights which may violate
lawfully imposed conditions. It may attack a medical aircraft flying illegally
if no other means exists to discontinue the flight or subject it to scrutiny.
Medical aircraft according to Article 37 GC I, Article 31 AP I and Article 17
HRAW, may be allowed to over fly the territory of a neutral State and to land
therein. This does not constitute non neutral service so long as it is a form
of humanitarian assistance subject to the rule similar to those concerning
land warfare.
Article 42 HRAW states among others that a neutral state is bound to
prevent violations of its airspace. Aircraft which enters into a neutral
airspace must be force to leave or brought down. The crews of military
aircraft or a party to the conflict who have been brought down must be
interned. This is to the effect that a neutral space must put measures to
prevent violations should they occur. It must take economically feasible
measures in order to create an aerial defense capacity which involves at least
simple radar observation of the airspace. It may not be required that such
neutral State endeavour to possess the latest missile technology in order to
defend its territory. Interception of airspace by the airspace of a neutral state
is one of the most pertinent measures which a neutral State is required to
take. Aircraft entering its airspace must be force to leave its aerial territory
622 Article 37, para 2 GC I; Article 40 para 2 GC II, Article 31 API
315
or be force to land. The obligation to intern their crews is from the federal
principles afore mentioned.
Under general international law which is applicable in peacetimes,
there is no general right for foreign aircraft, be it private or state owned to
over fly the territory of another state or to land therein. For instance, the
Chicago Convention provides certain rights of over flights and landing in
peace times only for private non scheduled air services. According to the
war clause of the Chicago Convention on International Civil Aviation of
December 7 1944 (Article 89), the provision of the Convention does not
affect the freedom of action of the contracting parties in a war be they
belligerent, or neutral. Thus, the rights of neutral aircraft to over fly the
territory of the parties to the conflict is regulated by International Law rules
on the protection of national airspace and the rules of space international
air traffic. Traffic rights for scheduled air services are as a rule derived from
agreements made bilaterally. Generally speaking, the legal situation is that
a State which is a party to the conflict can grant or not grant rights of over
flight to aircraft flying neutral flags subject to the provisions of bilateral air
transport agreement.
Special rules apply to airspace above specific types of jurisdictional
waters. As aforementioned, the right of innocent passage over territorial sea
is treated in the same way as the land areas around it. Therefore, it is now
Customary Law that the right of transit and passage includes a right of over
flight. (Articles 35 and 53 of the UN Convention on the Law of the Sea). The
relevant rules of naval warfare apply to the control, capture and confiscation
of neutral above sea areas and to the treatment of their passengers and crew
(Article 35 HRAW). An aircraft which does not carry elucidating visible
neutral national emblem may be treated as an enemy aircraft. When The
Hague Rule of Aerial Warfare was elaborated, the rules regarding the control
of neutral shipping were brought in. The increase in air traffic gave rise to
the issue of the control of neutral commerce. As far as air traffic over high
seas of concerned, account must be taken of the fact that aircraft constitute a
considerable threat to warships of parties to the conflict.
Thus, those ships will definitely react to any perceived threat where
it is herculean to identify if the aircraft is an enemy or a neutral one. The
shooting down of an Iranian civilian airbus by a US warship during the
conflict between Iraq and Iran shows the kind of tragic errors which may
result. Therefore both belligerent and neutral warships must endeavour to
ascertain the nationality and the category of any aircraft flying across the
airspace in such conflict time so that they can be identified. An aircraft
316
which is not identifiable and does not carry any distinct emblem of
nationality or neutrality (for humanitarian purposes), must be considered
an enemy aircraft and may therefore be attacked.
In conclusion therefore, the sources of the international law of neutrality
are customary international law and for certain questions international
treaties, in particular, the Paris Declaration of 1856, the 1907 Hague
Convention No. V Respecting the Rights and Duties of Neutral Powers
and Persons in case of War on Land, the 1907 Hague Convention No. XIII
Concerning the Rights and Duties of Neutral Powers in Navel War, the four
Geneva Conventions of 1949 and Additional Protocol I of 1977.
The United Nations Charter of 1945 and Security Council decisions based
on the Charter may in certain circumstances modify the law of neutrality.
For example Article 2(5) of the Charter requires members states to give the
UN every assistance in any action it takes. Article 25 requires UN members
to accept and comply with the decisions of the Security Council; the
enforcement measures spelled out in Chapter VII can also have an impact
as they are governed by particular rules which differ from those of the law
of neutrality.
The territory of a neutral state is inviolable. Thus it is prohibited to commit
any act of hostility whatsoever on such territory. Neutrality described the
formal position taken by a state which is not participating in an armed
conflict or which does not want to become involved. This status entails
specific rights and duties. On the one hand, the neutral state has the right
to stand apart from and not be adversely affected by the participation and
impartiality. Neutral space comprises the national territory of the neutral
state its territorial waters and its national airspace.
Neutral persons are nationals of neutral states. They lose their neutral
status if they commit hostile acts against a belligerent. Individuals may join
the armed forces of a belligerent party only when they lose their neutral
status. Once they lose their neutral status, they still have all the guarantees
of protection that a member of those forces would enjoy and therefore are
entitled to POW status if they are subsequently captured. As long as their
home state maintain normal diplomatic relations with the belligerent state
they are living in or visiting, neutral persons are to be treated in the same
way as they would in peace time. They remain under diplomatic protection.
If there is no such diplomatic relations, neutral persons are entitled to be
treated as protected persons under the Fourth Geneva Convention.62333 It
623 GC IV. Art. 4.
317
makes no difference to their status if they are civilians on members of the

armed forces of the neutral state to which they belong.
In times of armed conflicts belligerents (i.e. parties to the armed conflicts),
must establish a neutrality policy ensuing respect for a neutral states
space which includes air, water and land, in particular that armed forces
involved in the conflict do not enter neutral space and that neutral states
are not affected by the collateral effect of hostilities. Secondly, belligerents
must issue clear instructions and orders to the armed forces in action in the
vicinity of neutral space to avoid violations. Those orders and instructions
should include the following prohibitions;
- neutral space must not be entered or passed through, meaning
that troops and combat supply conveys must not be moved across
neutral territory (this entails giving precise information on borders,
boundaries, etc).
- Units must not be formed or combatants recruited in a
neutral territory.
- No telecommunication installations may be erected on neutral
territory for military operations or purposes, before the armed
conflicts may not be used.
Thirdly, even if clear instructions are issued, mistakes can occur. A patrol
can cross into neutral space because of a map-reading error. Troops should
be clearly briefed on how to react in such circumstances. If they are aware of
their error and have not been discovered, they should back track rapidly into
their own territory. If they are discovered, they should admit their mistake
and avoid escalating the incident into a fight. Normally the neutral State will
warn such offenders and give them the opportunity to with draw peacefully.
In some circumstances, they may be interned.
Neutral states on the other hand have to perform some duties during
periods of armed conflict. Firstly, neutral states must take measures to
ensure and enforce the protection of its neutrality in the neutral space for
which it is responsible in relation to the belligerent parties and in particular
their armed forces. To neither obtain neutral status, declaration, nor do
other statuses or parties formally have to recognize such status. A formal
declaration will only have the effect of making neutral status known better.
Secondly, the armed forces of the neutral state also require clear instructions
on how they are to operate in relation to the defence of their territory and
in dealing with incursions. For isolated and accidental violations of neutral
space, the instructions might include the need to issue warnings or give a
318
demonstration of force. For increasingly numerous and serious violations, a

federal warning might be called for and the use of force steeped up.
Thirdly, the neutral State must ensure respect for its neutrality, if
necessary using forces to repel any violation of its territory. Violations
include, failure to respect the prohibitions placed on belligerent parties with
regard to certain activities in neutral territory. The fact that a neutral State
uses force to repel attempts to violate its neutrality cannot be regarded as a
hostile act. If the neutral State defends its neutrality, it must however respect
the limits which international law imposes on the use of force.
Fourthly, the neutral State must treat the opposing belligerent States
impartially. This obligation does not mean that a State is bound to
treat the belligerents in exactly the same way. It entails a prohibition
on discrimination. That is it forbids only differential treatment of the
belligerents which is view of the specific problem of armed conflict is not
justified. Therefore, a neutral State is not obliged to eliminate differences in
commercial relations between itself and each of the parties to the conflict
at the time of the outbreak of the armed conflict. It is entitled to continue
existing commercial relations. A charge in these commercial relations could
however, constitute taking sides in consistencies with the States of neutrality.
Fifthly, a neutral State must never assist a party to the armed conflict, in
particular, it must not supply warships, ammunition or other war materials
directly or indirectly to a belligerent power but otherwise its trade with the
belligerent states remains unaffected.624
Finally, regarding the use of telecommunication equipment, state
practice of technology has moved on significantly since 1907. However, the
principles of the Hague Convention No. V, remain valid. The outbreak of an
armed conflict does not result in the obligation for a neutral state to prevent
the use of its telecommunication installations by a party to the conflict
which used them or had access to them before. Existing non-military
telecommunications, in particular those owned by public companies, may
be used by the parties to the conflict. They can test fixed lines for voice
and data communication of a military nature and may be granted access
from such lines to satellite communications. On the other hand, it would
be considered a non-neutral act for a neutral state to place at the disposal
of a party to the conflict telecommunication installations not available to it
under normal conditions, e.g. its own military communications system, to
624 HC XIII, Art 6
319
create new infrastructure for a party to the conflict or to allow it to create

such facilities itself.625
A practical provision regarding the Law of Neutrality exists. On the
treatment of members of belligerent armed forces, neutral states receiving
troops belonging to the belligerent armies on their territory must intern
them. It would be a violation of the duty of non-participation, if the neutral
state permits such troops to take part again in hostilities. Though its
sort of unclear, the word receive in its full operational terms can mean a
number of things. Obviously, the rule provides a useful deterrent to trespass
by belligerents and this makes sense. If whole units of a belligerent party
deliberately operate in or through neutral territory and are captured, the
neutral state is within its rights to intern them.
On the other hand if individuals or units of a belligerent state cross
the border into neutral territory simply because they seek refuge or want
to give themselves up i.e., to desert from their armed forces thus breaking
allegiance with the party to which they belong, the neutral state might have a
problem on its handsshould it accept those people and intern them or send
them back? If it accepts them, it risks antagonizing the parent belligerent
State. Furthermore, deserters are in fact not covered by GC. III or HC. V
and as such are not protected by the law of armed conflict when they find
themselves on neutral territory. They are only protected by Refugee law if
they meet the conditions for refugee status. However, nothing prevents the
neutral State from applying GC III and treating them like military internees.
The neutral State has the right to grant asylum to deserters and to refuse as a
consequence to repatriate them after the end of hostilities against their will.
At the out break of hostilities policy for such matters should be clearly
laid down and ideally agreed with the belligerent states. Whatever action is
taken should in any case, be applied equally to all belligerent parties in the
case of an accidental incursion that is not act committed knowingly by a
belligerent; common sense might dictate that a low key response is the most
sensible. In this case, the neutral state can issue a warning and allow the
patrol to return to its side of the border. Internees who are held in neutral
territory may be kept in camps or other secure places.
Officers may at the discretion of the neutral State, be released on parole
but are not allowed to leave neutral territory without permission. During
interment, internees are to be fed and clothed and allowed relief supplies.
The neutral State may enter into an agreement either the belligerent State
concerned about the treatment of internees and the belligerent State is
625 HC V, Arts. 8.
320
responsible at the end of hostilities for making good the costs incurred. In
the absence of any agreement, the internees should as a minimum be given
treatment equivalent to that of POWs under GC III.626
As regards hot pursuit into neutral territory, it is generally accepted that if
belligerent forces enter neutral territory and the neutral authority is unable
or unwilling to expel or inter them, the adverse party is entitled to under
take their hot pursuit and attack them there. It may even seek compensation
from the neutral state for this breach of neutrality. Military equipments
taken from belligerent internees also have to be kept by the neutral State
until the end of hostilities. Also escaped POWs who reach neutral territory or
POWs who are held by a belligerent party seeking refuge there are to be left
at liberty. If the neutral State tolerates their stay on its territory, it can assign
them a place of residence. By arrangements between the States concerned
(i.e. parties to the conflict with the co-operation of neutral States), POWs can
be admitted and interned on neutral territory until the end of hostilities.
This rule caters for those States that might not be able to provide POWs
with the treatment they must receive under GC 3. Agreements between the
belligerent parties and a neutral state mutually agreed by them may also be
drawn up to cover the transfer of able bodied POWs who have undergone a
long period of captivity.
The wounded and the sick in a neutral territory, may authorized passage
through its territory, or the treatment there of the wounded and sick of the
armed forces of a belligerent, while in the neutral state, they are governed
by the relevant GCs and Additional Protocol I. Wounded and sick must not
be accompanied in transits by combatant personnel, arms or other military
suppliers. In the event that they are, the neutral State must take such steps
for safety and control that are necessary. The sick and wounded brought into
a neutral State must under these circumstances be guarded to ensure that
they do not take part in military operations again.
An aspect of neutrality related to the sea, which chiefly concerns the
armed forces of a neutral state which might be involved in port operations.
Although passage through neutral waters is permitted, neither the port
facilities nor the waters may be used as a basis for warlike operations,
warships of the belligerent parties may be admitted into a neutral port
for repair and restored to peacetime standards or to refuel to the extent
necessary to enable them reach the nearest home port. Their stay must not
exceed twenty-four hours except in case of damage or stress or weather. A
maximum of three vessels of one belligerent are allowed in port at any one
626 HC V, Arts. 11 & 12
321
time. If two belligerent have vessels in the same port, they must depart at
different times. Medical ships of the belligerent parties are not subject to the
restrictions imposed on the warships in neutral ports.
With respect to neutrality on air which involves air defence or airfield
security duties, military aircraft of the belligerent parties are excluded
from neutral airspace just as belligerent ground forces are excluded from
neutral territory. If they break this rules they can be ordered to land and be
impounded if they fail to respond to warnings on land, they can be forced
down or destroyed by an anti aircraft missiles or air attack. In emergency
situations, a belligerent aircraft may have to land in neutral territory. The
pilot should signal his plight using the normal emergency radio signal
procedure. In such cases, the neutral state must allow the aircraft to land.
The pilots and crew must be interned until the end of hostilities and the
aircraft impounded.
Medical aircraft may however fly over neutral airspace and even stop over
but only by previous notification and agreement. Aircraft flying without
agreement should make every effort to identify themselves. They will be
ordered to land and inspected. If the inspection shows that they are being
used for non medical purposes, the aircraft can be impounded and the crew
detained. If they were on legitimate medical mission, they should be allowed
to continue with appropriate notifications and clearances given to your own
forces. If they fail to respond to the order to land, they can be attacked but
you should allow enough time for them to comply with the order.627
627 GC, Art. 3.
322
CHAPTER
8
Internal Armed Conflicts
1. General Rules on Internal Armed Conflicts
Internal armed conflicts (also known as non- international armed conflicts)
are armed confrontations which occur within the territory of a State and
in which the armed forces of no other State are engaged against the central
government. Even when a foreign State extends its military support to the
government of a State where there is an internal armed conflict, the conflict
still remains internal but when a foreign State extends military support to
an armed group acting against the government, the conflict will assume
another dimension, thus metamorphosing into an international armed
conflict. Internal disturbances and tensions such as riots, isolated and
sporadic acts of violence or other acts of similar nature, do not amount to
internal armed conflict.
Many armed conflicts today take place largely within the territory of a
State; it involves the confrontation between the authorities of a State and
armed groups or among armed groups that do not operate under the
authority of the State. Such armed conflicts are referred to as internal or
non- international armed conflicts, although they do not occur between
sovereign States, they are regulated by international law and governed by
the Geneva Conventions and Additional Protocols. Unlike international
armed conflicts, many armed opposition groups may be aiming at State
control, changing political leadership or securing States resources such as
oil, diamonds, gold, wood, etc. it is very typical for non international armed
conflict to have the size, equipment, training and tactics of wars which are
common to international armed conflicts, their activities are coordinated in
the form of guerrilla warfare.
Interventions by States in support of armed opposition groups in the
territory of another State will escalate the conflict and turn it into an
international character, if that intervening State is conducting military
operations or controlling the operations carried out by the armed opposition
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Internal armed conflicts
group. In 1999, the ICTY 628 Appeals Chambers in TADIC case629 accepted the
evidence of overall control of insurgents in Bosnia and Herzegovina (the
Bosnian Serb army), by the Federal Republic of Yugoslavia, beyond mere
financing and equipping of such forces to involving of the participation
in the planning and supervision of military operations as sufficient for
qualifying the ongoing conflict as international armed conflict. The Appeal
held that
International rules do not require that such control should extend to
the issuing of specific orders or instructions relating to single military
actions whether or not such actions were contrary to international
humanitarian law.
Worthy of note here is that wars of national liberation are of international

dimension. Article 1, Para 4, AP 1 provides that
international armed conflicts includes circumstances in which
peoples are fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their rights of self
determination as enshrined in the Charter of the United Nations
and the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among states in accordance with
the Charter of the United Nations.
Under Article 96 para 3, AP 1, the authority representing a people engaged

in a war of national liberation may apply the Geneva Conventions and
Additional Protocol 1 in relation to that conflict by means of a declaration
unilaterally addressed to the depository. However, humanitarian protection
may not be made subject to reciprocity, yet the expectation of the reciprocity
may be a driving force in the motivation for better compliance. In essence
therefore, wars of national liberation are not internal conflicts per se,
but have an international dimension that qualifies it to be governed by
Armed conflicts between states and transnational armed groups
can be said to be internal so long as it is war within a territory. It may be
internationalized when military operations are conducted against a
transnational group acting on behalf of a foreign State, for example, the
Taliban in Afghanistan in 2001 unleashed unprecedented terror attack in the
628 International Criminal Tribunal for Yugoslavia
629 THE PROSECUTOR V. TADIC; Case NO. IT-94-1-AR72, Appeals Chamber Judgement of
July, 15, 1999.
324

USA.
Once such armed conflict ensues, the conflict acquires international

character. The recent armed conflict between the Militants of Niger Delta
region of Nigeria and the Federal Government of Nigerian can be termed as
internal armed conflict.
The internationalization of an armed conflict is said to occur where a State
is engaged in military operations against a group from another state on the
territory of a foreign state without the agreement of such State. This was the
case during the Israeli-Hezbollah war in Lebanon during the early part of
2006.630 Arguments similar to this was also applied to military operations
of the Israeli defense forces against Palestinian groups within Israel and in
areas no longer claimed by Jordan. The brouhaha between Israel and the
Palestinian groups which has been on for several decades was firstly seen
as an international armed conflict. On the contrary, the Supreme Court
of Israel stated that according to all the classifications, the law of armed
conflict applies. According to the court, these laws allow striking at persons
who are party to the armed conflict and take active part in it whether it is
international or not.
The above judgment underlies the differentiation between international
and internal armed conflicts. It has been suggested that the question
whether an armed conflict is of internal or international character depends
on whether or not, a government which is sovereign and has territorial
integrity has given its consent to military operations carried out by the
intervening state. Where armed conflict is within a sovereign State, it
regarded as internal or non-international armed conflict.
The law of internal armed conflict originated with the general law of
armed conflict or the laws of war. The law of armed conflict which was
developed in the last part of the nineteenth century and early twentieth
century deals mainly with war between states (international armed
conflicts). The basic rules and principles of international armed conflicts
are however very pertinent for application in internal armed conflicts. As a
general rule in all armed conflicts, the first priority is primary consideration
for humanity. This must be the ultimate aim in all circumstances so that
victims can be protected, human sufferings can be reduced and damages to
objects vital for survival can be minimized.
Also, victims must be protected especially, the wounded, sick and
shipwrecked members of the armed forces, civilians as well as the
630 Sassoli (2006), p. 5; Considering that the military operations of Hezbollah were not
attributable to Lebanon as the Lebanese government did not authorize and was unable
to stop them, though Hezbollah was represented in the Lebanese government.
325
vulnerablethe elderly, women and children, so that they will not be

adversely affected by the consequences of war. The above concept is the
basic norm which guides international humanitarian law. Parties to the
conflict who respect these principles and rules are considered as respecting
international legal order while those parities that violate them in whatever
ramification will be said to be committing wrongful acts that are liable to
punishment in accordance to international humanitarian law. With respect
to human rights in internal armed conflicts, though it is a difficult task to
ensure respect to human rights, the state whose armed forces are engaged
in hostilities is not always able to exercise jurisdiction with respect to enemy
fighters and victims so, conventional human rights obligations may be
difficult to enforce.
Armed opposition groups on the other hand may not be aware of their
human rights obligations even if such obligations have binding effects also
on non-state actors. The complex relationship between humanitarian law
and human rights law is of relevance in internal armed conflicts.
It has been argued over the years by military operators, legal experts
and policy makers that humanitarian protection should be the same for
all types of armed conflicts. Despite this clamor, there remain certain
legal distinctions between international and internal armed conflicts.
For a thorough assimilation on the law of internal armed conflicts, it is
pertinent to ascertain how internal and international armed conflicts
arose. Throughout the course of the twentieth century in international law
making, many states took the position that a number of rules applicable in
international armed conflicts particularly, with reference to those associated
with the status of combatants, would limit their right of action if applied in
internal armed conflicts.
The concern that the application of the law applicable in international
armed conflicts to internal situations could obstruct the States ability to
pursue the conflict which was not based particularly on concerns about
restrictions related to the conduct of hostilities but on uneasiness about the
legal implications for the status of parties to the conflict and particularly, on
states concerns about restrictions and their ability to punish and prosecute
individuals under domestic law for their belligerent acts which constituted
crimes under that law. These considerations gave rise to the conclusion that
the application of the provisions on humanitarian protection should not
affect the legal status of parties to the conflict. The provisions governing
internal armed conflicts are less extensively developed than those relating to
international armed conflicts.
326
While internal armed conflicts and rules governing the conducts

of hostilities in instances of internal armed conflicts received little
considerations in these instruments, certain fundamental principles
applicable to internal armed conflicts, find their expressions in Article
3 common to the Geneva Conventions. This Article sets out basic rules of
protection that apply in all internal armed conflicts and these rules are
confirmed and supplemented by rules of customary law. The ideal situation
is for the internal or non-international armed conflict to be regulated
and governed by domestic law with due regards to application of human
right law.
States are reluctant to apply the rules of international law in internal
armed conflicts because they have a legal framework which confers their
own police and armed forces with powers to deal with insurgents who
oppose them. In many cases, it has been suggested that a number of the rules
applicable in international armed conflicts, especially those that deals with
the status of combatant prisoners would limit a States freedom of action if
applied in internal armed conflict. As such, many governments did not want
to accept any body of international law to apply domestically within their
sovereign territories.
More importantly, the concern that the application of the laws of war
in internal armed conflicts could obstruct the ability of the government to
prosecute the insurgent groups was not based originally on anxiety about
restrictions, but on uneasiness regarding the implication of the laws for the
status of parties to the conflict. The governments fear that application of
international law to civil conflicts might confer protected belligerent status
to rebel forces, gave rise to Article 3, Para. 4, Common to the GC s which
provides that;
The application of the preceding provision shall not affect the legal
status of parties to the conflict
It can be said that states are still reluctant to apply the laws of war in
internal armed conflicts, as they maintain a legal framework which gives
privileges to their own police and armed forces against opposition groups.
The concern in this is not just to insurgents but also on other difficulties
in applying the legally codified rules of war in internal armed conflicts
maintaining key distinctions between civilians and military, which is
usually difficult in war times.
The law of armed conflict is a very relevant statute because of the
seriousness it attaches to human protection; it recognizes combatants as
327
having the right to participate directly in hostilities under many restrictions

and rules. Two benefits are accruable from this. Firstly, those who hold it are
entitled to prisoner of war status and its attendant rights and protections.
Secondly and more importantly, they have immunity against any criminal
prosecution from the government for their belligerent acts which otherwise
would have constituted serious crimes under domestic law. There are also
immunities and privileges accorded to combatants in international armed
conflicts which are not available in internal or domestic armed conflict.
Such privileges which combatants have in international armed conflict
are what may be referred to as combatant immunity, which is a limited
license to take life and cause destruction. Those who participate in internal
hostilities without such immunity may be prosecuted under relevant
criminal law for their belligerent actions. States facing threats or domestic
insurgencies from armed groups who failed to meet the prerequisites
for combat status have an interest which obviously is to ensure that their
rights to prosecute and sentence opponents for acts which may constitute
murder and destruction remain uncompromised by the concept of combat
immunity .Therefore, a line has to be drawn in order to avoid chaos of
unaccountable groups, claiming to have the right to use force lawfully.
There exist some general principles on the conduct of internal military
operations. It is trite to note here that the fundamental legal distinction
between fighters and civilians and between military objectives and civilian
objects may be difficult to apply in internal armed conflicts as armed
opposition groups or insurgents are not well organized and equipped
and are conducting their operations with the support of civilians. It is of
great importance at this juncture to state pertinently that the basic rule of
protection and distinction is the foundation upon which the codification of
the laws and customs of war rests,631 and the prohibition of attacks against
civilian population remain valid, even if the adversary has committed
breaches632 against peace. All military operations regardless of their nature
are guided by certain general principles. They are of great importance
whether in instances of international armed conflicts or internal armed
conflicts. These principles are;
a.) All military operations must comply with the principles of distinction
between fighters and civilians, between military objectives and civilian
objects, prohibition of superfluous injury or unnecessary suffering, and
humane treatment without adverse discrimination. Similarly, there is
631 ICRC Commentary to Article 48 AP 1, Para 1863
632 ICRC Commentary to Article 13(2) AP 11, para. 4784.
328
no doubt that military necessity has already been accounted for in the
formation of these rules. It should be noted that military objective cannot
serve as a ground to violate these fundamental principles, as they are based
principles of customary international law which must be adhered to. They
are derived from the fundamental tenet that the right of belligerents in
choosing means or methods of warfare is limited. This tenant was expressed
in the 1874 Brussels Declaration633 and the 1880 Oxford Manual. It was also
codified formally in the 1899 Hague Regulations and reaffirmed in the 1907
version.634 Subsequently, it appeared in Additional Protocol I as well as other
instruments such as the 1980 Convention on Conventional Weapons.635 The
Convention on Conventional Weapons is of particular relevance because
in 2001 the extension of the entire agreement was also included to noninternational armed conflicts (internal armed conflicts).636 The instrument
represents the first treaty which acknowledges the tenet in the context of
internal armed conflicts.
The three principles which are inherent to international humanitarian
law in general are certainly implied in internal armed conflict. Similarly
they have also been recognized in international Tribunals. The Nuremberg
Tribunal held that the rules included in the 1907 Hague Regulations were
recognized by all civilized nations and were regarded as being declaratory
of the laws and customs of war.637 The ICJ also came to a similar conclusion
in its Advisory Opinion on the threat or use of Nuclear weapons.638 In
another development, the Appeals chamber of the ICTY confirmed the
applicability of the principles to non-international armed conflict in the
Tadic case (supra). There the appellate chamber held that customary rules
had developed to govern internal strife covering such areas as protection
of civilians from hostilities, indiscriminate attacks, protection of cultural
633 The Brussels Declaration was the first comprehensive code regarding the laws of Armed
Conflict. Though never ratified, the Brussels Declaration was the basis for the Hague
Regulations of 1899 and 1907.
634 Art. 22
635 Art. 35.1
636 Preamble convention o conventional weapons amendment to Art. 1, Dec. 21, 2001,
ICRC Treaty data www.ictc.org/ihl
637 Trial of the major war criminals, Nov. 14, 1945 Oct. 1, 1946 Nuremberg 1947 Vol. 1
pg. 254.
638 Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 1996 ICJ Rep. 226
(July 8) at paragraph 77; Report of the Secretary General on Aspects of Establishing an
international Tribunal for the prosecution of persons responsible for serious violations
of international Humanitarian law committed in the former territory of Yugoslavia
since 1991 (May 3, 1993) UN doc. S/25 704, 32, ILM 1159 (1995)
329
property, and protection of those who do not (no longer) take active part in
hostilities.639 The parties to internal or domestic armed conflict are under
obligation to observe these rules.
The Appeals chamber cited the general Assembly Resolution 2444 of 1968
(Respect of Human Rights in Armed Conflict), which recognized the
necessity of applying basic humanitarian principles in all armed conflicts
regardless of whether it is internal or international. Among these principles
was the declaration that the right of the parties to a conflict to adopt means
of injuring the enemy is not unlimited.640
II.
Distinction Between Internal and

International Armed Conflict
Distinction between internal and internal armed conflict is very important

because it remains the part of the law of armed conflict that recognizes
the statue of fighters. In internal armed conflicts, fighters cannot claim
treatment as prisoners of war upon detention while on the contrary in
international armed conflicts, the law recognizes prisoners of war status
and at such grants those in that category their rights as well as duties with
regards to customary law, the progressive development of customary law
has not led to a complete amalgamation between rules for international
and internal armed conflicts. The distinctions remain on the status of
combatants/fighters, public property, release of persons deprived of liberty
and belligerent attacks.
Status of combatants/fighters: In international armed conflicts,
combatants enjoy some protections which among others include the
entitlement of prisoners of war upon capture. As a result of the prisoner
of war status, such combatants may not be tried for their participation
in hostilities or for acts that do not violate the tenets of international
humanitarian law. On the other hand, armed opposition groups in an
internal armed conflict cannot claim prisoner-of war protection for
their members that are involved in fighting, but fundamental procedural
principles and safeguards under Human Rights Law apply.
639 International Council Tribunal for Yugoslavia, Prosecutor v. Tadic. Decision on the
defence motion for interlocutory Appeal on jurisdiction, Appeal Chambers, case IT94-1, (Oct. 2, 1995), at paragraph 127.
640 The International Military Tribunal at Nuremberg, in the case of List and others
(Hostages Trial) reiterated a essential limitation on this principle widely recognized as
customary law.
330
Public Property: The parties to an international armed conflict may seize

military equipment belonging to the adverse party to the war as war booty.
They may take public property in occupied territories that can be used for
the operations of the military of the adverse party without the obligation to
compensate the state to which it belongs. In an internal armed conflict it is
not codified whether such equipments can be seized under international law.
Release of persons deprived of their liberty: Under the international
law of armed conflicts, prisoners of war must be released and repatriated
without any delay on the aftermath or cessation of hostilities641 and civilian
internees must be released as soon as possible after the close of active
hostilities between belligerents.642 As regards internal armed conflicts,
there exists no universal treaty provision on the release of those whose
liberty have been circumscribed in internal armed conflicts. It may be
concluded from council and regional organizations that such detainees
must be released once the reason for the deprivation of their liberty ceases
to exist. In such a case, an amnesty or other measures or liberty protection
may be proclaimed.
Belligerent Reprisals: Parties to armed conflict of international status
may where not expressly prohibited, resist to reprisals, subject to stringent
conditions. But in an internal armed conflict, parties to the armed conflict
do not have such right to belligerent reprisal.
Despite these clear and trite distinctions between internal and
international armed conflicts, there exist some basic similarities. Some of
which are;
i. Military objects: It has overtime been argued that in instance
of internal armed conflicts, the notion military objectives is
more limited in international armed conflicts than in internal
armed conflicts. Thus in all armed conflicts, whether internal or
international, a similar interpretation of military objectives should
be applied.
ii. The law of belligerent occupation: Despite the development of the
rules on occupation, the basic standard for the protection of civilians
are basically the same in internal and international armed conflicts.
641 Article 118 GC III

642 Article 132, 133 GC IV
331

III.
Applicable Laws in Internal Armed Conflicts
Express treaty law governing internal armed conflict is rather limited.

Specific conventional rules on humanitarian protection in internal
armed conflict were developed firstly in Article 3 common to the Geneva
Conventions. Article 3 provides for fundamental protection of persons who
are not party or no longer take active part in hostilities. This was the initiative
of impartial humanitarian bodies such as the International committee of
the Red Cross and other bodies. In internal armed conflict, emphases are
based on violation of human right abuse by the Government in power as the
opposing party is bound by the laws of the land, with particular reference
to those dealing on insurgence, sedition and other felonies. However, the
breaches of human rights by individuals were never excused with failing
obligations. The individuals or groups who are non state actors may not
only claim rights, but also seek for compliance with the obligations existing
under humanitarian and human rights law.
The 1977 Protocol Additional II to the Geneva Conventions of August
12, 1949 and relating to the protection of victims of non-international
armed conflict; the 1980 convention on certain conventional weapons, as
amended and its protocols; the 1998 statute of the International Criminal
Court, the 1997 Ottawa Convention banning anti-personnel landmines;
the 1993 Chemical Weapons Convention and the 1954 Hague Convention
for the Protection of Cultural Property and its second protocol of 1999.
The 1954 Cultural Property Convention provides in Article 19 that in a non
international armed conflict the provisions of the present convention which
relate to respect for cultural property should apply. With this provision, not
much of the Conventions core provisions were left. It may be recalled that
the Roerich Pact of 1935 has no such limitation that was provided in the 1954
Cultural Property Convention. Its declared purpose is that the treasures of
culture be respected and protected in time of war and in peace. The Protocol
2 of the Cultural Property Convention adopted on May 26, 1999 extended all
provisions of the Cultural Property Convention to non-international armed
conflicts thus further amplifying its scope of application. In 2001 at the
Second Review of the international armed conflicts, Article I was amended
to cover non-international armed conflicts. It also prohibits the transfer of
any landmines to any receipt other than a state or a state agency authorized
to receive such transfers.
Under Article I, para 1 of the 1997 Landmines Convention, each state
party undertakes never under any circumstances to use, produce, acquire
or stockpile antipersonnel mines and destroy or ensure destruction of
332
such weapons irrespective of their use in international or internal armed

conflicts. Since this is also of an internal character, states are likewise
obliged not to transfer to anyone or assist, encourage or induce in any way,
any one to engage in any activity prohibited to a state party under this
convention. It also prohibits states from providing anti-opposition groups.
The prohibition likewise includes any assistance for or encouragement of
non-state actors to acquire or use chemical weapons. Paragraph 1, Article
5 of the Chemical Weapons Convention prohibits the use of riot control
agents as a method or warfare. Also, Article 8, sub-para 2(e) of the Rome
Statute of the International Criminal Court confirms the existence of rules
limiting methods and means of combat in non-international (internal)
armed conflicts.
It further more enumerates serious violations of rules concerning the
conduct of hostilities in non-international armed conflicts as war crimes.
The list supplements the serious violations of Article 3 common to the
Geneva Convention and also in Article 8, sub paragraph 2 c, ICC statute. It
should be noted that the application of sub-paragraph 2 is limited to armed
conflicts that take place in the territory of a state where there is protracted
armed conflicts between the government authorities and organized armed
groups or between such groups.
In addition to treaty law, there is a growing body of customary law
applicable in non-international armed conflicts. Common Articles 3 to
the Geneva Conventions merely requires that the armed conflict need not
be of international character. However, the threshold is higher under
Additional Protocol II. Article 1.1 of Additional Protocol II only applies to
armed conflicts between the armed forces of a high contracting party and
dissident armed forces or other organized armed groups which, under
responsible command exercise such control over a part of the territory as
to enable them to carry out sustained and concerted military operations.
The Article further requires that the conflict take place in the territory of a
high contracting party. In addition Article 1 paragraph 2 provides that this
protocol shall not apply to situations of internal disturbances and tensions
such as riots, isolated or sporadic acts of violence and other acts of similar
nature being armed conflicts. Thus in contradistinction, whereas Additional
Protocol II applies only to conflicts between the government of a state and
a rebel movement, common Article 3 to the Geneva Conventions is broad
enough to cover a conflict between different rebel movements competing for
power within a state where the government is not involved. An example of
this kind of internal conflict is the conflict in Lebanon during the 80s and
333
in Somalia after 1991. Additional Protocol II was applied for the first time in
the civil war in El Salvador during the 1980s643
The government of El Salvador did not concede to the applicability of
the Protocol but accepted that it should be applied because its provisions
developed and completed the minimum provisions of common Article 3 to
the Geneva Conventions. Although internal conflict is in principle subject
to a different and more limited legal regime than that which applies in an
international armed conflict, armed conflicts may become applicable in
a conflict which originally was classified as internal. After the adoption
of Additional Protocol II and despite several controversies during its
negotiations, practice has lead to the creation of rules parallel to those in
Additional Protocol I and applicable as customary law to non international
armed conflicts. This applies to the rules on the conduct of hostilities between
belligerents and the respect for specifically protected persons (wounded,
sick and shipwrecked members of the armed forces, civilians, women and
children) and protected properties (cultural historical monuments, places of
worship, archeological sites, works of art and scientific collections).
IV.
The Nigerian Civil War
The Nigerian Civil War also known as the Nigerian-Biafran war commenced
in July 6, 1967 and ended January 15, 1970. It was a political conflict caused
by an attempted succession of the South Eastern provinces of Nigeria as the
self proclaimed Republic of Biafra. The Nigerian Civil war was fought to
reintegrate and reunify the country. The conflict was the result of economic,
ethnic, cultural and religious tensions among the various peoples of Nigeria.
Like many other African countries, Nigeria was an artificial structure
initiated by the British which had neglected to consider differences in
language, religious or ethnicity. The Federation of Nigeria, as it is known
today, has never really being one homogeneous country since it is widely
made of differing peoples and tribes. This notwithstanding, the former
colonial masters decided to keep the country one in order to effectively
control her vital resources for their economic interest. Although the unified
area contained many different groups, three were distinctly predominant;
Igbo, Yoruba and the Hausa-Fulani. The Igbo formed about 60-70% of the
population in the south-east, the Hausa-Fulani formed about 65% of the
Peoples in the Northern part of the territory while the Yoruba formed about
75% of the population in the West.
643 ICRC Annual Report 39 (1989)
334
In the North, the semi-feudal and Islamic Hausa-Fulani were traditionally

ruled by an autocratic conservative Islamic hierarchy consisting of Waziris
and emirs whom turn owed their allegiance to supreme sultan. The sultan
was regarded as the source of all political power and religious authority.
In the South West, the Yoruba political system was similar to that of
the Hausa-Fulani because it consisted of a series of monarchs being the
Oba. The Obas however, were less autocratic than these in the north and
the political and social system of the Yorubas allowed for greater upward
mobility based on acquired wealth and title rather than that inherited. In
contrast to the two groups, the Igbo in the South East lived in some six
hundred autonomous, democratically organized villages. Although there
were monarchs (Obis) in these villages (whether hereditary or elected),
they functioned predominantly as figure heads. Unlike the Yorubas and
Hausas where the Sultan or Oba made decisions on behalf of their people,
decisions among the Igbos were made by a general assembly in which
every man could participate. These different traditions were perpetuated
and even enhanced by the British system of colonial rule in Nigeria. In the
North, the British found it convenient to rule indirectly through the Emirs,
thus perpetuating or enhancing, rather than changing the indigenous
authoritarian political system.
As a concomitant of this system, Christian missionaries were excluded
from the North and the area thus remained virtually closed to Western
Education and influence. The West enjoyed a much higher literacy level,
being the first part of the court to have contact with Western education in
addition to the free primary education program of the pre-independence
Western Regional Government. Thus, in this area, the missionaries rapidly
introduced western forms of education consequently, the Yoruba were
the first group in Nigeria to become significantly modernized and they
provided the first civil servants, doctors, lawyers and other technicians and
professionals. On the other hand the Igbos the richest of whom sent many
of their sons to the British university. In the Igbo areas, missionaries were
introduced at a later date because of British difficulty in establishing firm
control over the highly autonomous Igbo villages.644
However, the Igbo people took to Western Education zealously and they
overwhelmingly adopted Christianity. Population presence in the Igbo
home land and in tense desire for economic improvement drove thousands
of Igbo to other parts of Nigeria in search of work. By the time of British
colonization, the Governor General of Nigeria between 1920 -31, Sir Hugh
644 Audrey Chapman, Civil War in Nigeria, Midstream, Feb. 1968.
335
Clifford, described Nigeria as a collection of independent native states,

separated from one another by great distances, difference in history and
traditions and by ethnological, racial, tribal, political, social and religious
barriers. The building of Nigeria as a multi-national state began in 1900
with the creation of Northern and Southern Protectorates along with the
colony of Lagos by the British government.
The first momentous act of the British in the political evolution of
Nigeria as a modern state was the amalgamation of the Administration of
the two sections of Nigeria in the Northern protectorate and the southern
protectorate/colony of Lagos on January 1, 1914 by Lord Lugard. For
case of governance as well as economic interest, the British brought the
indirect rule policy. Thus, this in effect produced two Nigerians, each with
different social, political, economic and cultural backgrounds. No further
constitutional development took place until 1922 when the constitution for
the first time made provisions for elected members to sit on a legislative
council, but did not empowers them to make laws for the North.
During World War II, Nigeria was divided into four administrative units:
the colony of Lagos, the Northern, Southern and Western provinces.
Sir Arthur Richards Constitution of 1946 which inaugurated Nigerias
regionalism. The post second world war political awareness and upsurge
of nationalism prompted the revisions of Richards Constitution four
years after its inauguration in 1950. By this time nationalism had brought
about the institution of political parties which were formed on regional on
ethnic bases. With the McPhersons Constitution of 1951, a greater measure
of non-interference was guaranteed within the regions by an increased
autonomy and a stronger regional legislature. With only residual powers
given to the central government and exclusive and concurrent powers
belonging to the regions Nigeria politically took a turn for the worse and
there was a possibility of three countries emerging from the amalgamated
Nigeria-the west and Lagos, the South and the North. The north even talked
openly about succeeding from Nigeria because of the humiliation and ill
treatment meted on the region. The west also threatened succession over
the non inclusion of Lagos as part of the west in the 1953 constitution. The
1954 constitution confirmed and formalized the wishes of Nigerians to
move and remain as far and distinct from the other. On the choice between
Unitary and Federal from of government. The leaders settled for the federal
option. After this was the clamour for independence by Nigeria. There
were constitutional conferences in 1954, 1957, 1958, 1959 and 1960 which
culminated in the granting of political independence in October 1, 1960. All
336
along, the bane was to concentrate power in the region with the centre being
almost powerless. The failure of the Wilkin Commission to recommend for
states creation was the seed for instability which grew and matured in the
civil wars.
With the granting of independence in 1960, the dirt of tribalism,
regionalism and unconcern for other regions which were swept under
the carpet as a result of the clamour for independence resurfaced. Nigeria
was now beset by strings of stormy political problems. The first postindependence disturbances was the defence agreement between Great
Britain and Nigeria which was an attempt by Great Britain to swindle
Nigeria out of her sovereignty by contracting with Nigeria to afford each
other such assistance as may be necessary for mutual defence and to consult
together on measures o be taken jointly or separately to ensure the fullest cooperation between them for this purpose. It was an unequal treaty. Through
demonstrations by students and vehement opposition by the general public
and the opposition members of the Federal House of Representatives.
The agreement was abrogated in December 1962. Almost at the same time
in 1962, the crisis within the ruling Action Group party of the Western
Region led to the detention in some of its leaders, including the leader
of the opposition in the Federal House, Chief Obafemi Awolowo. The
proclamation of direct rule by the Federal Government was quickly follows
by the creation of the mid-Western Region out of the Western Region the
smallest of the three regions. Worse still was the announcement that no
more states will be created in the country. This caused uproar. From May
20, 1962, the Western Region of Nigeria knew no peace until January 15, 1966
when the first coup took place. The census crisis of 1062 was yet another
bottle in the neck at the inception of an independent Nigeria, the census was
alleged of an independent Nigeria. The census was alleged to be riddled with
malpractices and inflation of figures of refused to accept them. Another
census was carried out in 1963 and the resulting figures were accepted with
some reservations. The middle belt in the North had grown intolerant of the
Northern Peoples Congress (NPC) and they noted for three years 1962 1965.
The straw which broke the camels back in the post independence crisis
which eventually led to the coup and the civil wars was the general election
of 1964. The elections were used by the ruling parties in the regions to
eliminate opponents. There were boycotts by political parties and the
chairman of the Electoral Commission admitted himself that there were
proven irregularities. In the light of allegations of flagrant irregularities,
the president, Dr. Nnamdi Azikiwe, refused to appoint the prime minister.
337
The president and the prime minister- Sir Abubakar, Tafawa Balewa, were
seeking the support of the armed forces, for four anxious days, the nation
waited until the president announced on January 4, 1965 that he had
appointed Sir Abubakar Tafawa Balewa to form a broad based government.
The western Regional Election of 1965 was nothing to write home about. The
rigging and irregularities in the election were alleged to be more brazen and
more shameful.
Law and order broke down completely, leading to, an almost incomplete
state of anarchy. Arson and indiscriminate killings occurred by the use of
private thugs against the other. Law abiding citizens lived in constant fear of
their lives and properties. This continued until the coup of January 15, 1966
ensued. The aim of the coup was to establish a strong, unified and prosperous
nation, free from corruption and internal strife. The out some of the ill-fated
coup was a change of political balance in the country. Major Nzeogwus aim
for the coup was seen as biased because all the politicians and senior army
officers who were killed were from the North and West. The coup hastened
Nigeria collapsed. According to A.H.M. Kirk-Greene645 the federation was
sick at birth and by January 1966, the sick and bedridden babe collapsed.
The sky high praises of the coup and the apparent relief gotten from the
southern part of Nigeria ended abruptly when the succeeding government
of Major General J. T. U. Aguiyi-Ironsi unmasked his plans. Should Ironsi
have a mentality of one unified Nigeria, he would have relief that finally their
travails has abated. In the North, the suppressed relief and muted favourable
reaction in certain quarters turned to studies silence and a wait and see
attitude which gradually changed to resentment and later riot. The counter
coup of July 29, 1966 which followed the riots had two aims- revenge upon
the East by the North and a break up of the country. But the wise counsel
of Nigerians followed by the concern of well disposed foreigners prevailed
against the break up. After three consecutive days of fear, doubts and nongovernment, Lt. Col. Yakubu Gowon emerged in August, 1966 as the new
Nigerian figure head. The lack of planning and the revengeful intention of
the second coup manifested itself in the chaos, confusion and the scales
of unnecessary killings throughout the country. It was share imbroglio as
there existed general lawlessness, disorder, senseless looting and killing.
Lt Col. Yakubu Gowon in a broadcast to the Northerners said I receive
complaints daily that up till now Easterners living in the North are being
killed, molested and their properties looted. It appears that is going beyond
645 Crisis Conflict Nigeria, 1967 -70, VOL. I January 1965 July 1967 (Oxford University
Press, 1971),pg. 210.
338
reason and is now at a point of recklessness and irresponsibility. As a result

of the wanton destruction of lives and properties, an ad hoc conference was
called on August 9, 1966 in Lagos. Among its recommendations was that
the Supreme Commander should take immediate steps to post military
personae to barracks within their respective regions of origin and that
immediate steps should be taken to nullify any provisions of any decree
which assumes extreme centralization.
Following the recommendations, troops were moved to their regions.
With the troops of Eastern region back in Enugu and the Non Eastern
troops withdrawn from returning home with the news of Nigerias brutality
against them and with oil flowing in the Eastern Region, they felt they had
everything in place for them to succeed Nigeria. The succession document
was prepared for the East by Eastern Intellectuals who were regularly
meeting at the University of Ibadan.
The country moved in to the year 1967 in a spirit of hope with the
announcement of a supreme military council meeting at Aburi, Ghana
under the auspices of Gen. Ankrah, head of Ghana military Government.
At the meeting all other members of the council except Ojukwu were either
too nave or ill prepared for the meeting. Some federal officials refused to go
for lack of preparations. Ojukwu got his way with little effort by being the
cleverest. He was the only one who understood the real issues. Step by step
the others came to acquiesce in the logic of Ojukwus basis thesis that to stay
together at all, the regions had to first draw apart. Only Ojukwu understood
that this meant in effect, a sovereign Biafra and the end of the federation.
Ojukwu accused the Federal Government of bad faith and backstabbing
while the Federal Government accused Ojukwu of distortion and half
truths. After several federal meetings among officials, what amounted to the
demise of the federation was promulgated in Decree No. 8 of March 17, 1967.
Surprisingly, Ojukwu completely rejected Decree No. 8 as falling short of
full implement of Aburi decision.
The die was cast. All effort to intervene by eminent Nigerians and well
wishers like Gen. Ankrah of Ghana, the late Emperor Haile Selassie of
Ethiopia and the late Dr. Martin Luther King proved abortive. Ojukwu was
obdurate, obstinate and very adamant. He really was desperate to achieve
his long cherished ambitions of ruling and independent Biafra since he
could not rule an independent Nigeria. On June 6, 1966 Ojukwu was quoted
as saying we are finished with the federation it is all a question of time.646
646 Ojukwus Rebellion and World Opinion, by Dr. Nabo B. Graham Douglas once time.
Attorney-General for Eastern Nigeria in Ojukwus Government.
339
Ojukwu seized Federal Government property and funds in the East as

well as planned the hijacking of a federal commercial aircraft Fokker 27
to Enugu which originally was on a scheduled flight from Benin to Lagos.
The signs were fully illuminating that Ojukwus intention to succeed was
gradually unfolding it. Col. Gowon imposed a total blockade on the east and
other possible stapes were taken to weaken support for Ojukwu in the East.
Short of military action at that time, creation of states by decree was the only
option. The Original intention was creation of states in the east alone but
sensing danger, twelve states were created throughout Nigeria comprising
all the regions in May 27, 1967.
The reaction from Enugu was sharp and quick, the declaration of Eastern
Region of Nigeria as the independent sovereign state of Biafra on May 30,
1967, the month of June was used by both sides to prepare for war. Each
side increased it military arsenal and moved troops to the border waiting
and watching until the first crack of bullet from the Federal side on June 6,
1967. The war thus commenced.
The declaration of succession made war not inevitable but imminent.
In planning and concept, the war was intended to be fought by the troops
located in the north and they were to be supplied mainly from Kaduna.
Army Headquarters Operational envisaged a war that would be waged in
four phases and that would end within forty eight hours. On the rebel side,
the preparation for war was put into high gear as soon as troops of noneastern region origin withdraw from Enugu in August, 1966 recruit poured
in and according to Frederick Forsyth in his book Biafra story claimed that
only ten percent of those who turned up could be absorbed. Training for an
all out war was organized. By May 1967, Lt. Col. Ojukwu said to the National
conciliation and peace committee in Enugu;
I started off this struggle in July 1966 with 120 riffles to defend the
entirety of the East. I took my stand knowing fully well that doing
so, whilst carrying my name in history; I was signing also my death
warrant. But I took it because I believe that this stand was vital to
the survival of the south. I appealed for settlement quietly because I
understood that this was a naked struggle for power and that the only
time we can sit down and decide the future of Nigeria on the basis of
equality, will be equality of arms. Quietly I built. If you do not know
it, I am proud and my officers here are proud here in the East, that
we possess the biggest arms in Africa. I am no longer speaking as
an under dog, I am speaking from a position of power. It is not my
intention to unleash the destruction which my army can unleash, it is
340

not my intention to fight unless I am attacked, if I am attacked I will
take good care of the aggressor.
According to Col. Obasanjo (as he then was), on assumption of office as a

commander on the Federal side during the war, he realized that his task were
in respect of non-combatants both within the area of operation and beyond
the rebel line and tasks in respect if the combatants. During the Nigerian
Civil War it should be distinctly noted that while countries like Tanzania,
Zambia, Gabon and Ivory Coast all African Countries as well as the West
Indian Country, Haiti with the support of a major world power, France,
supported and recognized Biafra and with Spain, Portugal, Switzerland,
Republic of Dahomey, Sierra Leone and West Germany strengthening the
rebellion, on the Biafran side. Great Britain, the United States and other
countries aided the Federal troops even though at this stage, the war effort
seemed bleak because all the methods of combat used by the federal troops
against the rebellion Biafran were countered.
After a three year interregnum which was the duration of the civil wars
in Nigeria precisely January 12, 1970, a statement made by the Biafran side
urged for armistice to be negotiated. After this thirty months of grim
struggle, sacrifice and national agony ended. The war cost Nigeria a great
deal in terms of lives, money and its image in the world. It has been estimated
that up to three million people may have died due to the conflict, most from
hunger and disease. Reconstruction, helped by the oil money was swift.
However, the old ethnic and religion tension remained a constant feature
of Nigeria politics. The Igbos felt that they had been deliberately displaced
from government positions, because their pre-war posts were no occupied
by other Nigerians (mostly Yoruba and Hausa-Fulani).
When Igbo civil servants left to join similar posts in Biafra their
positions had been replaced and after the war, the presumption was that
the incumbents had resigned. This was viewed by the Igbos as in justice.
On Monday May 29, 2000, The Guardian of Lagos reported that President
Obasanjo commuted to retirement the dismissal of all military persons who
fought for the breakaway state of Biafra during the Nigerian Civil War. In a
national broadcast, he said that the decision was based on the principle that
justice must at all times be tempered with mercy.
341

V.
Other Instances of Internal Armed Conflicts in Africa
The Liberian Civil War

The first Liberian Civil War was a conflict in Liberia from 1989 until 1996.
Samuel Doe, the President of Liberia, had usurped power in a popular
coup of 1980 but opposition from abroad to his undemocratic regime led
to economic collapse. At first, Doe crushed internal opposition but after
his Krahn tribe began attacking other tribes, conflict was inevitable. By the
middle of 1990, a civil war was raging. Charles Taylors National Patriotic
Front of Liberia (NPLFL) soon controlled much of the country, while
Johnsons Independent National Patriotic Front of Liberia (INPFL) took
most of the capital, Monrovia, ECOWAS attempted to persuade Doe to resign
and go into exile, but despite his weak position besieged in his mansion
he refused. He was tortured and later killed while making a brief trip
out of the executive mansion to ECOMOG Headquarters on September 9,
1990. Peace was still utopian as both Taylor and Johnson claimed power.
ECOMOG declared an Interim Government of National Unity (IGNU) with
Amos Sawyer as their president and with full support from Johnson.
On December 24, 1989, Charles Taylor and a small group of Libyan
trained rebels calling themselves the National Patriotic Front of Liberia
(NPFL) entered Nimba county and re-entered Liberia from Cote d Ivoire in
December 1989 January 1990. Johnsons INPFL and Taylors NPFL continued
to struggle for control of Monrovia in the months that followed. With
military discipline absent and bloodshed throughout the capital region
members of the Economic Community of West African States (ECOWAS)
created the Economic Community Monitoring Group (ECOMOG) to restore
order. The force comprised come four thousand troops from Nigeria, Ghana,
Sierra Leone, the Gambia and Guinea. ECOMOG succeeded in bringing Doe
and Johnson to agree to its intervention but Taylor forces engaged it in the
port area of Monrovia. Within days, hostilities resumed. In November
1990, ECOWAS invited the principal Liberian players to meet in Banjul,
Gambia to form a unity government. The settlement established the Interim
Government of National Unity (IGNU) led by Dr. Amos Sawyer, leader of
LPP. Bishop Ronald Diggs of the Liberia council of Churches became Vice
President. Still unsettled, Taylor engaged his forces to fight. This continuing
the civil war and renewed armed hostilities broke out in May 1994 and
continued. The humanitarian situation had become disastrous with 1.8
million Liberians in need of humanitarian assistance. Conditions continued
342
to deteriorate, but humanitarian agencies were unable to reach many in

need due to hostilities and general insecurity.
In August, 1995, the main factions signed an agreement largely brokered
by Ghanaian President, Jerry Rawlings. At a conference sponsored by
ECOWAS, the United Nations, United States, European Union and the
organisations of African Unity, Charles Taylor agreed to a cease-fire and
a time table to demobilize and disarm his troops. At the beginning of
September 1995, Liberias three principal warlords Taylor, George Boley
and Alhaji Kromah came into Monrovia and took control of the country
preparatory to elections. The elections for presidency and national assembly
were finally held in July, 1997. Taylor and his National Patriotic Party won
an overwhelming victory against twelve other candidates. The 1989-1996
Liberian war, which was one of Africas bloodiest, claimed the lives of
more than 200,000 Liberian and further displaced a million others into
refugee camps in neighboring countries. Liberias civil war claimed the
lives of one out of every seventeen people in the country, uprooted most of
the rest and destroyed once viable economic infrastructure. The strife also
spread to neighboring countries of Liberia, contributing to a slowing of the
democratization which was progressing steadily through West Africa and
destabilizing a region that already was one of the worlds most marginal.
The second Liberian civil war began in 1999 when a rebel group backed
by the Government of neighboring Guinea, the Liberians United for
Reconciliation and Democracy (LURD), emerged in northern Liberia. In
early 2003, a second rebel group, the Movement for Democracy in Liberia
(MODEL), emerged in Southern Liberia and by June July 2003, Charles
Taylors government controlled only a third of the country. The capital
Monrovia was besieged by LURD and the groups shelling of the city resulted
in the deaths of many civilians. Thousands of peoples were displaced from
their homes as a result of the conflict. Yet the Ivorian backed MODEL , held
a block of territory in the south. By the beginning of August, after a two
month siege, LURD had overrun parts of Monrovia. In July, that year, the
United States sent a small number of troops to bolster security around their
embassy in Monrovia, which had come under attack during operation
shinning express. The US also deployed the 26th Marine Expeditionary Unit
to the area while Nigeria sent in peace keeper as part of the interim ECOMIL
(Economic Community of West African States) force.
President Taylor resigned on August 11, 2003, ahead of the Accra
Comprehensive Peace Agreement (CPA), which was negotiated at end
of the war and was exiled in Nigeria. An arrest for Taylor for war crimes
343
committed by his rebel allies in Sierra Leone was issued by inter Poll but
Nigeria refused to deport him unless they receive a specific request from
Liberia. Vice President Moses Blah replaced Taylor prior to the installation
of a transitional government in October 14, 2003. However, the transitional
government had no real authority over Liberia because eighty percent of
that country was controlled by rebel groups.
During the war, widespread abuses of Liberian children and adolescents
continued.647 According to Julia Freedson, coordinator of the Watch list, a
network of non-governmental organizations;
Young people continue to suffer, their hopes for peace and security
are being shattered by neglect and failure to provide basic protection.
The report of Watchlist documented the spectrum of violations

committed against Liberian children by all parties that participated in the
conflict in 2003 the government of Liberian under Charles Taylor and
non state armed groups such as LURD and MODEL . The abuses included
killing, rape, sexual assault, abduction, and torture, forced labour, underage
recruitment into fighting forces, forced displacement and other violations.
The report also documents serious abuses that continue to plague young
people in Liberia. For example, Liberian refugee girls living in neighboring
countries and internally displace girls are regularly exposed to rape and
sexual exploitation. Soldiers, men with money, humanitarian workers,
businessmen, etc. continue to force some girls to trade sex for food or
services. During the war, approximately 300,000 Liberians were internally
displaced and another 320,000 were refugees in neighboring countries;
estimated eighty percent were women and children. At least fifteen thousand
children were estimated to be child solders in Liberia between 2000 and
2003.648 At the end of the war, form president Charles Taylor went on trial
in The Hague for crime against humanity, war crimes and other serious
violations on international law including the recruitment of child soldiers
committed in Sierra Leone.
The Angolan Civil War: The Angolan Civil War commenced in Angola
on the culmination of the war for independence from Portugal in 1975.
Agostinho Neto, the leader of the popular movement for the Liberation of
Angola (MPLA), declared the independence of the people Republic of Angola
647 The New York Times of June, 28, 2004.

648 The full report including sources and recommendations is available at www.watchlist.
org
344
on November 11, 1975, in accordance with the Alvor Accords.649 Savimbis

National Union for the Total independence of Angola (UNITA) and National
Liberation Front of Angola (FNLA) also declared Angolan independence
as the Social Democratic Republic of Angola based in Huambo and the
Democratic Republic of Angola based in Ambriz. FLEC, an association of
separationist militant groups armed and backed by the French government;
declare the independence of the Republic of Cabinda from Paris.650 The
FNLA and UNITA forged an alliance on November 23, proclaiming their own
coalation government based in Huambo with Holden Roberto and Jonas
Savimbi as co-presidents. These opposition parties in Angola had support
from the outside. The MPLA among the Kimbundu people was supported by
the Soviet Union and the Eastern bloc, FNLA organization based in Bakongo
region of the North and allied with the United States, the people republic
of China and the Mobutu government in Zaire, thus gaining the support
of these countries. The United States, apartheid South Africa and several
other African nations also supported Jonas Savimbis UNITA whose ethnic
and religious based lies in the Ovimbundu heartland of Central Angola.
The main cause of the conflict was because the front of the Liberation of
the enclave of Cabinda (FLEC) was form in 1963 while Angola was fighting
a broader war to extricate itself from the colonial rule of Portugal. In the
war the primary ethnic divisions of assimilados versus indigenous people
engaged in hot warfare.
In the 1980s fighting spread outward from South Eastern Angola, where
most of the fighting had taken place in the 1970s, as the National Congolese
Army (ANC) and SWAPO increased their activities. The South African
government responded by sending troops back into Angola, intervening in
the war from 1981 to 1987,651 prompting the Soviet Union to deliver massive
amounts of military aid from 1981 to 1986. By 1986, Angola began to assume
a more central role in the cold war with the Soviet Union, Cuba and other
East bloc nations enhancing support for the MPLA government, while
American conservatives began to elevate their support for Savimbis UNITA.
As the Angolan civil war began to take on a diplomatic component, in
addition to a military one, two key Savimbi allies, the conservative caucus
headed by Howard Philips and the Heritage Foundation headed by Michael
649 Roth child, Donald S. (1997). Managing Ethnic Conflict in Africa; Pressures and
incentives for cooperating, Brookings institution press.
650 Mwaura, Ndirangu (2005) Kenya Today: Breaking the Yoke of Colonialism in Africa,
pp. 222 223.
651 Martin, Pegg J., Kaplan; Kaplan Staff (2005): Word History 2005 2006.
345
Johns, visited Savimbi in Angola where they persuaded Savimbi to come to

the United States in the spring of 1989 for negotiations. Savimbi and dos
Santos met and agreed to the Gbadolite Declaration, a ceasefire on June 22,
paving the way for a future peace agreement. The ceasefire broke down with
dos Santos and the US government blaming each other for the resumption in
the armed conflict. Illicit arms trading characterized much of the last years
of the Angolan war. Each side tried to gain the upper hand by buying arms
abroad in Eastern Europe and Russia. The death of Savimbi on February 22,
2002 was the beginning of the end of the war. The united nations security
council passed resolution 1404 on April 18, Resolutions 1412 and 1432 on
May 17 and August 15 respectively and Resolution 1439 in December which
formally brought the civil wars in Angola to an end.
The civil war spawned a disastrous humanitarian crisis in Angola,
internally displacing 4.28 million people, one third of Angolas population.
The United Nation estimated in 2003 that eighty percent of Angolans lacked
access to basic medical care, sixty percent lacked access to water and thirty
percent of Angolan children will die before the age of five.
The UN office for the co-ordination of Humanitarian Affairs (OCHA),
estimated that fighting in 2002 displaced ninety eight thousand people.
Militant forces laid approximately fifty million landmines by 2002. Human
Right watch estimate UNITA and the government employed more than six
thousand and three thousand child soldiers respectively, some forcibly
impressed during the war. Human Rights analysts found five Thousand
to eight thousand underage girls married to UNITA militants some of such
girls were ordered to go and forage for food to provide for the troops. If the
girls did not bring back enough food as judged by their commander, the
girls would not eat. Formally brought to an end in 2002, the Angolan civil
war killed an estimated five hundred thousand people during the twenty
seven years. The Angolan civil war was one of the largest, longest and most
prominent armed conflicts of the cold war.
346
CHAPTER
9
Peacekeeping Operations
I. Introduction
The United Nations and other Regional and sub-regional organizations of the
world are usually involved in peace keeping operations in which the police
and other Armed Forces are deployed to engage in the act of maintaining
and securing peace amongst feuding parties or Nation States. 652 However,
there exists a distinction between operations led by the United Nations and
those of other organizations, regional or sub-regional. The peace keeping
operations today also encourage nations that were engaged in conflict to
rebuild and maintain sustainable peace and unity after protracted periods
of hostility. Thus, peace keeping operations are not only geared towards
assisting the host nations to rebuild and provide security and public order,
but also to help them in re-stating essential services and also tackle the root
causes of the conflict thereby achieving an enduring peace and unity. 653
History and Development of International

Peace Keeping Operations
It is simply a method developed by the United Nations whereby the presence
of national or multinational troops in an area of hostility can reduce tension
and pave way for negotiations that would bring about sustainable peace and
re-unity.
Usually, peace keepers patrols buffer zones between belligerent groups or
parties, monitor lease-fires and help to defuse conflicts thereby making the
area palatable for political settlements, to continue, having search for the
durable made possible. Again, some lightly armed troops and/or unarmed
observers from within the world have also been sent to monitor cease-fire
agreements.654
652
653
654 In this case the entry method and decisions that lead to their deployment were very
tacit: war, cease fire, invitation to monitor cease fire compliance, and deployment of
military observers or units, to do so while efforts continued for a political settlement.
347
Peacekeeping operations
Instances of Peace Operations 1948-1988

The United Nations Security Council, in May 1948, resolved to establish
a field operation to assist the United Nations Media and the Truce
Commission in overseeing the observance of the Truce in Palestine. An
initial group of 36 unarmed military observers arrived in the Middle East
as the first United Nations peacekeepers establishing United Nations Truce
Supervision Organization (UNTSO) later on, the conflict between India and
Pakistan over Kashmir soon led to the establishment of the United Nations
Military Observer Group (UNMOGIP) in March 1951.655
However, in October 1956, the United Nations Emergency Force656 were
established to monitor the withdrawal of French, British and Israeli forces
from the Suez Canal. This was the first armed mission, and indeed, the first
to be so labeled, peacekeeping operation.
Prior to 1988, missions established, usually in a stable environment with
limited means and limited mandate, maintaining an impartial position and
essentially with the sole function of monitoring the situation. Peacekeepers
usually, are not allowed to apply force in fulfilling their mandate. They only
need to use force in cases of self defense.657 Until the 1990s, UNUC had been
the largest operations. It was the intervention under conditions of violent
civil conflict and indeed the first case of peacekeeping combined with peace
enforcement, authorized by the UN Security Council. Because of the level
of violence and prevarications involved in the mandate of the operation for
long time UNUC was also an example of how an operation of peacekeeping
should not be. All subsequent missions were limited in number, scope and
no new operation was established between 1978 and 1958.
Period 1989 2003
The United Nations Peacekeeping was looked at as an instrument of

choice in international conflict management, after the end of the cold
war. In the areas of cease-fire agreement and in the implementation of
comprehensive peace agreements, the United Nations Peacekeeping
Operation has successfully established itself as a veritable mechanism.
In Namibia, El Salvador and Mozambique, these newly re-rooted
instruments of UN peacekeeping was quite successful. In these more
655 SC Res 91, 20 March 1951 with the responsibility of monitoring cease-fires and reporting
on the situation.
656 http://www.un.org/Depts/dpko/dpko/co_mission/unef1backgr2.html
657 See the United Nations Operations in Congo, UNUC SC Res 143 (1960) OF 17 July 1960
for the exception).
348
complex and dangerous missions, peacekeepers were regularly permitted to

use force in the context of their mandate. It was in 1991 in Iraq that the peace
keepers were permitted to use force, not as a means of enforcing peace, but
in order to protect the population and deliver assistance in line with the
essence of their mandate.658
The period of 2004 2006
The UN department of peace keeping operations has increased its logistic

and Administrative support to special political missions which is managed
by the Political Affairs Department. It is also currently in support of 15 of
such field operations. Between this period of 2004 2006, the UN peace
operations have been launched or expanded in nine states, namely, Burundi
(ONUB) Cote d lvoire (UNOU), the Democratic Republic of Congo (MONUC)
Haiti (MINUSTAHM Iraq (UNMI) Lebanon (UNIFIL), Liberia (UNMIL), Sudan
(UNMIS) and Timor Leste (UNMIK). While four of these peace operations
in various states of Kosoko (UNMIK); Siere Leone (UNAMSIL), Burundi
(UNUB) and Timor Leste (UNMISET)659 in the context of the previous UN
peacekeeping operation in that country. Again, the UN secretariat has been
further charged with the duties of undertaking assessments and, in certain
cases, preplanning for potential future operations in Central African
Republic, Darfur, Chad and Nepal.
As 2006 came to a close, more than 100,000 persons, men and women
were deployed in 18 peace operations around the world, in which case,
about 82,000 persons were troops, military observers and police, who were
provided by 115 states of the world. This added up to a large range of mandated
tasks each of which demands appropriate, and often times, significant focus
expertise and resources in the field and at the Headquarters. In addition,
it demands a much higher degree of mission integration at every phase
and level. Some of these expanded activities take place in environments
where the UN peace keepers, might be resisted by armed factions and other
armed groups that remain outside of a peace process. In these context that
seems unstable the UN field missions are required to operate at high level
of risk, sensitivity and complicated implementation of difficult tasks and
engagement with those local population in need of support. Even in the face
658 (See SC Res 688 (1991) of 5 April 1991)

659 (See UN document A/61/668, 13 February 2007, Report of the Secretary- General
Implementation of the recommendation of the Special Committee in peacekeeping
operations para.7)
349
of favorable security and political conditions, the operational challenges for

peace are enormously daunting.660
Regional and Sub-Regional based Organizations

The Regional and sub-regional based organizations have collaborated with
the UN peacekeeping operations in places like Burundi, Cote de Ivory, SierraLeone and Liberia. In these places, the AU, ECOWAS, EU respectively have
collaborated with the UN peacekeeping operations in terms of peace keeping.
This trend of emergence of Regional and Sub-regional Organization since
1990s posed a challenge for the UN Security Council in terms of working
together. However, it holds the promise of augmenting and not detracting
from the ability of the UN to respond where blue helmets are requested.
These organizations also assist in the monitoring of cease fire, enforcement
of Humanitarian laws and humanitarian crises management. In BosniaHerzegovina and Kosovo, the Northern Atlantic Treaty Organization was
charged with the responsibility of assisting the Afghan Interim Authority in
the maintenance of peace and security in Kabul and its surroundings so that
the Afghan Interim Authority as well as personnel of the UN can operate in
a secure environment.
Furthermore, operational co-existence has taken place in various ways.
In Liberia (2003) for instance, a transition took place from a regional
operation. In some other states such as Kosovo or the Democratic Republic
of Congo the UN and Regional Organization embarked on this peace
operation side by side. The OAS in Haiti, has also provided support within
the context of a UN led mission.
The Security Council had in 2005, determined to take necessary steps to
the ferment enhancement of co-operation between the UN and regional and
sub-regional organization in international security and peace maintenance
operation. This 2005 resolution is a tact reflection of the UN resolve to
co-operate and partner with these organizations in peace operation. No
wonder, the Secretary General of the United Nations has been scheduled
to have meetings with these organizations every year. This partnership lies
in the establishment of a more effective and close-cooperation with the
660 Please note that the modern peacekeeping environment is often remote and difficult,
with little infrastructure and communication. The current largest UN peace operation,
the UN mission in the Democratic Republic of Congo (MONUC) is deployed in a
country the size of Western Europe that has only 300 miles of paved
350
Security Council, based on a clear division of labour and this shows the
comparative advantages of each organization.
Peace Enforcement, Rules of Engagement

and the Applicable Laws
The basic essence of the UN Charter is the establishment and maintenance
of peaceful co-existence amongst member states. As a matter of fact, the
processes and procedures of enforcing this peace are more or less like the
enforcement of laws; international or domestic. And as such the consent of the
warring parties are not necessarily compulsory in peace enforcement. They
are instead based on a strong chapter VII mandate which allows or makes
the strong human rights violations, threats against international peace and
security as basis for peace enforcement. This operation of peace enforcement
follow process that are usually conducted by usually multinational forces
and a rule commanded by a lead-nation. These peace enforcement most
times are geared towards protecting the lives and properties of the nonviolent civilians and the missions against threat of physical violence.
The interfering of the peacekeepers and the peace enforcement however
illustrated in the Democratic republic of Congo where there was a robust
UN Military Operation based on chapter VII, including the search operation
and pre-emptive action against militias.
Deployment of Military Personnel into Peace Operation

This is usually negotiated with the receiving states. Ultimately, receiving
states have a say as to the countries, units or requirement that come into the
territory. And this flows naturally from the consensual character of peace
operations. Again, the host states usually would determine the conditions of
the personnel it will receive in solicited cases.
The Immunities and Privileges of Peacekeepers

The terms immunities and privileges are provided by the 1946 UN Convention
on the Privileges and Immunities. It is the agreement that provides a
legal status to the UN and its subsidiary bodies for the fulfillment of the
organizations purpose and to allow its personnel to conduct their official
duties without interferences. And the agreement must be reached between
the UN and the host states regarding its hosting of peace operation.
351
This notion is referred to as functional immunities for acts that form

part of the official duties. However, peacekeepers can be prosecuted under
both criminal and civil laws of the host state for all other acts which do not
form part of their duties. Again, repatriation is carried out against every
military personnel who commit offences. And they are made to undergo
judicial processes in their home town, as they cannot be tried in the host
country. This exception does not cover military observers, police officers, or
civilian staff of a peace operation.
Another point that needs to be noted is that the UN Sec. General reserves
the right to waive even the functional Immunity of the UN personnel if such
immunity impedes the course of justice. Therefore, respect for the law of the
host country is essentially an obligation to all peacekeepers. This was made
as an obligation by the relevant status of mission or forces agreement BOMA
or SOFA.
On the issue of misconduct, in 2005 a UN Secretary General Adviser Report
on Sexual Exploitation and Abuse by the UN peacekeeping personnel was
published.661 In its recommendation, the UN released a report captioned A
comprehensive strategy to eliminate future sexual exploitation and abuse in
its peace operation. It therefore made recommendations after an extensive
consultation with representatives of troops and police contributing
countries that provide the most military and police personnel and the
secretariat as well as insights from a visit to the United Nations peacekeeping
operation in the Democratic Republic of Congo in late 2004. Below are the
recommendations. viz:
1. That rules against sexual exploitation and abuse be unified for all
categories of peacekeeping personnel so that civilian, civilian police
and military personnel are all held to do the same standard. This
would involve amending the current memorandum of understanding
between the UN and troop and police contributing countries.
2. The establishment of a professional investigative capacity staffed by
experts who have experience in investigating sex crimes, particularly
those involving young children. This would mean that access must
be led to modern techniques of forensic identification such as fiber
analysis and DNA testing.
3. A series of managerial, organizational and command measures to
address sexual abuse and exploitation was also recommended. For
example, it recommends recreational facilities and improved welfare
661 See UN DOC A/59/710 of 24 March 2005.
352
to set-off increased restriction on peoples personal lives such as

curfews and wearing of military uniforms at all times.
4. It further recommended recovering from members states the troop
cots for soldier and commander found to have engaged in sexual
exploitation and abuse and to pay that money into a trust fund
for victims;
5. And lastly, it made three solid recommendations to ensure that
peacekeeping personnel who commit any form of sex crime are held.
These recommendations are as follows:
- That personnel should be held individually accountable
through appropriate disciplinary action. Hence there is a
recommendation for expedient disciplinary procedures for
sexual exploitation and abuse cases involving civilians.
- Those personnel should be held financially accountable for the
harm they have done to victims. For instance, it recommends
that the existing rules be amended to compel civilians to make
child support payments.
- Criminally accountable if the acts of sexual exploitation
and abuse committed by them constitute crimes under the
applicable law.
In August 2006662 a report was made by the group of legal experts on
ensuring the accountability of UN Staff and experts on mission with respect
to criminal acts committed during and in peace keeping operations. It was
recommended that priority be given by the UN to facilitating the exercise of
jurisdiction by the host state. It should not be readily assumed that the host
state is incapable of exercising jurisdiction merely because peacekeeping is
carried out in post conflict area. It is only when the host state is unable to
exercise such jurisdiction even with the assistance of the UN in all strata
of criminal jurisdiction that the need would arise for another state to do
so. This not withstanding, the host state can even in these prevailing
circumstances provide some assistance to enable the other state in the
exercise of criminal jurisdiction including in evidence gathering or arresting
of the alleged offenders.
Jurisdiction is not an indivisible concept. Other states may be part of
the different but mutually complimentary strata of the entire aspects of
criminal jurisdiction. Many challenges are presented when jurisdiction is
662 UN Doc A/60/980
353
been exercised by the other states other than the host state. These challenges,
such as extradition of persons and securing admissible evidence for use in
another jurisdiction are not unique to peacekeeping environment. However,
the group has recommended the development of a new international
convention to address jurisdiction and related issues in other to provide a
sound legal basis for the exercise of jurisdiction by the states, other than the
host state.
Again, Administrative investigations conducted by the UN for purposes
of discipline may be materially relevant in holding a person as criminally
responsible, as they may be the only means of evidence gathering in respect
of the alleged crime. Thus, there is need to take cognizance of the fact that
the material they collect may be used to support both disciplinary actions
and proceedings.
The group also makes a number of recommendations that were designed
to ensure that administrative investigations are carried out to the highest
possible standard.
The Applicable Laws
Peacekeepers, in their operations must ensure that standards as prescribed

by the relevant international law, humanitarian states etc, are adhered to.
Usually, the Security Council is the body that grants authority or
legitimacy to any peacekeeping operation(s). It follows the provisions of the
United Nations charter in performing its duty of maintaining international
peace and security. Again, in implementing its mandates, a peace operation
must ensure that it enforces the support and respect of the member states.
This is all-important for the day-to-day activities peacekeepers.
Legitimacy confers privileged legal status on a peace operation and its
personnel that is essential in mandate implementation.
The use of force in peacekeeping operation is not prohibited. But it must
be part of the legal authority as specified in the rules of engagement for it to
be used. International legal instruments and norms regulate the relationship
between the host country and the operation. Thus, all peacekeepers must
have a good understanding of the apparatus of authority. The various laws,
and legal framework that guide there operation, must be well understood
by the personnel so that they would know both their responsibilities and
liabilities, in the implementation of their mandate.
Where peace operations are mandated by the Security Council in
accordance with chapter VI or VII of the UN Charter or by a regional
arrangement under chapter VIII, participating states will operate on the
354
bases of relevant international resolutions. These resolutions may flow from

cease-fire agreements, peace agreements, and assessment and reports such
as those from the UN Secretary-General. Any of such reports from the UN
Secretary-General bears the following.
1. An assessment of the current security situation including the security
institutions and the international military assistance, political
developments including governments at national, regional and
local levels.
2. It further assesses human rights, rule of law developments and
economic and social developments.
Human Rights in Peace Operations

Of note here is that in many modern conflicts, human rights violations form
part of both the root cause and the outcome. Addressing it has thus become
an integral part of any UN mandated or led peace operation. Thus, an
express mandate is usually issued by the Security Council and/or regional
organizations to both the parties and peacekeepers to observe and protect
human rights regulations. As such, peace operations are to observe the laws
of the receiving states, including its obligations under international law of
which human rights are an important part. And it must be noted that the
human rights obligations of the sending states apply extraterritorially for
acts committed within their jurisdiction.
The human rights obligations of peace keepers depending on the mandate
may include the following:
1. Reporting human rights violation and working to prevent future
abuse or re-occurrence;
2. Investigating and verifying past human rights violations;
3. Promoting and protecting civil, cultural, economic, political, and
social rights.
4. Conducting capacity building initiatives with local governmental
agencies and non-governmental organizations (NGOs), including
national and local human rights institutions;
5. Assisting relevant judicial and truth and reconciliation processes to
foster a culture of accountability and address impunity.
355
6. Collaborating with UN and international development and emergency

relief organizations on human rights issues;
7. Designing and conducting human rights training programs for UN
peacekeeping personnel and local and national institutions, such as
the military and police forces;
8. providing advice and guidance
peacekeeping components;
on
human
rights
all
9. working to address the human rights aspects of problems associated

with most modern conflicts including massive movements of refugees
and Internally Displaced Persons (IDPs), the increasing conception of
child soldiers and the sexual exploitation and trafficking of woman
and children; and
10. Identifying and integrating a human rights perspective into programs
to disarm demobilize, and reintegrate combatants.
Human Rights Components

Human rights issues have been addressed overtime, by peace operation. The
human rights components would normally act under the authority of the
Special Representative of the Secretary-General (SRSG) who also provide
guidance on how to most effectively pursue a human rights agenda within
the particular circumstances which provides among other things, for dual
reporting lines to both the special representative to the Secretary-General
and the office of the High Commissioner for Human Rights and joint
responsibilities for the recruitment of human rights officers for peacekeeping
operations; many govern how human rights components function within
the peacekeeping operations.
Human rights work is every bodys responsibility in peacekeeping
operations, as such; it has the lead role on human rights issues in a
peacekeeping operation.
Further, international standards and codes of conduct must, by virtue of
the 1998 Guiding Principles on internal Displacement, be given due regard
by International Humanitarian Organizations and actors, when providing
assistance. This is more so, because even military forces conducting
Humanitarian or military operation outside their own countries also
force possible national or regional human rights scrutiny in respect of
their conduct.
356
On the bases of the above, it is suggested that Human Rights provisions

should be reflected in the rules of engagement and codes of military forces
engaged in providing forces of humanitarian assistance.
International versus State Responsibility in a case of

Alleged Human Rights Violations by Peacekeepers
In Kosoko, the European Court declared in Bebranic and Bebranic V
France, a case involving two Kosovar brothers who found a number of undetonated cluster bombs. While playing, one bomb detonated and killed
one and seriously injuring the other. The surviving brother and the father
as applicant alleged that the death and injuries were caused by the failure of
French Kfor troops to mark and/or defuse the un-detonated cluster bombs
which Kfor had known to be present on the side in question. Article 2 of
ECHR was referred to in respect of light to life.
Again in Saramatic V. France, Germany and Norway The applicants
complained about right to liberty and security (Article 5) and right to an
effective remedy (Article 13) in respect of his detention by Kfor. He further
complained about the obligation of the peace keeper to respect human rights
and the right to fair trial under articles 1 and 6, and that France, Germany
and Norway had failed to guarantee the convention rights of individuals
resident in Kosoko.
In its decision, the court considered whether it had jurisdiction to review
the acts of the states in question that were carried out in the stead of the
UN and as to the relationship between the convention and the UN acting
under Chapter VII of the Charter. It argued that Chapter VII allowed the
UN Security Council to adopt coercive measures in relation to an identified
conflict considered to threaten peace The court further found that since
operations established under Chapter VII of the Charter were fundamental
to the mission of the UN and since they relied for their effectiveness on
support from member states, the convention could not be interpreted in a
manner which would subject the acts and omissions of contracting partners
to the scrutiny of the court. To do so would amount to interfering with
the fulfillment of the UNs key mission in the field including the effective
conduct of its operation.
Application of International Humanitarian Law

Usually, peace operations include elements of cohesive enforcement being
in times of hostilities. Thus, specific rules of international humanitarian
357
laws are applicable. Due to the changing character of peacekeepers as

international policemen in war times, considering the volatility and
complexity of their job, a wide range of appropriate and powerful mandate
is given to them to enable them handle and responsively approach parties
the oppose or obstruct peace. This is where international humanitarian law
applicable comes to play.
In an attempt to address the issue and for the purpose of setting out
fundamental principles and rules of international humanitarian law, that
apply to, forces conducting operations under UN command and control, the
UN Secretary General rolled out a bulletin.663 Section one of this bulletin
provides that the fundamental principles of international humanitarian
law set out in the bulletin are applied to the UN forces when in situations
of armed conflict, they are actively engaged therein as combatants to the
extent and for the duration of their engagement.
Mandates
Clearly, no peace operations take effect in any conflict arrears without

a mandate either by the UN Security Council or by any other international
legal bases such as the host state. This is necessary in that it provides the
legal bases under international law for the deployment of military forces by
the participating states on the territory of the state(s) where the operation
is conducted and sets out the basic objective and purposes which serve as
parameters for implementing the operation. Thus, the Rules of engagement
and other instruments of implementation cannot depart from the contact of
the mandate.
The term mandate refers to the authorization and tasks under public
international law, given to peace keepers in respect of peacekeeping
operations as a guide. And depending on the nature of the peace agreement
and its own assessment by the measures required to support the peace
process, the term mandate refers exclusively to tasks under public
international law as these:
- Monitor a cease-fire or cessation of hostilities to allow space for
political negotiations and a peaceful settlement of disputes;
- Provide operation support to law enforcement agencies and
protect civilians.
- Assist in the restructuring and reform of the armed forces;
663 UN Doc. ST/SGB/1999/13 of 6 August 1999.
358
- Facilitate the implementation of the peace agreement through the

provision of good offices, mediation support and other confidence
building measures;
- Assist with the disarmament, demobilization and reintegration
(DDR) of former combatants etc.
National authorities, when providing military or police personnel in
peace operations may have restrictions on how and where there units
will deploy and what tasks will not be supported by them. These may
have bearing on national polices, legislation, or even operation or logistic
limitations, on the units.
These restrictions, not withstanding, mandates is expected to be broad
enough to cover evolving scenarios. But there is always a clear need for the
objectives to be realistic within a reasonable degree of specificity in order to
have a precise legal from for the mission.
According to BEN F. KLAPPE a realistic long-term objectives and an exit
strategy must be based on an all encompassing vision. As part of a broader
UN peacekeeping strategy, the Secretary General has endorsed guidelines
for a comprehensive and inclusive UN system approach to the planning of
integrated peace support operations or integrated missions. An integrated
mission is one in which there is a shared vision among all UN actors as to
the strategic objective of the UN presence at national level. This strategic
objectives is the result of a deliberate effort by all elements of the UN
system to achieve a shared understanding of the mandates and functions
of the various elements of the UN presence at National Level an apply this
understanding of the particular national setting of the evolving security,
development, human rights, humanitarian, and political imperatives of the
particular state; of the specific mix of assets, and capacities available and/or
required to achieve the desired impact through mutually supportive action.
The Integrated Mission Planning Process (IMPP)

This is the authorities basis for the planning off all new integrated missions,
and the revision of existing integrated mission plans, for all UN programs
offices, agencies, funds and other departments. Before the UN SecretaryGeneral decision to initiative detailed planning, the Peace Building Support
Office (PBSO) will help ensure longer term strategies to help countries fully
recover from conflict, help bring the UN System together and also help
draw together non-UN actor including regional organizations in support of
a common strategy. In the implementation of IMPP, the specific planning
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principles and assumption are require together with the full engagement
of the key UN actors at the headquarters and country level, together
with the full consultations of the national authorities and other relevant
external actors. The IMPP is implemented with flexibility, while taking into
consideration varying circumstances and timeframes. They are equally
charged with ensuring that adequate planning standard outputs and the key
decision points are respected.
The UN and the International Criminal Court (ICC)

In 2004 a relationship agreement between the ICC and the UN for the
provision of document that may help to building a case against suspects.
And this was also meant to give operational support in the field. After, the
ICC and field mission were being made to conclude the implementation of
the agreement on these issues.
Rules Of Engagement (ROE)
Rules of Engagement generally are no new phenomenon. They are

directives issued to operational commanders which clearly define the
parameters within which force may be used by designated international
peace operations personnel. Usually they are founded on the resolution of the
Security Council and must be issued and implemented in accordance with
the provisions of international law. It is necessary that rules of engagements
that are clear and simple are established for each peace operation.
Rules that regulate the use of force or directives for opening fire have
existed for several years in order to avoid the early escalation of a conflict,
and to guarantee unity of doctrine when it relates to the most visible
and potentially restrictive part of warfare. The use of force during peace
operation now poses to be a sensitive matter for certain reasons. The
changing character of the operations, patrolling streets in build-up areas
and in crowded slums instead of patrolling in deserted buffer zones between
nation states, inevitably will lead to an increased risk of civilian causalities
once peacekeepers use force as a last resort. In the event of civilian causalities,
far reaching effects may be had including revenge, demonstration etc, and
this might jeopardize the entire peacekeeping efforts. Thus, it is always very
important that every ROEs must be thoroughly and carefully developed in
consideration of the political, legal and operational framework.
The Security Council resolution for a new peacekeeping operation is a
compromise. The mandate therefore leaves the mission planners with the
task of interpretation when developing an initial concept of operations.
360
Again, a concept of operations will leave the necessary operational space

for planners at force headquarters level, adjusting planes to situations as
they occur.
The necessary room for interpretation not withstanding, clarity is
required in respect of the authority to use force. And this clarity not
only protect the individuals against excessive use of force it also protects
peacekeepers from prosecution when force is used within the confines of
the ROE .
Clearly, ROE are traditionally developed for military personnel, police
forces in recent times and other formed police units are using them
or directives of similar nature. For the interception of aircraft and its
engagement and in maritime operations rules on the use of force are
required at times.
ROE might either be a prohibition or permission. The prohibitions when
issued as orders not to take specific actions. But, they could be viewed as
permission, if such ROEs are issued as authority of commander to take
certain specific actions that are perceived necessary for the achievement of
the aim of the mission.
In the area of prohibitive ROE , an example is the general prohibition
to indiscriminately pointing of weapons in the direction of any person.
This underlines the peaceful character of a mission and contributes
to the acceptability by civilian population of foreign peacekeepers on
their territory.
Whereas an example of permission is the authorization to use force up to
and including deadly force to protect civilian population under imminent
threat of physical violence, when competent local authorities are not in a
position to render immediate assistance. As BEN F. KLAPPE put it, this is
the raison detre of peacekeeping. The subsequent question will arise is:
how threatening or impending is the threat? Must the threat be instant
and overwhelming or do we need to wait for a smoking gun? Of course, the
commanders, as the situations unfolds will be the persons to give the best
answers in consideration of the overall mission strategy and the mandate,
worked out in operation plans and in line with the ROE .
Where an intelligence report reveals the plans via credible evidence that
civilian population in villages nearby the commander may conclude that
the threat is imminent. The use of force proportionate and necessary must
be adhered to.
These days, the approaches may deviate from the peace operations of the
past decade. But, the mandates and rules still remain the same as not many
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changes have been made. While the authority to act is in the resolution,
the permission to use force is in the ROE . The only new thing relates to the
fact that peacekeepers no longer stand and allow the threats to civilians
to continue.
The ROE is predominantly defensive in nature but allows the use of force
under circumstance that requires the implementation of the task assigned.
Again it provides a definition of the circumstance under which the use of
force may be required.
ROE does not exclude a commanders right and obligation to take all the
appropriate and necessary action for self-defense. Every personnel have the
right of self-defense. The ROE should clearly address measures to protect
personnel, premises and property of the mission and to guarantee freedom
of movement of peace operations personnel. Peacekeepers should be allowed
to use up to deadly forces to defend themselves against hostile behaviors.
The ROE define the degree of, and manner in which force may be applied
and are designed to ensure that the application of force is controlled and
legal. ROE prescribes the degree of freedom of the commanders, and their
constrains in carrying out their mission.
However, it is recommended that less lethal means should be applied if
possible. Commanders have been requested to apply other means such as
psychological methods, deception, negotiation and other non lethal means
which may include the maneuver of and deployment of layer forces in order
to demonstrate resolve.
This could be by means of unarmed, which is the use physical of force that
does not require arms. However, in circumstances where unarmed forces
are inappropriate, two other distract levels of armed force could apply.
They are deadly force or non-deadly force.
The non-deadly are those that in their nature are not very likely to cause
death or grievous bodily harm, but regardless of whether death actually
results. These are weapons like firearms, batons etc mostly used as warnings.
Peace keepers also use deadly force the level of which is intended or likely
to cause death regardless of whether death actually results. This is applied
where no other means or remedies are available to the peacekeepers against
the hostile acts of the armed opponents.
Another compulsory feature of the ROE is that once it is finalized and
signed by the relevant authority, a translation which must be clear and
concise should and must be made into the languages of the participating
nationalities. Where armed force is to be used, peace operations personnel
must comply with the international proportionality legal principles, use
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of minimum force and the minimizing of potential collateral damages of

the weapons.
It is a command responsibility to implement the ROEs which are usually
addressed to the force commanders. Subordinate commanders have the
obligation to sport out errors and also recommend possible changes in the
ROE , but they are not allowed to alter them by any means. Clarifications may
also be sought by the commanders as it is their responsibility to ensure that
all those under them have a clear understanding of the content of the ROE .664
It is therefore the responsibility of commanders at all levels to train both old
and newly recruited personnel on the proper application of the ROEs.
Child Soldiers
The concept of recruitment of children to take part in warfare is recent.

It is an offence under International Humanitarian Law and the UN
Convention on the Rights of the Child to use children below the age of
15 in armed conflict.665 This heading examines the developments of legal
protection and rights of children in armed conflict, leading to the adoption
of the ICC statute and the various offences of enlisting conscripting or using
children under the age of fifteen in armed conflicts.
The activities that fall within the definition of Use of Children in
hostilities are explored as the other offences that could be charged to
better the experiences of child soldiers. These include sexual exploitation,
enslavement, killing future or inflicting serious suffering. The optional
protocol to the UN Convention on the Rights of the child on the involvement
of children in armed conflict provides that governments and armed groups
are prohibited from using children under the age of 18 in armed conflict.
This is because children are either forced or enticed to form armed group,
and this makes them the most vulnerable.
Children soldiers, regardless of whether they are enticed or forced to form
the armed groups, are victims whose involvement in the armed conflict
tell very negatively on their mental and physical well-being. They witness
the death of fellow children, and at times are instrumental to it. They also
witness sexual violation and every other atrocities been committed by the
lawless soldiers or groups. These experiences have had serious collateral,
long-term psychological consequences on these children.
664 Training in the application of ROE is the responsibility of commanders at all levels. ROE
training sessions should be conducted on a regular basis and as a minimum, once per
month and whenever personnel, including individual replacement or reinforcements
are deployed into the mission area.
665 See Articles 77, para 2 API; 38 Child Convention.
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The 1949 Geneva Convention do not specifically address the participation

of children in armed conflict. However, with regard to international armed
conflict, Article 77(2) of API demands that Parties to the conflict shall take
all feasible measures in order that children who have not attained the age
of fifteen do not partake in the armed conflict. Under Protocol 1, there is
an obligation to refrain from recruiting children under fifteen, but no
obligation to refuse them in cases of voluntary enrolment. Protocol 1 further
provides that death penalty should not be applied to war crimes committed
by those less than eighteen years.
In relation to the words, taking a direct part in hostilities the ICRC,
holds that the intention of the drafters of the Articles was to keep children
under fifteen outside the armed conflict, and that they should not be used
to perform certain services like transmission of military information,
transportation of arms and ammunition, provision of supplies etc. Thus,
children and civilian have a wide range of protection as the threshold to be
applied in considering which kind of activities is prohibited, is quit wide.
A body of law and practice has evolved interpreting the notion of direct
participation in hostilities. Among these is the most World War II hostages
trial established rule; viz:
A civilian who aids, abets or participates in the fighting is liable to
punishment as a war criminal under the Law of Wars. Fighting is
legitimate only for the combatant personnel entitled to treatment as
prisoners of war and incurs no liability beyond detention after capture
or surrender
In this respect, the ICRC commentary to Additional Protocol 1 asserts

that direct participation in hostilities implies a direct causal relationship
between the activity engaged in and the harm done to the enemy at the
time and place where the activity occurs. Direct participation includes acts
which by their nature and purpose are intended to cause actual harm to the
personnel and equipment of the armed forces
The use of children in international conflicts is regulated by API I which
increases the protection afforded by Article 3 of Geneva Conventions. By
Article 4 (3), children who have not attained fifteen years old shall neither
be recruited in the Armed Forces nor groups, nor take part in hostilities.666
666 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the
protection by victims of international Armed Conflicts (protocol II), Adopted on 8 June
1977, Article 4 (3).
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Once disarmament phase starts, the definition of a child soldier may

have significant consequences. Some rules of law in relation to weapons and
ammunition exist in the principles and guidelines on children Associated
with Armed Conflict or Armed Groups. Children, when financially
compensated in handling weapons, formerly unarmed family members
may suddenly poses weapons or parts of weapon, potentially blurring
anticipated numbers and eligibility criteria. These eligibility criteria should
be sufficiently broad and based on the Cape Town Principles for Children
associated with armed forces or groups.
Children that have been integrated into drugs have been victims of
reckless and brutal behavior of children. Thus, considerable challenges exist
in leading and reintegrating such children into their communities in the
aftermath of conflict is sometimes further compounded by severe addiction
and dependency of children to drugs. The United Nations and Peace
Keeping Missions should therefore seek to benefit from local expertise and
NGO children protection capacity.
Search, Apprehension and Detention

Circumstances under which search, apprehension and detention may be
necessary are usually determined by the ROE . In these circumstances human
rights provisions that guarantee the rights of an individual are incorporated
into directives for law enforcement officials. In peace operations, the
same measures may be applied by peacekeepers in situations where law
enforcements agencies of the host state are not able to take necessary actions
or in the event of an individual trying to be hostile against peacekeepers
or those under the protection of the mission. Under the principles of
proportionality and minimum use of force, peacekeepers are required to
consider apprehension and detention as a first resort in cases where the
use of, up to deadly force has been authorized. Depending on the status of
national enforcement agencies and their mandate, the situations specified
in the ROE may vary.
The Principles of Search
In searching or search times, the following principles must be adhered to.

1. The purpose of the search must be clearly stated in the orders and to
the individual to be searched.
2. The searched are not to be humiliated or embarrassed by the searchers.
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3. The procedure for the search must take gender into account and be
sensitive to other factors such as race, religion health etc.
4. Minimum necessary force is required to be used in searching
detainees.
5. The search is ideally to be conducted by persons of the same gender.
6. Commanders must ensure that the confiscated items are
recorded properly.
In the area of apprehension, persons may not be apprehended other than
in accordance with the authorization given in the ROE . All apprehended
persons are to be handed over to the appropriate local authorities, as soon
as possible. However, such persons may remain in detention until such hand
over takes place.
Where possible, detainees are informed of the reason why they are
apprehended or detained. This rule by Article 9 of the Universal Declaration
of Human Rights is not meant to cause too much difficulty provided that
language assistances are readily available. But where this is not the case,
peacekeepers could anticipate by preparing translated written statements
including a caution on detention grounds referring to language derived
from the ROE .
The Principles of Apprehension and Detention
The following are the various principles that should guide the
peacekeepers in detaining of the apprehended persons.
1. Peace operations personnel are fully responsible for the protection of
the safety and well-being of persons whom they apprehend or detain,
as long as those persons are in their custody.
2. Claims based on violations of human rights obligation against the
peacekeepers may come up by relatives or the next of kin of detained
persons if these persons after handover disappear or disease. At
times agreements are had between the troop contributing states
and the host state to stress the mutual responsibility to respect
basic standards of international humanitarian law, national law,
and Human Rights Law, such as right to fair trial, right to life, right
to be protected against future and other inhuman and degrading
treatments etc. These agreements may include an obligation for the
host state to allow full access to detainees after they are refereed to the
host state by representatives of a national human rights commission,
366
the ICRC or relevant human rights institutions with the UN system.

Other responsibility such as keeping accurate account of all persons
transferred to the national authorities etc may also be included in
the agreement.
3. Detainees must not be subjected to cruelty, and other inhuman
and degrading treatment, punishment, deprivation, intimidation,
humiliation, abuse or any form of mistreatment.
4. Detainees must be given humane treatment and the inherent dignity
of their human person respected. Gender, race, religious beliefs and
customs and practices of the detainees must be respected. And the
women and children must be given special care and attention.
5. The detainees are
decide otherwise.
presumed
innocent
until
the
courts
6. Detainees must be allowed contact with the outside world, such as

human rights officers, legal counsel and other organizations that are
relevant to his status.
7. Men and Women must be in separate premises and woman should
have separate sanitary facilities. Children should also be separated
from adults.
8. Where registration is equally required, the register shall also include
among other things, day and time of entry into the detention centre,
the release or hand over to another detaining authority. The date and
time of first appearance before a court is also required.
9. All moneys, clothing, valuables and other personal effects belonging
to the detainee, who they cannot keep, must be recorded in an
inventory and accordingly signed by the detainees, after which
they (personal effects) are placed in a safe custody, and returned
upon release.
10. Orders and disciplinary measures against the detainees must be
clearly set out in regulations and shall not be inhumane. The use of
dark cells and corporal punishments are prohibited.
11. Violence torture, insults and public curiosity are not allowed against
the detainees.
12. As punishment, instruments of restraint like chains irons,
straitjacket; and handcuffs must never be used on the Prisoners. But
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Regional peacekeeping and enforcement action
some of the instrument of restraint may be used on the Prisoner or

detainees as a precaution against escape during transfer; on medical
grounds as would be directed by the medical officer; where other
milder way of restraints have failed.
13. Detainees shall be kept in an environment that is humane and
designed to preserve health. They shall be provided with adequate
feeding, shelter, clothing, hygiene items, and medical services
sanitary facilities etc.
Regional Peacekeeping and Enforcement Action

I. Introduction
After its formation in 1945, the United Nations became the primary
international organization concerned with the maintenance of international
peace and security. Due to the multiplicity of armed conflicts all over the
world, problems of enforcement have arisen inevitably since the UN does not
have sufficient resources and personnel to deal with all situations of armed
conflict as they arise. To solve these problems, allowance has been made
under the international law for regional, sub regional and ad hoc initiatives
aimed at complementing the peacekeeping functions of the UN.
The UN Charter provides that:
Nothing in the present Charter precludes the existence of regional
arrangements or agencies for dealing with such matters relating to the
maintenance of international peace and security as are appropriate for
regional action and provided that such arrangements or agencies and
their activities are consistent with the purposes and principles of the
United Nations
Article 53 goes further to provide that the Security Council utilize

such regional arrangements or agencies for enforcement action under
its authority. However, no enforcement action shall be taken under these
arrangements without the authorization of the Security Council. By Article
54, the Security Council must be fully informed of all activities undertaken
under regional arrangements for the maintenance of international peace
and security.
The necessity for regional participation in peacekeeping and enforcement
measures came at the end of the Cold War between the USSR and its satellite
states on one hand, and the Western Powers (especially the US) on the other.
368
There was a marked increase in UN activities after the Cold War which made
it more difficult for the UN to cope financially as well as in maintaining
sufficient troops to carry out peacekeeping operations. It was this necessity
that led the UN to rely on regional organizations to lighten the burden of
securing international peace and security.
In his Agenda for the Peace Report of 1991, the then UN Secretary General
Boutros Boutros-Ghali called on regional organizations to combine forces
with states and other international bodies to work together to guarantee
international peace and security. In his words, the achievement of the wider
mission of the UN will demand:
The concerted attention and effort of individual states, of regional
and non-governmental organizations and of all of the United Nations
system, with each of the principal organs functioning in the balance
and harmony that the Charter requires
He further noted that the Cold War impaired the proper application of
Chapter VIII of the UN Charter which is devoted to regional arrangements
or agencies dealing with such matters relating to the maintenance of
international peace and security as appropriate for regional action. The
Report also pointed out that the UN had been involved in encouraging a
rich variety of complementary efforts relating to regional action. With
particular respect to Africa, the Report mentions three different regional
groups- the Organization of African Unity, the League of Arab States and
the Organization of the Islamic Conference- that combined efforts with the
United Nations to solve the conflict in Somalia.
The Agenda for Peace Report by the UN Secretary General did not proffer
any formal pattern of relationship between the regional organizations and
the UN neither did it call for any specific division of labour. However, based
on the potentials possessed by regional organizations, they are to combine
efforts with the UN to achieve its functions such as preventive diplomacy,
peacekeeping, peacemaking and post conflict peace building. In any event,
the primary responsibility for the maintenance of international peace and
security rests on the shoulders of the UN. Regional action becomes necessary
not only to lighten the UNs burden by decentralization, delegation and cooperation with UN efforts but to create a sense of participation, consensus
and democratization in international affairs for regional organizations.
To create this deep sense of participation, the UN Secretary General
mentioned three steps:
369
1. Consultations between the UN and regional organizations to build

consensus on the nature of the problem and measures required to
address it.
2. Joint undertakings by the UN and regional organizations which
would encourage states outside the region to act supportively.
3. Authorization by the UN to a regional organization charged with
taking the lead in addressing a crisis within its region which would
serve to lend the weight of the UN to the validity of the regional effort.
This stance of the UN in support of regional action was mentioned by Kofi
Annan who succeeded Boutros Boutros-Ghali as the Secretary-General of
the UN. He emphasized thus:
Within the context of the United Nations, primary responsibility
for matters of international peace and security, providing support
for regional and sub-regional initiatives in Africa is both necessary
and desirable. Such support is necessary because the United Nations
lacks the capacity, resources and expertise to address all problems
that may arise in Africa the experience in Liberia shows clearly the
contribution that can be made by a sub regional organization such as
ECOWAS when dealing with so complex a situation, and the key role
that the United Nations can play in support of such efforts
The aspirations mentioned by both secretaries-general of the UN in the

reports (particularly the Agenda for Peace Report) have been achieved in
certain respects. Regional organizations are now known to take leading
roles in peacekeeping and enforcement actions in some conflicts. In Africa,
the Economic Community of West African States (ECOWAS) through its
military arm, the ECOWAS Monitoring Group (ECOMOG) and the Southern
African Development Community (SADC) are prominent and are actively
involved in peacekeeping and enforcement missions within the continent.
These organizations of an indigenous character made vital contributions
to resolving the conflicts arising in states such as Liberia, the Democratic
Republic of Congo (DRC), Sierra Leone, Guinea Bissau and Lesotho over
the years.
Joint actions involving the UN and regional peacekeeping have also been
undertaken as envisaged under the Agenda for Peace Report by the former
UN Secretary General. In the Liberian conflict, the UN established UNOMIL ,
a UN force which was to work in collaboration with ECOMOG. Similar joint
operations also took place in Georgia, Tajikistan and Sierra Leone. In Sierra
Leone, the UN established an Observer Mission to work with ECOMOG
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which was subsequently replaced by a peacekeeping force pursuant to UN

SC Resolution 1181. The UN has also authorized the use of force by a regional
organization in accordance with Chapter VII of the UN Charter. Such an
authority was granted in the resolution of conflicts in Sierra Leone, Haiti
and the former Yugoslavia.
Motivation for Participation in Peacekeeping

It is true that the UN Charter 1945 contains provisions which make room
for the establishment of regional peacekeeping organizations.667 The
Reports of both secretaries-general mentioned above also call on regional
organizations to participate actively in the maintenance of peace and
security in their respective regions. In reality however, states are influenced
by several other factors which motivate them to participate in regional
peacekeeping operations.
Firstly, participation in peacekeeping operations is used as a criterion for
good international citizenship. A state involved in peacekeeping operations
under the auspices of any regional organization is viewed in a positive light
by other members of the international community. For instance, South
Africa has been known for her practice of apartheid and participating in
peacekeeping operations may help change this negative image.
In recent times, there has been a clamour by some states to become part
of the seemingly impenetrable United Nations Security Council. There is a
move by African states such as South Africa and Nigeria to have permanent
seats in the Security Council since there is no African permanent member
as of yet. Participating in peacekeeping measures shows a commitment to
international peace and security which may be used as a benchmark for
states seeking to belong to the Council.
In the African scenario, some countries are often viewed as giants in terms
of economic and political strength when compared to other countries on the
continent. In West Africa, Nigeria occupies the pride of place as the most
populous country and with its oil reserves, she is arguably one of the richest
countries in Africa. These credentials give Nigeria a position of economic
and moral leadership within the African continent. It will be a breach of
this status for the country to sit back while armed conflicts are taking place
particularly in the West African region. By reason of her economic and
moral strength in he continent therefore, Nigeria has to participate actively
in regional peacekeeping efforts.
667 Articles 52-54 UN Charter
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Peacekeeping is also an effective means of keeping military forces

occupied. The purpose of military training received sometimes under
grueling conditions is not to be deployed to a military base where there is
no action. Armed forces are to be actively involved in fighting as this is the
primary purpose of their training. It is this desire to participate in military
activities that led the British Government to secretly send Price Harry of
Wales to participate in peacekeeping efforts in Afghanistan. The Prince had
canvassed for his right to fight alongside his peers and was subsequently
deployed to Afghanistan for 10 weeks before his whereabouts were
discovered. In the Nigerian scenario, it is important to keep the military
forces occupied in peacekeeping to prevent them from being used to solve
domestic political affairs and also to instill a sense of professionalism in
the troops.
The fear of hegemony by one state in a region may also be a leading
motivation for participation in peacekeeping efforts. This is the situation in
the Europe that has caused countries such as Lithuania, Estonia and Latvia
to participate in these efforts for fear of Russian taking over. In the event
that Russia does utilize its military arsenal to dominate the entire region,
the participation of these 3 states in previous peacekeeping missions will
cause the other countries of the world to render the necessary assistance.
Participating in peacekeeping operations gives military armed forces the
necessary experience they require for any future conflict that may arise.
Mistakes made in the previous operations are recognized and improvements
are made not only in the military strategies adopted but also in the caliber
of weapons used. In any event, the motives of any country in participating
in peacekeeping operations must always be kept in check as the purposes for
which the operation was initiated must be given top priority.
Constitutionality of Regional Peacekeeping Operations

In theory, most regional organizations did not contain express provisions in
their respective constitutions for regional peacekeeping. With the passage
of time, and the ensuing armed conflicts, these organizations saw the need
for the establishment of peacekeeping missions to maintain peace in the
regions where they were located. For instance, organizations such as the
OAU, Arab League, and ECOWAS contained no express powers to take part in
peacekeeping operations but were forced to do so because of armed conflicts
that arose and the absence of intervention by UN peacekeeping forces.
372
In West Africa, ECOWAS was established primarily to deal with economic

matters in the sub region. In 1978, the ECOWAS constituent treaty was
expanded by the Protocol on Non Aggression. By 1981, the Protocol on
Mutual Assistance on Defence was also included. These Protocols made
provision for intervention by ECOWAS in any armed conflict between two
member states or in any internal armed conflict within a member state. It
was these Protocols (particularly the 1981 Protocol) that gave ECOWAS the
authority of undertaking peacekeeping operations in Liberia, Sierra Leone
and Guinea Bissau.
The question whether an organization has the power under its own
constitution to engage in peacekeeping activities has been treated as
unimportant in practice.668 As such, when peacekeeping operations have
been embarked upon, not much regard is given to the constitutionality or
otherwise of the action.
In the Liberian civil war, there was an absence of intervention by the
UN and US. ECOWAS had to step in to quell the situation by establishing the
ECOWAS Monitoring Observer Group (ECOMOG) consisting of troops from
Nigeria, Ghana, Gambia, Guinea and Sierra Leone. In its mandate from
the ECOWAS Mediation Committee, ECOMOG was to assist the Committee
in supervising the implementation, and ensuring strict compliance of the
ceasefire by all the parties to the conflict. In similar fashion, the Report of
Nigeria to the Security Council was that ECOMOG is going to Liberia first
and foremost to stop the senseless killing of innocent civilian nationals
and foreigners and to help the Liberian people to restore their democratic
institutions. The ECOWAS intervention is in no way designed to save one part
or punish another.
Despite these authorities, the question still remains unanswered as to
whether regional organizations can establish peacekeeping missions. For
these missions to be valid, they must accord with the relevant provisions of
the UN Charter. However, there still remains a relaxed attitude with respect
to the constitutionality of regional peacekeeping missions. In the ECOMOG
mission in Liberia for instance, normal decision making processes as to the
establishment of ECOMOG were not followed since it was not established
unanimously by member states.
This blatant disregard for the constitutionality of regional peacekeeping
missions was also shown in the ECOMOG mission of 1997 in Sierra Leone.
ECOMOG forces from Nigeria and Guinea became involved in the conflict
caused by the coup overthrowing the democratically elected government.
668 Gray C, International Law and the Use of Force, p.209
373
As with Liberia, normal decision making processes were not followed. It was
only later that ECOWAS issued a formal statement on their mission in Liberia
and even then, they did not specify the legal basis for their operations.
Perhaps the lack of concern over the constitutionality of regional
peacekeeping actions is rooted in the inability of the UN to keep pace with all
conflicts as they arise. The UN does not have sufficient funds and personnel
to handle every situation of armed conflict in the world. It has thus, adopted
a principle of flexibility with respect to regional peacekeeping missions. Be
that as it may, there needs to be a definite constitutional basis for all regional
peacekeeping missions to prevent abuse and ensure that there is compliance
with the laws designed to regulate situations of armed conflict.
Issue of Impartiality of Regional Peacekeeping Forces

Where regional organizations have established peacekeeping missions
within their respective regions, the peacekeeping forces are expected to
carry out their duties with a sense of professionalism. In addition to this, they
must be guided by the principles of impartiality in their military operations.
Of the different factors that affect the impartiality of regional peacekeepers,
financial constraints make it exceedingly difficult for these forces to carry
out their duties impartially. In the Chad conflict, the OAU had difficulties in
financing the troops and so, called on the UN for financial assistance. The
Security Council in turn called on the OAU Secretary General to establish
a fund for contribution by the UN member states.669 However, the conflict
ended before the fund could be set up. Regardless, Senegals troops were
financed by France while the troops from Nigeria and Zaire were financially
supported by the USA. This support from different sources serves to erode
the independence of regional organizations when acting in peacekeeping.
There should be uniformity in the payment scheme of peacekeeping troops
to ensure impartiality in the performance of their functions.
As an extension of the rules on impartiality, peacekeeping troops are not
to take sides in any armed conflict. In the Chad conflict, OAU forces had been
invited by President Goukouni in 1981. However, when the civil war was no
longer in his favour, the OAU forces remained impartial and subsequently
withdrew their forces as a result of the Presidents hostility towards them.
Such an attitude is highly commendable as impartiality should be the
guiding rule in any peacekeeping operation by regional armed forces.
669
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Issues on impartiality also arose in respect of the peacekeeping operation

by ECOMOG in Liberia. Firstly, the consent of the host state (Liberia) was
necessary for the establishment and deployment of peacekeeping forces. At
the time of deployment however, it was not clear that such consent had been
given. This deficiency of consent affected the legality of the Liberian action
and by extension, the ability of the troops to act impartially.
In addition, it was in doubt as to whether ECOMOG was an impartial force
since it was largely dominated by Nigerian troops. For instance, the first
Commander of Ghanaian origin was replaced by a Nigerian. Furthermore,
there were suspicions that ECOMOG was merely a faade aimed at promoting
Nigerias interests and preventing Charles Taylor from becoming President.
This combined with the inability of ECOWAS to secure adequate funds for
ECOMOG eroded the impartial character of the peacekeeping mission
in Liberia.
Issues of impartiality also arose in the ECOMOG mission in Sierra Leone.
The purpose of ECOWAS in this regard was to restore the democratically
elected government in Sierra Leone. However, the extent of force applied by
ECOMOG appeared to exceed the ambit of normal, impartial peacekeeping
missions. ECOWAS applied force in the restoration of the democratically
elected government which was not expressly authorized by the UN
Security Council.
The impartiality of the peacekeeping forces must be placed in high esteem.
Armed forces acting under the auspices of any regional organization must
be given proper training that will instill in them an attitude of impartiality
in the performance of their duties. The ability to perform these functions
will be enhanced by the presence of adequate funds for the upkeep of the
troops. In all circumstances, the peacekeeping forces must ensure that they
perform their mandate to guarantee peace and security in international and
non- international armed conflicts.
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CHAPTER
10
Enforcement of International Humanitarian Law
I. Introduction
Article 1 of the Geneva Conventions makes a key provision in respect of

States under International Humanitarian Law (IHL). But by looking at the
world today, it becomes clear that a large number of states are repeatedly
violating their international obligations. The reason was that there is no
central body of law enforcements under the International Law.
In any case, States are required to adopt a number of measures to ensure
compliance with their obligations under International Humanitarian Law.
Particularly, they must prevent and where necessary, punish violators of
International Humanitarian Law through its adoption and implementation
by national legislation.
From the countless breaches of the rules of the International
Humanitarian Law, it is clear that efforts must be intensified to ensure
compliance with the body of laws if civilians, prisoners of war, and the sick
or wounded soldiers are to receive the full protection that they are entitled to
by virtue of the international humanitarian law. Adherence to humanitarian
law instruments provides only the first step, while additional efforts must
be undertaken to implement and enforce their provisions. Fulfilling the
obligations of states under the Geneva Conventions and other International
Humanitarian Law treaties, and other acts of prevention and suppression of
violations now becomes of utmost importance.
International Humanitarian Law faces the same problems concerning
violations as every other legal system does. This however, cannot be seen
as an excuse for continuous violations. Every legal system formulates
what their citizens should do, the realization of which is fully dependent
on the effectiveness of Law enforcement. In order to have an effective
implementation of International Humanitarian Law, it becomes imperative
that its contents be known and understood by all concerned in a conflict,
that those persons be aware that violations attract penal consequences and
that where there are persistent breaches, it may lead to an escalation of the
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Enforcement of international humanitarian law
conflict. Hence, this makes compliance with International Humanitarian

Law, of utmost benefit to all concerned in the conflict.
On the basis of the above analysis, the below are factors that can induce
the parties to a conflict to counter acts disobedience of the law applicable
in armed conflicts and thus to implement and observe International
Humanitarian Law.
1. Consideration for public opinion;
2. Fear of reprisals;
3. Penal and disciplinary measures;
4. Reparation;
5. Activities of protecting powers and their subsidies;
6. International fact findings;
7. International committee of red cross;
8. The role of the UN security council;
9. Diplomatic activities;
10. The role of NGOs; and
11. The role of various Nations.
Consideration of Public Opinion

Considering the trend of developments in the relevance of information
dissemination mechanisms, public opinions serve an important role in the
implementation of International Humanitarian Law. This role is growing
from strength to strength both within states parties to the conflict, and
internationally too. Examples of this abound. Thus, the publishing of the
violations of International Humanitarian Law renders itself as important
contributions to the implementation of International Humanitarian Law.
According to some authors whenever, offences against international law
(in this case, IHL) becomes known, each party to the conflict must expect
that truthful enemy reports on its violations of international law will impair
the fighting morale of its forces and the consent of its own population.
Public opinions, have initiated political decision-making on international
peace operations. It has also influenced the prosecution of war crimes, in
addition to its general humanitarian assistance at a wide scale.
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Reciprocal Interests of the Parties to the Conflict

The reciprocal interests of the parties to the conflict are paramount in
ensuring compliance with the rules of International Humanitarian Law. It
is a better motivation to ensure that the rules of International Humanitarian
Law are adhered to. This is simply because; only those who by themselves
comply with the rules of International Humanitarian Law would expect that
the adverse party observes same. Thus, soldiers must treat their opponents
in the way that they themselves would have loved to be treated, so that no
one shall be guided by the suspicion that his adversary might not observe
these rules.
Fear of Reprisals
Reprisals are retaliatory measures against the adversaries who commit
serious violations of International Humanitarian Law. Some authors
describe reprisals as the unlawful act of a party to a conflict, against her
adversary who violates the provisions of International Humanitarian Law.
But in the circumstances where this act becomes necessary to deter the
other party from further violations of settled provisions of the International
Humanitarian Law, then the unlawfulness becomes excusable. That is to
say, reprisals are permissible only in exceptional circumstances, and for
the enforcement of compliance with international humanitarian law.
But, decisions to commence reprisals are not left in the hands of military
commanders in the field. They are decisions of the highest political level, and
thus must give due consideration to the relevant international regulation on
the use of this measure.
Reprisals are prohibited to be used against the wounded and the sick, and
the shipwrecked670; Prisoners of war671, civilians; objects indispensable to
the survival of the civilian population672 and the national environment673 as
well as works and installations containing dangerous forces.674
670
671
672
673
674
Article 46 GCL; Article 47 GCII; Article 20 API.

Article 13 para 3 III.
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Penal and Disciplinary Measures

Prosecution according to penal or disciplinary provisions is available against
any member of the armed forces who commits any acts of violations of the
International Humanitarian Law. The provisions of the Geneva Conventions
state that each party is under obligation to investigate persons accused of the
commission or ordering of a grave breach.675 It further explicitly provides
that the commission of a grave violation and another which leads to one is
equally serious.
Thus, the fear of criminal reprehension in addition to the deterrent
effect of past convictions is another measure by which compliance with the
International Humanitarian Law may be achieved. However, since it is clear
that these measures are not sufficient, it is necessary for superiors to make
it known and clear to their subordinates that the conduct of warfare has
some limitations that must be adhered to in the collective interest of the
group and every single members of the armed forces. The best approach
to this is that International Humanitarian Law should be introduced into
various national corpus juris and made generally known to all members of
the armed forces in course of their trainings.
Superiors who are aware or should at least be aware of their subordinates
violations of the relevant provisions of the conventions will not be spared
from being prosecuted.
The superior however will be liable if he fails to take all possible measures
to foreclose or repress such violations, and if the person committing such
breaches was under his or her command.
Article 86 para. 2 API should be read in connection with 87 API which talks
about the duties of military leaders, where there exist a duty and a possibility
to act, than failure to act is reprehensible and as culpable as an action.
The responsibility of superiors for actions is a logical consequence of
Article 1 Hague Regulation according to which military and volunteer corps
falls under this treaty only if they are commanded by a person responsible
for his subordinates.676 The same notion is to be found in Article 39 GC III
according to which each prisoner of war camp is placed under the immediate
authority of a responsible commissioned officer. States are to take action
upon receiving the knowledge of grave violations been committed.67714 This
obligation does not exist only if states are exhorted by other states to initiate
investigations. No matter who committed the violation investigations and
675 Article 49 para 2 GCT, 146 para GCIV.
676 Please see Article 4 A2 GCIII Article 43 API.
677 Article 49 para 2 GCI; Article 50 GCI.
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eventual prosecution must be initiated against nationals and citizens of

allies, as well as opponents states.
Even in the absence of home country undertaking the investigation and
ensuring prosecution, it is obliged under Article 49 para I to extradited
alleged violators to another interested state party for trial as long as such
state party can produce a clear case against the suspects. Thus, the general
principle of international law is clearly reflected, in which the state having
custody over the accused person is itself under an obligation either to
prosecute or to extradite the suspect. The restrictions provided by the Geneva
Conventions in this regard are the reference to the domestic law of the
extraditing state and the requirement for sufficient incriminating evidence.
Protected persons, such as the wounded, sick, medical personnel,
chaplains, prisoners of war, inhabitants of occupied territory, other civilians
etc are protected against indictable offences like willful killing, mutilation,
torture, or inhumane treatment, including biological experiments, willfully
causing of great suffering, serious injury to body or health, taking of
hostages, etc.
In International Humanitarian Law, it is prohibited to compel prisoners
of war and civilians to serve in the forces of the adversary. Under Article 23
Hague Reg., it is forbidden for the belligerent country to enlist nationals of
the oppressing party to participate in the conduct of warfare against their
own country. This also applies in the case where they were enlisted before
the outbreak of war.
It is also prohibited to impose an obligation on the civilian population of
an occupiers force or to work for military purposes.
Deportation, illegal transfer or conferment of protected civil servants
is prohibited.
It is equally prohibited to launch an attack against works or installations
containing dangerous forces (dams, dykes, and nuclear electricity generating
stations) and expecting that such an attack will cause excessive loss of life,
injury to civilians, or damage to civilian objects.
Reparation
Reparation is one of the punishments or penal consequences a party

to a conflict may be made to suffer in the event of refusal, neglect or
failure to comply with the relevant prescriptions of the International
Humanitarian Law in relation to the conduct of warfare. Such a party(s) is
made to be responsible for all acts committed by persons forming part of
its combatants. Reparation may come in one or more of the following ways,
380
viz: rehabilitation, satisfaction, restitution, compensation and guarantee of

non-repetition.
The obligations to provide compensation for breaches of International
Humanitarian Law apply equally to each party to the conflict; this
obligation is traceable to Articles 91 API and 3 HC IV. In making this law, it
was seem to be very effective for effecting reparation against any party to a
conflict that commits grave breaches of the Hague Reg., no matter whether
she is the defender or aggressor. This is further in line with the principle as
developed both in jurisprudence and practice that a violation of a law of this
nature, caused by an individual will invoke its responsibility. Violations of
international law are subject to individual criminal liability; but not in each
case of wrongful personal conduct is the state or international organizations
liable. Under the law of state responsibility, the state is only accountable for
the acts of persons acting in an official capacity Articles 91 API and 3 HC IV
are apt on the point that every act of members of the armed forces whether
or not committed under orders, and whether or not falling within the realm
of military duties, is attributable to the relevant state.
The trend in international practice has over time been that the breaches of
International Humanitarian Law have suffered a wide neglect. In most cases,
victor states have demanded reparation without ensuring compensation for
each individual breaches. But the GCs have made provisions to counter the
trend vide Articles 51 GC I, 5 GC II, 131 GC III, and 148 GC IV which provide that
all states must ensure that they perform their obligation in relation to grave
violations of International Humanitarian Law, and ensure punitive measure
against perpetrators. In some cases States made special arrangement for the
compensation of victims in accidental cases.
The International Law Commissions completion and final adoption of
Draft Articles on Responsibility of state DARS in 2001 has confirmed that
states obligation extends to the violations of IHL which may be attributed
to the state. This may be made to acts committed by regular armed forces
irrespective of whether the act was committed in an international or noninternational armed conflict. It may also be export facto to acts of members
of armed opposition groups if their insurrectional movement was successful.
Protecting powers institution is of an ancient nature. Its incorporation
into the law took place for the first time in 1929 under Articles 86 of the 1929
Geneva Convention relative to the Treatment of Prisoners of War. Further
provisions on protecting powers were made in the 1949 Geneva Conventions
Vide Articles 8-10 GC I, 8-10 GC II, 8-10 GC II and 9-11 of G VIV. These
provisions regulate the procedure of appointment and functions of the
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protecting powers, although rather imperfectly, relying on the proceedings

developed by International Customary Law.
Appointment of Protecting Powers

There are four possibilities for the appointment of protecting powers.
1. Through trilateral agreement;
2. Through the mediation efforts of the ICRC;
3. Presenting a list of five states that are judged to be acceptable; and
4. By designating the ICRC or other international organizations which
offers all guarantees of impartiality and efficacy.
In the first place, the appointment may only be made through a trilateral
agreement between the determining party, the opposing party, and the
protecting power. A belligerent in this case appoints a state that in not party
to the conflict to safeguard its interests in view of the other parties engaged
in the conflict. The prospective Protecting Power and the state with which
the party is engaged in the warfare must agree to this selection.
In the second method, the appointment of the protecting powers will be
accomplished through the mediation efforts of the ICRC. This comes into
play where the trilateral method fails, and this of course is a more possibility
than the former.
In order to achieve the essence of the appointment, the ICRC may summon
a party without giving regard to the reasons why states could not reach a
consensus in the appointment of the protecting powers, and this brings
forth the essence of the third method.
In the third procedure, a list of at least five states, that the state judges to be
acceptable to act as a protecting power against the hostile party is presented.
The ICRC will now make comparison of the state and request the consent
of a state specified on both lists to act as a protecting power. Where no
appointment of a protecting power is reached via this means, then of course,
the parties will designate the ICRC or another international organization.
This international organization must offer all guarantees of impartiality
and officially as to act as substitute. And this is the forth procedure.
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The Functions of the Protecting Powers

Though the functions of the protecting powers are not clearly defined, the
Geneva Conventions make some duties available for them to perform as
there obligation under the International Humanitarian Law.
These duties are:
1. To safeguard the interest of the party to the conflict that designated
them;
2. To encourage compliance with International Humanitarian Law in a
manner that is most impartial;
3. Enter all places of internment of prisoners of war;678
4. To exercise right to enter all places where protected persons may be
such as places of internment, confinement or work;679
5. To receive appeals from protected persons, attend the trial of war
criminals and trial of civilians in occupied territories680
6. To determine whether sufficient food stuffs and medical supplies are
available in the occupied territories681
7. To verify violations of cultural properties682 etc
Finally, in the absence of protecting powers, a set of duties are imposed
on the parties to the conflict to accept the offer of the ICRC or any other
impartial and efficient organization to act as a substitute683
International Fact-Finding
In 1991, a commission of International Humanitarian fact-finding was
established, comprising of fifteen independent members. The commission
was charged with the duty of investigating any incident alleged to be a grave
violation of the rules of International Humanitarian Law within states
where the competence of the commission is recognized.684
678
679
680
681
682
683
684
Article 126, paras. 1-3 GC III

Article 143 Paras 1-4 GCIV
Articles 30 GC IV 105 para 5, GC III, 74 para 1 GC IV
Article 5 Cult prop Reg.
Article 5, para 4 API
Article 90 API. This kind of commission was previously provided under Articles 52 GCI,
53 GCII, 132 GCIII, and 149 GCIV.
383
This provision of Article 90 API has always been considered to have binding
effect on parties to a conflict Vide the ICRC commentary, but the bindingness
is most unrealizable since it provided for a consensual institution of such a
fact finding commission. A party can however recognize its bindingness by
signing or ratifying API to the effect that it recognizes the competence of the
commission, vis--vis every other contracting party which accepts the same
obligations for declaration of this nature has been signed by 69 states.685
Unless all parties to the conflict so request, the commission in accordance
with Article 90 para 5 Lit C API does not communicate the results of its fact
finding publicly. This assists states in its initiative to take necessary measures
within their own responsibility, without outside pressures. In practice, these
services are hardly used.
International Committee of the Red Cross

In practice, the International Committee of the Red Cross (ICRC) is the organ
which serves as the guardian of International Humanitarian Law. Based on
Geneva, the ICRC has as its principal purposes among others, to provide
protection and assistance to the victims of armed conflict. The Geneva
Conventions and their Additional Protocols recognize the special status of
this committee and also assigned the following responsibilities to her.
1. To visit Prisoners of War (POW) and civilian internees, providing
relives to the population of occupied territories;
2. Selecting and transmitting information concerning missing persons
(Central Tracing Agency);
3. Offering its good offices to facilitate the establishment of hospitals
and safety zones;
4. Dedicated to promoting the faithful application of the Geneva
Conventions and their Additional Protocols.
5. Protecting military and civilian victims of armed conflict;
6. To serve as a neutral intermediary between belligerents, etc.
The role of the United Nations

The United Nations have through its competent organs functioned very
well in the areas of universal respect for, and observance of human rights
685
384
and fundamental freedoms in times of armed conflict as well as in peace

times. They are committed to reaffirm faith in fundamental human rights,
in the dignity and worth of the human person, and to establish conditions
under which justice and respect for the obligations arising from treaties
and sources of international law can be maintained.686 The respect for and
observance of human rights and fundamental freedoms are mandatory
task on all competent organs of the United Nations. Thus, compliance with
International Humanitarian Law is a necessary element of this task and this
entails particular responsibilities for the General Assembly, the Security
Council and the Secretary-General of the UN in armed conflicts and in
peace times.
Each of the human rights bodies is working under a particular mandate
distinct from the responsibility of states to respect and ensure compliance
with International Humanitarian Law. Considering this, their competence
in respect of breaches of International Humanitarian Law is an indirect one.
In dealing with International Humanitarian Law, proper application
must be made of human rights norms, which may provide support to ensure
respect for International Humanitarian Law. Thus, it is the responsibility
of Human Rights bodies to investigate those limitations of human rights in
armed conflict which may apply under the lex specialist role of International
Humanitarian Law.
The Role of the United Nations Security Council

The problems that relate to the compliance with International Humanitarian
Law have been dealt with by the UN Secretary General in different context.
This initiative is not only the Secretary-Generals but also in fulfilling the
mandates given by the General Assembly and the Security Council. Having
regard to this and the wealth of experience on the state of compliance with
relevant International Humanitarian Law principles and provisions which
could be made available by practice, that may continue, there is an urgent
need to amend visible lacunae together with necessary forceful action in
this regard.
Considering the above remarks, the enormous functions of the Security
Council are below stated.
1. The Security Council may make emphasis on the direct obligation
of states and armed groups under International Humanitarian Law.
This is possible under chapter vii of the UN Charter which empowers
686
385
the Security Council to take far-reaching decisions to maintain or

restore international peace and security. In doing this, the council
enjoys discretion. However, while the decision of the council is
binding on member states, in line with Article 25 of UN Charter,
no judicial control is expressly provided. But in the past years,
enforcement measures under chapter vii could only be agreed upon
only occasionally.
In line with SC Res. 688 of 5 April, grave breaches of human rights norms
in many parts of Iraq have expressly been classified as threat to the peace
and security of the region, thus, clearing the way for activities based on
Chapter vii of the charter.
It was for reasons of grave breaches of International Humanitarian Law
that the Security Council entered into the case of the former Yugoslavia.
In Resolutions 764 of 13 July 1992 and 780 of 6 October 1992 emphasis were
made on the obligations of parties to the conflict to obey International
Humanitarian Law. Steps were also initiated to prosecute those who violated
the laws of armed conflict.
2. The council may take action where safe and unimpeded access of
humanitarian personnel to civilian population in need is denied.
The council vide its Resolution 1265 of September 1999 has clearly
expressed the essence of unhindered access of humanitarian
personnel to civilians in armed conflict. The consent of the host
nation must not be withheld arbitrarily together with ad hoc decisions
in this regard.
3. Fact-finding missions should be initiated with particular
responsibility of identifying the specific requirement for the
humanitarian assistance, in obtaining meaningful and safe assess
to the vulnerable populations. The Security Council should base its
decisions on the advice of NGOs and individuals whose initiations are
widely dependent on in this regard.
4. Prior to the establishment of the ICC; the Security Council
was involved in establishing certain ad hoc tribunals to enable
perpetrators of grave violations of International Humanitarian
Law such as the offence of Genocide and related violations to be
persecuted. The Security Council also in the years of 1993 and 1994
adopted a number of statutes, namely, the ICTY in this regard. In
2002, the council also made it possible for the agreement to establish
the special court for Sierra Leone.
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The Security Council has therefore made effective measure to bring

to justice those who commit grave breaches of International
Humanitarian Law and human rights Laws.
5. The security council has been instrumental in the areas of addressing
impunity in appropriate cases, for the truth and reconciliations
activities in the states of Argentine, Uganda, Chile, Chad, El Salvador,
Haiti, So with Africa, Guatemala, Nigeria, Sierra Leone, Ghana, East
Timer, Peru, Morocco, and Liberia.
Diplomatic Activities
Diplomatic activities, no doubt serve a very great purpose in the
enforcement of the provisions of International Humanitarian Law. Apart
from the measures taken by the United Nations, individual states and other
humanitarian organizations will engage in diplomatic intervention cause
the states to adhere to the provisions of International Humanitarian Law
in deserving circumstances. In recent times, states have countered massive
breaches of international law with sanctions, although, such states may not
be directly involved in the conflict.
The European Community of Foreign Ministers, in a framework of
European Political Co-operation resolved to carry out measures necessary
for the imposition of sanctions against Iran. In a later decision, the ICJ
upheld this action on the hostage taking in Teheran. It was determined that
the international law violations concerning the entire international law
community and called upon that community to assist in this effort. The
economic sanctions against Poland in reaction to the martial law imposition
of November 13 1981 provide a further example.
In 2005, the European Union Guidelines on promoting compliance with
International Humanitarian Law was adopted, stressing the obligation of
states and non-states actors and the political, as well as the humanitarian
interest in improving compliance with International Humanitarian
Law throughout the world. This guidelines call for early identification
of situations where International Humanitarian Law may apply, for
monitoring and appropriate actions including political dialogue, general
public statements, demarches, restrictive measures, co-operation with
other international bodies, crazies management operation, measures to
stress individual responsibility, training and a responsible arms export
policy in full consideration of compliance with humanitarian standards by
the importing states. These guidelines have been welcomed by the ICRC in
387
a circular Note dated 23 November 2006 and described modalities of ICRC

support for their implementation.
The Role of NGOs

The importance of NGOs in addition to and independent from governments
and international organizations cannot be underestimated. In the areas of
conflict resolution prevention, and post conflict reconstruction, NGOs have
been of immense assistance. These functions of the NGOs not withstanding,
many of them do not really serve strictly humanitarian purposes.
While some progress has been recorded in improving the contact
and build relationships among governments and NGOs, there still are a
number of societies, particularly in the developing world that remains
suspicious of NGOs and oppose their involvement in treaty monitoring. In
particular, they oppose NGOs monitoring activities on their territories. It is
therefore important for those NGOs carrying out such monitoring activities
to develop a common understanding with the state whose territory or
activities they intend to monitor. Misunderstanding between the NGOs and
the state on the nature and scope of the monitoring and the use to which the
information will be put can lead to open disagreement between the NGO and
the state resulting in the state restricting or interfering with NGO activities,
even depending on NGO members and ejecting and baring the NGO from
its territory.
By clarity of intentions and transparency, such situations can be avoided
or at least affected states and the international community should give
consideration to developing a role for NGOs for specific monitoring activities.
The extent of NGOs involvement depends on certain considerations.
1. The defense and security implication of the weapons system
under consideration.
2. The specific nature of the control regime. E.g., prohibited weapons
such as landmines etc.
3. The relationship and degree of trust between states parties and the
NGO, community.
4. The level of NGOs expertise on how to verify states compliance with
the norm in question etc.
The involvement of NGOs in the formal process would give their
organizations and their research findings increased legitimacy and
388
credibility among states parties. This potentially leads to NGOs highlighted

breaches of compliance being more readily acted upon by states.
Again, NGOs involvement in a formulated treaty monitoring process may
lead to NGOs being accorded greater cooperation by all states parties with
regard to access to various sites, facilities and individuals. This could in time
lead to a more official granting of time to the NGOs.
The formalization of NGOs activities in treaty monitoring and verification
processes would mean clearly defining the bounds of such NGOs. Their
activities now become more predictable for the state and thus concerns
about national security are consequently reduced.
As it has been said before, the role of the NGOs in conflict resolution, and
post-conflict resolution is of immense importance in IHL practice. Thus, the
development of such a formalized mechanism would be seen as a stepwise
process, as trust is built between the various actors, and the benefits for all
are recognized.
The above position notwithstanding, there is a relative difficulty in
envisioning a world where states would agree to surrender to NGOs even to
a limited degree.
The Role of Various Nations

For International Humanitarian Law to be fully implemented within a
state, certain legislative measures must be taken to make such International
Humanitarian Law an integral part of the national laws. But this means,
military manuals are of great essence to secure the performance of his
obligations therein contained. Of note here is that legislative, administrative
and political measures are together, insufficient in this regard, without
military regulations which by their nature translate humanitarian rules into
military sphere and may support its application in daily practice.
International Humanitarian Law Enforcement

in National/Local Armed Conflict
Humanitarian Law being as a set of legislations and human rights that are
applicable to the conduct of armed conflicts, seek to ameliorate the intense
mental and physical injuries of armed conflict as between the combatants
themselves and the civilians (women, children, medical personals, members
of the red Cross, Society, Wounded, Sick etc.), who are affected by the
armed conflicts.
389
The legal status of International Humanitarian Law has become firmly

established both in national and international jurisprudence. Its stature and
nature as defined above has kept the pace since the 1899 and 1907 Hague
Conventions, the 1949 Geneva Conventions and even in the Additional
Protocol of 1977. Its contents now enjoy both compellability of obedience
and university of acceptance and this is because it is not only part of
customary international law, but part of the jus, cogens, which is a higher
and perentory law, except by another principles of status, derogation from
which is impossible.
Crimes against humanity and order aspects of war crimes are the offences
of the first order that were recognized under international law. These were
recognizes by the Nuremberg Charter of 1945 even in the absence of specific
treaty in this respect.
Individual Responsibility
Grave are these offences of war crimes and crime against humanity that
the prohibitions were judged by the tribunals as fundamental principles
of international law, having there perpetrators punished accordingly. It
didnt matter who committed the offence as both individuals and states
faced criminal liability in any event of violations of the rules. According to
Professor I. E. Sagay, an individual cannot hide behind a state or superior
orders to commit war crimes and crimes against humanity or genocide.
International law therefore imposes a duty in this respect on both individuals
and state alike. Individuals are particularly directly liable for any violations
in this regard.
In the Nuremberg Tribunal it was submitted that international law is
concerned with the actions of sovereign states and provides no punishment
for individuals; and further that where the act in question is an act of state,
those who carry it out are not personally responsible, but are protected by
the doctrine of the sovereignty of the state. However, these submissions
were out rightly rejected by the Tribunals who then stated thus:
That international law imposes both duties and liabilities upon
individuals as well as upon states has been long recognized. Crimes
against international law are committed by men not abstract entities,
and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.
This pronouncement of the Nuremberg Tribunal is a total annihilation

of the wrong notion of the international humanitarian law in respect
390
individuals duties and liabilities in international humanitarian law and in

armed conflicts. In conclusion, individuals and states are now jointly and/
or severally liable for the violations of international humanitarian law in
armed conflicts.
International Humanitarian Law in Nigeria

Nigeria has shown her respect for and recognition of the importance and
significance of international humanitarian law in various instance of
ratifying the Geneva Conventions of 1949 and the Additional protocols of
1977 in addition to her incorporation of the various conventions into her
corpus juris by her local enactment per the Geneva Conventions Act of 1990
and the 1960 Nigerian Red Cross Society Act.
The respect for, and recognition of international humanitarian law
by Nigeria was further demonstrated when she issued a code of conduct
to the Nigerian Armed Forces during and in respect of the conducts of
the Nigerian Civil War of 1967 1970. Nigerias compliance with the four
Geneva Convention has been demonstrated by its enactment of the Geneva
Convention Act. In this Act, a number of punishment have been provided
against persons who violate the provision that is common to the four
conventions i.e. Articles 50, 51, 130 and 147 of the first, second, third, and
fourth conventions, respectively. The offences or breaches include those
against human beings such as:
a. Torture
b. Willful killing including using human beings for biological experiments.
c. Willfully causing of great suffering or injury to the human body or
heath
And others committed against the property such as;
a. extensive destruction of property; and
b. appropriation of property in a way that is not justified by
military necessity;
c. And acts carried out wantonly and unlawfully
Other breaches that do not involve the above elements shall attract a
term(s) of imprisonment not exceeding 14 years. This notwithstanding,
the President of Nigeria in line with the Act, may by an order provide that
persons who commit any other breaches of the convention (apart from the
391
ones enumerated above) will be liable to imprisonment for not more than
7 years.
This Act enjoys universality of application in line with the Geneva
Conventions which allows the various states (i.e. High Contracting parties)
to apprehend and try any culprit, regardless of the persons nationality. The
four Geneva conventions provide in identical terms in their various third
paragraphs (that is paragraph 3 of Article 50, 51, `30 and 147 of the first,
second, third, and the fourth conventions, respectively):
Each High Contracting Party shall be under the obligation to
search for persons alleged to have committed, or to have ordered to
be committed, such grave breaches and shall bring such persons,
regardless of their nationality before its own courts. It may also, if it
prefers and in accordance with the provisions of its own legislation,
hand such persons over for trial to another High Contracting party
concerned, provided such high contracting Party has made out a
prime facie case.
The Nigerian Red Cross Society

In addition to the enactment of the Geneva Convention Act, the Nigerian
Government has again, shown her support for the implementation of the
rule of international humanitarian law in her establishment of the Nigerian
Red Cross Society vide the Nigerian Red Cross Society Act. As contained in
the act, its functions are as spelt our below.
a. in time of war to furnish volunteer aid to the sick and wounded of
both armies and among non-belligerents and to prisoners of war and
civilians sufferers from the effect of war, in accordance with the spirit
and conditions of the said conventions;
b. to perform all the duties devolved upon a national society by each
nation which has acceded to the said conventions;
c. in time of peace or war to carry on and assist in work for the
improvement of health, the prevention of disease and the mitigation
of suffering through the world;
The society, being recognized by the FGN as voluntary organization under
section 5 of the Act, could also be identified (in line with conventional
practice), and with a red cross with vertical and horizontal arms of the same
length on and completely surrounded by a white background. The act also
392
prohibits the unauthorized use and abuse of the Red Cross emblem and
others like the Red Crescent and the Red Lion and Sun.
In line with the philosophy of enforcement or implementation of the
rules of international humanitarian law, the willingness of the Nigeria
Government to further implement the relevant principles of international
humanitarian law as provided in the Hague and Geneva Conventions,
including the Additional Protocols to the Geneva Conventions, a further
Rules of the society was enacted in 1961 and amended in 1962 and 1987. Rule
2 of the said rules states the following as the duties of the society:
a. to train personal and maintain a permanent organization to relieve
sickness, suffering and distress, especially the causalities of war
or disaster;
b. when engaged in relief work to supplement official services where they
exist, and in particular to be prepared to supply trained auxiliaries
for the medical service of the Armed Forces, for other medical and
nursing services; to provide stores, special equipment and extra
comforts where needed, and to be ready to take the initiative where
an official services does not exist or is limited;
c. to be ready in any emergency to organize relief services and supply
personal, stores and equipment as a temporary measure until the
official services are ready to take over or the need ceases to exist, and
to cooperate with other organizations, if necessary, in organizing
such services;
d. generally to act as a channel through which the public may
express their sympathy for the sick and suffering, but except in the
circumstances set out in paragraphs (b) and (c) not to subsidies
government schemes or assume responsibilities which are the
legitimate function of the government: provided that where the
society is informed by the government that the government is unable
to undertake any such responsibilities the society may undertake
them until such time as the government if able to do so;
e. to undertake work in accordance with the above mentioned principles
for the improvement of health and prevention of disease, including
course of instruction open to the public;
f. to encourage and promote the enrollment of adult and
junior members;
393
g. to co-ordinate, encourage and assist the work of the branches and

divisions in carrying out the purposes of the society;
h. to bring to the knowledge of the people of Nigeria the beneficent
provisions of the Geneva Conventions of 1949.
Further, the Diplomatic Immunities and Privileges (international
Committee of the Red Cross) Order, 1988 is another clear demonstration
of Nigerias regard for the adequate enforcement of the principles of
international humanitarian law. By virtue of this Act, immunities and
privileges were granted the delegation of the international committee of
Red Cross in Nigeria. In effect, all properties, archives and assets of the
committee are exempted and assets of the committee are exempted from
search, requisition and confiscation. The delegation and its international
officials enjoy the conventional diplomatic exemptions from taxation and
customs duties. Again, for acts performed in pursuance of his duties, the
head of the delegation of the committee enjoys tax exemptions.
Non-Nigerian officials of the delegation enjoy complete immunities form
legal process of all kinds in relation to spoken or written words and all acts
done by them in pursuance of their functions except for traffic offences.
They are legally exempt from income tax from their emoluments. They enjoy
immunities from personal arrest and detention and from service of their
personal baggage and inviolability of all papers and documents relating to
their work in pursuance of their functions.
These privileges granted to the officials of the delegations are meant to
enable them perform their functions in a safe, free and friendly environment.
The Armed Forces Discipline

In their training and in course of their functions, member of the Armed
Forces are required to obey the last orders as may be directed by a superior
officer. However, when such orders do not conform to certain principles of
international humanitarian law, the junior officers may be exempt from the
liability that should have arising for refusing to obey such others, so long
as such disobedience is in line with section 68 of the Army Act and similar
sections of the Acts of the other two genres of the Armed Forces of Nigeria.
This section provides that it is an offence for any member of the Army
who definitely is subject to military law, to embark on acts which could be
described as a disgraceful conduct of a cruel indecent and unnatural kind.
These descriptions come within such acts as prohibited by the relevant
international humanitarian law. And section 40 of the same Act permits the
394
disobedience of unlawful act, such as those that offend against the principle
of international humanitarian law.
To mark it all, the constitution of the federal Republic of Nigeria 1999 also
recognizes some international humanitarian law principles in its chapter
four when it provided for right to life, and right to the dignity of human
person in its sections 33 and 34 respectively. This provision should guide
both the members of the Armed Forces, and others who may be engaged in
one armed conflict or the other.
These provision of Sections 33 and 34 as a matter of fact should be applied
as a principle in cases of peace operations embarked upon by the Armed
Forces of Nigerian origins (e.g. the Liberian peace operation). Very important
here is that the Nigerian government through an elaborated written code of
conduct had in the period of 1967 -1970 encouraged the implementation of
the rules of international humanitarian law in the Nigerian civil war.
Dissemination of International Humanitarian Law

The Role of the Media
The observance of the principles of international humanitarian law

can only be expected if the relevant authorities make the Armed Forces
and every other people to be familiar with its content. Thus, providing
information about it is the necessary basis from which to educate and fourth
the attitude of the peoples towards a greater acceptance of these principles
as an achievement of the social and cultural development of man kind.
In the Geneva Convention and the Additional Protocols are the provision
relating to the dissemination of the laws of armed conflict contained. In
times of peace as in war periods, it is the responsibility of states to undertake,
disseminate the rules of international humanitarian law as well as possible
to the entire population including the military and civilian of their various
states. The statutes of international humanitarian Red Cross and the Red
Crescent Movement have been used by states to entrust the Organisation
(i.e. ICRC) to work for the understanding and dissemination of international
humanitarian law.
This obligation is aimed at spreading the knowledge about international
humanitarian law so that its rules can be implemented in deserving
circumstances to provide assistance and protection for victims of armed
conflict such as women, children, the wounded, the sick and the likes.
The activities and ideals of the Red Cross society and the Red Crescent
Movement are by their nature fundamental. They should necessarily be
395
disseminated at all levels in other to further fortify the realization of the

ideals of international humanitarian law and its mandate.
The journalist and media are considered by the ICRC to be indispensable
agents of international humanitarian law dissemination to the target groups.
This was the position in 1996 when a workshop was jointly organized by the
ICRC and the Nigerian Red Cross Society where in the participants was of
the view inter alia that:The press has a greater role to play in disseminating the ideals and
principle of the Red Cross and Red Crescent Movement to masses
(SIC) down to the grassroots;
That all efforts should be geared towards enlightening the people on
the role of the Red Cross and the Red Crescent Society;
That intensive publicity should be given about the Organisation
to erase the impression that it belongs to a particular religion and
demystify that stand of the cross.
In line with the inestimable relevancy of the media to the spreading of

the weeks and principles of the relevant international humanitarian law,
the ICRC has also continuously changed its rather restrictive policy of
information towards a more open attitude. The principle to say and show
only what it does and not what it sees, has been replaced by a more open
information policy, still and only lowing the interest of the victims in
mind. According to Mrs. Jacqueline Erb, in a world where power blocks
and political tendencies try to hijack catastrophes and crises for their own
interest, the ICRC considers it a duty to spread a neutral and impartial view
of the humanitarian aspects. Often the first organization on the scene,
the ICRC through its appeals; manages to mobilize the attention of the
international community.
Perspective on Practical Modern Enforcement

of International Humanitarian Law
In the light of some provisions of the UN charter, particularly with reference
to Articles 2(4) which provides thus:
All members shall refrain in their international relation from the threat
or use of force against the territorial integrity or political independence of
any State, or in any other manner inconsistence with the purpose of the
United Nation and
Articles 2 (7) which provide thus:
396
Nothing contained in the present Charter shall authorize the United

Nations to intervene in matters which are essentially within the domestic
jurisdiction of any State or shall require the members to submit such
matters to settlement under the present charter, but this principle prejudice
the application of enforcement measure under chapter VII of the charter ;
it might sometimes be difficult for States and international organizations
to enforce the compliance of the rules of international humanitarian law
due to the apprehension created by the above provisions. Since the UN do
not have international police, neutral States during armed conflicts between
belligerent parties that would have ordinarily interfered to broker peace
with all means and methods are prevented from doing so because of the
provisions. These prospective peace-making States that are neutral may not
want to be seen as breaching the UN charter.
However, preliminarily it will be essential to examine and analyze
some of the practical or most effective means and methods of enforcing
International humanitarian law in modern times. Some of these methods
are not expressly authorized by the UN charter, but they have since acquired
the status of international customary law by necessary implication and
conduct of the international community including the UN Security Council,
General Assembly and other international organizations as thus:
UN Security Council
The UN Security Council, acting under the powers conferred on them by

chapter VII of the UN charter can authorize the use of force for the purpose of
enforcing the rules of international humanitarian law. In 1950, when North
Korea invaded South Korean, the Security Council authorized the Allied
forces to enforce humanitarian and international law. Similarly, during the
Bosnia and Yugoslav wars in the 1980s including the invasion of Kuwait in
early 1990s by Iraq, the UN Security Council acting under Sections 39-43 of
the charter enforce the rules of humanitarian and international law.
International Court Justice
As stated in Article 93 of the UN charter, all members of the UN are

automatically parties to the court, even non-members of the UN may
also become parties to the courts statute under Articles 93(2) like what
Switzerland did in 1948 and Nauru in 1988 when they had issues with
Germany before they became members of the UN.
The ICJ has had occasion to deal with questions of humanitarian law in
two highly celebrated and debated cases; the judgment of 27th June 1988
concerning military and paramilitary activities in and against Nicaragua
397
and the adversary opinion delivered 10 years later on July 1996 concerning
the threat of the use nuclear weapon, the Corfu channel case, the adversary
opinion on Reservation to the crime of Genocide in Bosnia, Yugoslav and
Herzegovina in ICJ Report687. The ICJ through its decisions and advisory
opinions has contributed in the enforcement of humanitarian and
international law. The ICJ in most cases exercises jurisdiction over States,
although prior to the establishment of International Criminal court, there
is nothing that prevents the ICJ from trying individuals for the offence of
genocide and crimes against humanity as it has done in the past where Serbia
and Bosnia leaders that violated international humanitarian law were tried.
International Criminal Court
International criminal court is a permanent tribunal established by the

international community to prosecute individuals for genocide, crimes
against humanity, war crimes and the crimes of aggression. It is a new
mechanism for the enforcement of international humanitarian law.688
The international Criminal Court was established on the 17th July 1998 in
Rome but came into force in 2002. The main purpose is to arrest and try all
persons involved in violating the rules of international humanitarian law. It
is a properly constituted court of competent jurisdiction. A person arrested
and tried in this court is entitled to be defended by legal practitioners. The
final version of the ICC provides that the court has jurisdiction over the
territory of Member State and over the national of Member State. On the
4th of March 2009, the court which has universal powers issued warrant
of arrest against Omar Al-Bashir the President of Sudan on charges of
extreme and consistent crime against humanity, although he was trying to
evade justice but member states have been authorized to comply with the
international arrest warrant. The mere threat to the issue of arrest warrant
is capable of keeping the violators of humanitarian law under check. With
overwhelming support given to this court by member states, the court has
been given high level of legitimacy.
National Criminal Legislation
States are required to adopt a number of measures to ensure compliance

with the obligation under international humanitarian law. In particular
they must prevent and where necessary punish violations of international
687 ICJ Report 1996. 595.
688 Rome Statute of the International Criminal court July 17 1998. Article 126 UN Doc.A/
CONF.183/9 converted in UN Doc. PCNICC/1999/INF/3, reprinted in 37 ILM999/1998
also in ICC statute Nov 6 2001
398
humanitarian through promulgation of national law. This is the command

of the 1949 Geneva Convention and the 1977 Additional Protocol. But a
debate has been provoked whether States indeed are able to comply with
these conventions and protocols in the light of inchoate policing? The
answer may likely be in the positive because some of the fundamental
characteristics of international humanitarian law are already provided
in the 1999 constitution of Federal Republic of Nigeria under the sections
dealing with basic and fundamental human rights. Nigerian criminal and
penal code which has not been amended since inception also provides for
capital punishment to prevent people from committing serious offences
against humanity.
Similarly, the United Kingdom incorporated the international criminal
Act into their domestic law in 2001. It should be noted that grave breaches of
international humanitarian law as provided in the four Geneva Conventions
are called war crimes which incurs individual responsibility that are parallel
to that of the state.689 A State is entitled to exercise jurisdiction over persons
and events within its territory to prosecute violators of humanitarian law
in its national court. For example the former President of Chile, Augusto
Pinochet was indicted by the magistrate court in Spain in 1998 and he
was further arrested and faced trial in Britain. This supports the assertion
that the courts have universal jurisdiction of offences in violation of
humanitarian law.
Support from International Organizations
Apart from the activities of the Red Cross Society in the involvement
of resolving the crisis between the parties to an armed conflict which has
been repeatedly mentioned in almost all the chapters in this book, other
international organizations like the international financial institutions (IFIs)
are increasingly involved in conflict situations and countries in which the
violations of international humanitarian are widespread and devastating to
civilian population and the countrys economic prospects. Any policy an
international financial institution enacts in countries marked by conflicts
and atrocities will send an unequivocal message about the institutions level
of tolerance for or abhorrence of humanitarian law violators. The financial
weight of the institutions can positively dissuade States and other actors
involved in violating humanitarian law to stop.
Although the Articles of agreement of the major international financial
institutions prevents them from involvement into political affairs of member
689 Article 50 GC1
399
states,690 but sometimes the UN and the public opinion may jettison that
provision. The then apartheid regime in South Africa could be used as a
typical example when the World Bank and the IMF were prevailed upon to
stop dealing with then apartheid regime. To some extent it can be argued
that the influence of the UN and that of NGOs including public opinion
helped to bring the apartheid regime to a conclusive end.
Contributions of International Committee of the Red Cross
The International Committee of the Red Cross is an impartial, neutral

and independent organization whose exclusively humanitarian mission
is to protect the lives and dignity of victims of war and internal armed
conflicts and provide them with temporal assistance. They principally
contributed to the evolution and growth of international humanitarian law,
all the Geneva conventions are products and makings of the ICRC. Much has
been said about the organization in the previous chapters. More than any
organization, groups or agencies, they have contributed to the enforcement
of international humanitarian law in the world.
Contributions from National Governments
National governments with particular reference to USA have been quite

supportive in the war to stop violation of international humanitarian law.
USA played a leading role in 1950 to liberate South Korea from North Korea,
also in 1990, they played similar in Kuwait liberating them from Iraq. It
should also be noted that the then President of Uganda Idi Amin who was
a brutal leader was driven out of his country to exile by the government
of Tanzania on humanitarian grounds. Charles Taylor the then President
of Liberia who was alleged to have committed various crimes against
humanity, was influenced and prevailed upon to leave his country to
Nigerian on humanitarian grounds in order to stop the systematic killings
and acts of genocide in Liberia.
Paradoxically, it can be said that the basic principle of state responsibility
in international law provides that state that violates its international
obligations, must be held responsible for its acts. More concretely or exact,
the notion of state responsibility means that states which do not respect or
perform their international duties which are likely to affect the security
and peace of neighboring states or other nation states are liable under the
international law. Most recently, a Nigerian suicide bomber trained in
Yemen attempted to bomb a US Delta air plane on the 25 December 2009,
690 Section 10 World Bank Articles of Agreement.
400
in the course that, the current US President Obama based proven facts
that Yemen is a safe haven for terrorist has issued a warning similar to the
warning given by President Bush to Charles Taylor and Saddam Hussein to
leave their respective countries because of their alleged different offences.
Where a state cannot act to prevent internal crisis or engage in acts that
are inconsistent with rules of international humanitarian law, customary
international law permits another national government to act and prevent
further violation of international humanitarian law. It should be noted
that the general principle of state responsibility does not only refer to what
the violating state has to do but includes rules on the responsibility of
the third states or the international community not to assist or permit by
conduct or necessary implication the systematic violation of international
humanitarian law. Another national government can enforce humanitarian
on behalf of a third state where the later is incapable or unable to control
and take full charge of their state. This happened in Nicaragua where the
USA got involved in the internal crisis and also in Iraq where it was claimed
amongst other things that the then President Saddam Hussein have been
systematically committing crimes against humanity. Similarly it also
happened in Uganda as earlier mentioned where the Tanzanian government
removed Idi Amin for also violating the rules of international humanitarian
law. It should noted that where a state is unable to manage its internal
crisis to the extent that there became extreme violation of humanitarian
law, neutral states or the UN can get involved in order to put an end to the
violation of humanitarian law. A perfect example of this, is the Sudans
crisis where there was extreme case of crimes against humanity. The UN and
other regional bodies got involved in stopping the consistent violation of
humanitarian law in Dafur.
Finally, with the permanent institutions in place like the internal
criminal courts, it has become increasingly easier to enforce international
humanitarian law unlike the past when adhoc tribunals were set up for
individual cases.
401
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Index
A
Abu Bakr 12
Actions of invasion 9
Acts of terrorism 4, 141
Acts of War 39
Aggression 3, 4, 6, 294, 295, 298, 299, 300, 398
Amelioration xiv, 14, 28, 30, 189, 190, 191, 195
Aptly 21, 218
Area of War 40
Armed Conflicts xv, 33, 225, 305, 323, 332, 342, 364
Armistice 51, 402
Asphyxiating xiv, 98
assimilated 22
Authorization 4, 370
Blindfolding 49
Brussels Declaration concerning the Laws and Customs of War xiii
Caliph 12
Capitulation 53
capitulations 53, 54
Ceasefire 51
Cessation of hostilities 47, 55, 56, 149, 259, 289, 297, 331, 358
Civilian Casualties 112, 117, 138, 144, 147, 213
Civilian Population 5, 11, 12, 15, 40, 42, 46, 62, 63, 68, 69, 71, 72, 73, 74, 76, 79, 80,
81, 82, 89, 96, 100, 101, 103, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116,
117, 118, 119, 120, 126, 127, 128, 131, 132, 133, 135, 136, 137, 138, 140, 141, 142, 143, 144,
145, 146, 147, 148, 149, 150, 151, 152, 153, 156, 157, 158, 160, 162, 163, 164, 165, 166,
167, 170, 171, 172, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 187, 188, 194,
196, 198, 206, 208, 218, 253, 257, 263, 269, 270, 328, 361, 378, 380, 386, 399
Collateral Damage 100, 111, 112, 118, 144, 147
Conceded 21, 88, 93, 107
Conventional Weapons xiii, 65, 77, 81, 329, 402, 403
Custom 19, 21
Declaration respecting maritime law (Paris Declaration) xiv

Demilitarized zones 41, 43, 44, 116, 214
deterrent 7, 89, 320, 379
406
Index
Du Contrat Social 13
E
elapse 21, 309

El Salvador 5, 6, 334, 348, 387
Exclusive Economic Zone (EEZ) 41
explosive projectiles 15, 62, 65
Forbidden 11, 95, 143, 176, 196, 223, 242, 256, 262, 263, 266, 273, 275, 279, 299, 300,
301, 302, 305, 306, 314, 380
General Principles of Law 21

Geneva Convention for the Amelioration of the Condition of the Wounded in
Armies in the Field 14, 30, 189
Geneva Convention (III) xiv
Green light 10
Guarantees fundamental human rights 3
Hague Convention (VIII) xiv

Hague Convention (XIII) xiv
Hague Declaration vi, xiv, 15, 18, 64, 66, 67, 163
Horrifying war 13
Hospital and Safety zones 42
Hospital zone 42
humanitarian intervention 4, 9, 10
Humanitarian Intervention 9
Humanitarian Law xv, 1, 16, 28, 30, 33, 36, 51, 57, 61, 62, 152, 163, 183, 189, 190, 198,
225, 239, 255, 297, 357, 363, 376, 377, 378, 379, 380, 381, 383, 384, 385, 386, 387, 389,
390, 391, 395, 396, 402, 403, 404
IMF 400
Independence 3, 9, 34, 56, 169, 179, 210, 299, 335, 336, 337, 344, 345, 374, 396
Instant 21, 268, 361
interchangeably 2
International Agreements 17
International Committee of the Red Cross; ICRC 14, 28, 30, 152, 182, 189, 193, 198,
225, 235, 248, 279, 384, 400
International Criminal Tribunal xv, 24, 59, 242, 277, 324
international peace and security 4, 5, 301, 351, 354, 368, 369, 370, 371, 386
Islamic faith 12, 92
407
Index
Islamic leaders 12
J
Judicial Decisions 24
Jurisdiction 16, 25, 59, 97, 144, 226, 282, 306, 308, 314, 326, 330, 353, 354, 355, 357,
397, 398, 399
Lawful authority 13
Legal Specialists 25
Legal validity 10, 170
Lieber Code 14, 27, 232
Martens Clause 20, 62, 63

Medical aircraft 211, 315, 322
mile rule 21
Military Law 27
NATO 9, 10, 71, 104, 111

Negotiations 47, 165, 243, 288, 334, 346, 347, 358
Neutralized Zones 43, 191, 214, 216
Niger Delta Region 35, 54
Nigerian-Biafra Civil 56
North Sea Continental Shelf case 21
North Sea Continental Shelf Case 18, 20
Opinio Juris 20
Ottawa Convention xiv, 20, 67, 76, 77, 78, 332
Pacta Sunt Servanda 17

Peace Keepers Patrols 347
Peace of Westphalia Treaty 55, 56
Peace Treaty 54, 56
personal rights 11
Poisonous or other Gases xiv
Pre-emptive 7, 8, 351
Procedures 50, 140, 187, 198, 227, 283, 351, 353
Proportionate 6, 7, 36, 52, 64, 112, 118, 125, 126, 172, 173, 185, 220, 228, 361
Protecting Powers 42, 47, 50, 148, 245, 246, 247, 248, 279, 382, 383
Punitive 7, 381
408
Index
R
Red Cross Society 391, 392, 396, 399

Reprisal attacks 32, 113, 126, 164
Retaliatory 7, 378
Right to Self Defence 5
River Meuse xii, 23
Roman Empire 13
Rules of Aerial Warfare xiv, 15, 63, 107
Self Defence 4, 5, 6, 7, 8, 9, 10, 35, 39, 52, 87, 88, 101, 213, 299, 300, 301, 306, 313
Stare Decisis 25
State of Chaos 1
Statute Xv, 16, 20, 22, 24, 25, 27, 28, 32, 134, 170, 242, 333, 398
St Petersburg Declaration Xiv, 14, 408
Subsidiary Sources 24
Sultan Saladin 12
Supplanted 15
The Hague Law 14
The Hague Rules of Aerial Warfare 15, 107
The Right to Self Defence 5
Threats to the peace 4
Umar Musa YarAdua 54

Underestimated 13, 17, 27, 48, 388
Unlimited belligerent 13
Use of Asphyxiating, Poisonous or other Gases xiv
use of force 3, 4, 5, 9, 10, 15, 39, 52, 61, 87, 137, 159, 268, 294, 298, 299, 301, 306, 313,
314, 319, 354, 360, 361, 362, 365, 371, 396, 397
Vienna Convention xv, 17, 95, 239

violations of the laws of war 24, 25
Warfare 1, 11, 15, 19, 61, 62, 63, 64, 65, 69, 78, 83, 88, 91, 93, 95, 96, 97, 98, 99, 100,
101, 110, 111, 114, 117, 120, 123, 124, 125, 128, 143, 144, 153, 183, 192, 203, 225, 260,
270, 300, 305, 307, 314, 315, 316, 323, 329, 333, 345, 360, 363, 379, 380, 382
White Flag 48, 221
Wright Brothers 15
409

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Humanitarian Law

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International

ISBN 978 9988 7971 8 8

Readwide Publishers 2010

Thomson Press, 5/5A Industrial Area

Veronica, Lisa, Sophie, Stephanie,

Historical Evolution and Legal Basis of

Meaning of the term Humanitarian Law

b) The Right to Self Defence

General Principles of Law

Writings of Legal Specialists

National Manuals of Military Law and Related Texts

Resolutions of International Bodies

The Role of the Icrc in Humanitarian Law

Scope of Humanitarian Law

Hospital and Safety zones and Localities

V. Relationship Between International Humanitarian Law

Methods and Means of Warfare

1868 St. Petersburg Declaration

1899 Hague Declaration 3 Concerning Expanding Bullets

Restrictions on the use of Laser Weapons

Nuclear, Biological (Bacteriological) and

Bacteriological (Biological) and Toxin Weapons

Iii. Methods of Warfare

Protection of civilian objects

Legal Status of Prohibitions against Perfidy and Ruses of War

The Civilian Population and Its Protection

Measures of Intimidation or Terrorism

Protection of the Wounded, Sick and Shipwrecked

Prohibition against Inconsistent and Generally

Prohibition of Reprisals against the Wounded,

Obligation to Keep a Record in Respect of Each Wounded, Sick,

Duty to Search for, Collect, Identify and Prevention

Duty to Search As Soon As Circumstances Allow

Medical Units, Transport And Personnel

Duty to Respect and Protect

Retaining of Medical Personnel

Hospitals, Safety Zones and Neutralized Zones

Establishment of Neutralized Zones

Obligation Not to Attack Hospital and

The Characteristic Emblem

The Red Cross, Red Crescent, and Red Crystal Emblems

General Criteria Governing how Distinctive or

Obligation to Supervise the Use of the

Prisoners of War and their Protection

The Rules of The Hague

The 1929 Geneva Conventions

The Period of the Second World War

Advancement in the Law after World War II 235

Prisoners of War and Their Human Right Protection

Sanctions for Violations

Aim of the Captivity

Prisoners of War are not Prisoners of the Capturing Unit

Protection of Persons Whose Status are in Doubt

Humane Treatment of Persons not benefiting

Transfer of Prisoners of War to another Power

Protecting Powers and Weakness of GC III 248

Capturing Prisoners of War

Captured Criminals of War

Keeping of Articles of Personal use by Prisoners of War

Setting-up of Information Bureau for Prisoners of War

Sums of Money and Valued Articles are not to be taken away

Evaluation of Prisoners of War

Humane Evacuation of Prisoners of War and

Treatment of Prisoners of War with