Sie sind auf Seite 1von 17

1.

What is International Humanitarian International humanitarian law is also known


Law? as the law of war or the law of armed conflict.
It is a set of international rules that set out
what can and cannot be done during an
armed conflict.

International humanitarian law is a set of


rules which seek, for humanitarian reasons,
to limit the effects of armed conflict. It
protects persons who are not or are no longer
participating in the hostilities and restricts the
means and methods of warfare.

International humanitarian law applies only to


armed conflicts. It does not regulate whether
a State may actually use force; it does not
cover internal tensions or disturbances such
as isolated acts of violence. The law applies
only once a conflict has begun, and then
equally to all sides regardless of who started
the fighting.

International humanitarian law is part of


international law. Many provisions of
international humanitarian law are now
accepted as customary law – that is, as
general rules by which all States are bound.

The four Geneva Conventions of 1949,


together with the Hague Conventions of 1907
and customary international law, are the core
sources of modern international humanitarian
law (IHL).

International Humanitarian Law is often


broken down into two sub categories,
referred to as “Hague Law” and “Geneva
Law”. This division reflects the development
of IHL, with Hague Law (through the Hague
Conventions of 1899 and 1907) regulating
how armies should conduct themselves
during hostilities, and the Geneva
Conventions regulating issues of protection
and how people in your power should be
treated.

With the adoption of the Additional Protocols


to the Geneva Conventions, which includes
extensive regulation of topics traditionally
referred to as Hague Law, the separation is
less relevant in today’s practice.

 The rules of war, or international


humanitarian law (as it is known
formally) are a set of international
rules that set out what can and cannot
be done during an armed conflict.

 The main purpose of international


humanitarian law (IHL) is to maintain
some humanity in armed conflicts,
saving lives and reducing suffering.

 To do that, IHL regulates how wars


are fought, balancing two aspects:
weakening the enemy and limiting
suffering.

 The rules of war are universal. The


Geneva Conventions (which are the
core element of IHL) have been
ratified by all 196 states. Very few
international treaties have this level of
support.

 Everyone fighting a war needs to


respect IHL, both governmental forces
and non-State armed groups.

a. How is it distinguished form


International Human Rights In particular, human rights law – unlike
Law (IHL)? international humanitarian law – applies in
peacetime, and many of its provisions may
be suspended during an armed conflict.

International humanitarian law and


international human rights law are two distinct
but complementary bodies of law. They are
both concerned with the protection of the life,
health and dignity of individuals. IHL applies
in armed conflict while human rights law
applies at all times, in peace and in war.
The main difference in their application is that
international human rights law allows a State
to suspend a number of human rights if it
faces asituation of emergency. IHL cannot be
suspended (except as provided in Article 5 to
the Fourth Geneva Convention).
In situations of armed conflict, human rights
law complements and reinforces the
protection afforded by International
Humanitarian Law.

While IHL applies exclusively in armed


conflict, human rights law applies, in
principle, at all times, i.e. in peacetime and
during armed conflict. However, unlike IHL,
some human rights treaties
permit governments to derogate from certain
obligations during public emergencies that
threaten the life of the nation. Derogation
must, however, be necessary and
proportional to the crisis, must not be
introduced on a discriminatory basis and
must not contravene other rules of
international law – including provisions of
IHL. Certain human rights can never
be derogated from: among them, the right to
life, the prohibition against torture or cruel,
inhuman or degrading treatment or
punishment, the prohibition against slavery
and servitude and the prohibition
against retroactive criminal laws.

IHL aims to protect persons who are not or


are no longer taking direct part in hostilities. It
protects civilians and combatants hors de
combat, such as the wounded, the sick and
the shipwrecked or prisoners of war. Human
rights law, developed primarily for
peacetime, applies to all persons within the
jurisdiction of a State. Unlike IHL, it does not
distinguish between combatants and civilians
or provide for categories of 'protected
person'.

IHL deals with many issues that are outside


the purview of human rights law, such as the
status of 'combatants' and 'prisoners of war',
the protection of the red cross and red
crescent emblems and the legality of specific
kinds of weapon.

The Geneva Conventions have their origin in


the experiences of Henry Dunant at the battle
of Solferino in 1859. He was horrified by the
neglect of the sick and wounded on the
battlefield, and with four colleagues
organized the diplomatic conference that led
to the adoption of the First Geneva
Convention in 1864.
The principles established then influenced
the treaties that followed thereby creating the
body of international humanitarian law that
exists today. At the core of these principles
was the idea of protected persons.
The First Convention concerned itself
primarily with the care of the sick and
wounded on the battlefield. The medical
services helping them were to be protected
from attack and respected as neutral
personnel assisting the sick and wounded
without discrimination. The convention
established the red cross emblem to be used
to identify and protect medical personnel from
attack. States committed themselves to
respect the emblem and those protected by
it.
Parties to a conflict are prohibited to target
civilians and required to take all feasible
precautions to avoid attacks that result in
civilian casualties. They are also required to
avoid defensive measures that put civilians in
danger. Civilians may not be used as
protective shields or forcibly displaced.

The consolidated Geneva Conventions of


1949 extended specific protection to civilians,
who had suffered extensively during World
War II, often from deliberated targeting.
Protection to civilians, especially against the
effects of hostilities, was also developed
through the adoption of the Additional
Protocols in 1977.

2. Compare and contrast jus ad bellum International humanitarian law, or jus in bello,
and jus in bello. is the law that governs the way in which
warfare is conducted. IHL is purely
humanitarian, seeking to limit the suffering
caused. It is independent from questions
about the justification or reasons for war, or
its prevention, covered by jus ad bellum.
The clear distinction between jus in bello and
jus ad bellum is comparatively recent. The
terms did not become common in debates
and writings about the law of war until a
decade after World War II. The concepts they
cover certainly did feature in legal debate
before then, but without the clear distinction
the adoption of the terms has brought about.
The purpose of international humanitarian
law is to limit the suffering caused by war by
protecting and assisting its victims as far as
possible. The law therefore addresses the
reality of a conflict without considering the
reasons for or legality of resorting to force. It
regulates only those aspects of the conflict
which are of humanitarian concern. It is what
is known as jus in bello (law in war). Its
provisions apply to the warring parties
irrespective of the reasons for the conflict and
whether or not the cause upheld by either
party is just.
The ius ad bellum (law on the use of force) or
ius contra bellum (law on the prevention of
war) seeks to limit resort to force between
States. Under the UN Charter, States must
refrain from the threat or use of force against
the territorial integrity or political
independence of another state (Art. 2, para.
4). Exceptions to this principle are provided in
case of self-defence or following a decision
adopted by the UN Security Council under
chapter VII of the UN Charter.
In the case of international armed conflict, it
is often hard to determine which State is
guilty of violating the United Nations Charter.
The application of humanitarian law does not
involve the denunciation of guilty parties as
that would be bound to arouse controversy
and paralyse implementation of the law, since
each adversary would claim to be a victim of
aggression. Moreover, IHL is intended to
protect war victims and their fundamental
rights, no matter to which party they belong.
That is why jus in bello must remain
independent of jus ad bellum or jus contra
bellum.
3. Who are the persons protected by International humanitarian law protects a
IHL? wide range of people during armed conflict.
The Geneva Conventions and their Additional
Protocols protect the sick, wounded and
shipwrecked not taking part in hostilities,
prisoners of war and other detained persons,
as well as civilians.

IHL also mentions specific groups among


civilians such as women, who are protected
from sexual abuse, and children, whose
special needs must be taken into account by
combatants.

IHL protects refugees, internally displaced


people and those who have gone missing as
a result of armed conflict.
It also protects humanitarian workers such as
ICRC staff and the personnel of individual
Red Cross or Red Crescent Societies. These
organizations also benefit from the use of the
red cross, red crescent or red crystal
protective emblems recognized by the
Geneva Conventions.
a. Does IHL only protect The International Humanitarian Law protects
persons? not only persons but also objects.
Unnecessary attacks on the means of
livelihood such as farms, housing, transport
and health facilities, are forbidden.

The distinctive emblem also protects medical


equipment, such as vehicles and medical
buildings as long as they are not being used
for military purposes.

From chapters 7 to 14, the IHL provides for a


list of the specifically protected persons and
objects. These include:

1. Medical and religious personnel and


objects – medical units and
transports, objects displaying the
distinctive emblems of the Geneva
Conventions (
2. Humanitarian relief personnel and
objects
3. Personnel and objects involved in a
peacekeeping mission
4. Journalists
5. Protected zones
6. Cultural property
7. Works and installations containing
dangerous forces
8. The natural environment
4. What is a crime against humanity?
1. Are any of the following acts when
committed as part of a widespread or
systematic attack directed against any civilian
population, with knowledge of the attack:

a. Murder;

b. Extermination;

c. Enslavement;

d. Deportation or forcible transfer


of population;

e. Imprisonment or other severe


deprivation of physical liberty in
violation of fundamental rules of
international law;

f. Torture;

g. Rape, sexual slavery, enforced


prostitution, forced pregnancy,
enforced sterilization, or any other form
of sexual violence of comparable
gravity;

h. Persecution against any


identifiable group or collectivity on
political, racial, national, ethnic,
cultural, religious, gender as defined in
paragraph 3, or other grounds that are
universally recognized as
impermissible under international law,
in connection with any act referred to in
this paragraph or any crime within the
jurisdiction of the Court;

i. Enforced disappearance of
persons;

j. The crime of apartheid;

k. Other inhumane acts of a


similar character intentionally causing
great suffering, or serious injury to
body or to mental or physical health.
5. What is a war crime?
According to Rule 156 of the IHL, war crimes
refers to serious breaches of international
humanitarian law committed against civilians
or enemy combatants during an international
or domestic armed conflict, for which the
perpetrators may be held criminally liable on
an individual basis.

Serious violations of international


humanitarian law constitute war crimes.

The majority of war crimes involve death,


injury, destruction or unlawful taking of
property. However, not all acts necessarily
have to result in actual damage to persons or
objects in order to amount to war crimes. This
became evident when the Elements of
Crimes for the International Criminal Court
were being drafted. It was decided, for
example, that it was enough to launch an
attack on civilians or civilian objects, even if
something unexpectedly prevented the attack
from causing death or serious injury. This
could be the case of an attack launched
against the civilian population or individual
civilians, even though, owing to the failure of
the weapon system, the intended target was
not hit. The same is the case for subjecting a
protected person to medical experiments –
actual injury is not required for the act to
amount to a war crime; it is enough to
endanger the life or health of the person
through such an act.

Acts may amount to war crimes because they


breach important values, even without
physically endangering persons or objects
directly. These include, for example, abusing
dead bodies; subjecting persons to
humiliating treatment; making persons
undertake work that directly helps the military
operations of the enemy; violation of the right
to fair trial; and recruiting children under 15
years of age into the armed forces.

War crimes can consist of acts or omissions.


Examples of the latter include failure to
provide a fair trial and failure to provide food
or necessary medical care to persons in the
power of the adversary. Unlike crimes against
humanity, which consist of a “widespread or
systematic” commission of prohibited acts,
any serious violation of international
humanitarian law constitutes a war crime.
This is clear from extensive and consistent
case-law from the First World War until the
present day.

(i) Grave breaches of the Geneva


Conventions:

• wilful killing;
• torture or inhuman treatment, including
biological experiments;
• wilfully causing great suffering or serious
injury to body or health;
• extensive destruction or appropriation of
property, not justified by military necessity
and carried out unlawfully and wantonly;
• compelling a prisoner of war or other
protected person to serve in the forces of a
hostile Power;
• wilfully depriving a prisoner of war or other
protected person of the rights of a fair and
regular trial;
• unlawful deportation or transfer;
• unlawful confinement;
• taking of hostages.

(ii) Other serious violations of international


humanitarian law committed during an
international armed conflict:
• committing outrages upon personal dignity,
in particular, humiliating or degrading
treatment and desecration of the dead;
• enforced sterilization;
• compelling the nationals of the adverse
party to take part in military operations
against their own party;
• killing or wounding a combatant who has
surrendered or is otherwise hors de combat;
• declaring that no quarter will be given;
• making improper use of distinctive emblems
indicating protected status, resulting in death
or serious personal injury;
• making improper use of the flag, the military
insignia or uniform of the enemy resulting in
death or serious personal injury;
• killing or wounding an adversary by resort to
perfidy;
• making medical or religious personnel,
medical units or medical transports the object
of attack;
• pillage or other taking of property contrary
to international humanitarian law;
• destroying property not required by military
necessity.
• making the civilian population or individual
civilians, not taking a direct part in hostilities,
the object of attack;
• launching an attack in the knowledge that
such attack will cause incidental loss of
civilian life, injury to civilians or damage to
civilian objects which would be clearly
excessive in relation to the concrete and
direct military advantage anticipated;
• making non-defended localities and
demilitarized zones the object of attack;
• subjecting persons who are in the power of
an adverse party to physical mutilation or to
medical or scientific experiments of any kind
which are neither justified by the medical,
dental or hospital treatment of the person
concerned nor carried out in his or her
interest, and which cause death to or
seriously endanger the health of such person
or persons;
• the transfer by the occupying power of parts
of its own civilian population into the territory
it occupies or the deportation or transfer of all
or parts of the population of the occupied
territory within or outside this territory;
• making buildings dedicated to religion,
education, art, science or charitable purposes
or historic monuments the object of attack,
provided they are not military objectives.
• making civilian objects, that is, objects that
are not military objectives, the object of
attack;
• using starvation of civilians as a method of
warfare by depriving them of objects
indispensable to their survival, including by
impeding relief supplies;
• making persons or objects involved in a
humanitarian assistance or peacekeeping
mission in accordance with the Charter of the
United Nations the object of attack, as long
as they are entitled to the protection given to
civilians or civilian objects under international
humanitarian law;
• launching an attack in the knowledge that
such attack will cause widespread, long-term
and severe damage to the natural
environment which would be clearly
excessive in relation to the concrete and
direct military advantage anticipated;
• using prohibited weapons;
• declaring abolished, suspended or
inadmissible in a court of law the rights and
actions of the nationals of the hostile party;
• using human shields;
• conscripting or enlisting children under the
age of 15 into armed forces, or using them to
participate actively in hostilities;
• committing sexual violence, in particular
rape, sexual slavery, enforced prostitution
and enforced pregnancy.
• slavery and deportation to slave labour;
• collective punishments;
• despoliation of the wounded, sick,
shipwrecked or dead;
• attacking or ill-treating a parlementaire or
bearer of a flag of truce;
• unjustifiable delay in the repatriation of
prisoners of war or civilians;
• the practice of apartheid or other inhuman
or degrading practices involving outrages on
personal dignity based on racial
discrimination;
• launching an indiscriminate attack resulting
in loss of life or injury to civilians or damage
to civilian objects;
• launching an attack against works or
installations containing dangerous forces in
the knowledge that such attack will cause
excessive incidental loss of civilian life, injury
to civilians or damage to civilian objects.

(iii) Serious violations of common Article 3 of


the Geneva Conventions:
• violence to life and person, in particular
murder of all kinds, mutilation, cruel treatment
and torture;
• committing outrages upon personal dignity,
in particular humiliating and degrading
treatment;
• taking of hostages;
• the passing of sentences and the carrying
out of executions without previous judgment
pronounced by a regularly constituted court,
affording all judicial guarantees which are
generally recognized as indispensable.

(iv) Other serious violations of international


humanitarian law committed during a non-
international armed conflict:
• making the civilian population or individual
civilians, not taking a direct part in hostilities,
the object of attack;
• pillage;
• committing sexual violence, in particular,
rape, sexual slavery, enforced prostitution,
enforced sterilization and enforced
pregnancy.
• ordering the displacement of the civilian
population for reasons related to the conflict
and not required for the security of the
civilians involved or imperative military
necessity;
• subjecting persons in the power of the
adversary to medical or scientific experiments
of any kind not necessary for the health of the
persons concerned and seriously
endangering their health;
• declaring that no quarter will be given;
• making medical or religious personnel or
objects the object of attack;
• conscripting or enlisting children under the
age of 15 into the armed forces or groups, or
using them to participate actively in hostilities;
• making religious or cultural objects the
object of attack, provided that they are not
military objectives.
• making civilian objects the object of attack;
• seizing property of the adverse party not
required by military necessity;
• making persons or objects involved in a
humanitarian assistance or peacekeeping
mission in accordance with the Charter of the
United Nations the object of attack, as long
as they are entitled to the protection given to
civilians or civilian objects under international
humanitarian law;
• killing or wounding an adversary by resort to
perfidy.
• using prohibited weapons;
• launching an indiscriminate attack resulting
in death or injury to civilians, or an attack in
the knowledge that it will cause excessive
incidental civilian loss, injury or damage;
• making non-defended localities and
demilitarized zones the object of attack;
• using human shields;
• slavery;
• collective punishments;
• using starvation of civilians as a method of
warfare by depriving them of objects
indispensable to their survival, including by
impeding relief supplies.

It should also be noted that certain conduct,


not listed above, is nevertheless criminal
because it consists of a combination of a
number of war crimes. These so-called
composite war crimes are, in particular,
enforced disappearances and ethnic
cleansing. Enforced disappearance amounts
in practice to depriving a person of a fair trial
and often also to murder (see commentary to
Rule 98). Ethnic cleansing comprises various
war crimes, such as murder, rape, unlawful
deportation or ordering the displacement of
the civilian population for reasons relating to
the conflict and not required for the security
of the civilians nor for reasons of imperative
military necessity, and outrages on personal
dignity based on racial discrimination and
inhuman or degrading treatment.
6. What is a crime of aggression? The crime of aggression means "the
planning, preparation, initiation or execution,
by a person in a position effectively to
exercise control over or to direct the political
or military action of a State, of an act of
aggression which, by its character, gravity
and scale, constitutes a manifest violation of
the Charter of the United Nations."

The act of aggression means "the use of


armed force by a State against the
sovereignty, territorial integrity or political
independence of another State, or in any
other manner inconsistent with the Charter of
the United Nations."

These acts can include, among others,


invasion, military occupation, and annexation
by the use of force, blockade by the ports or
coasts.

Rome Statute of the International Criminal


Court articles 8 bis 1 and 2.
Aggression was first recognized as a
punishable international crime in the Charter
of the International Military Tribunal at
Nuremberg (IMT), as well as in the Charter of
the Toyko Tribunals. The definition, enshrined
in the Nuremberg Principles, was
largely endorsed by the UN General
Assembly (GA), which in 1974
adopted Resolution 3314 on the Definition of
Aggression, focusing like earlier treaties on
state rather than individual conduct and
namely intended to guide the Security
Council in its decisions on whether an act of
aggression has occurred. It is the Rome
Statute now that fills the gap, providing an
avenue to individual accountability for the
crime of aggression.

7. What is the relationship of the The International Committee of the Red


International Red Cross to IHL? Cross as guardian of international
humanitarian law

The ICRC acts as the guardian of


international humanitarian law, a complex
role that is closely connected with its own
foundation and was later formally entrusted to
it by the international community. The article
presents various aspects of this role and
examines its scope in the contemporary
context.

The International Committee of the Red


Cross (ICRC) is known first and foremost for
its field operations in aid of victims of armed
conflict and internal violence all over the
world.
Less well-known is the scope of its role as
“guardian” of international humanitarian law,
the law applicable in situations of armed
conflict. This complex function is closely
connected with the founding of the ICRC and
was subsequently formally entrusted to it by
the international community. The present
article seeks to define the role of guardian
more clearly and to give greater insight into
its significance.

The ICRC was founded in 1863 to examine


the proposals made by Henry Dunant in his
book on the Battle of Solferino. Having come
upon this terrible battlefield by chance,
Dunant reacted to what he saw in just the
same way as the ICRC was to react to war
throughout its history: his first thought was to
bring practical aid to the wounded.
Instinctively, he applied the principle of
humanity – the endeavour “to prevent and
alleviate suffering wherever it may be found”
– which is still the essential principle of the
entire Red Cross and Red Crescent
Movement, and immediately did everything
possible to organize help for the thousands of
wounded men who had been left to die where
they fell.
But this was not all. Feeling that he had to
share what he had experienced and a born
story-teller, he wrote his book A Memory of
Solferino, which met with resounding success
in Europe. His role as a witness was,
however, only one stage in a much more
ambitious programme. He followed it up with
two proposals that caused quite a stir and
had remarkable results. The first was to
declare army medical services neutral and
give them a distinctive emblem so that they
could function on the battle field. This was the
fountainhead of international humanitarian
law. The second was to form, in peacetime,
voluntary relief societies to act as auxiliaries
to army medical services in time of war. This
was the origin of the Red Cross Movement.
The ICRC was formed to examine these two
proposals and to work towards their
implementation. Henry Dunant’s book had
prepared the ground so well that they were
both a tremendous success. At the end of
1863, the very year in which the ICRC was
founded, the first voluntary aid societies – the
future National Red Cross or Red Crescent
Societies – were set up. On 22 August of the
following year, 1864, the Convention for the
Amelioration of the Condition of the Wounded
in Armies in the Field was adopted. This was
the source of international humanitarian law.
Thus the ICRC has always had a close and
special relationship with international
humanitarian law, and to this day has
invariably acted in accordance with the
successive phases of Henry Dunant’s
experience. It has worked on battlefields, and
has always sought to adapt its action to the
latest developments in warfare. It has then
reported on the problems encountered, and
on that basis has made practical proposals
for the improvement of international
humanitarian law. In short, it has made a very
direct contribution to the process of
codification, during which its proposals were
examined, and which has led to regular
revision and extension of international
humanitarian law, notably in 1906, 1929,
1949 and 1977.
This special role of the ICRC is now formally
recognized in the Statutes of the International
Red Cross and Red Crescent Movement ,
which have been adopted both by the
components of the Movement and by the
States party to the Geneva Conventions, that
is, practically all the worlds ’States.
Article 5 of the Statutes states that the role of
the ICRC is “to undertake the tasks
incumbent upon it under the Geneva
Conventions, to work for the faithful
application of international humanitarian law
applicable in armed conflicts and to take
cognizance of any complaints based on
alleged breaches of that law” (Article 5.2c),
and also “to work for the understanding and
dissemination of knowledge of international
humanitarian law applicable in armed
conflicts and to prepare any development
thereof” (Article 5.2g).

Sources:

Coalition for the International Criminal Court (n.d.) Crimes of Aggression. Retrieved from
http://www.coalitionfortheicc.org/explore/icc-crimes/crime-aggression

Diakonia (2013, October 30). Sources of International Humanitarian Law. Retrieved from
https://www.diakonia.se/en/IHL/The-Law/International-Humanitarian-Law-1/Introduction-to-
IHL/Sources-of-international-law/

International Committee of the Red Cross (2015, January 22). What is the difference between
IHL and human rights law? Retrieved from https://www.icrc.org/en/document/what-difference-
between-ihl-and-human-rights-law
International Committee of the Red Cross (2010, October 29). IHL and Human Rights Law.
Retrieved from https://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/ihl-human-
rights/overview-ihl-and-human-rights.htm

International Committee of the Red Cross (2010, October 29). Persons protected under IHL.
Retrieved from https://www.icrc.org/eng/war-and-law/protected-persons/overview-protected-
persons.htm

International Committee of the Red Cross (2004, July). Advisory Service on International
Humanitarian Law. Retrieved from https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf

International Committee of the Red Cross (n.d.). IHL Database. Retrieved from https://ihl-
databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156

Sandoz, Y. (1998, December 31). The International Committee of the Red Cross as guardian of
international humanitarian law. Retrieved from
https://www.icrc.org/eng/resources/documents/misc/about-the-icrc-311298.htm

United Nations Office on Genocide Prevention and the Responsibility to Protect (n.d.). Crimes
Against Humanity. Retrieved from http://www.un.org/en/genocideprevention/crimes-against-
humanity.html