User:Joel Mc/sandbox/IHL

At the same time, the Law of Geneva, which focuses mainly on human beings as victims of war is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the International Committee of the Red Cross.^[4] This focus can be found in the Geneva Conventions.

With the adoption of the 1977 Protocols to the Geneva Conventions, the two strains of law began to converge. Already before, articles focusing on humanity could be found in the Law of The Hague (i.e. the protection of certain prisoners of war and civilians in occupied territories) articles which were later incorporated into the Law of Geneva in 1929 and 1949). However the Protocols of 1977 relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights aspects. ^[5]

Basic rules of IHL

1. Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely.
2. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
3. The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the red cross or the red crescent must be respected as the sign of protection.
4. Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
5. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
7. Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.^[6]

Historical Background of IHL

In the middle of the 19th century, the conditions of wounded soldiers on the battle field were appalling. Witnessing the carnage of a battle between the French and Austrians in 1859 in Solferino, Italy, a Genevese businessman, Henry Dunant published a book in 1862 which was entitled, A Memory of Solferino, which called for 1) the establishment of private national relief societies to minister to the sick and wounded on the battlefield, and 2) the countries to meet to "formulate some international principle, sanctioned by a Convention inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries" ^[7] Already in 1864, the Swiss government convened a diplomatic conference where ‘Convention for the Amelioration of the Condition of the Wounded in Armies in the Field’. was drawn up and adopted. Important feature of the convention included

1. ambulances and military hospitals were to be regarded as neutral and protected
2. hospital and ambulance personnel were also to be regarded as neutral
3. wounded and sick combatants were to collected and cared for no matter what country they came from
4. hospitals and ambulances would be distinguished by a red cross placed on a white background

Further developments in the Law of Geneva included a treaty in 1899 which expanded the application of the principles in the treaty of 1864 to those wounded, sick or shipwrecked at sea. The 1864 treaty was revised in 1906, while the 1899 treaty was revised in 1907.

World War I high-lighted the need for changes to IHL and in 1929, the Swiss convened in Geneva a diplomatic conference which adopted an improved treaty on the treatment of the wounded and sick as well as a second treaty on the treatment of prisoners of war.

Experience from yet another war pointed to the need to revise IHL and the Swiss government convened yet another diplomatic conference in Geneva in 1949. The conventions of 1907, and 1929 were replaced by three new Geneva conventions. One new addition was the recognition of some members of organized resistance groups as prisoners of war.

An major development was the drawing up of a fourth convention which provided for the protection of civilians during an armed conflict, both those who found themselve in the territory of a belligerent party, and those who found themselves in occupied territory.

Finally, whereas the previous Geneva conventions had applied only to parties to an international conflict, a common article was placed each of the four conventions which extended application to internal conflicts taking place within the territory of on of the contracting parties.^[8]

Examples

Well-known examples of such rules include the prohibition on attacking

These examples of the laws of war address

During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.

Under the Third Geneva Convention a fighter or belligerent in an international armed conflict who wanted lawful combatant status (and therefore prisoner of war status if captured), would have to meet certain criteria including:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war." (From Article 4)

Lawful combatants are accorded "combatant's privilege," whereby they are exempted from the ordinary criminal law of the place they are fighting in. This means that they cannot be tried for murder, for example, for killing soldiers of the opposing side. Prisoners of war are accorded this privilege in the event they are charged with crimes after capture. They may be tried for war crimes, such as murdering civilians or torture, but not acts of violence in accordance with the laws and customs of war such as killing or capturing enemy soldiers or damaging military property.

The First Protocol Additional to the Geneva Conventions (adopted 1977; in force 1979)(

The definition of an "international armed conflict" would include "armed conflicts in which peoples are fighting against colonial domination and alien [foreign] occupation and against racist regimes in the exercise of their right 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." (From article 1[4])

The Protocol may, unlike the 1949 Conventions that require combatants to wear uniforms, also give lawful combatant status to non-uniformed guerrilla in international armed conflicts as long as they bear their arms openly during military operations.

Article 44(3) states:

"In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly."

Article 44(7) then states:

"This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict."

Protocol 1 provisions are effectively blocked from coming into meaningful force due to the fact that most nations likely to be directly involved in conflict, especially with guerrillas, have refused to ratify it, including the

It is unclear whether the British government considers or considered Protocol 1 to be applicable to guerrillas (or "insurgents" or "terrorists") fighting foreign troops in Iraq or Afghanistan.

It is likely they do not consider it applicable in Iraq, especially since the official position of the British government is that the alien occupation of Iraq ended with the official handover of power to the US-backed (and internationally-recognised)

• Just war
• Total war
• Law of land warfare
• International law
• Protective sign

References