BY DULYU M. KONAH,
LLB HOLDER.
INTRODUCTION
In
contemporary armed conflicts civilians are the primary victims of violations of
international humanitarian law committed by both State and non-State parties.
The nature of contemporary armed conflicts continues to provide
challenges for the application and respect of international humanitarian law in
a number of areas, ranging from the classification of armed conflicts to the
use of new technologies. There is a need to understand and respond to these
challenges to ensure that international humanitarian law continues to perform
its protective function in situations of armed conflict.[1]
The
increasing complexity of armed conflicts has given rise to discussions over the
notion and typology of armed conflicts, including whether the international
humanitarian law classification of conflicts into international armed conflict
(IAC) and non-international armed conflict (NIAC) is sufficient to encompass
the types of armed conflicts taking place today. The International Conference
for the Red Cross believes that to be the case, while recognizing that there is
an increasing number of different factual scenarios that may be classified as non-international
armed conflict (NIAC).[2]
In
contemporary armed conflicts the protective scope of international humanitarian
law remains of utmost concern. In many situations States are unable or
unwilling to meet the basic needs of civilians and in such situations international
humanitarian law provides that relief actions may be undertaken by other
actors, including humanitarian organizations, subject to the agreement of the
State. However, there remain many obstacles to humanitarian access, including
military, political and security-related concerns, which hinder the provision
of assistance to civilians in need.[3]
In
recent years extraterritorial military operations have given rise to new forms
of military presence in the territory of a State and refocused attention on the
rights and duties of an occupying power, the regulation of the use of force in
occupied territory and the applicability of the law of occupation to United Nations
forces. The responsibilities and tasks assigned to multinational forces
have also evolved to encompass a spectrum of operations including conflict
prevention, peace-keeping, peace-making, peace-enforcement and peace-building.
The multifaceted nature of these operations
means multinational forces are more likely to use force and raises the question
of when and how international humanitarian law will apply to their actions.
A
wide array of new technologies has entered the modern battlefield. Cyberspace
has opened up a potentially new war-fighting domain. Remote controlled weapons
systems such as drones are increasingly being used by the parties to armed
conflicts. Automated weapons systems are also on the rise, and certain
autonomous systems such as combat robots are being considered for future use on
the battlefield. There can be no doubt that international humanitarian law applies
to these new weapons and the employment of new technology in warfare. However,
these new means and methods of warfare pose legal and practical challenges in
terms of ensuring their use complies with existing international humanitarian
law norms, and also that due regard is given to the foreseeable humanitarian
impact of their use.
Hostilities
pitting non-State armed groups operating within populated areas against
government forces using far superior military means are also a recurring
pattern, exposing civilians and civilian objects to the effects of hostilities.
The intermingling of armed groups with civilians, in violation of International
Humanitarian Law, has by some armies been used as a justification to by-pass
the taking of all possible precautions to minimize risks to civilians, as
required by international humanitarian law. In this context, the effects of the
use of explosive weapons in densely populated areas on civilians and civilian
structures continue to be of concern.
MAIN CHALLENGES THAT INTERNATIONAL
HUMANITARIAN LAW FACING CURRENTLY.
1.
TERRORISM
A
basic principle of International Humanitarian Law is that those engaged in an
armed conflict must at all times distinguish between civilians and combatants
and between civilian objects and military objectives. International Humanitarian
Law thus prohibits deliberate or direct, as well as indiscriminate attacks on
civilians or civilian structures. The use of human shields or hostage taking is
similarly proscribed. When a situation of violence amounts to an armed
conflict, there is little added value in calling such acts "terrorism",
because they already constitute war crimes under international humanitarian
law.
Moreover,
international humanitarian law also specifically prohibits acts of terrorism
against civilians in the hands of the adversary, as well as spreading terror
among the civilian population by parties to an armed conflict in the conduct of
hostilities. These prohibitions, which refer to acts the sole purpose of which
is to intimidate civilians, are additional to the already mentioned rules aimed
at protecting civilian life and property more generally.
A
crucial difference between international humanitarian law and the legal regime
governing terrorism is that international humanitarian law is based on premise
that certain acts of violence in war – against military objectives and
personnel – are not prohibited. Any act of "terrorism", however, is
by definition prohibited and criminal. The two legal regimes should not be
blurred given the different logic and rules that apply. This is particularly
important in situations of non-international armed conflict, where a
"terrorist" designation may act as an additional disincentive for
organized armed groups to respect international humanitarian law (they are
already subject to criminal prosecution under domestic law).
What
of the so-called “global war on terror”? Most of the measures taken by
states and others to prevent or suppress acts of terrorism do not amount to an
armed conflict in either the practical or legal sense. It would thus be more
appropriate to speak of a fight against terrorism, which is a multi-faceted endeavour
and which may sometimes amount to armed conflict. In those circumstances, international
humanitarian law rules governing international or non-international armed
conflicts are triggered, as the case may be. In both situations, international
humanitarian law must be observed by all parties and the rules on the conduct
of hostilities, the treatment of the wounded, prisoners and civilians, apply to
all. International humanitarian law does not apply when terrorist acts
occur, or persons suspected of terrorism are detained, outside an armed
conflict.
The International Conference for
the Red Cross's case-by-case approach to the legal qualification of situations
of violence is also applied to determining the status and rights of persons
detained in the fight against terrorism. If they are detained in an
international armed conflict, the International Conference for the Red Cross
must be granted access to them under the relevant International Humanitarian Law
rules. When the fight against terrorism involves a non-international armed
conflict, the International Conference for the Red Cross offers it humanitarian
services to the parties.[4]
Outside armed conflict situations, the International Conference for the
Red Cross exercises its right of humanitarian initiative to request access to
persons detained.
2.
MULTINATIONAL
FORCES
Over the years, the spectrum of
multinational forces operations – most of the time under UN mandate for
peace-enforcement or peacekeeping purposes – has become increasingly broad. The
multifaceted nature of these operations, the emerging concept of integrated
missions and the ever more difficult and violent environments in which these
forces operate have highlighted how important it is to identify the legal
framework applicable to these situations.
For forces engaged in
peace-operations, the dangerous and volatile contexts in which they operate
makes it more likely that they will become involved in the use of force. In
such an environment, the question of the applicability of International
humanitarian Law becomes acute.[5]
It has always been the International
Conference for the Red Cross's view that multinational forces must observe International
Humanitarian Law when conditions for its applicability are met. The
nature of the situation in which multinational forces evolve and the
correlative assessment of International Humanitarian Law applicability must be
determined solely on the basis of the facts on the ground, irrespective of the
formal mandate assigned to the peace operations by the Security Council and
irrespective of the label given to the parties potentially opposed to peace forces.
The mandate and the legitimacy of the mission entrusted to the peace forces are
issues of jus ad bellum and have no bearing on the applicability of International
Humanitarian Law to those operations.
Occupation laws also apply to
multinational operations, in particular to those operations conducted under
United Nations auspices. While such applicability may appear to be a kind of
taboo for the international organizations involved as well as for some troops
contributing States, occupation law must not discarded outright and the rights,
obligations and protections derived from it must be applied when the conditions
for their applicability are met. This body of law, which has proved useful in
the past, would provide some practical guidance, in particular for situations
in which the multinational forces are using extensive administrative and/or
legislative powers or may have to perform tasks normally carried out by
national authorities.
Multinational operations today
are characterized by the recurrent involvement of the armed forces in the
detention of individuals. One of the main challenges faced by multinational
forces dealing with detention is to ensure that they meet their international
obligations – stemming in particular from International Humanitarian Law and
human rights law – when handling detainees. These obligations include rules
applying to the transfer of detainees to local authorities or to other troops
contributing States. One of the main challenges is how to develop common
standards that will adequately reflect the detailed legal obligations set forth
in International Humanitarian Law and human rights law. These include, in
particular, an important set of procedural safeguards for administrative
detention as well as the principle of non refoulement, which prohibits a State
from transferring a person to another State if there are substantial grounds
for believing that he or she runs a risk of being subjected to violations of
his or her fundamental rights, notably torture, other forms of ill-treatment,
persecution or arbitrary deprivation of life
Since multinational forces have
often been involved in hostilities and law-enforcement operations, the International
Conference for the Red Cross considers it extremely important that those forces
be fully acquainted with and adhere scrupulously to the rules of International Humanitarian
Law and other relevant bodies of law such as human rights law. The International
Conference for the Red Cross remains convinced that sound training in
international humanitarian law has a preventive value and offers significant
operational benefits for peace operations.
Armed conflicts have taken a
heavy toll among the personnel of peace operations. As evidenced by the
corresponding war crime under the 1998 Rome Statute of the International
Criminal Court, International Humanitarian Law contains a clear prohibition of
attacks against personnel and objects involved in a peacekeeping mission in
accordance with the Charter of the United Nations, as long as they are entitled
to the protection given to civilians and civilian objects under International Humanitarian
Law. This prohibition is considered to be customary law and thus binding on all
parties to armed conflict. Therefore, it cannot be said that the protection for
peace-operation personnel in armed conflicts suffers from a legal vacuum within
International Humanitarian Law.
Finally, it is important
to underline the necessity of preserving the essence of neutral and independent
humanitarian action. Over the years, the International Conference for the Red
Cross has devoted considerable attention to the issue of the relationship
between humanitarian activities, on the one hand, and political or military
action, on the other. The International Conference for the Red Cross strongly
believes that the two must be kept separate and distinct inasmuch as their
conflation could result in confusion detrimental to humanitarian work and to
the safety of the humanitarian personnel. For this very reason, the International
Conference for the Red Cross deems it essential that political or military
operations, including those carried out under United Nation auspices, be
conceived in such a way as not to erode the neutrality and impartiality of
humanitarian operations.
3.
DIRECT
PARTICIPATION IN HOSTILITIES
The
notion of direct participation in hostilities refers to specific acts carried
out by individuals as part of the conduct of hostilities between parties to an
armed conflict.[6]
n
order to qualify as direct participation in hostilities, a specific act must
meet the following cumulative criteria:
The
act must be likely to adversely affect the military operations or military
capacity of a party to an armed conflict or, alternatively, to inflict death,
injury, or destruction on persons or objects protected against direct attack
(threshold of harm), and, secondly there must be a direct causal link between
the act and the harm likely to result either from that act, or from a
coordinated military operation of which that act constitutes an integral part
(direct causation), and thirdly the act must be specifically designed to
directly cause the required threshold of harm in support of a party to the
conflict and to the detriment of another (belligerent nexus).[7]
Treaty
international humanitarian law does not define direct participation in
hostilities, nor does a clear interpretation of the concept emerge from State
practice or international jurisprudence. The notion of direct participation in hostilities
must therefore be interpreted in good faith in accordance with the ordinary
meaning to be given to its constituent terms in their context and in light of
the object and purpose of international humanitarian law.[8]
Where
treaty law refers to hostilities, that notion is intrinsically linked to
situations of international or non-international armed conflict. Therefore, the
concept of direct participation in hostilities cannot refer to conduct
occurring outside situations of armed conflict, such as during internal
disturbances and tensions, including riots, isolated and sporadic acts of
violence and other acts of a similar nature. Moreover, even during armed
conflict, not all conduct constitutes part of the hostilities.[9]
In
practice, civilian participation in hostilities occurs in various forms and
degrees of intensity and in a wide variety of geographical, cultural,
political, and military contexts. Therefore, in determining whether a
particular conduct amounts to direct participation in hostilities, due
consideration must be given to the circumstances prevailing at the relevant
time and place. Nevertheless, the importance of the circumstances surrounding
each case should not divert attention from the fact that direct participation
in hostilities remains a legal concept of limited elasticity that must be
interpreted in a theoretically sound and coherent manner reflecting the
fundamental principles of International Humanitarian Law.[10]
4.
RESPECT FOR
INTERNATIONAL HUMANITARIAN LAW
All States and other parties to
an armed conflict have an obligation to respect and ensure respect for
international humanitarian law in all circumstances. They must use their
influence to prevent and end violations of international humanitarian, and
refrain from encouraging violations by other parties.[11]
Armed conflicts continue to
afflict many parts of the world bringing devastation and destroying human life
and dignity. Most are non-international in character and involve serious
breaches of international humanitarian law international humanitarian.
Civilians are the main victims. They face displacement, injury and death.
All too frequently civilians are
targeted, used as shields or their means of survival – water, food and shelter
– are destroyed. Women, children and other vulnerable groups suffer most.
These facts clearly show the
need for a more rigorous and effective implementation of international
humanitarian law in order to preserve human life and dignity. Responsibility
for this falls on all States and other parties to an armed conflict.
The International Committee for
the Red Cross is convinced that respect and effective implementation of International
Humanitarian Law is essential in today’s armed conflicts whether they are
traditional inter-State wars or the increasing number of internal,
non-international armed conflicts.
The problem of preserving human
life and dignity in these situations does not come from a lack of rules
governing warfare, but from a failure to respect those rules.
For this reason, the International
Conference for the Red Cross works constantly to secure greater compliance with
the law starting with the primary obligation on all Sates and other parties to
an armed conflict under article 1 of the Geneva Conventions to respect and
ensure respect for International Humanitarian Law.
Preventing violations can be
achieved individually or collectively through multilateral mechanisms and
international organizations such as the United Nations.
The International Conference for
the Red Cross is particularly concerned to see reversed the trend of
parties to a conflict to deny the most fundamental guarantees of protection to
persons in their power.
These fundamental guarantees are
enshrined in treaty-based and customary law and are inalienable. Everyone in
the power of a party to a conflict is entitled to humane treatment without
adverse distinction based on such criteria as race, colour, sex, language,
religion, national origin or social status.
These fundamental guarantees
prohibit such acts as torture, degrading treatment, collective punishments,
sexual violence, enforced disappearance, slavery, hostage taking and unfair
trials.
The International Conference of
the Red Cross also wants to see greater respect for the principle of
distinction between civilians and combatants, and the principle of
proportionality in the conduct of hostilities.
Indiscriminate attacks are
prohibited under international humanitarian methods and means of waging war are
limited and should not cause disproportionate damage. This limits the use of
certain weapons and tactics.
Incidental loss of civilian
life, injury to civilians and destruction of civilian objects must not be out
of proportion to the direct military advantage expected from an attack.
Terrorizing civilians or using them as shields is clearly unlawful.
These points were strongly
reaffirmed in a resolution prepared by the International Conference of the Red
Cross and adopted by the 30th International Conference of the Red
Cross and Red Crescent in November 2007.
The resolution reasserted the
obligation of States to adopt all legislative, regulatory and practical measure
to incorporate International Humanitarian Law into domestic law and practice.
Proper training of those required to enforce International Humanitarian Law is
also essential. The International Conference for the Red Cross supports States
in these efforts.[12]
The International Conference for the Red Cross
is also pressing States to end impunity, which serves neither justice nor
reconciliation after a conflict. States need to create a domestic legal
framework for the investigation and prosecution of war crimes and for the
extradition of suspects. Such frameworks need to include effective sanctions against
wrongdoers, which act as a deterrent, and appropriate compensation for victims.
5.
SECURITY
DETENTION
Internment in international
armed conflicts may be imposed under the Fourth Geneva Convention for
“imperative reasons of security". It must end as soon as those
security reasons cease to exist or, at the latest, when hostilities cease.
The Convention contains
procedural rules that aim to ensure that States do not abuse the considerable
margin of discretion they have in interpreting threats to their security.
Recent State practice in international armed conflicts has demonstrated
significant divergences in the interpretation and implementation of the rules,
which has given rise to serious concern.
In non-international armed
conflicts the position is no clearer, as Common Article 3 of the Geneva
Conventions does not address procedural safeguards in internment (it provides
for the application of basic judicial guarantees for persons subject to
criminal proceedings). Internment is referred to in Additional Protocol II, but
there is little additional guidance on the due process guarantees to be
observed. International Humanitarian Law thus provides a basic safety net,
which may be supplemented by other bodies of law, in particular human rights
law and domestic law.
In recent operations conducted
outside armed conflict, the detention without criminal charges of persons
suspected of involvement in acts of terrorism has provoked considerable debate,
particularly about the lawfulness of this measure under human rights law.
Anti-terrorist legislation in a
number of States has increasingly included administrative detention as a
preventive measure in the fight against terrorism. This, again, has raised
questions about safeguarding the right to liberty of the person under
international law and the necessary consistency of approach.
The International Conference for
the Red Cross has been involved in trying to clarify procedural guarantees that
should apply to both internment and administrative detention. In September 2007
it organized an expert meeting on the question in conjunction with the Case
Western Reserve University in Ohio in the United States. In September 2008 an
expert meeting devoted to procedural safeguards for security detention in
non-international armed conflict was held in cooperation with Chatham House in
London. The aim was to brainstorm about some of the open legal and practical
issues involved in order to create a basis for broader subsequent discussions
with other relevant actors.
The International Conference for
the Red Cross has been involved in trying to clarify procedural guarantees that
should apply to both internment and administrative detention. In September 2007
it organized an expert meeting on the question in conjunction with the Case
Western Reserve University in Ohio in the United States. In September 2008 an
expert meeting devoted to procedural safeguards for security detention in
non-international armed conflict was held in cooperation with Chatham House in
London. The aim was to brainstorm about some of the open legal and practical
issues involved in order to create a basis for broader subsequent discussions
with other relevant actors.[13]
6.
OCCUPATION
Under International Humanitarian
Law, there is occupation when a State exercises an unconsented to effective
control over a territory on which it has no sovereign title. Article 42 of The
Hague Regulations of 1907 defines occupation as follows: “Territory is
considered occupied when it is actually placed under the authority of the
hostile army. The occupation extends only to the territory where such authority
has been established and can be exercised.
Occupation law as a branch of International
Humanitarian Law regulates the partial or total occupation of a territory by a
hostile army. Provisions regulating occupation can be found in The Hague
Regulations of 1907, the Fourth Geneva Convention of 1949 and Additional
Protocol I of 1977.
Under occupation law, the
occupying power does not acquire sovereignty over the occupied territory and is
required to respect the existing laws and institutions of the occupied
territory as far as possible. It is presumed that occupation will be temporary
and that the occupying power shall preserve the status quo ante in the occupied
territory.
In general terms, occupation law
endeavours to strike a balance between the security needs of the occupying
power on the one hand, and the interests of the ousted power and the local
population on the other. It aims to ensure the protection and welfare of the
civilians living in occupied territories. The occupying power's
responsibilities include inter alia the obligation to ensure humane treatment
of the local population and to meet their needs, the respect of private
properties, management of public properties, the functioning of educational
establishments, ensuring the existence and functioning of medical services,
allowing relief operations to take place as well as allowing impartial humanitarian
organizations such as the International Conference for the Red Cross to carry
out their activities. In return, and in order to fulfill those important
responsibilities while ensuring its own security, the occupying power is
granted important rights and powers, which may also take the form of measures
of constraint over the local population when necessity so requires.
Recent years have been
characterized by an increase in extraterritorial military interventions. Along
with the continuation of more classical forms of occupation, some of these
interventions have given rise to new forms of foreign military presence in the
territory of a State, on occasion consensual, but more often not. These new
forms of military presence have to a certain extent refocused
attention on occupation law.[14]
Part of the legal discussion
about recent occupations has triggered reflection about the alleged inadequacy
of occupation law to deal with situations of this kind. In particular, some
authors have argued that the emphasis on maintaining the status quo ante, which
precludes wholesale changes to the legal, political, institutional and economic
structure of an occupied territory, was too rigid. In this regard, it has been
contended that the transformation of oppressive governments or the redress of
society in complete collapse by means of occupation were in the interest of the
international community and should be authorized by occupation law. Moreover,
it has been affirmed that existing occupation law does not sufficiently take
into account the development of human rights law and the advent of the principle
of self-determination. Recent occupations have also highlighted how difficult
it can be to determine when an occupation begins and ends as well as to
identify with certainty the legal framework governing the use of force in
occupied territory. Eventually, the United Nation administrations of territory
have raised the question as to whether occupation law could be relevant in such
situations.
The legal challenges raised by
contemporary forms of occupation have been at the core of the project
undertaken by the International Conference for the Red Cross on “Occupation and
Other Forms of Administration of Foreign Territory”. The purpose of this
initiative, which began in 2007, was to analyze whether and to what extent the
rules of occupation law are adequate to deal with the humanitarian and legal
challenges arising in contemporary occupations, and whether they might need to
be reaffirmed, clarified or developed. Three informal meetings involving
experts from States, international organizations, academic circles and the Non Governmental
Organizations community were organized with a view to addressing the legal
issues in more detail.
As a result of this expert
process, in June 2012 the International Conference for the Red Cross published
a Report on Occupation and Other Forms of Administration of Foreign Territory.
The report aims to give a substantive account of the main points discussed
during the three experts meetings. It does not reflect the International
Conference for the Red Cross’s own opinions but provides an overview of the
range of current legal positions on the issues raised. The International
Conference for the Red Cross believes that the report - which is the final
outcome of its project - will usefully feed into further legal debates on the
need for clarification of some of the most significant provisions of occupation
law.
7.
PRIVATIZATION
OF WAR
In recent years, parties to
armed conflicts have increasingly recruited private military and security
companies (PMSCs) to undertake tasks traditionally carried out by the armed
forces. The involvement of these companies in or close to military operations
has raised questions about the way international humanitarian law should be
applied.
The involvement of private
military and security companies (PMSCs) in warfare is not new. However, in
recent armed conflicts their numbers have increased significantly and the
nature of their activities has changed, leading some commentators to speak of a
growing “privatization” of war.
Their activities include
protecting military personnel and assets, training and advising armed forces,
maintaining weapons systems, interrogating detainees and, on occasions, even
fighting.
The International Conference for
the Red Cross has not joined the debate about the legitimacy of using private
companies. Its concern is compliance with International Humanitarian Law. In
particular it is concerned with the question of what obligations and rights private
military and security companies (PMSCs) and their staff have, and what are the
obligations of States using them?.
The position of the companies
and their staff is not straightforward. Non-state actors are bound by International
Humanitarian Law during an armed conflict if they are parties to the conflict
or when they carry out acts in link with the conflict. Private military and
security companies (PMSCs) may not generally be parties to the conflict, but
their employees as individuals, depending on their particular roles and
activities, are more likely to fall under International Humanitarian Law rules.
The majority of employees of private
military and security companies (PMSCs) fall within the category of civilians,
as defined by International Humanitarian Law. In both international armed
conflicts and non-international armed conflicts their position is covered, and
their protection assured, by the Fourth Geneva Convention, the Additional
Protocols of 1977 and customary law. However, if they participate directly in
hostilities, they lose the protection from attack afforded to them as civilians
in both types of conflict.
Despite the occasional use in
media reports of the word “mercenary” in relation to employees of private military and security companies (PMSCs)
, the term has, in fact, a narrow interpretation under International Humanitarian
Law and would not apply to most private contractors in recent conflicts.
When it comes to the obligation
of States, this need to be clarified. In very general terms a State that
employs private companies must ensure that International Humanitarian Law is
respected by such companies, and their staff made aware of their obligations.
States that have jurisdiction over private companies involved in armed
conflicts also have obligations to ensue respect for International Humanitarian
Law by those companies.
In response to the increased
presence of private military and security companies (PMSCs), several
international initiatives have been undertaken with a view to clarifying,
reaffirming or developing international legal standards regulating their
activities and, in particular, ensuring their compliance with standards of
conduct reflected in International Humanitarian Law and human rights law.
As a result of an initiative
launched jointly by Switzerland and the International Conference for the Red
Cross, the Montreux document was adopted in September 2008. The Montreux
Document restates and reaffirms the existing legal obligations of States with
regard to private military and security companies (PMSCs) activities during
armed conflict. It also recommends a catalogue of good practices for the
practical implementation of existing legal obligations.
[1] International
humanitarian law report 2009
[2]
ibid
[3]
ibid
[4]
Article 3 of Geneva Convention
[5]
Peacekeeping operation. International conference of the red Cross, statement to
the United Nations. 2013
[6]
Melzer. N (2009) International guidance on the notion of direct participation
in hostilities under international
humanitarian
law. ICRC, Geneva.
[7]
ibid
[8]
Ibid, see also Article 31(1) Vienna Convention on Law of Treaties.
[9] In
fact the armed conflict can arise even without the occurrence of Hostilities,
namely through the declaration of
war or
occupation of territory without armed resistance (Article 2 of Geneva
Convention I-IV) further more
considerable
portion of International Humanitarian Law deals with issues other than conduct
of hostilities,
mostly notably the exercise of power and
authority over persons and territory in the hands of part to a conflict.
[10]
supra
[11]
ICRC over view
[12]
supra
[13]
Procedural principles and safeguards for internment/administrative detention in
armed conflict and other situation of violence under International Conference
for the Red
Cross.
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