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Clarke Legal Adviser, Unit of Thematic Advisers, Legal Division INTERNATIONAL COMMITTEE OF THE RED CROSS Geneva
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ICRC Overview
The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization. Its mission is exclusively humanitarian: to protect the lives and dignity of victims of war and internal violence and to provide them with assistance. Activities: Direction and coordination the international relief activities conducted by the Movement in situations of conflict. Endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles.
respect for the life and dignity of the detainees and to prevent torture, ill-treatment or abuse; conditions of detention are decent and detainees can exchange news with their families, as required by IHL.
world wide the movement continued to promote knowledge and understanding of international humanitarian law around the world, especially among fighters.
PART ONE GENERAL INTRODUCTION, DEFINITIONS AND FIELDS OF APPLICATION Do we need international humanitarian law, since the UN Charter outlaws war?
Reality:
wars continue to happen, and the rights of national self-defence and collective security exist
IHL is a balance between military necessity and humanitarian principles IHL evolves to meet new challenges:
new
International humanitarian law (IHL) is often called "law of armed conflict" or "law of war".
1. DEFINITIONS
1.2 Law of Geneva
Rules
of international humanitarian law concerning the right of the victims to protection. of international humanitarian law concerning the conduct of hostilities.
Law of Geneva
1863 Founding of the International Committee of the Red Cross and the first National Red Cross Societies 1864 First Geneva Convention (annex 1.1) 1906 Revision of the First Geneva Convention 1929 Revision of the First Geneva Convention Geneva Convention relative to the treatment of prisoners of war
By 2011, there were 194 Parties to the Four Geneva Conventions of 1949. These treaties have universal application. The two 1977 Protocols additional to the Geneva Conventions have 171 and 166 parties respectively, and the Third Protocol to the Geneva Conventions of 2005 has 56 parties.
2.3 The Two Protocols additional to the Geneva Conventions of 1977 Over 160 accessions to both Additional Protocol III regarding the emblem (details on use of the emblem to be covered later)
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Israel's rescue society (Magen David Adom) can use the Star
of David inside Israel.
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shall bear a red cross on a white ground, confirmed in 1906 at the Geneva Revision Conference. 1929, art. 19: recognition of the Red Crescent and the Red Lion and Sun Recognition not granted to Red Shield of David 1931 or Red Archway in 1935 Conventions 1949 and Add. Protocols 1977: confirm compromise of 1929 2005: Red Crystal (APIII)
Red Cross and Red Crescent remain unchanged New additional distinctive Emblem (Red
Crystal)
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3. INTERNATIONAL HUMANITARIAN LAW AND THE USE OF INTER-STATE FORCE 3.1 The distinction between "jus ad bellum" and "jus in bello"
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3. USE OF FORCE
3.2 The "jus ad bellum" The UN Charter allows the use of force in the following cases:
Self-defence Actions
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3.3 The "jus in bello" "Jus in bello" = International humanitarian law. It applies in all armed conflicts and must always be respected by all the parties to an armed conflict, to the extent that the Parties are bound by treaty or custom by the specific provision of IHL
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aimed at protecting the human person Both contain mix of rights and prohibitions
4.2 Differences Temporal jurisdiction HR wider, IHL limited to armed conflict Derogations only allowed in IHRL 4.3 The Merger Nuclear Weapons Case and Legal Consequences Case
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Derogations in times of emergency possible Scope of extra-territorial application disputed Right to life strongly protected (but not absolute!) Detention only pursuant to judgment
Derogations not possible Extra-territorial application unquestioned Right to life compromised POWs and civilian internees may be detained. 18
HUMAN RIGHTS
Freedom of Expression Freedom of Assembly Freedom of Movement
COMPLEMENTARY PROVISIONS
Prohibition against Torture Prohibition against illtreatment Fair Trial
IHL
Protection of wounded, sick and shipwrecked Protection of POWs and civilians Conduct of Hostilities
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4. HR and IHL
HR applies:
in situations that do not reach the threshold of armed conflict (e.g. during policing and law enforcement operations);
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4. IHL and HR
Hard Core of IHL and HR contain, eg Discrimination GC a3.1 Life GC a3.1 Torture GC a3.1 Slavery GC AP II, a4
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Non-international armed conflicts are governed by: Article 3 common to the Four Geneva Conventions of 1949 (annex 2.3) Protocol II of 1977 (annex 2.4)
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Protocol II
Protocol II develops and supplements common Article 3. Its scope has been defined more precisely, and rules of conduct adopted go beyond the statement of fundamental principles in Comm Article 3. A level higher organization of forces is required before APII applies.
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conflict between State Parties for a third State to become a Party to the conflict requires that its agents participate directly in hostilities
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International Armed Conflict Non-International Armed Conflict "Internationalised" Non-International Armed Conflict
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STATE A
STATE B
"all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them" (Common Art. 2, GC I IV)
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STATE A
STATE B B STATE
"all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance" (Common Art. 2, GC I IV)
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STATE A
"armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist rgimes in the exercise of their right of selfdetermination" (Art. 1(4), AP I)
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Armed Group 1
Armed Group 2
Government A
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties" (Common Art. 3, GC I IV)
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governmental zone
STATE A
rebel zone
"all armed conflictswhich 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 conerted military operations and to implement 35 this Protocol" (Art. 1(1), AP II)
STATE A
SUPPORT
INTERNAL
L NA R
Rebels of State A
SUPPORT
T IN
E NT I AT IO NA L AL N ER
IN TE
RN
STATE B
INTERNATIONAL
STATE C
internal conflict characterized by the intervention of the armed forces of at least one foreign power
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Treaty Law
Problems with Treaty Law
Not all states are party to IHL treaties; Reservations to ratification or accession create multiple regimes; Not all relevance issues are addressed in treaties especially in NIACs; States can revoke consent to be bound.
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Customary Law
Custom versus Treaty:
Custom:
binds
all states; no reservation to a custom; might cover areas not addressed in treaty; Not possible to denounce a custom.
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12 pertain only to International Armed Conflicts; 2 pertain only to Non-international Armed Conflicts; 147 pertain both to International and Non-international Armed Conflicts.
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Customary Law
Article 38(1)(b), Statute of the International Court of Justice
The Court whose function is to decide in accordance with international law disputes submitted to it, shall apply: a) b) international custom, as evidence of a general practice accepted as law; c) d)
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PART ONE
End of Part One Overview
Why is IHL necessary? Definitions, Law of Geneva, Hague, Emblems Treaty / custom Fields of Application IAC, NIAC, CA3, INIAC Use of Force, ad bello, in bellum Human Rights and IHL, similarities, differences
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