Some of these measures have to be taken in peacetime, others in the course of an armed conflict. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offense. Article 3 common to the Geneva Conventions deals with internal armed conflicts, i.e. States cannot invoke the specific nature of the conflict, the difficulty to qualify it, the accusation of illegal participation in the hostilities, terrorism, or the nationality of the person concerned to refuse the application of Common Article 3 to persons who are placed under their power and effective control. Its provisions are formulated in such a wa y as to take into account the special circumstances of warfare. Doctors without borders - All rights reserved, Situations and persons not expressly covered by humanitarian law, The Third Geneva Convention of 1949 specifically regulates the treatment of prisoners of war, the definition of which is derived from the definition of combatant (GCIâIII). Today, practically all States are party to the 1949 Geneva Conventions. 44.4). 17). Women must be treated with due regard to their specific needs and must benefit from treatment as favorable as that granted to men (GCIII Art. A Protecting Power is a State which safeguards the interests of one party in its relations with the other party to the conflict. The distinction between civilians and combatants is the core element of the protection granted to civilians under humanitarian law. This status takes into account the fact that combatants have a legitimate right to use violence, until they are captured. In the same way, parties to armed conflicts have to allow relief operations in favour of those in need, be they detainees, especially vulnerable groups of civilians or the general population, including in occupied territories. a State whose armed forces control part or all of the territory of another State. They regulate the validity of individual wills, notification of death certificates, the right to individual burial, and the obligation of the detaining power to investigate any death the cause of which is suspect. Whereas the general principles mentioned above are common to the law on all types of armed conflict, there are two different sets of specific rules: one for international armed conflicts and another for non-international armed conflicts (or civil wars). There are three answers of a legal nature to that question - and a sad conclusion: - The Charter has not completely outlawed the use of force. Returning to the question of implementation of humanitarian law by parties to an armed conflict, it should be emphasized that States do not exist in a vacuum; they are part of the community of all States party to the humanitarian treaties. Updated by the author in November 1998. These texts regulate the conditions for the detention of prisoners of war (housing, food, hygiene and medical care, religion, physical and intellectual activities, discipline, transfer, work, correspondence, money). Wounded or sick prisoners of war who have certain serious injuries or diseases are entitled to special measures of protection under humanitarian law. Prisoners are only under obligation to give their last and first names, rank, date of birth, and serial number. As the regulation of internal affairs is basically the prerogative of the sovereign State, the decision taken in 1949 to include Article 3 in the four Geneva Conventions was a great event. Over the centuries, classical Muslim jurists have provided impressive legal literature, which, just as international humanitarian law … 5). Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. An individual who has the status of a protected person under international humanitarian law has the right to special protection and reinforced relief. Whether military or civilian, they are considered non-combatants and may not be attacked and not be taken as prisoners of war by parties to a conflict. They do not set limits to the way military operations may be fought. The provisions include the fact that the detaining power must notify the authorities on which the prisoners depend of the capture, and it must allow the prisoners to receive and send lettersâtwo to four per month, depending on the model card used. The detaining power may hire the prisoners of war as workers, taking into account their state of health, as well as their age, sex, and rank, and only for work that is not for military purposes. 1, The Rules . âthe incurably wounded or sick whose mental or physical fitness seems to have been gravely diminished; âthe wounded or sick who have recovered but whose mental or physical fitness seems to have been gravely and permanently diminished; âthe wounded or sick who, according to medical opinion, are not likely to recover within one year. While their essential meaning can be summarized as "Don't shoot" or "Don't attack", the exact conditions implied vary depending on the respective sign … The four 1949 Geneva Conventions and Protocol I deal extensively with the humanitarian issues raised by such conflicts. It must be respected in all circumstances, for the sake of the survival of human values and, quite often, for the sheer necessity of protecting life. They were adopted on 8 June 1977 and, since that date, they have been open for ratification or accession by all States party to the 1949 Geneva Conventions. It defines their rights and sets down detailed rules for their treatment and eventual release. This holds particularly true for the obligation to make grave breaches of international humanitarian law (commonly called " war crimes " ) crimes under domestic law. International armed conflicts are conflicts between States. Humanitarian treatment of prisoners of war was not emphasized until the second half of the nineteenth century. All prisoners of war are … An institution of a special nature has stepped into the breach: the International Committee of the Red Cross (ICRC) . To underline its special role States have granted the ICRC obevserver status at the United Nations General Assembly. . If they fall into enemy hands, they become prisoners of war who may not be punished for having directly participated in hostilities. Loss of protection. Each and every one of us can do something to promote greater understanding of its main goals and fundamental principles, thereby paving the way for better respect for them. âThe persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give. Fourth Convention : on the protection of civilian persons in time of war. Qudus A. Mumuney. Good manuals on humanitarian law play a decisive part in effectively spreading knowledge of that law among military personnel. Thus, the civilian population must be immune from military attacks. . by. Each category of protected persons has a set criteria that establishes those who do and those who not not qualify for protection. International humanitarian law also extends the right to the status of prisoner of war to those taking part in a levée en masse - the inhabitants of a non-occupied territory which spontaneously take up arms at the approach of the enemy to resist the invasion, without having had time to organize themselves - if they carry their arm … 5). No, the term” prisoner of war” is conferred to enemy soldiers captured in international armed conflicts only under the Third Geneva Convention. The new Geneva Conventions of 1949 did not develop the rules of " Hague law " . With these two steps, Dunant hoped to ease the suffering caused by war. Although a private institution, the ICRC has an important role to play in the implementation of humanitarian law by the parties to an armed conflict. The ICRC is doing it utmost to encourage the remaining States to accede to the Protocols as well. Finally, the ever-increasing number of civil wars with frequent recourse to guerrilla warfare demonstrated the need to strengthen the protection of victims of non-international armed conflict. In particular, they failed to cover a fundamental issue of international humanitarian law: the protection of the civilian population against direct effects of hostilities (attacks on the civilian population, indiscriminate bombardment, etc.). There is another fundamental idea which deserves to be mentioned here: the rules of international law apply to all armed conflicts, irrespective of their origin or cause. âThe scale of applicable disciplinary punishments is clearly established by the Convention. 2. Such evacuation must be carried out humanely and in conditions similar to those for the forces of the detaining power in their changes of station. Individuals accused of violating humanitarian law may also be tried by an international criminal court. . Armed conflicts are a sad reality in our contemporary world. â¸. Indeed, States retain the right to defend themselves, individually or collectively, against attacks on their independence or their territory, in response to a (legal or illegal) use of force. â¸ Detention â¸ Fundamental guarantees â¸ Judicial guarantees. Prisoners of war who refuse to answer when questioned may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. Concurrently with the development of " Geneva law " , States have therefore codified, in various stages, international rules setting limits to the conduct of military operations. The habitual diet of the prisoners must also be taken into account (GCIII Art. Prisoners of war suffering from serious diseases or whose condition necessitates special treatment must be admitted to any military or civilian medical unit where such treatment can be given. 29). The ICRC acts in its own name, as a neutral intermediary between the two sides. The premises must be entirely protected from dampness and adequately heated and lighted (GCIII Art. There are four c… It provides the same rights for all individuals and whatever the circumstances are. Better respect for humanitarian law by all States and all parties to armed conflicts will do much to help create a more humane world. If the parties to a conflict fail to designate a protecting power, the ICRC will play this role with regard to the prisoners on both sides (GCIII Arts. Recent practice shows that for various reasons States are no longer prepared to appoint Protecting Powers. During an armed conflict, an individual who directly participates in the hostilities and falls into the hands of the enemy will enjoy protection under the Third Convention until such time that his or her status is determined by a competent independent and impartial tribunal, according to the rule of law (GCIII Art. In contrast to this well- structured system, humanitarian law relies much more on informal procedures. States not involved in an armed conflict have a legitimate interest in seeing that the Geneva Conventions or the Protocols (to which they are party) are respected by the parties to that conflict. 4. Prisoners of war cannot be prosecuted under International Humanitarian Laws (for instance, for having attacked the enemy fighters). Rule 106. INTERNATIONAL HUMANITARIAN LAW AND PRISONERS OF WAR. The status of prisoners of war is set out in detail throughout the 143 articles of the Third Geneva Convention, which regulates the protection of combatants fallen into the hands of the adverse power and the conditions of their detention. Additional Protocol I also establishes guarantees to prevent the status from being denied to a person who is entitled to it. The Diplomatic Conference which met at Geneva from April 21 to August 12,1949 adopted four Conventions, commonly known as the Geneva Conventions of1949. The following acts, committed against prisoners of war, are grave breaches of the Geneva Conventions: âwillful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Conventionâ (GCIII Art. 3. The Conduct of Hostilities under the Law of International Armed Conflict . In modern humanitarian law there is no place for discriminatory treatment of victims of warfare based on the concept of " just war " . In 1899, in The Hague, international protection was extended to wounded, sick and shipwrecked members of armed forces at sea, and in 1929 prisoners of war were also placed under the protection of the law of Geneva. British Medical Association. The conclusion is inevitable: there is a need for international rules which limit the effects of war on people and property, and which protect certain particularly vulnerable groups of persons. Pilloud, Claude. 14). 15). Humanitarian law has become a complex set of rules dealing with a great variety of issues. â¸ Collective punishment â¸ Corporal punishment â¸ Judicial guarantees. What, then, distinguishes humanitarian law from human rights law? Cambridge: Cambridge University Press, 2004. After the shock of seeing the battlefield of Solferino and the agony of so many wounded soldiers lying untended, Henry Dunant suggested action on two levels: - to establish an organization to assist wounded military personnel: the Red Cross; and. Certain prisoners of war accommodated in a neutral country can be directly repatriated following their treatment, under an agreement between the powers concerned, if: âtheir state of health has deteriorated so as to fulfill the conditions laid down for direct repatriation; âtheir mental or physical powers remain considerably impaired, even after treatment. The management and transfer of prisoners of warâs financial resources are precisely regulated by Articles 58 to 68. Prisoner of war camps must be clearly marked by the letters. ), wars do in fact occur, as we all know, despite their being outlawed by the Charter of the United Nations. For the first time in history a permanent international court has jurisdiction over crimes committed not only in the course of international armed conflicts but also during non-international armed conflicts. The Court's jurisdiction does not affect the obligation of States Parties to prosecute war criminals in their own domestic courts. (GCIV Art. . The method of verifying respect for humanitarian law differs considerably from the procedures espoused by human rights treaties. Whereas the concept of the right of self-determination is today well accepted by the international community, the conclusions to be drawn from that right for the purposes of humanitarian law and, in particular, its application to specific conflict situations are still somewhat controversial. The individual will be afforded protection under the Third Convention if he claims the status of prisoner of war, if he appears to be entitled to such status, or if the party on which he depends claims such status on his behalf by notifying the detaining Power or the Protecting Power [ICRC]. The role of the ICRC is even more important in such cases. In non-international armed conflicts, the combatant status is not officially recognized for members of non-state armed groups. Prisoners of war shall enjoy complete latitude in the exercise of their religion and in the practice of sports and intellectual activities (GCIII Arts. However, this does not impact the prisoner-of-war status of those who have taken part in hostilities. 45.1).In such situations, protection of an individual is strengthened; according to Additional Protocol I, where the detained person claims such status, a competent tribunal decides, and the procedures may be controlled, in particular by the ICRC. It can also be partially applied by way of Special Agreement in situations that do not amount to an international armed conflict. Determination of combatant and prisoner-of-war status must comply with criteria and procedures set by humanitarian law. Washington, DC: American Society of International Law, Task Force Paper, 2002. The ICRC works through its delegates. Protocol II has, however, a narrower scope of application than common Article 3. That State may, however, extradite the suspect to another State Party which is willing to prosecute him. Some of its provisions have no equivalent in human rights law, in particular the rules on the conduct of hostilities or on the use of weapons. From Henry Dunant to present-day international humanitarian law, A look at the substance of the law: humanitarian limits on warfare. 5). This means that the detaining power must prove before a competent tribunal that an individual may not benefit from this status. Spies may not benefit from prisoner-of-war status if they act without wearing the uniform of their armed forces (API Art. Let us, however, underline that legal rules alone are unable to cope with the real problems caused by armed conflicts. Rules which are not understood by or remain unknown to those who have to respect them will not have much effect. 44.2). The two Protocols of 1977 which are Additional to theGeneva Conventions reaffirm and supplement the G… If a party fails to do so, the State may be held responsible for a wrongful act. The 1977 Additional Protocol I strictly defines mercenaries. However, the Additional Protocol to the Geneva Conventions Relating to the Protection of Victims of Non-international Armed Conflicts (Additional Protocol II) establishes specific provisions and guarantees of treatment for persons detained for reasons related to a conflict (APII Art. In this article we shall not examine the first of Dunant's proposals, i.e. In 1977, the definition of a prisoner of war that had been established in 1949 was expanded to take into consideration the evolving notion of âcombatants,â tied to new military techniques. However, this article stipulates that, even when denied prisoner-of-war status, the combatant continues to enjoy protection equivalent to that granted to prisoners of war by Geneva Convention III and Additional Protocol I. 47). Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories of combatant (enumerated in GCIII Art. Let us now examine international humanitarian law as it stands today, with a brief glance at its history and its development. In 1899, in The Hague, international protection was extended to wounded, sick and shipwrecked members of armed forces at sea , and in 1929 prisoners of war were also placed under the protection of the law of Geneva. Two basic rules of international humanitarian law, namely the protection of civilians and the decent treatment of prisoners of war, are described in the following terms: "Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, Protocol I deals exclusively with international armed conflicts. They have to be respected in all circumstances and with regard to all persons protected by them, without any discrimination. 122â125). with matters pertaining to the internal affairs of States. Individuals who fall into the hands of the enemy during an armed conflict are protected under humanitarian law. Indeed, Common Article 3 to the four Geneva Conventions provides fundamental guarantees for all persons who do not, or no longer, participate in hostilities (in international or non-international armed conflicts). In the course of more than 125 years the ICRC has acquired considerable experience in persuading States and other parties to armed conflicts to respect h umanitarian law in international conflicts and in civil war. Prisoners of war have the right to make requests to the military authorities in whose power they are, regarding their conditions of captivity (GCIII Art. The specific category of protected persons is one that one applies in situations of international armed conflict, and applies to situations when the person is under the authority of the warring state. Why do we need international humanitarian law? âInhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Individuals who cannot benefit from this status are nonetheless protected by the minimum rights and fundamental guarantees to which all individuals are entitled under … Indeed, international rules on the protection of human rights oblige States to recognize and respect a number of basic rights of the individual and to ensure that they are upheld. Both mercenaries and spies must be treated humanely and are entitled at least to the fundamental guarantees. In other words, the ICRC will negotiate the right to discharge its humanitarian mandate on the territories of all the warring parties. prisoners of war, and civilians, as well as medical personnel, military chaplains and civilian support workers of the military. The definition of a prisoner of war is rarely applicable to internal armed conflicts. In situations of armed conflict detainees benefit from protection under a different set of rules depending on their legal status. If they violate international humanitarian law or do not comply with the law of war, they may have to face prosecution for war crimes. These principles give expression to what the International Court of Justice has called in the Corfu Channel Case " elementary considerations of humanity " , and later " fundamental general principles of humanitarian law " (Case concerning Military and Paramilitary Activit ies in and against Nicaragua). These provisions take into account the vulnerability of such seriously ill or injured persons and the advantages that may be gained by treating them in a peaceful and safe … The following shall likewise be treated as prisoners of war under the present Convention: The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party.
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