International Humanitarian law for Ethiopian students

International humanitarian law course is very interesting course for Ethiopian law students

1. The Meaning and Foundations of Humanitarian Assistance

2. foundational concepts 2

3. Purpose and Conceptual Scope of IHL IHL is a branch of International law regulating the relation between state parties in international armed conflicts. It is also applicable in non-international (internal) armed conflicts governing the conduct of hostilities between a state and an organized group. IHL is also named as the law of armed conflict; and previously known as the law of war. The different naming comes from the difference in the perspectives of looking at the subject. How?? IHL is principally concerned with mitigating the effects of armed conflict on those who are not or no longer taking part in hostilities. i.e. civilians, and the wounded, sick and surrendered members of armed force ( hors de combat ). 3

4. Cont’d IHL is the result compromise between two conflicting interests. How? Military Necessity Vs. humanitarian considerations (protection of those who do not or no longer participate in hostilities). IHL tries to strike the balance between absolute military necessity and human dignity and public conscience. Making civilians or hors de combat a target of military operation is no the purpose of a war and hence not a military necessity IHL does not rule out the possibility of armed conflict or render it impossible. 4

5. Cont’d The regulation of the very use or threat of force by a state against another is not within the scope of IHL. Previously, use of force was a lawful form of international relations ( Jus Ad Bellum ). Today t\\he use or threat of force against the territorial integrity and political independence of states is prohibited by the UN Charter (refer to your discussion in International Law) So jus ad bellum is transformed into jus contra bellum with limited exceptions. What exactly is the type of relation among states regulated by what is traditionally known as International Law. The political or diplomatic relation of states is the subject matter of International Law as regulated by the UN Charter. What is the UN Charter? It is the constitution of the international community of states. Only in restricted circumstances of self- defence and arguably national liberation (resistance to a tyrannical rule) is use of force allowed. IHL ( Jus In Bello ) has developed to regulate the conduct of war regardless of causes of the armed conflict. IHL is one of the oldest branches of international law which has developed even before the development of law of peace which governs the relations between states in times of peace and the use force (traditional or public international law). 5

6. Cont’d The bottom line is the reasonability or assessment of the justification of armed conflicts is not the concern of IHL. Whatever the legality of the war may be, IHL will be applicable with the purpose of limiting the consequences of the conflict by regulating the means and methods of war. If the war is characterized as a war of aggression (illegal use of force), it doesn’t create an obstacle in applying jus in bello on both of the belligerents. (the idea that wars of aggression cannot be regulated is not acceptable). The idea that the aggressor should be deprived of the rights conferred by jus in bello , while its obligation under this law remain unchanged defeats the purpose of IHL and ignores the principle of distinction. If the aggressor is to be deprived of the rights, it means the victim of the aggression can violate IHL as against the aggressor state such as attacking civilians and hors de combat . This ignores the principle that the enemy state is different from its civilian population and hors de combat . 6

7. Cont’d The belligerents are equal before jus in bello regardless of their status under jus ad bellum . If one is to respect and the other is not, then no respect at all can be achieved due to the reprisal attack (vicious circle or competition of barbarism). This is an exception to the general international law regime because international law will not be applicable to rebels as doing so would confer legitimacy and legal status to them. IHL is an exception for reasons of humanity. It is said that IHL is applicable to armed groups through national laws, not directly as subjects of international law (states). 7

8. Cont’d The reasons and the legality of a war is not relevant in protecting civilians and hors de combat (persons who can no longer engage in hostilities) from the horrors of the war. It steps in whenever war breaks out ( de facto armed conflict) with the aim of promoting humanity even in times of war; hence jus in bello is independent with regard to jus ad bellum . In fact, the respect of humanitarian rules in war situations lays down the foundation for the peaceful settlement of the dispute between the warring states. The fact that IHL deals with war does not mean that it makes the prohibition of war (use of force) doubtful under international law. 8

9. Philosophical Foundations of IHL War is the most absurd means of dispute resolution. War is founded on the reconciliation between military necessity and humanitarian concern. Weapons made to speak when states fail to settle their differences in peaceful manner. Is war controllable? Logical absurdity Vs. it is susceptible to control though it is difficult. War, although it is difficult to control, is controllable 9

10. Cont’d The basis for the rules of humanitarian law is built on the concept put forward by Rousseau (in The Social Contract) “war is not a relationship of man with man but a relationship between states, in which individuals are only enemies by accident, not as men but as soldiers..” Meaning that if soldiers lay down their weapons, they become mere men and hence should not be fought. Soldiers are not enemies personally, rather they are agents of states to the conflict; it is only the states that are enemies to one another. Form this, the principle of distinction is laid down between members of the fighting force (combatants) and civilians or combatants who no longer take part in hostilities. 10

11. Cont’d Henry Dunant looked at armed conflicts not from the perspective of distinction but in light of humanitarian assistance to the victims of war. He proposed two practical measures for the effectiveness of his idea Neutralization of medical personnel in the field (either the one accompanying the parties to the conflict or a neutral humanitarian organization ). They should not be the target of military operation and allow them to do their job This has laid the foundation for the adoption of the initial Geneva Convention (1864) and then after a series of revisions of the initial convention, the final 1948 Geneva Conventions have come into picture. The creation of a permanent organization for assistance to the victims of war. This has led to the founding of ICRC (International Committee of Red Cross). 11

12. Historical Development of IHL IHL has evolved through three different stages of development. 1. Early plan for peaceful order At this stage, the effort was to create a peaceful international order Utopian aspiration (state) where the perfectibility of man is assumed. 2. Control of wars by restraining the means and conduct of hostilities. The development of public international law and international organizations has contributed in the process The present regime of IHL is developed at this phase. 12

13. Cont’d 3. Disarmament (arms control), demilitarization and non-violent resolution of inter-state conflicts. The idea of simultaneous reduction in armed forces of all kinds has failed due to the reluctance of the powers. Arbitration: this is another war-controlling endeavor of the out the 19 th C. This mechanism of avoiding war, not controlling it. is a old one but it is getting high significance in the present times. 13

14. Cont’d Since the endeavor to realize the practical steps of disarmament couldn’t be successful, the war controlling mechanism has taken a step back on the development of laws and customs of war (IHL) i.e. to the second phase. The Hague conventions of 1907 has laid a ground for the contemporary sophistication and codification of humanitarian laws and customs in Geneva Conventions (1948) and Protocols Additional thereto (1977). 14

15. Scope of Application of IHL When there is an armed conflict, the international law of peace (Traditional International Law will be superseded by IHL (states are either in a state of peace or state of war). IHL will be applicable in spite of the absence of a formal declaration of war by parties to the conflict or even if the belligerents do not admit the fact that they are in a state of war. In cotemporary world, wars occur without declaration as was in earlier times; and diplomatic ties continues despite the existence of armed conflict between belligerents. 15

16. Cont’d If there is a de facto armed confrontation, then IHL would be applicable. The definition of armed conflict, as given by the commentary of ICRC, is very broad to include any armed intervention irrespective of its magnitude and how long the conflict lasts. Is IHL applicable on internal (non-international) conflicts in which a government and group of persons are part? The minimum, fundamental humanitarian rules embodied in four Geneva Conventions, the two protocols additions to them and the 1954 Cultural Property should be observed. AP II is devoted for the protection of victims of non-international armed conflicts. 16

17. Sources of IHL Treaties Before the final codification of the Laws and customs of war into Geneva Conventions and Protocols, IHL has passed through a series of bilateral and multilateral agreements on various humanitarian issues. Their general salient feature is new treaties or replacements came after the occurrence of a war taking into account new military and technological developments (methods and means of war). IHL treaties are few, most codified and well coordinated with each other as compared to other treaties of international law. 17

18. Cont’d These treaties are the four Geneva Conventions of 12 August 1949 supplemented by two Additional Protocols Convention for the Ameliorations of the Conditions of the Wounded and sick Armed Forces in the Field Geneva Convention is Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea Convention relative to the Treatment of Prisoners of War Convention relative to the Protection of Civilian Person in Time of War. Protocols Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts; and Protocol (II) Additional to Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts The treaty rules of IHL constitute obligations erga omnes belonging to jus cogens and their respect is not subject to reciprocity as an exception to the general law of treaties. Termination or suspension of the operation of the treaties may not be justified by even a substantial breach of the same by the other party in the armed conflict. 18

19. Cont’d The Geneva conventions and the protocols thereto are concerned in identifying persons and property that are protected against the effects of hostilities. The belligerents are required to distinguish between the civilian population and combatants, and between civilian objects and military objectives. Remember that the object of a war is to weaken the military forces of the enemy by attacking combatants and military objectives. Attacking civilians and civilian objects is not justified by military necessity 19

20. Cont’d There are also other categories of laws known as The Hague Laws concerned with the control of the means and methods of war. Means of war: restricting/prohibiting the use of certain weapons Methods of war: prohibited or permissible attacks Both set of laws of IHL have the same purpose of minimizing the evils of armed conflict. The Geneva laws do so by requiring belligerents to respect persons covered by the protection during hostilities. The Hague law achieve that same purpose by prohibiting certain means and methods of warfare. 20

21. Cont’d Customary IHL Although rules of IHL are widely codified in the multilateral treaties, customary rules of IHL are still important to cover issues not covered by treaties, to bind belligerents not party to treaties and to bind parties that have made reservations of some provisions of the treaties The importance of custom may increase in the future given the evolving need to protect victims of war against new technological developments in the means and methods of warfare; and the difficulty of treaty making in an international community of more that 190 states. Its drawbacks is in the fact that it is difficult to find a uniform military law and practice in armed conflicts among states to form a customary international humanitarian law. Formulation of rules on the basis of custom is always controversial as custom is in constant evolution and the difficulty to get uniform understanding and practice The codification of IHL since 150 years ago by the international community is to avoid such difficulty due to the variant and unacceptable behavior and practice of states in warfare. 21

22. IHL and International Human Rights Law You should have learnt Human Rights Law first because IHL is just an extension of application of human rights in times of war. Part of the problems in curriculum design and course distribution of undergraduate legal education IHL is a set of rules and customs meant to enforce human rights in armed conflicts. So, it would have been very easy to study IHL, had you learned human rights law first. It can be stated that international humanitarian law is that part of human rights law which is applicable in armed conflicts 22

23. Cont’d Human rights are peace time laws that can, in exceptional circumstances, be limited or derogated; where as human rights within the context of IHL are non- derogable . Meaning that states are required to respect, protect and promote such vulnerable rights in any armed confrontations with no exception for derogation of obligation, Note that IHL does not take all of the human rights guaranteed by the relevant international and regional human right covenants and protect them in war times. Rather it lays down rules and mechanisms for the protection of only those human rights that are vulnerable for violation during warfare. In fact the rules of IHL that are meant to safeguard human rights are foreign to human rights law. 23

24. Cont’d You can see a similar kind of correlation between human rights law and refugee law in that the latter safeguards the human rights susceptible for violation when persons flee from their home land out fear of persecution for various reasons. So refugee law lays down unique rules to realize the respect of human rights at the time of exodus. IHL also takes the special protection needs of refugees when it is caused by war. Read Refugee Law module on the interplay and interface between International Human Rights, Humanitarian and Refugee Laws. 24

25. International Armed Conflicts 25

26. Combatants The term combatant refers to all members of armed force with the exception of the medical and religious personnel, and journalists. Who are armed forces then? Armed forces consists of all organized armed forces and units including militia and volunteer corps that are integrated with the regular army of a state. Those who are authorized to accompany such as civilian members of ship and aircraft crews, war correspondents have a combatant status. Armed force has two mandatory features The armed force has to be organized and under a responsible command It has to be subject to an internal disciplinary system enforcing laws and customs of war 26

27. Cont’d The legal effects of being a member of an armed force Members of an armed force (combatants) can legally participate in hostilities and they are not legally liable for what they have done on behalf of a state They are not liable for criminal prosecution by the detaining power for what they did as a combatant If they fall into the hands of an enemy, they are entitled to the secondary status of prisoners of war Levee en masse is an exception to these requirements of armed force Levee en masse refers to the a situation where the inhabitants of a territory spontaneously take up an arm to resist an approaching invading enemy In such cases, the resisting inhabitants do not hat have time to organize themselves as army. Thus, fighters of levee en masse are combatants even if they do not fulfill the conditions for being an armed force. 27

28. Cont’d Levee en masse is a kind of non-international armed conflict where parties are also obliged to observe the laws and customs of war levee en masse has become less significant in modern day armed conflicts because, as a rule, the regular armed forces of an attacking party are armed to a degree that simply cannot be countered with the weapons available to spontaneous resistance What is the legal effect of not respecting IHL by armed forces either in international or non-international armed conflicts? Do armed force members forfeit their status as a combatant for such reasons? The fact that IHL is not respected in the conduct of hostilities does not result in loss of a primary status as a combatant and the consequent secondary status of prisoner of war; rather a combatant who is alleged to have violated IHL will be subject to criminal prosecution at the hand of the detaining power. 28

29. Cont’d Duties of combatants Combatants who take part in hostilities are duty bound to distinguish themselves from civilians with distinctive emblems or signs like by wearing military uniforms. This duty is aimed at enabling the adverse party to make distinction in hostilities so that civilians would be spared from attack. Failure to distinguish one self as a combatant results in forfeiting ones status as a combatant, and he will be subject to criminal prosecution by the detaining state. 29

30. Cont’d Exceptions The duty to distinguish is not required in situations where distinguishing oneself is not possible especially in wars of national libration where a guerilla cannot distinguish himself from civilian population. The fighters do not forfeit their status as a combatant and its secondary status (POW) for this reason. Levee en masse is another exceptional situations where a resisting public is not in a position to distinguish themselves. In both of the above scenario, if a guerilla or fighters of spontaneous resistance are captured by the adverse party, they are granted the secondary status of POW as a combatant during the war. 30

31. Cont’d Protection of wounded, sick and shipwrecked members of the armed forces (this is a customary humanitarian rule to be found in many military manuals) Protection against the Effects of Hostilities Wounded and sick military personnel should not be the target of attack because military purpose and necessity does not justify doing so. This is Rousseau's perspective laying down the principle of distinction; hostilities should be conducted in a manner that doesn't violate the principle at hand (means and methods of war). Wounded and sick combatants shall be collected and cared for This is Dunant’s point of view i.e. mitigating the effects of armed conflicts by providing humanitarian assistance to civilians and hors de combat. No discrimination is allowed in collecting and giving medical care This obligation is imposed on medical personnel by military manuals in general terms without making distinction between the wounded to be cared for. 31

32. Cont’d How it is possible to give humanitarian help to the sick and wounded combatants in the middle of the fight? Ratione loci : hospital zones and localities Ratione temporis : truces and evacuations Cease-fires (for humanitarian intervention) are possibilities in which the wounded armed members would be collected To give effect to the inviolability of the sick and wounded, medical personnel and installations should be spared. The immunity of medical personnel is the corollary of the principle of inviolability of the sick and wounded Medical personnel should give medical care with out adverse distinction except on medical grounds (the principle of neutrality) Medical and religious personnel should not be obliged to carry out tasks which are not compatible with their humanitarian mission. 32

33. Cont’d Obstructing or hindering the works of medical personnel is prohibited Medical personnel must not be taken as captives of war (this obstructs their mission) Where they are in the enemy occupation, they must be freely be able to continue their work of tending and caring the wounded and sick. They shall be immune from liability for their medical help to the adverse party. The belligerents themselves are obliged to search for and collect the wounded and sick combatants. The belligerents are obliged to let the medical and religious personnel do their mission, respect and protect them irrespective of which party they belong to. Civilian population may be also be called to assist/lend their hand in search, collection and evacuation efforts. Civilians have a duty to respect the wounded, sick and shipwrecked; they are not duty bound to act (to protect) wounded soldiers. The duty to protect is on belligerents and medical doctors As for treatment of the sick and wounded, no ill treatment of the sick and the wounded, after searched for, collected and evacuated, during retention. 33

34. Cont’d Protection of Prisoners of War (The Third Geneva Convention) The status of prisoner of war is meant to protect combatants who are captured by an adverse party. POWs are combatants who fall into the hands of an adverse party During their captivity, POWs retain their status as members of armed forces until they are repatriated. Combatants engaged in espionage (gathering information in clandestine manner) and mercenaries (a professional soldier engaged in hostilities for private gain) have no right to prisoner of war status if they are caught in the act. But their right to fair trial according to the criminal laws of the detaining state still stands Once a spy rejoins his army and subsequently captured must be treated as a prisoner of war. See to the requirements provided by AP for the fulfillment of a mercenary status Note that being a national is not a requirement for prisoner of war status. Residency may suffice. 34

35. Cont’d Treatment of prisoner of war Being a prisoner of war is not a kind of punishment, rather it is a protection scheme for combatants who fall at the hand of an enemy until the end of hostilities. The fundamental protections guaranteed by GC III are: POWs should be treated humanely War prisoners are not obliged to give information except their basic profiles The right to complete ‘capture card’ and sent via ICRC to the prisoners’ country Prisoners must be transferred from the danger zone to a place of safety Prisoners may be required to work, but may not be forced to work in dangerous works unless they consented for. POWs are entitled to correspond with their families – through ICRC- and receive envelops. POWs can be prosecuted for war crimes committed during hostilities Prosecution of prisoners should not used for reprisal 35

36. Cont’d Repatriation of prisoners Prisoners of war must be released and repatriated without delay after the end of hostilities Wounded and sick members, and medical personnel should be released before the end of hostilities because they are not susceptible to engage in the ongoing hostilities between the belligerent parties. The disability that entitles repatriation during hostilities is permanent disability to be determined by a Mixed Medical Commission (two from neutral states and the third one to be appointed by the detaining party). If civilians are captured by an adverse party, they must also be released even before the end of hostilities. Able-bodied prisoners are not repatriated before the end of hostilities except upon the agreement the parties. Mostly it is made through bilateral agreements between the belligerents with the help of third parties such as ICRC. Model agreement on repatriation before the end of hostilities is annexed to the Third GC 36

37. Conduct of Hostilities Remember that The Hague laws regulate the conduct (means and methods) of hostilities as different from Laws of Geneva. To realize the principle of distinction, combatants/military objects must be distinguished from civilian persons/objects. Combatants are members of an organized armed forces characterized by certain uniformity; whereas civilians are defined in a negative way (exclusion) as any person who is not a members of armed groups. The objects that are subject to attack are not defined explicitly because there is no intrinsic character that makes a certain object a military objective. What makes an object a military objective is its use or potential use for military purpose Even those specially protected objects such as hospitals and dams can be a military target if they are used for military purpose But combatants are obliged not to use these identified objects for military use So, it is to be determined based on the ruling circumstance (case by case) 37

38. Cont’d But two criteria are provided by Protocol I for an object to constitute a military objective based on the governing circumstance. These are: The object has to contribute effectively to the military action of one side, and The destruction or capture of the object must offer a definite military advantage for the other side. If these two conditions met taking the reality on the ground into consideration, then the object can be a military target (permissible attack). 38

39. Cont’d Besides the need to distinguish between military objectives and civilians (Geneva Conventions), the means and methods of warfare must also be regulated (Hague Laws) to give effect to the principle of distinction. Note that both sets of IHL aimed at protecting civilians and hors de combat i.e. balancing the need for military necessity Vs. humanitarian reasons Thus, the means and methods utilized should not result in indiscriminate attacks The weapons or the use of a weapon should be capable of being directed at specific military target (the attack should not affect civilians/civilian objects). The means used must be proportional to the military necessity If it is not proportional to what is required to overcome the enemy force, then it will inevitably affect/harm civilians/civilian objects. 39

40. Cont’d A belligerent is prohibited from abusing this law of IHL by using civilians as shields This will definitely expose civilians to the attack of the other side because the mere presence of civilians does not cease military objective from being a legitimate object of attack. The military objective, in this case, is the belligerent (combatants) taking civilians as shields; where as the shields are not. In such cases, it is not feasible to prohibit the other side from attacking its enemy that takes human shields while the latter is attacking at the same time. Note that IHL does not make armed conflict impossible 40

41. Cont’d Protection of Civilians against the Effects of Hostilities Sparing civilians from the effects of hostilities (distinction) is a customary international law later codified into treaties. Accordingly: Bombardment of undefended towns, dwellings or buildings is prohibited. Targeting attacks outside the combat zone is forbidden If an attack is to be launched on such places (due to assault), a warning should be given in advance. There is also an obligation on the part of civilians not to take part in hostilities at the pain of being a military target (a subject of attack). 41

42. Cont’d A civilian may be a subject of attack if he involves in hostilities directly. What constitutes a direct participation? It is any activity that represents direct threat to the enemy which, inter alia , includes the following, though it is to be determined case by case: Killing or taking prisoners of war Destroying military equipments Operating or supervising a weapon system or services it Transmission of information for use of weapons; and logistics of military operations So, civilians are prohibited from carrying out the above and similar activities. The fact that they take part in hostilities does not give them a combatant status because they are not members of an armed force, but they will be a subject of criminal prosecution by the detaining power 42

43. Cont’d Protection against Arbitrary Treatment If civilians fall into the hands of an adversary they have a right of protection against arbitrary treatment. They should be treated humanely If they took part in hostilities and become a hors de combat, they may be prosecuted. In such cases, their right for fair trial is guaranteed in GCs and APs. Civilians who left their homeland as a result of an armed conflict and flee to another territory are protected from any direct or reprisal attacks. They should not be force to return back to a state where they fear persecution for ethnic, religious or political grounds 43

44. Cont’d Where a civilian population is controlled by an enemy state (belligerent occupation), there is a risk of them being treated inhumanly by the occupying power. The conquering power is duty bound to respect the fundamental rights of the inhabitants. A reprisal attack on the civilian inhabitants of the occupied territory constitutes a war crime. 44

45. Conduct of Hostilities … Cont’d Means and Methods of war It is already said that IHL laws are generally two sets of laws i.e. the Geneva Laws (defining the protected persons and proper military objectives) and the Hague laws regulating the restricted or prohibited means and methods of war. It is to be noted that what are provided by The Hague laws are finally incorporated into the Additional Protocol I of the Geneva Covenants (Art. 35). The purpose of the regulations on the means and methods of war is the same as that of the Geneva laws i.e. mitigating the evils of war Their difference lies only on the way they achieve the purpose. 45

46. Cont’d Means of War Weapons that cause superfluous or unnecessary suffering are prohibited Biological and Chemical weapons in general are forbidden (this is a customary IHL binding on every state regardless of whether they signed it or not) They are beyond military necessity Weapons of indiscriminate character are also not permitted to be used in warfare. These are also not justified by military necessity The following are some among the long list of prohibited weapons of war under Art. 35 of AP I that fall under the above general prohibition: Incendiary Weapons Blinding laser weapons Explosive remnants Poisonous weapons Undetectable fragments (not-detectable by x-ray) 46

47. Cont’d Methods of War Torture aimed at receiving information Misuse of national or int’l emblems such as the Red Cross emblem to camouflage Killing of the adverse party who laid down arms and hors de combat Attacking medical facilities Destruction cultural property and historical heritages Perfidy (deceit) 47

48. Non-International Armed Conflicts 48

49. Cont’d Most of the regulatory regime of international armed conflicts has become applicable on internal armed conflicts. The purpose of IHL is protection of civilian and those who no longer take part in hostilities, hence the distinction made between international and non-international armed conflicts in terms of regulations does not make sense. How can it be theoretically valid to apply international treaties on armed groups that are not parties/ subjects of international law? The idea of international armed conflicts is already made clear – referring to armed conflicts in which two sovereign belligerents are engaged Non-international armed conflicts takes place between government forces and armed groups or among rebels Internationalized armed conflicts It is when warring armed groups are supported by other states or the two factions in conflict are supported by sovereign states. 49

50. Cont’d The theoretical and practical problem of applying IHL fully on internal armed conflicts Since armed groups are not subjects of international laws, applying IHL treaties and customs is not theoretically valid. Governments take internal conflicts as their domestic matter, hence a rebellion against an established government is a crime under national laws. Thus if the rebels are caught. They would not be given a combatants status, they would be treated as criticizes taking up arms against their government.ad will be punished under national criminal law. If IHL is going to be applicable on internal conflicts, it mans such rebels would be regarded as combatants and prisoners, and may not be liable froe mere participation in hostilities against. This is not acceptable to governments because it lays the group open for ay person to take up arms against the government Governments only accept combatant status for government forces only because they are agents of a state and not liable personally (this is Customary IHL). 50

51. Cont’d Common Art. 3 of GC regulates armed conflicts ‘not of international character’. They provide minimum protection for civilians and hors de combat The provision does not provide a technical definition of non-international armed conflicts This gap has left a room for national powers to characterize armed groups in their territory as the wish. the room left for government narrows the application of IHL on internal armed conflicts because governments ted to characterize any internal armed conflicts as not falling under definition of Art. 3. The definitional gap coupled with the need for additional protection has resulted in the adoption of AP II AP II gives a broad protection on the rights of the members of armed groups Besides widening the scope of protection, it also restricts the means and methods of war. Attacking non-defended localities and demilitarized zones As for th protection of civilians, the sick andnthe wounded, the surrendered members of the group, should be treted hmanely . 51

52. Cont’d AP II distinguishes int’l armed conflicts a from riots, disturbances, sporadic acts of violence. The following requirements are provided by AP II for a dissident armed group to get covered under the protection. The organized group has to be under a responsible command Effective control over part of the government territory Respect for the Protocol Does it mean that the fulfillment of these conditions confers a combatant status to members of the armed group? This is the striking difference in the regulation of international armed conflicts and non-international armed conflicts. 52

53. Cont’d Though the requirements fulfill, the members would not be considered as combatants; rather it is only for the respect the fundamental rights of the fighters. In other words, the Protocol is reinforcing the human rights of fighters during and after armed conflicts. If combatant status is not granted for dissident armed members, then what is so unique role of Int’l law of non-international armed conflicts in the presence of Int’l human rights law? The law of non-international armed conflicts lays down principles and mechanisms for the enforcement human rights in such kinds of conflicts which is foreign to the law of human rights. In riots and disturbances, though IHL does not apply, int’l human rights law continues to apply. In internal armed conflicts, the purpose of IHL is to reaffirm the respect and protection of human rights of civilians, members of armed groups in that it is a good demonstration of the fact that IHL is part of int’l human rights law. 53

54. Cont’d Besides the applicability of the treaty rules of Common Art. 3 of GC and AP II, customary law, general principles of int’l law and analogical application of the laws of int’l armed conflicts also govern non-int’l armed conflict essentially when treaty laws are silent. The application of other regulatory regimes besides treaty laws is required by the law of humanity and public conscience. Customary International humanitarian laws are deduced from the practices and opinio juris of sovereign states. The practice of states with respect to the respect and protection of civilians and hors de combat during hostilities, and human treatment of fighters and victims of war after the end of hostilities have emanated from the principles of humanity and dictates of public conscience (Martin’s Clause). 54

55. Cont’d Principles of int’l law consists of general rules derived from decisions (precedents) of various international courts and tribunals . Analogy: why? Because of similarity of objectives in both types of armed conflicts To fill the gaps, explain and make the application of law of internal conflicts possible (positive interpretation) Ex: no definition of civilian is provided under Art.3 of GC or AP II; so, there is no reason in adopting the same definition given in the context of international armed conflicts. The logical application of laws on means and methods of war as contained in Hague laws and AP I to non-international conflicts is necessary because such laws have aimed at protecting civilians, hors de combat from attack and effects of hostilities (the principle of distinction). 55

56. Cont’d As armed groups are not subjects of international law, IHL binds them through national laws. This shows the greater significance of taking legislative measures for the enforcement of IHL at national level. 56

57. Implementation of International Humanitarian Law 57

58. Implementation of IHL Besides the problems related to the implementation of International law in general, IHL poses a particular problem in its enforcement for reasons peculiar to its nature In the early development of international law. the means of enforcement was decentralized where there was no central organ responsible in the supervision and implementation of international laws. The injured state and its supporters takes the task of enforcing international agreements through various mechanisms The UN and IHL With the agreement of UN Charter and the establishment of UN, implementation of treaties within the UN framework begun somehow to be centralized, though it is still dominated by weak and applies double standards due to the different power structure. The use of veto powers for protecting ones political interest and the interest of allies. (rule of power, not rule of law) is one typical example. 58

59. Cont’d That being, the UN has a law enforcement scheme. The main extreme ones are use of force by Security Council and Economic Sanctions As one of the purpose of the UN is maintenance of international peace and security, the SC, entrusted with this mandate, may resort to use of force where it finds that a certain violation of international law breaks international pace and stability. These General law enforcement mechanisms of the UN are also applicable for the implementation of IHL ICJ may interpreted IHL through its advisory or contentions jurisdictions, and it had done in many case referring to IHL as “human rights in armed conflicts”. For Instance, the SC had established several international ad hoc tribunals for the prosecution of grave breaches of international law including war crimes. Ad hoc tribunal for former Yugoslavia, and Rwanda This demonstrates that the SC regards violations of IHL as breaches or threats of international peace and security. Meaning that the UN enforces IHL through the general implementation mechanisms of international law. 59

60. Cont’d Furthermore, states have established tribunals to avoid impunity of criminals alleged to have commented the heinous international crimes such as war crimes. Ex: the Nuremberg Tribunal established by London Agreement giving jurisdiction over war crimes committed by Nazi officials; and the Tokyo trial is also of similar purpose Further more sovereign state goes a step a head and established a permanent criminal tribunal by a Rome stature after a diplomatic conference held in Rome. It results in the establishment of ICC having a jurisdiction over international crimes such as crimes against peace (crimes of aggression), genocide, war crimes etc. 60

61. Cont’d Individual responsibility before international law The violations of international obligations undertaken by states is violated actually by individuals working in the name of governments. The idea of breach of international laws by states is an abstract legal concept like the notion of legal personality In traditional international law, it is only states that are subjects of the international law regime; whereas individuals are subjects to the national legal systems they belong to. According to the traditional structure, thus, only states can violate international laws . 61

62. Cont’d With the development of international law, the idea of individual responsibility has come into picture on the basis of the notion that the actual violators of international laws are individual persons working under state structure. International criminal law has developed with the consequence of making individual violators of International law including IHL liable. Further, the concept of universal jurisdiction over some serious international crimes has emerged. Universal jurisdiction allows/requires states to prosecute in respect certain grave crimes irrespective of the location of crime or the nationality of the perpetrator. 62

63. Cont’d Besides these general enforcement measures within or outside the UN framework, IHL has adapted the general means of enforcement to the specific needs of protection in armed conflicts. The implementation of IHL can seen from two perspectives: Measures to be taken before armed conflict (in peacetime) State parties to the Geneva conventions are obliged to disseminate knowledge of IHL Giving a regular training and maneuvers to armed force members on the rules of IHL Awareness creation to the public at large Translating IHL treaties to national languages The armed forces and battalions need to have their own legal advisors Providing identity cards or tags to combatants 63

64. Cont’d During armed conflict (war time) Parties to a conflict are obliged to respect IHL rules in the conduct of hostilities. They are bound by what they have agreed on ( pacta sunt servanda ) What is the basis of obligation for non-government armed groups in non-international armed conflicts? They are not party to the IHL treaties? Is it customary international law which is developed by state practices in which the practice of such groups is not taken into consideration. They should provide a complaint-handling mechanisms Conduct inquiries when there are allegations and app 64

65. Cont’d Appoint protecting powers to the conflict What is a Protecting Power System? Protecting powers are neutral states chosen by the parties to the conflict to oversee the respect of IHL during armed conflicts If the parties fail to appoint a neutral, they should accept the offer of humanitarian organizations such as ICRC to work as a humanitarian substitute of protecting powers. Tasks of protecting powers Visit to protecting persons (civilians or POWs) Supervision of relief measures and evacuations Assistance to judicial proceedings against protected persons. Receptions of applications, transmission of information, documents and others 65

66. Cont’d Most of the tasks performed by protecting powers can be performed by ICRC without being designed as a protecting power as a matter of its function. The role of national humanitarian organizations and NGOs These societies can promote the implementation of IHL by involving in a range of activities including: Lobbying the national governments to take legislative measures to adopt IHL and adhere to it. Drafting /commenting on the draft national laws on IHL Advising , dissemination, training personnel of armed forces Taking care of the wounded and the sick combatants in the hand 0f the detaining power by acting as auxiliaries to military medical services 66

67. Cont’d With the development of international law, the idea of individual responsibility has come into picture on the basis of the notion that the actual violators of international laws are individual persons working under state structure. International criminal law has developed with the consequence of making individual violators of International law including IHL liable. Further, the concept of universal jurisdiction over some serious international crimes has emerged. Universal jurisdiction allows/requires states to prosecute individuals alleged to have committed certain grave crimes irrespective of the location of crime or the nationality of the perpetrator . Among these crimes are crimes against peace, war crimes etc. 67

68. International Humanitarian Law In Ethiopia 68

69. Laws Governing Armed Conflicts The Constitution of the Federal Democratic Republic of Ethiopia Criminal law of Ethiopia International instruments to which Ethiopia is party Application of International Humanitarian Law in Ethiopia 69

70. Summary of the Fundamental Principles of IHL While the principle of distinction and military necessity (prevention of unnecessary suffering) has been established by Rousseau and Martens from the principles of humanity and dictates of public conscience, writers have broken down these broad principles into seven principles: Those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity (civilians) it is forbidden to kill or injure an enemy who surrenders or who is hors de combat (combatants – Prisoners of War) The same protection is extended for those who are in the middle of armed conflict for humanitarian assistance (medical personnel and facilities ) the wounded and seek shall be collected and cared for by the party to the conflict which has them in his power 70

71. Cont’d Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights Fundamental judicial guarantees (either combatants or civilians) Limitation on the choice of the means and methods of war It is prohibited to employ means and methods of warfare that indiscriminatory or cause unnecessary/excessive suffering to the adverse party. These summarized principles are the ones that are given effect by the detail regulations of IHL conventions and protocols. 71