Lecture 9: International humanitarian law Flashcards
Breaches of international humanitarian law (IHL) are…
War crimes
Definition: IHL
The body of law which imposes rules on the conduct of armed conflict to mitigate its effects
IHL is a mix of
Customary IL and treaty-based law (dominant)
Why is IHL controversial?
Because while it seeks to balance military necessity with humanity, in the process it humanizes warfare and makes it more acceptable
IHL is the result of the merger of
The law of the Hague and the law of Geneva
The Law of the Hague
Known as the laws of war; regulates the conduct of war proper (definition of combatants, conduct of military operations, use of certain weapons) - e.g. how you are allowed to kill, the manner you can fight
The Law of Geneva
Regulates the protection and treatment of those not taking part (civilians) or unable to take part (wounded, POWs) in the fighting
Coup de grâce
Finding it humane to kill a wounded enemy soldiers, back when medicine did not allow for many to survive
Development of rules of war track the changes of
Morality, technology, and medicine
How many Geneva Conventions?
4 conventions between 1864-1949 and three additional protocols
How many Hague Conventions?
1899: three conventions, three declarations
1907: fourteen conventions and declarations
Many of the Hague Conventions have today either
Expired or been superseded
Which is the most important Hague Convention?
Convention II of 1899: regulates circumstances of killing combatants (among other things)
Two other important treaties of IHL
Chemical Weapons Convention
The Ottawa Convention (landmines)
Much of treaty IHL is also mirrored in
Customary IL, making it binding for non-parties
International Committee of the Red Cross - 5 points
- Established by Geneva Convention
- International NGO that plays unique role as watchdog of Geneva Conventions
- Private body established under Swiss law with strictly Swiss members and principle of neutrality
- Each country has affiliate national Red Cross/Crescent/Crystal committee
- Duties have ranged from POW tracking to protecting the Red Cross Symbol from attacks
Common article 2 of the Geneva Convention
States that Geneva Conventions apply to any inter-state war (declared or not) including wars of national liberation
Technically has the exception of when a country is neither a signatory or accepts to abide by them, but all countries are part to some of the Conventions
Reciprocity (Geneva Conventions)
Principle that you only treat soldiers according to the convention if they treat yours the same - abandoned after WW2
Common article 3 of the Geneva Conventions
Provides for a limited set of protections to those not taking an active part in hostilities when the hostilities are not of an international character (e.g. if somebody who is not taking part is captured, there is a minimum set of criteria, although not as big as protections of article 2)
How should you treat wounded and sick military personnel?
Shall be respected and protected in all circumstances on a non-discriminatory basis - cannot be hurt, tortured, killed, left without medical care etc.
Details must be sent to the other side
Definition: Prisoner of war (POW)
Have to be under effective command structure and distinguish themselves from civilians - POWs have more protections than illegal combatants
How should you treat POWs? - 4 points
Have to be kept alive, in good health, and in dignity - cannot be mistreated, tortured, humiliated etc.
They can be required to give name, rank, and service number, but nothing else
Can be tried for war crimes if applicable
Have to be released after end of hostilities (e.g. should be sent back as soon as active hostilities are over, not necessarily whole conflict)
Who is a protected person?
People in the hands of a party to the conflict or occupying power of which they are not nationals
E.g. if Belgium invades NL, Dutch citizens are protected persons
How should you treat a protected person?
All the essential protections + prohibitions on deportations, forced enlistment, destruction of property
When can you kill civilians?
Not directly, but as a consequence of military actions as long as it wasn’t on purpose
How should you treat civilians?
Civilians have to be protected from the effect of hostilities
Principle of distinction
Parties to the conflict have to distinguish between civilians and combatants, and between civilian and military objectives, at all times
E.g. if you disguise yourself as a civilian, you are an unlawful combatant
What 3 kinds of attacks are prohibited?
Indiscriminate attacks, terror attacks and attacks on civilians
Principle of proportionality
Harm caused to civilians and civilian property must not be “excessive in relation to the concrete and direct military advantage anticipated” by attack on military objective
In practice a lot of leeway
Principle of military necessity
Belligerents have the right to take measures that are needed to defeat the enemy, subject to all other constraints (proportionality etc.) - you cannot bomb just for the sake of bombing
Unnecessary suffering
Is forbidden, although you can still kill people
E.g. many specific weapons are banned, nuclear weapons have ambigious status (very effective, but cannot distinguish between civilians and combatants)
