INTERNATIONAL HUMANITARIAN LAW

(AN INTRODUCTION)

INTRODUCTION
(Why International Humanitarian Law?)

SEPTEMBER 11th, 2001

MADRID TRAIN BOMBING (What Law Applies?)

AFGHANISTAN (Targeting / Military Objects)

STATUS OF DETAINEES (Al Qaeda & Taliban Fighters)

IRAQ ABU GHRAIB (Treatment of Detainees)

ISRAELI BARRIER OCCUPIED TERRITORIES

ENFORCEMENT & ACCOUNTABILITY

INTERNATIONAL HUMANITARIAN LAW

(THE LEGAL FRAMEWORK)

WHAT IS INTERNATIONAL LAW?

International Law is a system of rules and principles that govern the international relations between sovereign states:
Rules of International Law are primarily created by states for states

Sovereignty is the golden thread of International Law and the fundamental principle of the UN Charter (UN Charter Article 2(1) the Organisation is based on the principle of sovereign equality of all its members)

INTERNATIONAL LAW AND THE USE OF FORCE

Jus ad bellum
Rules governing legality of the use of force
Ex. United Nations Charter (Arts 2(4), 51 & 42)

Jus in bello
Rules governing the conduct of armed hostilities (IHL)
Ex. Geneva Conventions & Additional Protocols

SOURCES OF INTERNATIONAL LAW

CONVENTIONS: Agreements between States setting forth new rules of international law CUSTOM: General practice followed by states (State Practice) accepted as law (Opinio Juris) COURTS / TRIBUNALS: Decisions from international and domestic courts / tribunals (IMT, ICTY, ICC, Finta, Eichmann, Pinochet) ARTICLES & PUBLICATIONS: Writings and teachings of distinguished academics, scholars, etc.
ICJ Statute Article 38

INTERNATIONAL HUMANITARIAN LAW

(What is it & Where does it Come From?)

INTERNATIONAL HUMANITARIAN LAW

WHAT ?
IHL is a branch of international law that applies to situations of armed conflicts. It is a set of rules which seeks, for humanitarian reasons, to limit the effects of armed conflict. IHL is also known as the 'Law of War' or 'Law of Armed Conflict'.

PURPOSE ?

Its threefold purpose is to (1) REDUCE unnecessary suffering, loss & damage; (2) SAFEGUARD fundamental human rights of persons; (3) FACILITATE the restoration of peace.

HOW ?

IHL protects by protecting defenceless victims of armed conflicts (Geneva Law) and by regulating the conduct (means and methods) of warfare (Hague Law).

IHL STRIKES A BALANCE:

BETWEEN:

MILTARY NECESSITY
Use of armed force to attain legitimate military objectives is lawful:

HUMANITY
It is forbidden to inflict suffering, injury or destruction not actually necessary to accomplish a legitimate military purpose

PROPORTIONALITY: The collateral damage arising from

military operations must not be excessive in relation to the direct and concrete military advantage anticipated from such operations.

WHEN DOES IHL APPLY?

During Situations of International Armed Conflict
During Internal Armed Conflicts

IHL does not apply in situations of riots, internal tensions or disturbances

ORIGINS & KEY LEGAL INSTRUMENTS

(From 1859 to the Present)

40'000 wounded and dead

1859 One battle: Solferino One man: Henry Dunant One vision 1863 5 Member Commission was set up in Switzerland First Geneva Convention of 1864 First relief societies (national societies)

KEY LEGAL INSTRUMENTS

1864 GENEVA CONVENTION
1868 ST. PETERSBURG DECLARATION 1925 GENEVA GAS PROTOCOL

1899 & 1907 HAGUE CONVENTIONS

1929 GENEVA CONVENTIONS 1949 GENEVA CONVENTIONS 1949

GCI: GCII: GCIII: GCIV:

Wounded and Sick Wounded, Sick and Shipwrecked Treatment of POWs Protection of Civilian Persons

1977 ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS

API: APII:

International Armed Conflict Non-International Armed Conflict

TREATIES PROHIBITING / LIMITING THE USE OF WEAPONS 1998 INTERNATIONAL CRIMINAL COURT (ROME) STATUTE

FUNDAMENTAL RULES OF IHL

(Developed from this History)

THREE FUNDAMENTAL RULES

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

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

3. Distinction must be made at all times between combatants and civilians attacks are to be directed only against Military Objectives (AP I Art. 48)
(Embodied in the 1977 Additional Protocols to the 1949 Geneva Conventions)

RESTRICTED / PROHIBITED METHODS & MEANS OF WARFARE

(APPLICABLE IN INTERNATIONAL ARMED CONFLICTS)

INTERNATIONAL ARMED CONFLICTS

One State uses armed force against another Cases of total/partial military occupation (even if no armed resistance) Formal declaration of war is not required Views of the Parties irrelevant Where a State declares war but no hostilities Includes fights against Colonial/Racist regimes (exercising self-determination) Then the whole body of IHL applies (i.e.GC & AP)

TO WHOM DOES IHL APPLY?

IHL recognises 2 x categories of persons in Armed Conflicts:
Combatants

- Can be Attacked.

(Combatants have the right to participate directly in hostilities)

Civilians

- Are Protected.

(Civilians have the general right to protection against the effects of hostilities, but cannot participate in hostilities)

DISTINGUISHING CAN BE DIFFICULT

WHAT IS THEIR STATUS?

(AP I Art. 77)

WHAT ABOUT THESE GROUPS?

Spies (AP I Art. 46)
Mercenaries (AP I Art. 47) Airborne Troops (AP I Art. 42) Parachuting in Distress (AP I Art. 42) Journalists (AP I Art. 79) War Correspondents (GC III Art. 4)

PRISONERS OF WAR ARE PROTECTED

MEDICAL & RELIGIOUS PERSONNEL ARE PROTECTED

Perfidy (Treachery) is prohibited

Misuse of Protected Emblems is prohibited

PROTECTED A WHITE FLAG

A person who has been authorized by one of the parties to the conflict to enter into communication with the other, will show the intention to enter into dialog by the bearing of a white flag.
NB: The white flag indicates a desire to negotiate not surrender.

Additional Protocol l Articles 32 to 34

PROTECTED RELIEF OPERATIONS

Each party to the conflict will allow the rapid and unimpeded passage of medical and hospital stores, even to the civilians of the other party to the conflict. It will likewise allow the transportation of essential foodstuffs and clothing intended for children under 15, expectant mothers and maternity cases. Only in cases of imperative military necessity may such relief activities be restricted.

Fourth Geneva Convention Articles 23, 59-61 & 110-111

MILITARY OBJECTS CAN BE ATTACKED

Military objects are those objects which make an effective contribution to military action, and whose destruction, capture or neutralisation, in the circumstances ruling at the time, offer a definite military advantage.
(AP I Art 52(2))

A MILITARY OBJECT?

(AP I Art 52(2))

PROTECTED CULTURAL OBJECTS

Cultural Property This includes places of cultural value, historical of religious significance, monuments, archives and works of art.

Normal Protection

Special Protection

The Hague Convention of 14 May 1954 for the Protection of Cultural Property in the event of Armed Conflict

PROTECTED DANGEROUS FORCES

Protection of works and Installations containing dangerous forces These include dams, dykes and nuclear generating stations.

Source Additional Protocol l of 1977 Article 56

PROTECTED CIVIL DEFENCE

Civil Defence means those humanitarian tasks intended to protect the civilian population against the dangers of hostilities and to help recover from the immediate effects of hostilities or disasters, and to provide the necessary conditions for survival. Source Additional Protocol l Articles 61 to 67

INDISCRIMINATE ATTACKS ARE PROHIBITED

(AP I Art 52(2))

TARGETING - PRECAUTIONS IN ATTACK

METHODS of WAREFARE

PROHIBITED & RESTICTED WEAPONS (MEANS OF WARFARE)

IHL General Weapons Principles

Prohibition on weapons which cause superfluous injury or unnecessary suffering (Hague Law) Weapons incapable of distinguishing between military and civilian objects (indiscriminate) will be prohibited (Geneva Law)

Explosive and Flammable Ammunition is prohibited

(1868)

Expanding Bullets & Poisonous Weapons prohibited

(1899)

Chemical & Biological Weapons

Gas and Chemical Weapons are Prohibited Poison and Poison-tipped Weapons are Prohibited Bacteriological (Biological) Weapons are Prohibited
(1925 /1972 / 1993)

Conventional Weapons Convention (1980)

"Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects"

Protocol I on Non-Detectable Fragments (10 October 1980) Protocol II on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices
(10 October 1980)

Protocol III on Prohibitions or Restrictions on the Use of Incendiary

Weapons
(10 October 1980)

Protocol IV on Blinding Laser Weapons

(13 October 1995)

Protocol V on Explosive Remnants of War (ERW) (November 2003)

Incendiary Weapons

It is prohibited to use incendiary weapons against:

the civilian population and individual civilians, or civilian objects.

It is prohibited to use air-delivered incendiary weapons to attack military objectives within a concentration of civilians.

MEANS OF WARFARE (Cluster Bombs)

NEW WEAPONS

Additional Protocol I, Article 36

"In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party."

FUNDAMENTAL RULES OF IHL

Ensure humane treatment of persons not taking part in hostilities
Do not kill or injure protected persons

Collect and care for the wounded and sick

Respect the lives & dignity of captured combatants and civilians

Respect fundamental judicial guarantees during trials & proceedings

The choice of means & methods of warfare is not unlimited

Distinguish between combatants and civilians at all times Attack only military objectives

THANK YOU FOR YOUR ATTENTION

ANY QUESTIONS?

IHL CASE STUDY GRDELICA BRIDGE

(MEANS & METHODS OF WARFARE)

GRDELICA RAILROAD BRIDGE (KOSOVO 1999)

BACKGROUND FACTS
From 24 Mar to 10 Jun 1999 NATO conducted an air bombing campaign against the Federal Republic of Yugoslavia (FRY). NATO intervention in response to human rights atrocities being carried out by Serb military forces against the ethnic Albanian population in the FRY province of Kosovo. NATO conducted over 30,000 combat air sorties (incuding 10,484 attack sorties) against targets in Kosovo, Vojvodina, Serbia proper and Montenegro. An estimated 400 to 600 civilians died as a result. NATO did not employ ground forces as part of its action in Kosovo. In addition, NATO directed its pilots to operate at high altitudes (above 15,000 feet) to avoid attack by FRY air defences and reduce the risk of NATO casualties.

THE FACTS (CONTINUED)

One of the NATO targets during the bombing campaign was the Grdelica railroad bridge in southern Serbia. At 1200 hrs on 12 April a F-15E NATO aircraft attacked the bridge. The pilot, whose mission was to destroy the bridge, launched a laser-guided bomb several miles away from the bridge. After the bomb was launched the pilot saw on his cockpit screen that a train was approaching the bridge. At that point it was too late to abort the mission because the bomb was locked onto the target. The bomb struck the train, killing several civilians.

DISCUSSION POINTS

How do we characterise the NATO action? What parts of IHL are applicable here?

What IHL principles are relevant?

Which IHL issues are raised (Methods & Means)? Were any War Crimes committed?

SOME ADDITIONAL FACTS

After the first bomb struck the train the pilot returned to drop another bomb on the bridge, striking the train again. He had put his aiming point on the other end of the bridge. The train had slid forward after the impact of the first strike and was struck again. The pilot said he could not see this, as the bridge was obscured by smoke and some cloud. An estimated 20 civilians died in the attack. In defence of the attack, General Wesley Clark said that the pilot believed that he still had to accomplish the mission and that is why he circled around and launched the second bomb. He stated that the pilot did not intend to hit the train with either bomb it was just an unfortunate incident (an 'uncanny accident').

WAS A WAR CRIME COMMITTED?