HUMAN RIGHTS LAW. Ahmed T. Ghandour.

CHAPTER 9. HUMANITARIAN LAW.

II. THE GENEVA PROTOCOLS.

 The 1949 conventions have been modified with three amendment protocols:  Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts.  Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.  Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.

1. UNDECLARED WAR AND CIVIL STRIVE.

APPLICATION OF GENEVA CONVENTIONS.  The Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms.  The details of applicability are spelled out in Common Articles 2 and 3.  The topic of applicability has generated some controversy. When the Geneva Conventions apply, governments have surrendered some of their national sovereignty by signing these treaties.

COMMON ARTICLE 2 RELATING TO INTERNATIONAL ARMED CONFLICTS.  This article states that the Geneva Conventions apply to all cases of international conflict, where at least one of the warring nations have ratified the Conventions. Primarily:  The Conventions apply to all cases of declared war between signatory nations. This is the original sense of applicability, which precedes the 1949 version.  The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war.  This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a police action.  The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions.  Article 1 of Protocol I further clarifies that armed conflict against colonial domination and foreign occupation also qualifies as an international conflict.  When the criteria of international conflict have been met, the full protections of the Conventions are considered to apply.

COMMON ARTICLE 3 RELATING TO NON- INTERNATIONAL ARMED CONFLICT.  This article states that the certain minimum rules of war apply to armed conflicts that are not of an international character, but that are contained within the boundaries of a single country. The applicability of this article rests on the interpretation of the term armed conflict.  For example, it would apply to conflicts between the Government and rebel forces, or between two rebel forces, or to other conflicts that have all the characteristics of war but that are carried out within the confines of a single country. A handful of individuals attacking a police station would not be considered an armed conflict subject to this article, but only subject to the laws of the country in question.  The other Geneva Conventions are not applicable in this situation but only the provisions contained within Article 3. and additionally within the language of Protocol II.

 The rationale for the limitation is to avoid conflict with the rights of Sovereign States that were not part of the treaties. When the provisions of this article apply, it states that:  Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse (contrary) distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:  violence to life and person, in particular murder of all kinds, mutilation (damage), cruel treatment and torture;  taking of hostages;  outrages upon dignity, in particular humiliating and degrading treatment; and  the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.  The wounded and sick shall be collected and cared for.

2. WEAPONS OF MASS DESTRUCTION.

DEFINITION.  A weapon of mass destruction (WMD or WoMD) is a nuclear, radiological, chemical, biological or other weapon that can kill and bring significant harm to a large number of humans or cause great damage to human-made structures (e.g. buildings), natural structures (e.g. mountains), or the biosphere. The scope and application of the term has evolved and been disputed, often signifying more politically than technically. Originally invented in reference to aerial bombing with chemical explosives, since World War II it has come to refer to large-scale weaponry of other technologies, such as chemical, biological, radiological, or nuclear.

THE ROLE OF ICRC CONFERENCES.  The post-war Conferences have consequently adopted many resolutions, often at the initiative of the ICRC, to limit or ban the use of weapons of mass destruction (chemical, bacteriological and nuclear weapons) and highlight the terrible threat such weapons pose to mankind. . This subject, too, has been addressed by the International Conferences, which have adopted many resolutions to encourage peace initiatives, international reconciliation and the struggle against racial discrimination and prejudice.

 Resolution NO.XXVIII of ICRC Conference in Vienna  Protection of Civilian Populations against the Dangers of Indiscriminate Warfare  The XXth International Conference of the Red Cross, in its endeavours for the protection of the civilian population, reaffirms Resolution No. XVIII of the XVIIIth International Conference of the Red Cross (Toronto, 1952), which, in consideration of Resolution No. XXIV of the XVIIth International Conference of the Red Cross (Stockholm, 1948) requested Governments to agree, within the framework of general disarmament, to a plan for the international control of atomic energy which would ensure the prohibition of atomic weapons and the use of atomic energy solely for peaceful purposes, thanks the International Committee of the Red Cross for the initiative taken and the comprehensive work done by it in defining and further developing international humanitarian law in this sphere,

 states that indiscriminate warfare constitutes a danger to the civilian population and the future of civilisation, solemnly declares that all Governments and other authorities responsible for action in armed conflicts should conform at least to the following principles:  - that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;  - that it is prohibited to launch attacks against the civilian populations as such;  - that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible;  - that the general principles of the Law of War apply to nuclear and similar weapons;

 expressly invites all Governments who have not yet done so to accede to the Geneva Protocol of 1925 which prohibits the use of asphyxiating, poisonous, or other gases, all analogous liquids, materials or devices, and bacteriological methods of warfare,  urges the ICRC to pursue the development of International Humanitarian Law in accordance with Resolution No. XIII of the  XIXth International Conference of the Red Cross, with particular reference to the need for protecting the civilian population against the sufferings caused by indiscriminate warfare,

 requests the ICRC to take into consideration all possible means and to take all appropriate steps, including the creation of a committee of experts, with a view to obtaining a rapid an practical solution of this problem, requests National Societies to intervene with their Governments in order to obtain their collaboration for an early solution of this question and urges all Governments to support the efforts of the International Red Cross in this respect, requests all National Societies to do all in their power to persuade their Governments to reach fruitful agreements in the field of general disarmament.