I. SCOPE, APPLICABILITY AND SANCTIONS
International Humanitarian Law is designed to limit the suffering in asituation of war. The underlying principle is that States may attempt to weaken the military capacity of the enemy, but may not wipe out the entire enemy nation or cause undue suffering to defenseless or disabled people.
What does international humanitarian law (IHL) guarantee?
• IHL protects military personnel who are not (or are no longer) takingpart in combat (such as the wounded, the sick, medical and religious personnel, prisoners of war), and persons not actively involved in hostility (in particular civilians). These protected people shall in all circumstances be treated humanely and without discrimination.
• IHL also defines rights and duties of Parties engaging in hostilities,rules their conduct in combat and limits the means and extent of harm that they may impose on the enemy.
• For all issues not covered explicitly by the established articles of humanitarian law, “combatants and civilians remain under the protection and authority of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”(F. Martens, 1899).
When is it valid?
• Declared war, including civil wars, even when one of the sides does not recognize the state of war.
• Wars against colonial domination or alien occupation.
• Wars against racist regimes.
For how long?
• International humanitarian law is valid until cessation of conflict oroccupation. People whose repatriation or release must take place after the formal end of hostilities are still subject to humanitarian laweven if the state of hostility is formally ended.
Who is subject to humanitarian law?
• All people involved in a conflict. Civilians are protected, but are also obliged to respect the wounded, sick, shipwrecked, and medical or religious personnel and equipment belonging to the enemy side. Allmilitary forces that are involved in a conflict, including peacekeeping and peace-enforcement troops, are subject to the rights and obligations dictated by humanitarian law. Military forces are defined as the officially recognized troops of a Party, or militias that have been organized spontaneously by civilians with en masse involvement.
Who enforces humanitarian law?
• The right of protection under humanitarian law may not be renounced, either in part or totally. The enforcement of humanitarian law is ideally guaranteed by a Protecting Power, and
• The right of protection under humanitarian law may not be renounced, either in part or totally. The enforcement of humanitarian law is ideally guaranteed by a Protecting Power, and monitored by the Red Cross or another impartial organization.
What are the sanctions for breaches?
• International humanitarian law requires the States to investigate and punish any person who has committed an act prohibited by humanitarian law, regardless of the nationality of the perpetrator or the place where the crime was perpetrated. Minor breaches of humanitarian law are the object of administrative sanctions by the Armed Forces that have power over the perpetrator. Grave breaches—such as violence and murder, taking of hostages, torture, summary executions, attacks on civilians, deportations, illegal detention of prisoners etc. (“war crimes”) -- will be prosecuted severely. Governments are obliged to enforce legislation to this effect. Failing that, the international community has the right to request extradition of the perpetrator.
• Officers of the Armed Forces have the duty to monitor the standards of compliance of humanitarian law by the troops that they command, and to repress and denounce offences. They may be held partly or totally responsible for grave breaches perpetrated by soldiers under their responsibility.
• A soldier is not obliged to obey an order that involves a grave breach of humanitarian law, and may be held liable if he obeys the order.
II. PROTECTION OF CIVILIANS
Civilians of an occupied territory or of a zone of conflict are protected persons. Special provisions regulate the case of refugees. It is forbidden to:
• Attack civilians and civilian property.
• Commit acts of violence on civilians, whether committed in offence or defense. Acts of violence include but are not limited to: murder, physical or mental torture, collective punishments, mutilation, taking of hostages, particularly degrading treatment, or the threat of any of the foregoing acts.
• Launch attacks indiscriminately at military and civilian objectives.
• Use civilians (individuals or population) to shield, favor or impede military operations
• Starving enemy civilian population.
• Destroy the environment to such extent as to cause long term, severe damage.
• Attack objects of military interest, such as dam, dikes, power station etc., the destruction of which may cause severe losses among the civilian population. This protection is lifted only in the case that these objects are used by the enemy for the regular, significant and direct support of military operations and only is the attack is the only feasible means of stopping such practices.
• Deport or forcibly transfer individuals or groups, including sending refugees into zones or countries where their lives and health would be at risk.
• Allow children under 15 to engage in military operations.
• Carry out a death sentence on individuals less then 18 years old, on pregnant women, on mothers of dependent infants, and on anyone before six months have elapsed from the time that notice of the sentence has been given to the Power protecting the accused.
It is mandatory to:
• Facilitate agreed humanitarian aid operations to civilian populations,including the operations of civil defense organizations.
• Respect and protect the personnel taking part in such relief operations
• Protect and care for children. This includes facilitating the continuation of education and religious practices.
• Facilitate family reunions and contacts wherever and whenever possible, and encourage the work of humanitarian organizations engaged in this task.
• Keep children separated from adults other than their family, in case of arrest.
• Protect and respect women.
• When considering judicial cases relating to the armed conflict, to grant priority to pregnant women and mothers of dependent infants.
• Maintain a fair judicial system, including maintaining the dependence of magistrates
• Maintain fair living conditions for the population, including hygiene,access to education for children and religious practices, availability of reasonably priced food.
• Respect cultural monuments and symbols, in particular places of worship.
• Respect safety, neutralized, non-defended and demilitarized zones.Internees: Individuals or groups may be assigned to a determined residence or internment only for imperative reasons concerning safety.Internment may never be used as punishment. An interned person cannot be forced to work, and even if he/she accepts work, only withi nthe territory and according to labor laws in force. Internees must be released as soon as the reason for the internment has ceased to exist
III. PROTECTION OF PRISONERS OF WAR (POW)
Upon capture by the enemy Power, some people may be considered Prisoners of War and may be confined as such.
The Status of POW means that the prisoners:
• Are subject to military law rather than the civil judicial system guaranteed to civilians.
• Are subject to the enemy Power as a whole, not to the unit or individuals that captured them.The following people are entitled to the Status and treatment of POW:
• Any member of the regular armed forces.
• Any member of a provisional army, when this is organized spontaneously and en masse.
• Persons authorized to follow the armed forces without being part of them.
• Crews of the adversary’s merchant marine and civil aviation.
• Members of armed forces serving in civilian defense agencies.
The following people are entitled to the treatment, but not the Status, of POW:
• Non-active members of the military forces of an occupied territory.
• Military internees in a neutral country.
• Non-combatant medical and religious personnel of the armed forces.
The following people are not entitled to the Status of POW:
• Spies and mercenaries.
• Civilians may never be captured and subjected to military confinement or military law.
When treated as POW, prisoners:
• Are entitled to respect for their person and honor.
• Retain full civil capacity, including that of marrying per proxy.
• Are obliged to provide to the enemy name, rank, date of birth and army, regiment, personal or serial number or equivalent information, but this information can not be obtained by coercion.
• Are obliged to obey military law and rules.
• If released on parole, are bound to military code of honor.
• Are confined in a safe place, affording hygiene and wholesomeness, and at no time may be sent to or detained in a combat zone.
• May never be used as a human shield.
• May not be physically or mentally tortured.
• May be obliged to work.
IV. BEHAVIOR IN COMBAT OR WITH ONGOING HOSTILITIES
Even in a combat situation and during a bitter war, it is mandatory to abide by a code of honor. Honesty and fairness towards the enemy, and compassion for the wounded and the sick, are mandatory.
It is forbidden to:
• Kill, injure or capture an enemy using perfidy (*).
• Declare or threaten that no quarter will be given.
• Conduct war in such a way that there will be no survivors.
• Attack an enemy who is hors de combat.
• Attack an enemy who has surrendered or shows his intention to surrender
• Attack an enemy who has parachuted from an aircraft in distress.
• Attack the wounded, the sick and the shipwrecked.
• Requisition civilian medical units, equipment, material or personnel in occupied territories so long as these are required for the treatment of the civilian population or for the completion of treatment of the wounded and sick militaries.
It is mandatory to:
• Respect and protect medical and religious personnel which belong to any of the parties to the conflict, or which are recognized and authorized by any of the parties to the conflict, or which are placed at the disposal of any party to the conflict by a neutral state or by an impartial humanitarian organization. Respect and protect their establishments, mean of transports and equipment, The emblems of the red cross or the red crescent must be respected.
• Search for the wounded and the sick, collect them and care for them, even if they are of the enemy side.
• Where applicable, allow, enable and protect civilians and relief organizations—even in invaded and occupied territories—to search and care for wounded, sick and shipwrecked people. It is forbidden toharass, prosecute, convict or otherwise impede them during these operations.
• Organize, as far as possible, a system of reporting of the wounded, sick and shipwrecked, including those of the enemy side that are in your power. Their families have a right to know their fate.
• In case of death, all possible steps must be taken to confirm identity of the fallen (including the enemy) before proceeding to cremation or burial. These should be carried out individually if at all possible, with the scope of writing a report, which shall be addressed to the Information Bureau provided for by the convention, in particular the Central Tracing agency of the International Committee of the Red Cross.
Reprisals: Reprisals are violations of the law carried out in response to another violation by the enemy. Reprisals should be avoided, as a violation remains a violation, but technically are not forbidden in combat.
However, they are strictly forbidden against Protected people, such as civilians, the sick, wounded or medical and religious personnel.
(*) Note: It is forbidden to use tactics that lead the enemy to believe that he is entitled to protection or that he is obliged to grant protection under international humanitarian law, and then to attack him by surprise and betraying his trust. For instance, it is forbidden to display recognized emblems such as a white flag or the Red Cross with the intent of tricking the enemy. Wearing of insignia of States not parties to the conflict is strictly forbidden. Wearing of the insignia of the enemy during attacks or in order to impede or favor military operations is forbidden.
(**) Note: The civilian population is equally obliged to care for and respect the wounded, sick and shipwrecked, even if they belong to the enemy side, and may not perpetrate any act of violence on them.
• International humanitarian law: Answers to your questions, ICRC,Geneva, 1998.
• Basic rules of the Geneva Conventions and their Additional Protocols, ICRC, Geneva, 1983.
• “San Remo Manual on International Law Applicable to Armed Conflicts at Sea”; Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, adopted in June 1994. Published in International Review of the Red Cross no 309, p. 595-637, 1995.
• “The Law of War and the Armed Forces” (F. de Mulinen) International Review of the Red Cross no. 202, p. 20-45, 1978.
• A guide for professional soldiers. Prepared for action: law of war,ICRC, Geneva, 1995.
• “The Law of Air Warfare” (COL. Javier Guisandez Gomez, Spanish Air Force), International Review of the Red Cross no. 323, p.347-363, 1998.
• To Serve and to Protect: Human Rights and Humanitarian Law for Police and Security Forces, ICRC, Geneva, 1998.
• Handbook on the law of war for armed forces, by Frédéric de MULINEN ICRC, Geneva, 1989,
• Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
• Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva,12 August 1949.
• Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
• Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
• Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
• Additional Protocol to the Geneva Conventions of 12 August 1949,and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
Historical documents: The full text of all treaties, documents, conventions and protocols, including commentaries and list of signatory states, is available online from the International Committee of the Red Cross, http://www.icrc.org/ihl.