Activities
Activity
1
(5 minutes)
Review the session objectives (Overhead Transparency 4.1).
Activity
2
(45 minutes)
You can either make a presentation on international humanitarian law,
using Overhead Transparencies 4.2 to 4.17, or you can
distribute Reading 4.1: "International humanitarian law"
and give participants 20 minutes for silent reading. If you make a presentation,
be sure to cover the following:
The instruments which
form international humanitarian law
Although warfare
has been regulated since the memory of mankind, codification of the
laws of war began after the battle of Solferino in 1859. Henry Dunant,
a Swiss national, was so horrified after having experienced the battle
of Solferino that he started the Red Cross movement along with advocacy
work to put constraints on the waging of war. Soon thereafter, international
humanitarian law began to develop.
Today, there
are six main international instruments which regulate warfare and the
protection of civilians and those who are wounded in combat. The four
Geneva Conventions of 12 August 1949 and the Protocols additional to
the Geneva Conventions of 1977 provide the basis for international humanitarian
law and the protection of victims of armed conflict. We will also be
dealing with the recently adopted Rome Statute of the International
Criminal Court. In addition, there are a number of treaties that provide
limitations on the methods of warfare, such as laser weapons, and dum-dum
bullets, but those are outside the scope of this module.
The four Geneva
Conventions of 12 August 1949:
I. Geneva
Convention for the amelioration of the condition of the wounded and
sick in armed forces in the field.
II. Geneva
Convention for the amelioration of the condition of the wounded, sick
and shipwrecked members of armed forces at sea.
III. Geneva
Convention relative to the treatment of prisoners of war.
IV. Geneva
Convention relative to the protection of civilian persons in time of
war.
The two Additional
Protocols of 8 June 1977:
(Overhead
Transparencies 4.2 to 4.4)
When does
humanitarian law apply?
International
humanitarian law is particularly complex because of three different
thresholds in applicability. By threshold we mean that the conflict
has to have a certain level of intensity in order to be characterized
as an armed conflict:
The main shortcoming
of international humanitarian law is that most of it was drafted to
apply in international armed conflicts, and only parts of it apply to
internal conflicts. A weak point in relation to the different thresholds
is that there is no determining body to apply the standards or to decide
which body of humanitarian law is applicable, i.e. to determine when
a certain threshold has been crossed. Warring parties often argue that
there is no armed conflict and that accordingly humanitarian law does
not apply. The other more obvious weak point is in relation to enforcement,
which is also the case more generally with international law.
(Overhead
Transparency 4.5)
The laws
of war in non-international armed conflicts
1. Applicability
of Additional Protocol II:
The threshold
of applicability for Protocol II can be found in Article 1 under the
title "Material field of application". The protocol, this
article states, is a supplement to Common Article 3, and "shall
apply to all armed conflicts which are not covered by Article 1 of ...
Protocol I, and which 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."
Furthermore,
sub-para 2 of the same article goes on to state: "This Protocol
shall 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, as not being armed conflicts."
One of the
major problems then, is to successfully argue that in a given situation,
Protocol II is applicable. As is evident from the type of internal conflicts
that are currently taking place all over the world, they are triggered
by small factions and movements, that may be seen as not being "dissident
armed forces", or "organized armed groups". It will therefore
be a matter of negotiation as well, to discuss with both the government
and the other forces under responsible command, whether this particular
instrument is in force between them. The International Committee of
the Red Cross normally engages in such discussions, and will negotiate
on behalf of the international community.
Additional
Protocol II covers the following:
-
fundamental
guarantees for human treatment (similar to Common Article 3 but
more detailed);
-
special
protection for children in the fields of education, recruitment,
reunification, and safe areas;
-
minimum
standards for people deprived of their liberty;
-
protection
of the civilian population and civilian subjects;
2. Applicability
of Common Article 3:
No matter what
the level of fighting, Common Article 3 will always apply. Furthermore,
it is argued that Common Article 3 is part of international customary
law. In other words, a state would not even have to be a party to the
Geneva Conventions for these standards to apply. Therefore, when working
in the field, you can always base you arguments on the text of this
provision. It is here quoted in full because of its importance:
"In the case of armed
conflict not of an international character occurring in the territory
of one of the High Contracting Parties, each Party (i.e. states, rebels,
states helping, etc.) to the conflict shall be bound to apply as a
minimum, the following provisions:
(1) Persons taking no
active part in the 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, shall in all circumstances
be treated humanely, without any adverse distinction founded on race,
colour, religion or faith, sex, birth or wealth, or any other similar
criteria.
To this end, the following
acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
(a) violence to life and
persons, in particular murder of all kinds, mutilation, cruel treatment
and torture;
(b) taking of hostages;
(c) outrages upon personal
dignity, in particular humiliating and degrading treatment;
(d) 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.
(2) 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."
The general consensus
is that the parties to the conflict must be organized to some level
for them to be able to respect international humanitarian law, but
that Common Article 3 is applicable even to fighting between various
factions. As far as the definition of "armed conflict" is
concerned, it is generally agreed that there must be certain level
of intensity, that sporadic violence and riots do not constitute an
armed conflict. Nevertheless, Common Article 3 reflects elementary
considerations of humanity, which is binding on all individuals. Violating
these provisions therefore give rise to individual responsibility.
(Overhead Transparencies
4.6 to 4.10)
Interrupt your presentation
here to do the exercise described in the following activity.
Activity
3
(20 minutes) Divide participants into groups of five to six.
Distribute Handout 4.1: "Exercise on the applicability of
international humanitarian law". Ask the groups to complete the
exercise. Listen in to the discussions to make sure that the groups
are on track. They have ten minutes.
|
Group
Work
Imagine
that the states listed below have ratified the four Geneva Conventions
and the two additional protocols. Thinking of the nature and the
scale of fighting in these situations, which part of international
humanitarian law would you argue is applicable? Circle the answer
you think is the correct one and provide arguments for your position.
|
|
Country
|
International
|
Non-International
|
Non-International
|
|
-
|
-
|
Protocol
II
|
Common
Article 3
|
|
Colombia
|
X
|
X
|
X
|
|
Iraq
|
X
|
X
|
X
|
|
Sudan
|
X
|
X
|
X
|
|
Sir
Lanka
|
X
|
X
|
X
|
|
Algeria
|
X
|
X
|
X
|
|
Former
Yugoslavia
|
X
|
X
|
X
|
Ask the groups to share
their answers in plenary and mark the correct answers on the flipchart
sheet that you prepared in advance. As you mark the answers, lead a
discussion making sure that the arguments provided in the answer key
below are covered.
Answer key
The war
in Iraq was clearly an international war considering the cross-border
element of the invasion of Kuwait by Iraq, as well as the subsequent
intervention under UN flag, which involved several states. But there
has also been internal fighting between rebel groups and the government
army. It could be argued that all three levels of law are applicable
because the rebel groups have some form of organization and the fighting
has been fairly intensive. In Sudan the war has some cross-border implications,
but it is probably not enough to argue that the laws of war for international
armed conflicts are applicable. However, the various rebel groups in
Southern Sudan are very well organized and the fighting is fairly intensive,
so it is certainly possible to argue that both Article 3 and Protocol
II are applicable. Same arguments can be used for the armed conflict
in Sri Lanka as for Sudan. It is more difficult to argue in situations
like Algeria and Colombia that Protocol II would be applicable because
the fighting is rather sporadic, and the rebel groups appear not to
be very well organized in those situations. However, Common Article
3 would probably be applicable as a minimum standard. With regard to
the situation in Former Yugoslavia, for example, in Bosnia-Herzegovina
the fighting was internal with organized non-state entities of the different
ethnic groups. But there was also fighting that could be characterized
as an international armed conflict, such as the fighting between Croatia
and the Federal Republic of Yugoslavia. It is thus possible to argue
that depending on the particular conflict we are talking about that
the whole range of humanitarian law is applicable.
Activity
4
(10 minutes)
Continue your presentation as follows:
The International Criminal
Court
The adoption
of the Rome Statute of the International Criminal Court in July 1998
was an important step forward in terms of providing legal protection
to civilians in non-international armed conflicts. While the statute
is not in force at the time of preparing this module, it is anticipated
that Articles 6 to 8 (reproduced) will take on a life of their own,
even before the entry into force. This is because these Articles are
generally seen to be reflecting international customary law and therefore
expected to have great influence.
A statement
on the situation in Kosovo, presented to the Security Council by the
Under-Secretary-General for Humanitarian Affairs on 5 April 1999, provides
an excellent example of how the Statute is already being referred to.
In his statement, the Under-Secretary-General said the following:
"Reports
on events within Kosovo suggest a widespread, systematic campaign of
forced displacement of civilians. The recent tide of refugees has lent
credence to these claims. If independently confirmed, such acts may
be considered as ‘crimes against humanity’ in international law, as
outlined in Article 5 of the Statute of the International Criminal Tribunal
for former Yugoslavia, and Article 7 of the Statute of the International
Criminal Court."
The provisions
in Articles 6 to 8 are a potentially great resource for advocacy and
for preventing human rights violations against the civilian population.
Not only do the provisions reflect international customary law, but
once the statute enters into force, they will actually trigger individual
responsibility for those who carry out the violations.
Article
6 on genocide repeats the words of Article 2 of the 1948 Genocide Convention.
The great change will be the enforcement mechanism provided through
the Court.
Article
7 on crimes against humanity makes no nexus to armed conflict whatsoever,
and therefore these standards can bee seen as applicable in any "widespread
or systematic attack" against civilians. The provisions overlap
with some of the war crimes, but the latter are applicable in war only.
Article
8 on war crimes goes beyond what in international humanitarian law so
far has been recognized as "grave breaches". By comparison,
grave breaches are defined in Article 147 of Geneva Convention IV as
acts such as "wilful killing, torture or inhuman treatment, including
biological experiments, wilfully causing great suffering or serious
injury to body or health, unlawful deportation or transfer or unlawful
confinement of a protected person ... or wilfully depriving a protected
person of the rights of fair and regular trial" as well as "taking
of hostages".
The list
of crimes in Article 8 are not referring to isolated or incidental situations,
but when "committed as a part of a plan or policy". It is
noteworthy that this is the first time that it is accepted that war
crimes can be committed in non-international armed conflicts, which
are now covered in the latter part of the Article.
From a child
rights perspective, para (e)(vii) should be noted, and the fact that
"conscripting or enlisting children under the age of fifteen years"
has been defined as a war crime. This may be a potentially useful advocacy
tool, considering that the ICC will be an enforcement mechanism on the
international level. Attacks against aid workers and peacekeepers are
also considered a war crime. As noted above, individual responsibility
will follow for breach against these provisions.
Children
under the age of 18 cannot be prosecuted before the Court. The reason
for this is that the Court is considered purely punitive, and does not
have a rehabilitative function.
(Overhead
Transparencies 4.11 to 4.17)
Draw the
participants’ attention to the section on Common Article 3. Point out
the link with Session 3 where you discussed the provision of customary
law.
If you have
not done so yet, distribute a copy of Reading 4.1. Explain that
the reading includes what you just covered in your presentation, plus
the content of Articles 6 to 8 of the Rome Statute of the International
Criminal Court.
Activity
5
(35 minutes)
Hand out copies of Handout 4.2: "Exercise on responsibility
for war crimes". Allow participants 15 minutes to complete the
exercise in their groups.
|
Group
work
Security
Council Resolution 780 on former Yugoslavia stated that "all
parties are bound to comply with the obligations under international
humanitarian law and in particular the Geneva Conventions and
that persons who commit or order the commission of grave breaches
of the Conventions are individually responsible in respect of
such breaches". The crimes for which individuals may be prosecuted
were set out in Security Council Resolution 827, which established
the International Criminal Tribunal for the former Yugoslavia.
The crimes listed include (a) grave breaches of the Geneva Conventions
of 1949 (wilful killing, torture or inhuman treatment, taking
civilians hostages, etc), (b) violations of the laws and customs
of war (for example employment of poisonous weapons), (c) genocide,
and (d) crimes against humanity (murder, extermination, enslavement,
deportation, imprisonment, torture, rape, persecution on political,
racial and religious grounds, and other inhuman acts).
- In
relation to the role to be played by humanitarian organizations
in relation to following up on individual responsibility for
war crimes, is it appropriate for humanitarian organizations
to share information about genocidal acts with the International
Criminal Tribunals for Rwanda and former Yugoslavia?
- In
relation to perpetrators of genocide more generally, can we
as humanitarian actors negotiate with genocidaires?
- Against
the background that the Criminal Tribunals establish individual
responsibility, what arguments would you make to potential perpetrators
to stop gross violations of human rights, including genocide?
|
Discuss the answers in plenary.
Answer key
These questions
have no definite answers. The current ad hoc Criminal Tribunals establish
a framework where UN agencies can provide information to the prosecutor’s
office. Although some organizations have submitted documents, and some
staff members of aid organizations have testified before the Tribunals,
this has not been done on a systematic basis so far. It can be argued
that if humanitarian organizations were to allow their staff to testify
before the Courts, it would endanger colleagues and staff in the field.
They would become even more targeted than they already are because of
the potential threat they pose as witnesses. But it is also important
to give due regard to the situation of beneficiaries on the ground,
who may be asked to give information that can be passed on to the Tribunals.
The safety of the beneficiaries must be a key consideration, taking
into account that they will not be able to leave very easily in the
event that they are the targets of violent acts.
However,
the nature of genocidal activities is such that it can also be argued
that under no circumstances can information about such activities be
withheld. There are some occasions when it may be necessary to negotiate
with genocidaires because they have power over the civilian population
which is in need of humanitarian assistance. Then the interests of the
population at large may take preference over the choice not to get involved
with perpetrators of genocide at all. As a preventive measure, it can
be useful to let potential genocidaires know that certain acts may result
in individual responsibility, in order to deter certain activities.
As the criminal courts become more sophisticated and effective, this
argument may grow stronger.
It is difficult
for humanitarian agencies to play a preventive role in this type of
situations. However, within a human rights framework it would be important
to act on information that indicates possible genocidal acts. It is
important to speak about the situation on the ground in real terms,
be it through the media, passing information confidentially to special
rapporteurs or treaty monitoring bodies, or engaging human rights NGOs
in fact-finding missions.
Activity
6
(5 minutes)
Refer to the session objectives on Overhead Transparency 4.1 to
wrap up the session.
PowerPoint:
International humanitarian law
