International Humanitarian Law
The term international humanitarian law (IHL) refers to a special branch of public international law concerning the “law of armed conflict” or the “law of war.” It is a very ancient law, established progressively through the practice of States and codified through treaties they adopted. It seeks to govern the conduct of hostilities, primarily by alleviating unnecessary suffering in order to prevent conflicts from reaching a point of no return. One of the means it employs in order to avoid unnecessary suffering and destruction is the restriction of the means and methods of warfare. It also prohibits certain behavior in war and posits inter alia the right to relief for non-combatants, so as to alleviate the suffering engendered by war.
International humanitarian law is usually the preferred term (among civilian lawyers and humanitarian practitioners) as it places more emphasis on the humanitarian goals of the law of armed conflict. However, the same international conventions authorize and organize relief for populations by humanitarian organizations and prohibit or limit the use of armed force by military commanders. International humanitarian law frames the coexistence of armed actors and humanitarian ones in situations of conflict. Consequently, the interpretation of this law must ensure a fair balance between the military and humanitarian necessities it contains. This challenge rests on the existence of equal expertise between military and civilian experts in international humanitarian law. Independent interpretation of this law is also enforced by the jurisprudence of international criminal courts with regard to the responsibility of States (International Court of Justice) and individual criminal responsibility for war crimes (International Criminal Court).
Although humanitarian is a word used in an increasing number of contexts, the term humanitarian law only actually describes the law applicable to situations of armed conflict. Other branches of international law, such as those relating to human rights, the rights of refugees, peacekeeping, and international cooperation remain simultaneously applicable in most situations of disturbances, tension, or conflict. Indeed, a number of contemporary situations barely conform to the standard legal definition of conflict. They fall within the framework of peacekeeping or the management of security or peaceful settlement of disputes between States as defined by the United Nations Charter. All of these laws must be taken into account when defining the framework and content of a legitimate and responsible humanitarian action.
For a long time, international humanitarian law was considered a special law ( lex specialis ) whose application replaced the general law of human rights ( lex generalis ) in conflict situations. This distinction has been abolished in favor of the simultaneous application of these two branches of the law and of an extraterritorial application of human rights in situations where a State exercises de facto control over a foreign territory or individuals.
This change in the law was needed to prevent the legal vacuums created by the different forms of State intervention authorized by the UN or undertaken individually by States in the name of national security and the fight against terrorism. It has been confirmed by judgments in international and regional courts. (On the simultaneous application of IHL and human rights law, see ICJ, Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, ICJ Reports 1996, p. 226, para. 25, and ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004, p. 136, paras. 106–12. On the extraterritorial application of human rights law, see ECHR, Case of Al-Skeini et al. v. the United Kingdom , Application no. 55721/07, Judgment (Grand Chamber), 7 July 2011, paras. 131–40, and ECHR, Case of Al-Jedda v. the United Kingdom , Application no. 27021/08, Judgment (Grand Chamber), 7 July 2011, paras. 107–9. ▸ Human rights (Jurisprudence)
This Practical Guide refers to humanitarian law in the broad sense. Under international law, humanitarian activities can be undertaken in times of both peace and war. ▸ Fundamental guarantees ▸ Human rights ▸ Refugees ▸ International Court of Justice ▸ International Criminal Court ▸ War Crimes/Crimes against humanity
In spite of this change, it is important to consider the specificity of humanitarian law in the strict sense. Indeed, this law is a considerable departure from the general principles and methods of application of human rights law and interstate international law, notably with regard to reciprocity, the consideration of non-state armed groups or relief workers, the notion of interference, and so on. In non-international armed conflicts involving non-state armed groups, the rights and duties of “parties to the conflict” are more relevant as that of “High Contracting Parties” to the conventions. Humanitarian law confers an international status on non-state armed groups involved in international and non-international armed conflicts. Therefore, its application does not rest on States alone, but also on the rights and obligations of all the actors in a conflict including relief organizations. It draws on specific procedures for its performance and in sanctioning the most serious violations.
▸ Legal status of the parties to the conflict ▸ Parties to the conflict ▸ Penal sanctions in humanitarian law ▸ Responsibility ▸ Right of access ▸ Right of humanitarian initiative ▸ Special agreement ▸ Universal jurisdiction
The written rules of international humanitarian law can be found it the following treaties:
- The various declarations and conventions signed in The Hague, Netherlands (in 1899, 1907, 1954, 1957, 1970, and 1973). They establish the rules governing the conduct of hostilities.
- The four 1949 Geneva Conventions further codified the rules and customs of the law of armed conflict. They set limits to the methods of warfare that may be used, and they added rules relating to the protection and relief of non-combatants during hostilities. As of April 2013, 195 States are party to these Conventions.
Each of the Conventions establishes the conditions for providing relief to a specific category of persons. The first three (GCI, GCII, GCIII) set forth the rules for the treatment of combatants who are wounded, shipwrecked, or prisoners of war in international armed conflicts. The fourth Convention (GCIV) establishes provisions for the protection of the civilian population, also in international armed conflicts.
- The two Additional Protocols to the Geneva Conventions were adopted in 1977 to consolidate and improve the rules of protection for victims of conflicts:
—The first Additional Protocol to the Geneva Conventions, Relating to the Protection of Victims of International Armed Conflicts (API), reinforces and completes the provisions foreseen by the Fourth Geneva Convention. As of June 2015, 174 States are party to Additional Protocol I.
—The second Additional Protocol, Relating to the Protection of Victims of Non-international Armed Conflicts (APII), completes the provisions for the protection of victims of non-international armed conflicts, originally foreseen by Common Article 3 to the four Geneva Conventions. As of June 2015, 168 States are party to Additional Protocol II.
In addition to the international conventions governing international and non-international armed conflicts, international humanitarian law is also constituted by rules considered to be part of customary international humanitarian law. Indeed, some rules on armed conflicts have become customary due to their duration and constancy. They are obligatory for the States and for the belligerents, even when they have not formally adhered to them. This is what happened with the Geneva Conventions, but there are other guarantees that enter into this category of customary international law rules (see below on customary international humanitarian law).
History and Codification of Humanitarian Law
The origins of humanitarian law go back to ancient history. The concept of rules regulating war is recognizable in every culture, religion, and tradition. It is closely linked to the history of war. In all historical periods, leaders set up rules and taboos that determine what is allowed and what is forbidden in military activities. These rules aim at trying to maintain control, discipline, and efficiency of military forces. They also aim at limiting the impact of violence and destruction, on the physical and mental integrity of combatants, in order to facilitate their return to society after the conflict has ended. Finally, they were intended to limit the destruction of the adversary’s territory and population with a view to the return to peace.
The first laws of war were not universal but rather regional. Indeed, the first Chinese treaty was drafted by Sun Tzu during the seventh to sixth centuries BC. Most of its principles were inspired by religion and aimed at humanizing social, political, and military relationships. However, these rules were enforced only between people of the same cultural background. If the enemies did not speak the same language or were from a different religion, these rules were not respected. The theory of “just wars” or “holy wars” is an illustration of the ambiguity of such a phenomenon. This theory progressively moved from the requirement of “just war” (holy or just goals) to the requirement of “just means.” Subsequently, European lawyers such as Grotius, Vittoria, or Vattel, as well as Muslim lawyers such as Chaybani, transformed moral standards into legal rules, thereby anticipating contemporary universal codification. It is worth noting that, in the area of jus ad gentium , important Islamic writings were drafted before—and therefore probably influenced—European codification. This development was confirmed by contemporary international law that limits the conditions under which a State may resort to force while humanitarian law restricts the means and methods of war allowed, regardless of the objectives pursued.
The codification of international humanitarian law intensified during the nineteenth century, driven by the nongovernmental humanitarian initiatives and the diplomatic conferences that led to the adoption of these conventions by States.
A private Swiss organization, the International Committee of the Red Cross, created by Henri Dunant in Geneva after witnessing the lack of medical care provided to the victims of the battle of Solferino in 1859, played a key role in this codification and in the implementation of relief. In Solferino, Henri Dunant discovered the hidden face of military confrontations between the major powers of the time: 40,000 dead and wounded from both armies were left where they lay to become prey to pillagers on the battlefield. In 1864, Dunant was involved in the drafting of the first Geneva Convention for improving the fate of injured soldiers, and he invited States to sign it at a diplomatic conference specially convened for the purpose. This convention proposed, among other things, that States accept the work of a neutral and independent medical relief committee authorized to fetch and care for wounded and sick soldiers, whatever their nationality. During the war of 1870, the Committee extended its relief actions to prisoners of war not covered by the first Convention. Thus the offer of neutral humanitarian relief preceded international humanitarian law and served as the basis for its later codification by States.
In 1868, the Imperial Cabinet of Russia adopted the Saint Petersburg Declaration, which prohibited the use of certain weapons and “fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity.” This text asserted that the only legitimate object that States should endeavor to accomplish during war is to weaken the military forces of the enemy and that they should abstain from employing arms that uselessly aggravate the sufferings of disabled men or render their death inevitable. It defined the dialectics specific to humanitarian law, which accepted “useful suffering” for reasons of legitimate and objective military necessity while limiting “pointless suffering” by regulating the means and methods of war and creating a right to relief.
The 1870 war put this dialectical humanization of war to the test, as States attempted to limit concessions concerning the neutrality of medical relief. At the peace conference convened in The Hague in 1899, States demanded a rapid revision of the Geneva Convention of 1864. They left the right to relief initiative to the Geneva Convention and themselves adopted conventions relative to the peaceful settlement of international conflicts as well as regulation concerning the law and customs of war on land. These conventions and regulations from The Hague conference in 1899 were added to and amended at the second international peace conference convened in The Hague in 1907. The regulation concerning the laws and customs of war on land, annexed to the fourth Convention of 1907, summarized the rules and principles that continue to provide the framework for the law on contemporary conflicts.
World War I (1914–1918) was a further test of the balance between humanitarian and military necessities and created new needs in terms of relief. During this conflict, the ICRC positioned itself as an essential interlocutor for States and demonstrated the importance of its role as a neutral intermediary by maintaining a certain level of dialogue between the belligerents and, through its own relief initiatives, compensating for the law’s insufficiencies in addressing the scale of the needs created by such an intense conflict. Furthermore, the application of the principle of reciprocity—the cornerstone of general international law—created dangerous legal vacuums relative to treatment and right to relief, as States were only bound to respect the right to relief for combatants of a State having ratified the same conventions. For this reason, in 1926, the ICRC called for a review of the provisions relative to the treatment of wounded or sick soldiers and drafted an additional convention on the treatment of prisoners of war. The majority of the relief needs of combatants were thus covered by the new Geneva Conventions of 1926. However, there were still no regulations concerning relief for civilian populations. In 1934, the ICRC submitted a draft international convention to States concerning the condition and protection of civilians of enemy nationality on territory belonging to or occupied by a belligerent.
This draft was met with considerable reticence on the part of the different chancelleries, which considered this to be a mission that should be restricted to States and their armies. The examination of this text was interrupted by the outbreak of World War II. As a result, the ICRC’s action with regard to civilians during World War II was unsupported by humanitarian law.
World War II was a theater of horrors where methods of total war rubbed shoulders with techniques of mass extermination. Given the events, it had become unthinkable to ignore the gaps in humanitarian law concerning the protection of civilians. Consequently, at the end of the war, and despite the creation of the United Nations tasked with guaranteeing peace and international security, a more ambitious phase of codification of humanitarian law got underway. The four Conventions adopted in Geneva on 12 August 1949 were the fruit of this recodification. The first three unified and improved on existing humanitarian law, until then spread across the various Geneva and Hague Conventions and relating only to the protection of wounded or sick combatants or prisoners of war.
The fourth Convention, devoted to the protection of civilian populations in time of war, was a political and legal revolution. It instituted several categories of civilians protected by international law according to the type of risk to which they are exposed: poverty, occupation, deportation, attacks, sickness and injury, detention, internment, and the like. However, it did not cover the obligations of State parties to a conflict with regard to their own civilians. This gap was filled in 1977 by two Additional Protocols, which unified protection with reference to the notion of civilian victims of conflict and without mention of enemy nationality. This development, written into Protocol II, was thus applicable to non-international armed conflicts, which by their nature take place within the borders of a single State and oppose national armed forces against parts of their own population.
The fourth Convention restructured and set forth, in a single text, the rules relating to both methods of warfare and relief. It prevented States and armies from avoiding responsibility for the populations placed under their control, while also providing for the rights of impartial humanitarian organizations, acting as neutral intermediaries, to deliver effective relief and safeguard the rights of the most vulnerable. These Conventions recognized the dual role of the International Committee of the Red Cross both as a guardian of humanitarian law tasked with safeguarding its interpretation and proposing new codifications and as a relief organization ensuring the protection of victims. They acknowledged the special union between States and private humanitarian initiatives by annexing the statutes of the ICRC to the Geneva Conventions.
However, the situations covered by the Geneva Conventions continued to be centered on armed conflicts between States, with the situation of non-international armed conflicts covered only by their Common Article 3.
The conflicts that have taken place over the past fifty years do not really enter this category. They have been marked by fights for independence and decolonization and numerous internal conflicts, some of which have been internationalized through the direct or indirect intervention of other States.
The two Additional Protocols added to the Geneva Conventions in 1977 took account of two major changes in the form and methods of war: the fact that civilians were being targeted and becoming victims increasingly often and the growing number of internal conflicts.
Additional Protocol I extended the protection of victims of international armed conflicts already covered by the fourth Geneva Convention of 1949. Additional Protocol II created a completely new framework of protection for victims of non-international armed conflicts, which until then had only been covered by Common Article 3 to the Geneva Conventions of 1949.
The specific difficulty of Additional Protocol II is that it has to address the political and military imbalance of non-international armed conflicts. Indeed, it acknowledges that within the same national boundaries, the government’s armed forces are opposed to organized armed dissidents or opposition groups. Additional Protocol II thus clearly enters the domain of national sovereignty. Its content is an analogical but simplified transcription of the key provisions of the law on international conflicts concerning methods of warfare and right to relief for civilian populations. However, the definition and the rights of combatants arrested and detained in relation with the conflict are kept to a minimum, and it is essentially left up to the parties to the conflict to come to an agreement.
Many of the provisions of international humanitarian law have been contested and undermined by military actions carried out as part of the global war on terror launched in the wake of the terrorist attacks of 11 September 2001 in the United States. Yet humanitarian law continues to evolve in order to address these new challenges. The jurisprudence of national and international courts has in many cases reestablished an interpretation of humanitarian law that both conforms to its spirit and is adapted to the so-called new situations. The recognition in 2005 of an extensive corpus of rules of customary international humanitarian law compiled by the ICRC simplifies and facilitates the application and interpretation of this law in new and complex conflict situations.
Today, international humanitarian law is the only legal code regulating relief actions within the context of a conflict. Its rules, like any laws, must be interpreted in a manner that embraces the reality of conflicts, rather than in a manner aimed at avoiding responsibilities. Because war retains a pattern of more or less organized and institutionalized violence (although the level of organization varies), it is possible in all situations of conflict to identify the chains of command responsibility. This makes it possible to undertake negotiations that will include the application of, and respect for, humanitarian law.
A distinction is sometimes made between the rules regulating the conduct of war and those governing the right to relief, with The Hague Conventions seen as governing the way war is waged and the Geneva Conventions regulating the rights of non-combatants in times of armed conflict. This distinction is artificial.
In practice, the provisions of the Geneva Conventions and their Additional Protocols are not confined to organizing the delivery of relief to civilians. They also codify and incorporate numerous rules relating to the conduct of hostilities. For instance, they restrict or prohibit certain methods of warfare and establish the responsibilities of all parties to the conflict with regard to war crimes.
The obligations of armed forces during hostilities are consolidated under the entries on ▸ Methods (and means) of warfare ▸ War ▸ Weapons . The issues relating to the punishment of violations of humanitarian law are addressed in the entries on ▸ Penal sanctions in humanitarian law ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity .
Those concerning relief actions can be found under the entries on ▸ Assistance ▸ Humanitarian and relief personnel ▸ Medical duties ▸ Protected objects ▸ Protected persons ▸ Protection ▸ Relief ▸ Right of access ▸ Right of humanitarian initiative ▸ Supplies .
Humanitarian organizations, citizens, and political authorities need to be familiar with the provisions contained in the 1949 Geneva Conventions and the two 1977 Additional Protocols because they are the actors, by law and in practice, who organize and coordinate the responsibilities of civilian authorities and relief organizations in times of conflict.
Humanitarian law defends a right of action. Victims of conflicts are protected by the quality of relief actions carried out by humanitarian organizations. The quality of such actions depends on
- their rapidity and appropriateness (both the type and the quantity of aid provided);
- their conformity with the right to relief established by humanitarian law for the different categories of protected persons;
- the ability of relief organizations to account for any failures to address these rights.
To enable international humanitarian law to achieve its objective, rules and regulations have been developed around two axes: the responsibility of military commanders and the actions of humanitarian organizations.
The Responsibility of Military Commanders
Humanitarian law establishes certain rules, responsibilities, and requirements that must be respected.
- It presents a clear distinction between military and civilian objectives, between combatants and civilians, between strategic goods and objects essential to the survival of the civilian population. Fighting must only affect combatants and strategic objectives.
- It decrees that individuals and populations who are not taking part in the hostilities must not be targets and must be treated humanely at all times.
- It decrees that civilian objects and those indispensable to the survival of the population may not be targeted or destroyed.
- It requires that there be a clear chain of responsible command within the armed forces of all parties to the conflict. The hierarchy must ensure the discipline and respect for the rules of the law of armed conflict, both within the command structure and in the conduct of hostilities.
- It establishes a system of individual criminal responsibility for authors of war crimes (grave breaches of humanitarian law). All States commit to cooperate in searching for, prosecuting, and punishing the authors of such crimes, wherever they may be.
The Actions of Humanitarian Organizations
- Humanitarian law distinguishes between different kinds of situations and different categories of protected persons. It guarantees their right to the relief and protection that are best suited to their needs and the specific dangers they may face.
- It decrees the minimum guarantees that must be ensured in terms of relief and protection. These must be implemented in all situations, for all individuals.
- It clearly describes the relief and protection actions that the ICRC, relief organizations, and Protecting Powers are entitled to undertake for the benefit of the victims.
- It entrusts humanitarian organizations with a general right of initiative that allows them to conceive of and suggest any protection and assistance actions that may be necessary to protect the lives of the populations in danger.
- It specifies that activities of a humanitarian nature cannot be regarded as interference in the internal affairs of a State.
- It entrusts the ICRC with an exclusive mandate to ensure the application of the Conventions, record allegations concerning violations of humanitarian law, disseminate this law, and propose new developments to it when required.
Unlike international human rights law, international humanitarian law does not establish universal rights applicable to all individuals at all times. Instead, the specificity of the four Geneva Conventions is that each one applies to a different category of protected persons, defining the minimum standard of treatment that must be respected for each category. Hence, the applicable law differs depending on whether the situation concerns an international or an internal armed conflict, an occupied territory or a besieged area. It also differs depending on whether it concerns persons who are wounded or sick, civilians, women, children, internees, prisoners of war, and so on. ▸ Civilians ▸ Combatants; Population detention; Displacement; International armed conflict; International disturbances and tensions; Non-international armed conflict; Occupied territory; Protected persons; Wounded and sick persons
In humanitarian law, the legal qualification that persons or situations may be given is a crucial judicial and political factor, since the rights of each individual depend on the definition of his or her status.
To limit the risks of having individuals not be protected because they do not enter one of the categories set forth, humanitarian law enumerates minimum rules, as well as fundamental guarantees, that must be implemented and defended at all times, in all circumstances, for all those who do not benefit from a more favorable regime of protection.
In the field of human rights, international conventions also enumerate certain rights that are considered inalienable and correspond to “non-derogable” obligations. This means that States may never infringe on these rights, even in times of internal tensions or of war. These peremptory norms are therefore also applicable to all individuals, no matter what their status is, in all circumstances and contexts, even during armed conflicts.
The advantage of this approach is that it lists specific rights, carefully adapted to protect individuals in these categories from the specific risks they may incur as a result of their status or the nature of the situation. The weakness of this method is that, if the Conventions are applied in bad faith, it can lead to a refusal or a delay in providing the necessary protection while the concerned parties debate the specific definition or status of the protected person or of the situation. Furthermore, this approach means that a number of persons and situations are not covered by the laws regulating armed conflict, since they do not fall into one of the specific categories. In such cases, the fundamental guarantees of humanitarian law and general international guarantees that remain applicable at all times must be applied to them.
There has been fierce debate and considerable legal controversy over whether the definition of international and non-international armed conflict as set forth in the Conventions and Additional Protocols can be adapted to atypical armed conflict situations and the new forms of confrontation of the years after 2000. The terms internationalized armed conflict , transnational armed conflict , or even extraterritorial armed conflict have sometimes been used in order to describe the characteristics of these conflicts in a more precise manner, but also to contest or undermine the application of humanitarian law in these situations.
The Content of International Humanitarian Law
The rules vary depending on the nature of the armed conflict. It is therefore important to distinguish between:
- the law of international armed conflict, established by the Geneva Conventions and Additional Protocol I (1),
- the law of non-international armed conflict, established by Common Article 3 and completed by Additional Protocol II (2), and
- the customary rules of humanitarian law (3).
Interpretation and Application of Humanitarian Law
While the law of armed conflict was written for specific situations and persons, nothing prevents it from being invoked and applied in other situations of violence. In fact, many of its provisions can be found, in more or less detailed form, in a multitude of international texts. Furthermore, the provisions establishing the more detailed rules of protection can be used to interpret the more general clauses or to serve as a standard of reference for the provisions organizing relief operations.
This is of particular importance as the rules governing international armed conflicts are far more detailed than those governing internal conflicts. Hence, the provisions in the first set of rules can be used to give substance to the general principles referred to in other texts. Concretely, they are as follows:
- Although the 1977 Additional Protocols have not been ratified by all States, their provisions can be used to illustrate and interpret the content of the Geneva Conventions that they complete or complement.
- The provisions set forth in the Geneva Conventions and Additional Protocol I, relating to international armed conflicts, clarify the content of the general principles reaffirmed in Additional Protocol II, which relates to non-international armed conflicts.
- There are a certain number of articles common to the four Geneva Conventions. This implies that they are applicable to virtually all situations. Such articles include, for instance, the right of humanitarian initiative, the treatment of the sick and wounded, and general guarantees of humane treatment.
- Humanitarian law encourages parties to the conflict to implement its provisions by signing special agreements. In so doing, they are not limited by qualifications of given situations and persons, from a legal standpoint, or by the general rules governing the application and implementation of international humanitarian conventions. NGOs may therefore always invoke this right in carrying out relief actions.
- A great number of provisions of humanitarian law have now acquired a status of customary law applicable in both international and non-international armed conflict (infra).
▸ Fundamental guarantees ▸ High Contracting Parties ▸ International conventions ▸ Legal status of parties to the conflict ▸ Right of humanitarian initiative ▸ Situations and persons not expressly covered by humanitarian law ▸ Special agreement
The Law of International Armed Conflict
These rules are contained in the four Geneva Conventions of 12 August 1949 and the first 1977 Additional Protocol (Additional Protocol I).
The first three Conventions relate exclusively to the treatment of members of armed forces. We will only give a brief overview of their provisions because there is no lack of experts or means to uphold their content and implementation. We will go into more detail concerning the Fourth Convention, which relates to the treatment and protection of civilians, and Additional Protocol I, which addresses the fate of all victims of armed conflict, without distinction.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GCI)
- Articles 1 to 11: general provisions
- Articles 12 to 18: the wounded and sick
- Articles 19 to 23: medical units and establishments
- Articles 24 to 32: medical personnel
- Articles 33 to 34: buildings and material
- Articles 35 to 37: medical transports
- Articles 38 to 44: distinctive emblems
- Articles 45 to 48: execution of the Convention and unforeseen cases
- Articles 49 to 54: repression of abuses and infractions
- Articles 55 to 64: final provisions
- Annex I: draft agreement relating to hospital zones and localities
- Annex II: identity card for members of medical and religious personnel attached to the armed forces
Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (GCII)
- Articles 1 to 11: general provisions
- Articles 12 to 21: the wounded, sick, and shipwrecked
- Articles 22 to 35: hospital ships
- Articles 36 to 37: medical personnel
- Articles 38 to 40: medical transports
- Articles 41 to 45: distinctive emblems
- Articles 46 to 49: execution of the Convention and unforeseen cases
- Articles 50 to 53: repression of abuses and infractions
- Articles 54 to 63: final provisions
- Annex: identity card for members of medical and religious personnel attached to the armed forces at sea
Geneva Convention Relative to the Treatment of Prisoners of War (GCIII)
- Part I (Arts. 1–11): general provisions
- Part II (Arts. 12–16): general protection of prisoners of war
- Part III: captivity
—Articles 17 to 20 and 69 to 70: beginning of captivity and notification of capture
—Articles 21 to 24: general observations regarding places and modalities of internment
—Articles 25 to 29: quarters, food, and clothing of prisoners of war
—Articles 30 to 33: hygiene and medical attention
—Articles 34 to 38: religious, intellectual, and physical activities
—Articles 39 to 45: discipline and rank
—Articles 46 to 48: transfer of prisoners of war
—Articles 49 to 68: labor and financial resources of prisoners of war
—Articles 71 to 77: correspondence and relief shipments
—Articles 78 to 81: prisoners of war representatives and the right of complaint
—Articles 82 to 108: penal and disciplinary sanctions
- Part IV (Arts. 109–121): termination of captivity, release, and repatriation
- Part V (Arts. 122–125): information bureaus and relief societies for prisoners of war
- Part VI (Arts. 126–143): execution of the Convention, general provisions, and final provisions
- Annex I: model agreement concerning direct repatriation and accommodation in neutral countries of wounded and sick prisoners of war
- Annex II: regulations concerning mixed medical commissions
- Annex III: regulations concerning collective relief
- Annex IV: identity card, capture card, correspondence card and letter, notification of death, and repatriation certificate
- Annex V: model regulations concerning payment sent by prisoners of war to their own country
Geneva Convention Relative to the Protection of Civilians in Time of War (GCIV)
- Part I: general provisions
Articles 1 to 12 establish the general provisions relating to the implementation of the Convention—namely, the minimum guarantees applicable to situations not expressly covered by the Convention (Art. 3); the definition of protected persons (Art. 4); the possibility of negotiating special agreements (Art. 7); the role of the protecting powers or their substitutes, the ICRC, or any other impartial humanitarian organization (Arts. 9–11).
- Part II: general protection of populations against certain consequences of war
Articles 13 to 26 address the creation of hospital and safety zones and localities (Arts. 14, 15); the protection of wounded persons and hospitals (Arts. 16–20); the delivery of relief, medical supplies, food, and clothing to civilian populations (Art. 23); the special protection of children and dispersed families (Arts. 24–26).
- Part III: status and treatment of protected persons
Articles 27 to 34 set forth the provisions common to occupied territories. These include the responsibility of the occupying power toward the population (Arts. 27–29); prohibitions on using the population to serve as protection against military attacks and on taking hostages (Arts. 29, 34); the prohibition on coercion, certain forms of punishment, and intimidation of the population (Arts. 31–33); the right of the population and of protected persons to apply to the protecting powers, the ICRC, or any other organization for relief and protection (Art. 30).
Articles 35 to 46 protect foreigners in the territory of a party to the conflict.
Articles 47 to 78 regulate the status of occupied territories—namely, the prohibition on individual or mass forcible transfers or deportations (Art. 49); the protection of children (Art. 50); the protection of workers and the limits on enlistment (Arts. 51, 52); prohibited destruction and requisitions (Arts. 53, 57); the obligations of the occupying power in terms of the hygiene and public health of the populations, as well as the organization of relief (Arts. 55–63); the guarantees concerning the applicable laws and the functions of courts of law (Arts. 54, 64–75); the guarantees for detainees (Arts. 76, 77).
Articles 79 to 135 regulate the status and treatment of internees.
Article 136 to 141 regulate the provisions regarding the Central Tracing Agency, which centralizes the information concerning persons who are interned, detained, or have disappeared.
- Part IV: execution of the Convention
Articles 142 to 159 regulate the general provisions and final provisions, namely, the penal sanctions applicable to grave breaches of the Convention (Arts. 146–149).
- Annex I: draft agreement relating to hospital and safety zones and localities
- Annex II: draft regulations concerning collective relief
- Annex III: internment card, letter, and correspondence card
Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (API)
- Part I: general provisions (Arts. 1–7)—namely, general principles, scope of application, situations not expressly covered by the Convention, legal status of the parties to the conflict
- Part II: the wounded, sick, and shipwrecked
—Articles 8 and 9: general protection and terminology
—Articles 10 and 11: protection and care
—Articles 12 to 16: general protection of medical services, units, and personnel, including protection against requisitions
—Articles 17 and 18: role of relief societies and identification
—Article 20: prohibition of reprisals against the wounded, sick, and medical installations
—Articles 21 to 31: protection and regulation of different means of medical transportation
—Articles 32 to 34: missing and dead persons
- Part III: methods and means of warfare, and the status of combatants and prisoners of war
—Articles 35 to 37: basic rules, new weapons, and perfidy
—Article 38: recognized emblems
—Articles 43 to 47: status of combatants, prisoners of war, mercenaries, and spies
- Part IV: the civilian population
General protection against effects of hostilities—namely:
—Articles 48 and 49: basic rule and field of application
—Articles 50 and 51: definition and protection of civilians and civilian population
—Articles 52 to 56: definition and protection of civilian objects
—Articles 49, 57, and 58: definition of attacks and precautions against the effects of attacks
—Articles 59 and 60: localities and zones under special protection (non-defended and demilitarized)
—Articles 61 to 67: definitions, organization, and identification of civil defense
- Relief in favor of the civilian population
—Articles 68 to 71: definition of basic needs organization of relief actions and status of relief personnel
- Treatment of persons in the power of a party to the conflict
—Article 73: refugees and stateless persons
—Article 74: reunion of dispersed families
—Article 75: fundamental guarantees
—Article 76: protection of women
—Articles 77 and 78: protection and evacuation of children
—Article 79: measures or protection for journalists
- Part V: execution of the Conventions and of this Protocol
—Articles 80 to 84: activities of the Red Cross and other humanitarian organizations (Art. 81); legal advisers in armed forces (Art. 82); dissemination and rules of application (Arts. 83, 84)
—Articles 85 to 91: repression of breaches of the Conventions and this Protocol, namely: repression (Art. 85); punishment of failures to act (Art. 86); duty of commanders with regard to breaches (Art. 87); mutual assistance in criminal matters and cooperation (Arts. 88, 89); International Fact-Finding Commission (Art. 90); responsibility and compensation (Art. 91)
- Part VI (Arts. 92–102): final resolutions—namely, the restrictions imposed on the denunciation of the Conventions or Protocol
- Annex I: regulations concerning identification—namely, identity card for permanent civilian medical and religious personnel (Art. 1); identity card for temporary civilian medical and religious personnel (Art. 2); the distinctive emblem—its shape, nature, and use (Arts. 3, 4); distinctive signals—light signal, radio signal, electronic identification (Arts. 5–8); communications—radio communications, use of international codes, other means of communication, flight plans, signals and procedures for the interception of medical aircraft (Arts. 9–13); civil defense—identity card, international distinctive sign (Arts. 14, 15); works and installations containing dangerous forces—international special sign (Art. 16).
- Annex II: identity card for journalists on dangerous professional missions
The Law of Noninternational Armed Conflict
These rules are contained in Common Article 3 to the four Geneva Conventions of 12 August 1949 and the second 1977 Additional Protocol (Additional Protocol II).
Common Article 3 to the Four Geneva Conventions
This article establishes the minimum level of protection that must be provided in times of non-international armed conflict, as well as in the case of situations (or for persons) that are not expressly covered by the Conventions and that do not benefit from a more favorable regime of protection.
Common Article 3 begins by imposing an absolute prohibition on certain acts. This prohibition remains applicable at all times and in all circumstances with regard to non-combatants. This principle is therefore valid in situations of internal disturbances and tensions, to which the law of armed conflict does not otherwise apply.
- The following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause]:
- violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- taking of hostages;
- outrages upon personal dignity, in particular humiliating and degrading treatment;
- the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
- The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
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.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. (GCI–IV Art. 3)
Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Noninternational Armed Conflicts (APII)
Additional Protocol II concerns the victims of armed conflicts that “take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (Art. 1.1).
It does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, which are not qualified as armed conflicts (Art. 1.2).
The Protocol clearly specifies the protection that must be provided for victims of internal armed conflicts. It enumerates the guarantees that a State in the throes of such a conflict owes its citizens. Among other matters, it reinforces the fundamental rights of children and the protection against sexual violence and slavery. It also
- details the fundamental guarantees that must be ensured for all persons who are not or are no longer participating in the hostilities (Art. 4);
- adds provisions, in addition to those of Article 4, that must be respected, as a minimum, with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained (Art. 5);
- establishes the judicial guarantees that are mandatory to ensure the respect for the fundamental guarantees (Art. 6);
- sets forth the general measures of protection and care that must be provided for the wounded and sick (Arts. 7–12); and
- enumerates the measures of protection and the right to relief from which the general civilian population must benefit (Arts. 13–18).
The Customary Humanitarian Law Applicable to International Armed Conflicts (IAC) and Noninternational Armed Conflicts (NIAC)
In 2005, the International Committee of the Red Cross (ICRC) published a detailed study on customary international humanitarian law. This report, entitled Customary International Humanitarian Law (“customary IHL study”) is divided into three volumes. The first volume contains the 161 rules of customary international humanitarian law listed by the ICRC and provides a database to help countries better respect customary law. These rules are divided into six sections: (1) the Principle of Distinction, (2) Specifically Protected Persons and Objects, (3) Specific Methods of Warfare, (4) Weapons, (5) Treatment of Civilians and Persons Hors de Combat , and (6) Implementation. Most of these rules are applicable in both international armed conflict (IAC) and non-international armed conflict (NIAC).
- Section 1, The Principle of Distinction , reaffirms the imperative of distinction between civilians and combatants (Rules 1–6), applicable in most cases of international and non-international armed conflict, and the imperative of distinction between civilian objects and military objects (Rules 7–10), applicable to both international and non-international armed conflicts. It also recalls the prohibition on indiscriminate attacks (Rules 11–13) and the principles of proportionality (Rule 14) and precaution in attack (Rules 15–24), which are applicable to both international and non-international armed conflicts.
- Section 2, Specifically Protected Persons and Objects , enshrines the rights of medical and religious personnel and objects (Rules 25–30, IAC/NIAC), humanitarian relief personnel and objects (Rules 31–32, IAC/NIAC), personnel and objects involved in a peacekeeping mission (Rule 33, IAC/NIAC), and journalists (Rule 34, IAC/NIAC), and also provides grounds for the protection of protected zones (Rules 35–37, IAC/NIAC), cultural property (Rules 38–41, IAC/NIAC), works and installations containing dangerous forces (Rule 42, IAC/NIAC), and the natural environment (Rules 43–45), applicable in most of cases to international and non-international armed conflicts.
- Section 3, Specific Methods of Warfare , lists the rules of customary law applicable in the conduct of international and non-international armed conflicts. It sets forth the imperative of granting quarter to persons hors de combat (Rules 46–48, IAC/NIAC), the authorization of seizure of the enemy’s property as war booty during international armed conflicts and the prohibition of destruction or seizure of the adversary’s propriety in international and non-international armed conflicts unless it is required by imperative military necessity (Rules 49–52), the prohibition of starvation of the civilian population as a method of warfare and the obligation for parties to the conflicts to allow and facilitate the rapid and unimpeded passage of humanitarian relief efforts (Rules 53–56, IAC/NIAC), and also provides grounds for the protection of the different internationally recognized flags and emblems (Rules 57–65, IAC/NIAC) and for the ways of communicating with the enemy (Rules 66–69, IAC/NIAC).
- Section 4, Weapons , lists the general principles on the use of weapons, such as the prohibition of weapons that are of a nature to cause superfluous injury or unnecessary suffering (Rules 70–71, IAC/NIAC); the prohibition of the use of poison (Rule 72, IAC/NIAC), biological weapons (Rule 73, IAC/NIAC), chemical weapons (Rule 74–76, IAC/NIAC), expanding bullets (Rule 77, IAC/NIAC), exploding bullets (Rule 78, IAC/NIAC), weapons primarily injuring by non-detectable fragments (Rule 79, IAC/NIAC), booby traps (Rule 80, IAC/NIAC), the cautious use of landmines (Rules 81–83), and incendiary weapons (Rules 84–85, IAC/NIAC); and finally the prohibition of the use of blinding laser weapons (Rule 86, IAC/NIAC).
- Section 5, Treatment of Civilians and Persons Hors de Combat, provides the fundamental guarantees for the protection of civilians and persons hors de combat in international and non-international armed conflicts, such as the principle of humane treatment; the prohibition of murder, torture, corporal punishments, mutilation or scientific experiments, rape and other forms of sexual violence, slavery, forced labor, the taking of hostages, the use of human shields, enforced disappearances, arbitrary deprivation of liberty, arbitrary arrests, and collective punishments, and the respect of religious beliefs (Rules 87–105, IAC/NIAC). It also lists all the rules regarding the protection of combatants and prisoner-of-war status (Rules 106–8, IAC); the wounded, sick, and ship-wrecked (Rules 109–11, IAC/NIAC); the dead (Rules 112–16), for whom rules are applicable both to IAC and NIAC except for Rule 114, which provides that parties to the conflict must facilitate the return of the remains and the personal effects of the deceased, which is applicable only in IAC; missing persons (Rule 117, IAC/NIAC); and persons deprived of their liberty (Rules 118–28), for whom the rules are different for IAC and NIAC, as Rule 124 applies differently in IAC and NIAC and Rule 128 provides that, in IAC, prisoners of war must be released and repatriated without delay after the cessation of active hostilities, whereas persons deprived of their liberty in relation to a non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist. This section also lists the Rules applicable to displaced persons (Rules 129–33), whose protection status differs whether they are victims of an IAC or an NIAC, and other persons afforded specific protection, which applies both to IAC and NIAC (Rules 134–38).
- Section 6, Implementation , lists the rules regarding the compliance with international humanitarian law (Rules 139–43, IAC/NIAC) and the enforcement of international humanitarian law, mostly applicable to international armed conflicts (Rules 144–48), and gives provisions regarding the issues of responsibility and reparation during international and non-international armed conflicts (Rules 149–50) and individual responsibility, namely the issue of criminal responsibility applicable to individuals, commanders, and combatants for war crimes during international and non-international armed conflicts, and finally (Rules 151–55) it gives provisions regarding war crimes, recalling the right of States to vest universal jurisdiction in their national courts over war crimes, their responsibility to investigate alleged war crimes and prosecute the suspects, and reaffirming the absence of statutory limitations for war crimes (Rules 156–61).
▸ Assistance ▸ Customary international law ▸ Detention ▸ Fundamental guarantees ▸ Humanitarian and relief personnel ▸ Individual recourse ▸ Internal disturbances and tensions ▸ International conventions ▸ International Criminal Court ▸ Human rights ▸ Medical duties ▸ Methods (and means) of warfare ▸ Non-international armed conflict ▸ Penal sanctions in humanitarian law ▸ Protected persons ▸ Protecting powers ▸ Protection ▸ Red Cross and the Red Crescent ▸ Relief ▸ Respect for international humanitarian law ▸ Responsibility ▸ Right of access ▸ Right of humanitarian initiative ▸ Situations and persons not expressly covered by humanitarian law ▸ War ▸ War crimes/Crimes against humanity
A variety of questions concerning the interpretation of humanitarian law have been put to international courts. In addressing them, the courts’ aim has been to permit the application of the law to concrete situations unlike those foreseen by the authors of the 1949 Geneva Conventions. They have confirmed the need to adapt the interpretation of humanitarian law, which takes account of the evolution in conflict situations.
In the Celebici Case , the ICTY’s Appeals Chamber recalled that the judges could depart from the letter of the law in order to respect the spirit of the Conventions. The judges drew on the Vienna Convention on the Interpretation of Treaties in affirming that a treaty should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose ( Celebici Case , IT-96-21-A, Judgment, 20 February 2001, para. 67). The judgment drew attention to the fact that in order to preserve the pertinence and effectiveness of the norms of the Geneva Conventions, it is necessary to adopt a method of interpreting the law that both allows humanitarian conventions to fulfill their goal of ensuring effective protection and avoids paralyzing the legal process. The ICTY confirmed that the interpretation of the Convention was in keeping with evolutions in the doctrine of humanitarian law that have assumed growing importance over the past fifty years, and that “it would be incongruous with the whole concept of human rights, which protect individuals from the excesses of their own governments, to rigidly apply the [condition of nationality] that was apparently inserted to prevent interference in a State’s relations with its own nationals” ( Celebici Case , IT-96-21-T, Judgment, 16 November 1998, para. 266).
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