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International Humanitarian Law (IHL), also known as the law of war, the laws and customs of war or the law of armed conflict, is the legal corpus "comprised of the Geneva Conventions and the Hague Regulations, as well as subsequent treaties, case law, and customary international law." [1] (http://www.ihlresearch.org/ihl/ihl_info.php) It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.
The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.
Basic rules of IHL
Dr. Hans Peter Gasser, former Senior Legal Adviser at the ICRC, outlines the basic rules of IHL:
- Persons who are not, or are no longer, taking part in hostilities shall be respected, protected and treated humanely. They shall be given appropriate care, without any discrimination.
- Captured combatants and other persons whose freedom has been restricted shall be treated humanely. They shall be protected against all acts of violence, in particular against torture. If put on trial they shall enjoy the fundamental guarantees of a regular judicial procedure.
- The right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering shall be inflicted.
- In order to spare the civilian population, armed forces shall at all times distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects shall be the target of military attacks. [2] (http://www.ihlresearch.org/iraq/feature.php?a=5)
Examples
Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a Red Cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or white flag are expected to maintain neutrality, and may not engage in warlike acts; in fact, engaging in war activities under a white flag or red cross is itself a violation of the laws of war.
Other examples of the laws of war address declaration of war, (the UN charter (1945) Art 2, and some other Arts in the charter, curtails the right of member states to declare war; as does the older and toothless Kellogg-Briand Pact of 1928 for those nations who ratified it but used against Germany in the Nuremberg War Trials) , acceptance of surrender and the treatment of prisoners of war; the avoidance of atrocities; the prohibition on deliberately attacking civilians; and the prohibition of certain inhumane weapons. It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform and fighting in that uniform, is forbidden, as is the taking of hostages.
Violations and punishment
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.
Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5. For example, in World War II during the Battle of the Bulge, German SS troops put on American uniforms and impersonated American troops in order to surprise and kill American soldiers behind their own lines. Some of these Germans were captured and immediately executed even though they had surrendered.
Spies and "terrorists" are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.
After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.
Jus in bello
The agreements regarding acceptable practices while engaged in war are referred to as the jus in bello. Thus the Geneva Conventions are a set of jus in bello. Any international agreements about the justifiable reasons for a country to declare war against another can be referred to as jus ad bellum.
Non-uniformed guerrillas and Protocol 1
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), 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 civil 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 but not acts of violence in accordance with the laws and customs of war such as killing or capturing soldiers or damaging military property.
The 1979 First Protocol Additional to the Geneva Conventions (Protocol 1) seeks, among other things, to effectively bring legal combatant status to forces not adhering to the uniform and certain other regulations of the Hague and Geneva Conventions, which arguably can include terrorists. 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])
Noam Chomsky, the prominent linguist and leftist commentator, has speculated that the reference to armed conflicts against "racist regimes" may have been a deliberate reference to the armed resistance to the apartheid regime in South Africa at the time, and the reference to armed conflicts against "alien occupations" may have been a deliberate reference to armed resistance to various Israeli occupations of the time.
The Protocol may, unlike the 1949 Conventions that require combatants to where uniforms, also give lawful combatant status to non-uniformed guerrillas in international armed conflicts as long as they bear their arms openly during military opperations.
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 guerrilas, have refused to ratify it, including the United States of America and Israel, India, Indonesia, Iran and Iraq, or have ratified or acceded to it only with unilateral declarations limiting their acceptance, including Australia, China, France, Germany, the Russian Federation, Spain and the United Kingdom.
See also
External links
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