Vorlesung - International Humanitarian Law – Sommersemester 2017

Vorlesung - International Humanitarian Law – Sommersemester 2017
Prof. Dr. Andreas Zimmermann, LL.M. (Harvard)

Prof. Andreas Zimmermann, LL.M. (Harvard)
University of Potsdam, Germany - member German delegation preparatory Commission and Rome conference Member Permanent Court of Arbitration counsel in inter alia ICJ Bosnia v. Serbia (Genocide); Croatia v. Serbia (Genocide); Kosovo advisory opinion; Georgia v. Russia (CERD); Ukraine v. Russia (CERD, ICSFT); Counsel Iran-US Claims Tribunal judge ad hoc European Ct. Hum Rights

Part A Introduction Part A Introduction: Notion and relevance of international humanitarian law (‘ihl’) in the international legal system

Relationship between the legality of the use of force (jus ad bellum)
Part A Introduction Part A Introduction: Relationship between the legality of the use of force (jus ad bellum) and the rules to respected in warfare (jus in bello/ international humanitarian law)

Art. 2 para. 4 of the UN Charta
Part A Introduction Jus ad bellum Art. 2 para. 4 of the UN Charta All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Part A Introduction Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 Preamble Seeing that while seeking means to preserve peace and prevent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert; Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization (…)

Additional Protocol I Part A Introduction Preamble
The High Contracting Parties, Proclaiming their earnest wish to see peace prevail among peoples, Recalling that every State has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations,

Additional Protocol I Part A Introduction Preamble (continued)
Believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application (…)

Notion and applicability of jus in bello (‘ihl’)
Part A Introduction Notion and applicability of jus in bello (‘ihl’) set of rules that come into effect once an armed conflict has begun purpose of ihl is to regulate how armed conflicts are fought without prejudice to the reasons of how or why they had begun, even if state of war is not recognized applies equally to all belligerent parties regardless of any possible violations of the jus ad bellum by one side application of ihl has no effect on the legal status of the parties to the conflict nor on the territory concerned

Geneva Conventions 1949 Part A Introduction Common Art. 2, para. 1
“(…) the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”

Geneva Conventions 1949 Part A Introduction Common Art. 2 para. 2
“The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. (…)”

Geneva Conventions 1949 Part B Historical development
Common Art. 3 Sec. 1 GC In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Common Art. 3 Sec. 1 GC (1) 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 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:

Common Art. 3 Sec. 1 GC (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) 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.

Threshold clause Additional Protocol II to the Geneva Conventions
Part A Introduction Threshold clause Additional Protocol II to the Geneva Conventions Art. 1 1. This Protocol (…) shall apply (…) which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 15

Threshold clause Additional Protocol II to the Geneva Conventions
Part A Introduction Threshold clause Additional Protocol II to the Geneva Conventions Art. 1 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 16

Part A Introduction ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 70. On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.

Fundaments and general principles of IHL
Part A Introduction Part A Introduction: Fundaments and general principles of IHL

Sources of the Law of Armed Conflict
Part A Introduction Sources of the Law of Armed Conflict custom (cf. ICRC study on customary international humanitarian law) treaties (e.g. the 1907 Hague Regulations or the 1949 Geneva Conventions) judicial decisions, in particular recently by international criminal tribunals

Main Sources of the Law of Armed Conflict - Treaties
Part A Introduction Main Sources of the Law of Armed Conflict - Treaties Distinction between the “Law of the Hague” and the “Law of Geneva” “Law of the Hague”: rules governing the means and methods of warfare “Law of Geneva”: protection of victims of war (wounded and sick soldiers, prisoners of war and civilians, and combatants who are hors de combat)

Main Sources of the Law of Armed Conflict – Treaties
Part A Introduction Main Sources of the Law of Armed Conflict – Treaties 1907 Hague Conventions Hague Convention III Concerning the Opening of Hostilities Hague Convention IV Concerning the Laws and Customs of War on Land and Annex to the Convention: Regulations Concerning the Laws and Customs of War on Land Hague Convention V Concerning the Rights and Duties of Neutral Powers and Persons in Case of War on Land

Sources of the Law of Armed Conflict – Treaties
Part A Introduction Sources of the Law of Armed Conflict – Treaties Four Geneva Conventions (GK I- IV) Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea Geneva Convention III Concerning the Treatment of Prisoners of War Geneva Conventions IV Concerning the Protection of Civilian Persons in Time of War

Sources of the Law of Armed Conflict – Treaties
Part A Introduction Sources of the Law of Armed Conflict – Treaties Three Protocols Additional to the Geneva Conventions Protocol of 8 June 1977 Additional to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of International Armed Conflicts (AP I) Protocol of 8 June 1977 Additional to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of Non-International Armed Conflicts (AP II) Protocol of 8 December 2005 Additional to the Geneva Conventions of 12 August 1949, Relating to the Adoption of an Additional Distinctive Emblem (AP III)

Fundamental dichotomies
Part A Introduction Fundamental dichotomies international versus non-international armed conflicts combatants / fighters versus non-combatants / civilians military objects versus civilian objects

Main principles No free choice of means
Part A Introduction Main principles No free choice of means Art. 35 AP I 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.

Main principles principle of humanity
Part A Introduction Main principles principle of humanity Art. 35 AP I 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

Main principles - military necessity
Part A Introduction Main principles - military necessity Preamble 1868 St. Petersburg Declaration “That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity;

Main principles proportionality
Part A Introduction Main principles proportionality Art. 57 (2) lit a AP I (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

Main principles - distinction
Part A Introduction Main principles - distinction Art. 48 AP I In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

Historical development of international humanitarian law
Part B Historical development Part B Historical development of international humanitarian law 30 30

Historical development:
Part B Historical development Part B Historical development: Until 1945 31 31

Part B Historical development
Battle of Solferino in 1859 / creation of the ICRC Lieber code, 1864 First Geneva Convention of 1864

The 1868 Declaration of St Petersburg
Part B Historical development The 1868 Declaration of St Petersburg Preamble “Considering: That the progress of civilization should have the effect of alleviating as much as possible the calamities of war; That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men;

The 1868 Declaration of St Petersburg
Part B Historical development The 1868 Declaration of St Petersburg Preamble That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity.”

Part B Historical development
The 1874 Brussel Declaration The Hague Conventions of 1899 The Hague Conventions of 1907 The Hague Rules of Aerial Warfare, 1923

Part B Historical development Part B Historical development: 1949 Geneva conventions and their 1977 Protocols 36 36

Art. 130 GC III (respectively Art. 50 GC I, Art. 51 GC II, Art GC IV) Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

Geneva Conventions 1977 Add. Prot. I and II
Part B Historical development Geneva Conventions Add. Prot. I and II 1977 Additonal Protocol I to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of International Armed Conflicts 1977 Additonal Protocol II to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of Non-International Armed Conflicts

Part B Historical development Part B Historical development: 1954 Convention for the Protection of Cultural Property in the Event of Conflict and its Protocols 39 39

Convention for the Protection of Cultural Property
Part B Historical development Convention for the Protection of Cultural Property Art. 4 1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.

Part B Historical development Convention for the Protection of Cultural Property Art. 4 3. The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall, refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party. 4. They shall refrain from any act directed by way of reprisals against cultural property.

Part B Historical development Convention for the Protection of Cultural Property

Part B Historical development Part B Historical development: Prohibited Weapons 43 43

Hague Declaration concerning Asphyxiating Gases, 1899
Part B Historical development Chemical Weapons Hague Declaration concerning Asphyxiating Gases, 1899 …the contracting Powers agree to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases.

Chemical Weapons Part B Historical development
Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 1925 Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and

Chemical Weapons Part B Historical development
Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 1925 To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations; Declare: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration.

Chemical Weapons Convention, 1993
Part B Historical development Chemical Weapons Convention, 1993 Art. 1 1. Each State Party to this Convention undertakes never under any circumstances: (b) To use chemical weapons; (c) To engage in any military preparations to use chemical weapons; (…)

Chemical Weapons Convention, 1993
Part B Historical development Chemical Weapons Convention, 1993 Art. 1 (…) 5. Each State Party undertakes not to use riot control agents as a method of warfare.

Biological Weapons Convention, 1972
Part B Historical development Biological Weapons Convention, 1972 Art. 1 Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: 1. microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; 2. weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Prohibition of nuclear weapons
Part B Historical development Prohibition of nuclear weapons ICJ Advisory Opinion on the Legality of Nuclear Weapons, ICJ Rep. 1996, p.262 et seq, para. 95 95. Nor can the Court make a determination on the validity of the view that the recourse to nuclear weapons would be illegal in any circumstance owing to their inherent and total incompatibility with the law applicable in armed conflict. Certainly, as the Court has already indicated, the principles and rules of law applicable in armed conflict - at the heart of which is the overriding consideration of humanity - make the conduct of armed hostilities subject to a number of strict requirements.

Part B Historical development Prohibition of nuclear weapons ICJ Advisory Opinion on the Legality of Nuclear Weapons, ICJ Rep. 1996, p.262 et seq, para. 95 Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.

Part B Historical development Prohibition of nuclear weapons ICJ Advisory Opinion on the Legality of Nuclear Weapons, Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.

Convention on Certain Conventional Weapons 1980
Part B Historical development Convention on Certain Conventional Weapons 1980 Protocol I: Non-detectable Fragments Amended Protocol II: Landmines, Booby-Traps, and Other Devices Protocol III: Incendiary Weapons Protocol IV: Blinding Lasers Protocol V: Explosive Remnants of War

Ottawa Treaty Part B Historical development Article 1
1. Each State Party undertakes never under any circumstances: a) To use anti-personnel mines; b) To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines; c) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. 2. Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in accordance with the provisions of this Convention.

Convention on Cluster Munitions 2008
Part B Historical development Convention on Cluster Munitions 2008 1. Each State Party undertakes never under any circumstances to: (a) Use cluster munitions; (…) 2. Paragraph 1 of this Article applies, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft

Part B Historical development Part B Historical development: Development of customary international humanitarian law 56 56

Martens Clause Part B Historical development Art. 1 para. 4 AP I
In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.

Custom Part B Historical development
ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 127. …it cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities.

ICRC Study on Customary IHL
Part B Historical development ICRC Study on Customary IHL study from 2005 with 161 rules divided into 6 parts: Principle of distinction Specifically protected persons and objects Specific methods of warfare Weapons Treatment of civilians and persons hors de combat Implementation

relationship of ihl and human rights; applicability of ihl
Part C General Issues Part C General issues: relationship of ihl and human rights; applicability of ihl 60 60

relationship of ihl and human rights
Part C General Issues Part C General issues: relationship of ihl and human rights 61 61

Art. 6 para. 1 ICCPR Part C General Issues
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Art. 4 ICCPR Part C General Issues
1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. [...]

Part C General Issues ICJ Advisory Opinion on the Legality of Nuclear Weapons, ICJ Rep. 1996, p.262 et seq, para. 25 25. The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.

Part C General Issues ICJ Advisory Opinion on the Legality of Nuclear Weapons, ICJ Rep. 1996, p.262 et seq, para. 25 Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

Part C General Issues ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 106. More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.

Part C General issues: applicability of ihl
67 67

Geneva Conventions 1949 Part C General Issues Common Art. 2
In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

International Armed Conflict
Part C General Issues International Armed Conflict Art. 1 para. 4 AP I The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

Non-international Armed Conflict
Part C General Issues Non-international Armed Conflict Art. 1 para. 1 AP II This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Part C General Issues Non-international Armed Conflict ICTY, Prosecutor v. Dusko Tadic, Judgement of 7 May 1997 562. The test applied by the Appeals Chamber to the existence of an armed conflict for the purposes of the rules contained in Common Article 3 focuses on two aspects of a conflict; the intensity of the conflict and the organization of the parties to the conflict. In an armed conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.

Non-international Armed Conflict Art. 8 para. 2 lit d Rome Statute
Part C General Issues Non-international Armed Conflict Art. 8 para. 2 lit d Rome Statute (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Non-international Armed Conflict Art. 8 para. 2 lit (f) Rome Statute
Part C General Issues Non-international Armed Conflict Art. 8 para. 2 lit (f) Rome Statute Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

Part C General Issues Non-international Armed Conflict ICC Pre-Trial Chamber Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para.59 „ (…) the involvement of armed groups with some degree of organisation and the ability to plan and carry out sustained military operations would allow for the conflict to be characterised as an armed conflict not of an international character.“

Internationalized Non-International Armed Conflict
Part C General Issues Internationalized Non-International Armed Conflict ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua 219. The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is "not of an international character". The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.

Internationalized Non-International Armed Conflict
Part C General Issues Internationalized Non-International Armed Conflict ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical in each Convention, expressly refers to conflicts not having an international character.

ICTY, Prosecutor v. Dusko Tadic, The Appeals Chamber,
Part C General Issues ICTY, Prosecutor v. Dusko Tadic, The Appeals Chamber, 15 July 1999 131. In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.

ICTY, Prosecutor v. Dusko Tadic, The Appeals Chamber, 15 July 1999
Part C General Issues ICTY, Prosecutor v. Dusko Tadic, The Appeals Chamber, 15 July 1999 145. (…) In the case at issue, given that the Bosnian Serb armed forces constituted a “military organization”, the control of the FRY authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. By contrast, international rules do not require that such control should extend to the issuance of specific orders or instructions relating to single military actions, whether or not such actions were contrary to international humanitarian law.

Transnational armed conflicts‘ Supreme Court of the United States,
Part C General Issues Transnational armed conflicts‘ Supreme Court of the United States, Hamdan v. Rumsfeld, The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’ ” That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.”

Part C General Issues Transnational armed conflicts‘ Supreme Court of the United States, Hamdan v. Rumsfeld, Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-à-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-à-vis the nonsignatory if “the latter accepts and applies” those terms.

Part C General Issues Transnational armed conflicts‘ Supreme Court of the United States, Hamdan v. Rumsfeld, Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning.

Transnational armed conflicts‘
Part C General Issues Transnational armed conflicts‘ Supreme Court of Israel, Public Committee Against Torture v. Israel 21. In today’s reality, a terrorist organization is likely to have considerable military capabilities. At times they have military capabilities that exceed those of states. Confrontation with those dangers cannot be restricted within the state and its penal law. Confronting the dangers of terrorism constitutes a part of the international law dealing with armed conflicts of international character.

Applicability of ihl ratione personae
Part C General Issues Applicability of ihl ratione personae ‘Protected persons’ in international armed conflicts: wounded, sick and shipwrecked persons, see Art. 10 AP I combatants hors de combat and prisoners of war, see Art. 44 AP I civilians and civilian populations, see Art. 51 AP I Persons protected in non-international armed conflicts: Persons taking no active/direct part or who have ceased to take part in hostilities

Applicability „ratione loci“
Part C General Issues Applicability „ratione loci“ ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 70. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.

US Pres. George W. Bush on 20. September 2001:
Part C General Issues „War on terror“ US Pres. George W. Bush on 20. September 2001: “…(o)ur 'war on terror' begins with al-Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.”

Means and methods of warfare/conduct of hostilities
Part D Methods of warfare Part D Means and methods of warfare/conduct of hostilities 86 86

Limits to means and methods of warfare
Part D Methods of warfare Part D Limits to means and methods of warfare 87 87

Fundamental Principles
Part D Methods of warfare Fundamental Principles Art. 35 AP I 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

Part D Methods of warfare Fundamental Principles Art. 37 AP I – Prohibition of perfidy 1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

Part D Methods of warfare Fundamental Principles Art. 37 AP I – Prohibition of perfidy The following acts are examples of perfidy: (a) the feigning of an intent to negotiate under a flag of truce or of a surrender; (b) the feigning of an incapacitation by wounds or sickness; (c) the feigning of civilian, non-combatant status; and (d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

Part D Methods of warfare Fundamental Principles Art. 37 AP I – Prohibition of perfidy 2. Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.

Part D Methods of warfare Fundamental Principles Art. 40 AP I It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.

Part D Methods of warfare Fundamental Principles Art. 41 AP I 1. A person who is recognized or who, in the circumstances, should be recognized to be ' hors de combat ' shall not be made the object of attack.

Part D Methods of warfare Fundamental Principles Art. 41 AP I 2. A person is ' hors de combat ' if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.

Military Objectives Part D Methods of warfare Art. 51 para 4 AP I
Indiscriminate attacks are prohibited. Indiscriminate attacks are: those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Collateral civilian damages ICTY, Prosecutor v. Kordic and Cerkez,
Part D Methods of warfare Collateral civilian damages ICTY, Prosecutor v. Kordic and Cerkez, Judgment, 52. It is, however, accepted that attacks aimed at military objectives, including objects and combatants, may cause "collateral civilian damage". International customary law recognises that in the conduct of military operations during armed conflicts a distinction must be drawn at all times between persons actively taking part in the hostilities and civilian population and provides that

Collateral civilian damages
Part D Methods of warfare Collateral civilian damages ICTY, Prosecutor v. Kordic and Cerkez, Judgement, - the civilian populations as such shall not be the object of military operations, and - every effort be made to spare the civilian populations from the ravages of war, and - all necessary precautions should be taken to avoid injury, loss or damage to the civilian Population. Nevertheless, international customary law recognises that this does not imply that collateral damage is unlawful per se.

Prohibition or restriction to use certain conventional weapons
Part D Methods of warfare Part D Prohibition or restriction to use certain conventional weapons 100 100

Protocols to the Convention on Certain Conventional Weapons
Part D Methods of warfare Conventional Weapons Protocols to the Convention on Certain Conventional Weapons Protocol I: Non-detectable fragments Protocol II: Mines, body-traps, other devices Protocol III: Incendiary weapons Protocol IV: Blinding laser weapons Protocol V: Explosive remnants of war

Conventional Weapons Part D Methods of warfare Art. 1 Ottawa Treaty
1. Each State Party undertakes never under any circumstances: a) To use anti-personnel mines; (…)

Conventional Weapons Part D Methods of warfare
Art. 2 para 1 Ottawa Treaty 1. "Anti-personnel mine" means a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped.

Prohibition of weapons of mass destruction
Part D Methods of warfare Part D Prohibition of weapons of mass destruction 104 104

Weapons of mass destruction
Part D Methods of warfare Weapons of mass destruction Protocol of Geneva, 1925 Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations;

Part D Methods of warfare Weapons of mass destruction Protocol of Geneva, 1925 Declare: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration. The High Contracting Parties will exert every effort to induce other States to accede to the present Protocol. […]

Part D Methods of warfare Weapons of mass destruction ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 124. It is therefore clear that, whether or not Iraq really used chemical weapons against its own Kurdish nationals - a matter on which this Chamber obviously cannot and does not express any opinion - there undisputedly emerged a general consensus in the international community on the principle that the use of those weapons is also prohibited in internal armed conflicts.

Part D Methods of warfare Weapons of mass destruction Art. 1 Chemical Weapons Convention 1. Each State Party to this Convention undertakes never under any circumstances: (…) (b) To use chemical weapons; (c) To engage in any military preparations to use chemical weapons;

Part D Methods of warfare Weapons of mass destruction ICJ Advisory Opinion on the Legality of Nuclear Weapons, 95. […] methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.

Part D Methods of warfare Weapons of mass destruction ICJ Advisory Opinion on the Legality of Nuclear Weapons, Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance. „[...] the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

Part D Methods of warfare Weapons of mass destruction ICJ Advisory Opinion on the Legality of Nuclear Weapons, However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.“

Protection of cultural objects
Part D Methods of warfare Part D Protection of cultural objects 112 112

Part D Methods of warfare Protection of cultural objects Art. 4 para. 1 Convention for the Protection of Cultural Property of Armed Conflict The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.

Part D Methods of warfare Protection of cultural objects Art. 4 para. 2 Convention for the Protection of Cultural Property of Armed Conflict The obligations mentioned in paragraph I of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.

Part D Methods of warfare Protection of cultural objects Art. 53 AP I Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals.

Protection of the natural environment
Part D Methods of warfare Part D Protection of the natural environment 116 116

Part D Methods of warfare Protection of the natural environment ICJ Advisory Opinion on the Legality of Nuclear Weapons, 30. States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.

Part D Methods of warfare Protection of the natural environment Art. 1 ENMOD Convention 1. Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, longlasting or severe effects as the means of destruction, damage or injury to any other State Party.

Part D Methods of warfare Protection of the natural environment Art. 2 ENMOD Convention As used in article I, the term "environmental modification techniques" refers to any technique for changing - through the deliberate manipulation of natural processes - the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.

Part D Methods of warfare Protection of the natural environment Art. 35 para. 3 AP I It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

Part D Methods of warfare Protection of the natural environment Art. 55 para. 1 AP I Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

Works and installations containing dangerous forces
Part D Methods of warfare Part D Works and installations containing dangerous forces 122 122

Part D Methods of warfare Works and installations containing dangerous forces Art. 56 para. 1 AP I Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.

Part D Methods of warfare Works and installations containing dangerous forces Art. 56 para. 1 AP I Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.

Combatants and direct participation in hostilities
Part E Combatants Part E Combatants and direct participation in hostilities 125 125

Part E Status of combatants
Part E Combatants Part E Status of combatants 126 126

Distinction between combatants and civilians
Part E Combatants Distinction between combatants and civilians Art. 48 AP I In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

Part E Combatants Distinction between combatants and civilians Art. 50 para. 1 AP I A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of this Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

Part E Combatants Distinction between combatants and civilians Art. 4 A Geneva Convention III Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

Part E Combatants Distinction between combatants and civilians Art. 4 A Geneva Convention III (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates;

Part E Combatants Distinction between combatants and civilians Art. 4 A Geneva Convention III (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Part E Combatants Distinction between combatants and civilians Art. 4 A Geneva Convention III (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Part E Combatants Distinction between combatants and civilians Art. 43 AP I 1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law applicable in armed conflict.

Part E Combatants Distinction between combatants and civilians Art. 43 AP I 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

Part E Combatants Distinction between combatants and civilians Art. 44 para. 2 AP I While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

Part E Combatants Distinction between combatants and civilians Art. 44 para. 3 AP I In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

Part E Combatants Distinction between combatants and civilians Art. 44 para. 3 AP I (a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).

U.S. Supreme Court „Ex Parte Quirin“
Part E Combatants Distinction between combatants and civilians: the concept of so-called ‘unlawful combatants’ U.S. Supreme Court „Ex Parte Quirin“ By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Notion of direct participation in hostilities
Part E Combatants Part E Notion of direct participation in hostilities 139 139

Common Art. 3 para. 1 Geneva Conventions
Part E Combatants Direct Participation Common Art. 3 para. 1 Geneva Conventions 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 distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

Direct Participation Part E Combatants Art. 51 para. 3 AP I
Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

Direct Participation Part E Combatants
ICRC, Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law Acts amounting to direct participation in hostilities must meet three cumulative requirements: (1) a threshold regarding the harm likely to result from the act, (2) a relationship of direct causation between the act and the expected harm, and (3) a belligerent nexus between the act and the hostilities conducted between the parties to an armed conflict.

Dissident armed forces in non-international armed conflicts
Part E Combatants Part E Dissident armed forces in non-international armed conflicts 143 143

Dissident armed forces
Part E Combatants Dissident armed forces Art. 1 para. 1 AP II This Protocol, (…) shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Part E Combatants Dissident armed forces Art. 13 AP II 3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.

Part E Combatants Dissident armed forces ICRC, Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law In non-international armed conflict, organized armed groups constitute the armed forces of a non-state party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (“continuous combat function”).

Protection of wounded and sick; women; children; journalists
Part F Wounded and sick Part F Protection of wounded and sick; women; children; journalists 147 147

Part F Wounded and sick Part F Wounded and sick 148 148

Wounded and sick Definition
Part F Wounded and sick Wounded and sick Definition Art. 8 AP I a) "wounded" and "sick" mean persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act of hostility;

Respect, protection and human treatment
Part F Wounded and sick Wounded and sick Respect, protection and human treatment Art. 10 AP I 1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. 2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones.

Part F Wounded and sick Wounded and sick Respect, protection and human treatment Art. 11 AP I 1. The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article 1 shall not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.

Part F Wounded and sick Wounded and sick Respect, protection and human treatment Art. 11 AP I 2. It is, in particular, prohibited to carry out on such persons, even with their consent: (a) physical mutilations; (b) medical or scientific experiments; (c) removal of tissue or organs for transplantation, except where these acts are justified in conformity with the conditions provided for in paragraph 1.

Medical personal, units and transport
Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 8 AP I c) "medical personnel" means those persons assigned, by a Party to the conflict, exclusively to the medical purposes enumerated under sub-paragraph e) or to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term includes: i) medical personnel of a Party to the conflict, whether military or civilian, including those described in the First and Second Conventions, and those assigned to civil defence organizations;

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 8 AP I ii) medical personnel of national Red Cross (Red Crescent, Red Lion and Sun) Societies and other national voluntary aid societies duly recognized and authorized by a Party to the conflict; iii) medical personnel of medical units or medical transports described in Article 9, paragraph 2;

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 8 AP I e) "medical units" means establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatment -- including first-aid treatment -- of the wounded, sick and shipwrecked, or for the prevention of disease. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive medicine centres and institutes, medical depots and the medical and pharmaceutical stores of such units. Medical units may be fixed or mobile, permanent or temporary;

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 8 AP I f) "medical transportation" means the conveyance by land, water or air of the wounded, sick, shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies protected by the Conventions and by this Protocol; g) "medical transports" means any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a Party to the conflict;

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 12 AP I 1. Medical units shall be respected and protected at all times and shall not be the object of attack. 2. Paragraph 1 shall apply to civilian medical units, provided that they: (a) belong to one of the Parties to the conflict; (b) are recognized and authorized by the competent authority of one of the Parties to the conflict; or (c) are authorized in conformity with Article 9, paragraph 2, of this Protocol or Article 27 of the First Convention.

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 13 AP I 1. The protection to which civilian medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy. Protection may, however, cease only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded.

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 13 AP I 2. The following shall not be considered as acts harmful to the enemy: (a) that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge; (b) that the unit is guarded by a picket or by sentries or by an escort;

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 13 AP I (c) that small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the units; (d) that members of the armed forces or other combatants are in the unit for medical reasons.

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 16 AP I 1. Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom. 2. Persons engaged in medical activities shall not be compelled to perform acts or to carry out work contrary to the rules of medical ethics or to other medical rules designed for the benefit of the wounded and sick or to the provisions of the Conventions or of this Protocol, or to refrain from performing acts or from carrying out work required by those rules and provisions.

Part F Wounded and sick Wounded and sick Medical personal, units and transport Art. 16 AP I 3. No person engaged in medical activities shall be compelled to give to anyone belonging either to an adverse Party, or to his own Party except as required by the law of the latter Party, any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families. Regulations for the compulsory notification of communicable diseases shall, however, be respected.

Wounded and sick Protective emblems
Part F Wounded and sick Wounded and sick Protective emblems Art. 8 AP I l) "distinctive emblem" means the distinctive emblem of the red cross, red crescent or red lion and sun on a white ground when used for the protection of medical units and transports, or medical and religious personnel, equipment or supplies;

Part F Wounded and sick Wounded and sick Protective emblems Art. 38 AP I 1. It is prohibited to make improper use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other emblems, signs or signals provided for by the Conventions or by this Protocol. It is also prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property. 2. It is prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization.

Part F Wounded and sick Wounded and sick Protective emblems

Part F Wounded and sick Part F Women 166 166

Women Part F Wounded and sick Art. 76 AP I
1. Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault. 2. Pregnant women and mothers having dependent infants who are arrested, detained or interned for reasons related to the armed conflict, shall have their cases considered with the utmost priority.

Women Part F Wounded and sick Art. 76 AP I
3. To the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence related to the armed conflict. The death penalty for such offences shall not be executed on such women.

Part F Wounded and sick Part F Children 169 169

Children Part F Wounded and sick Art. 77 AP I
1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.

Children Part F Wounded and sick Art. 77 AP I
2. The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.

Part F Wounded and sick Part F Journalists 172 172

Journalists Part F Wounded and sick Art. 79 AP I
1. Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within the meaning of Article 50, paragraph 1. 2. They shall be protected as such under the Conventions and this Protocol, provided that they take no action adversely affecting their status as civilians, and without prejudice to the right of war correspondents accredited to the armed forces to the status provided for in Article 4 A (4) of the Third Convention.

Journalists Part F Wounded and sick Art. 79 AP I
3. They may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his status as a journalist.

Prisoners of war (POW) and other detainees in armed conflicts
Part G Prisoners of war Part G Prisoners of war (POW) and other detainees in armed conflicts 175 175

Part G Definition of a POW
Part G Prisoners of war Part G Definition of a POW 176 176

Definition of a POW Part G Prisoners of war Art. 44 AP I
1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

Art. 4 Geneva Convention III A
Part G Prisoners of war Definition of a POW Art. 4 Geneva Convention III A Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

Part G Prisoners of war Definition of a POW Art. 4 Geneva Convention III A (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fullfil the following conditions: (a) that of being commanded by a person responsible for his subordinates;

Part G Prisoners of war Definition of a POW Art. 4 Geneva Convention III A (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Part G Prisoners of war Definition of a POW Art. 4 Geneva Convention III A (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

Part G Prisoners of war Definition of a POW Art. 4 Geneva Convention III A (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Capture, evacuations and registration
Part G Prisoners of war Part G Capture, evacuations and registration 183 183

Art. 5 Geneva Convention III
Part G Prisoners of war Capture Art. 5 Geneva Convention III The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Part G Prisoners of war Evacuations Art. 19 Geneva Convention III Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger. Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept back in a danger zone. Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.

Part G Prisoners of war Registration Art. 122 Geneva Convention III Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflict shall institute an official Information Bureau for prisoners of war who are in its power.

Part G Rights in detention
Part G Prisoners of war Part G Rights in detention 187 187

Part G Prisoners of war Rights in detention Art. 13 Geneva Convention III Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Part G Prisoners of war Rights in detention Art. 13 Geneva Convention III Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.

Part G Prisoners of war Rights in detention Art. 14 Geneva Convention III Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires.

Part G Prisoners of war Rights in detention Art. 16 Geneva Convention III Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.

Part G Prisoners of war Part G Repatriation 192 192

Part G Prisoners of war Rights in detention Art. 109 Geneva Convention III Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following Article.

Part G Prisoners of war Rights in detention Art. 109 Geneva Convention III Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the cooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. They may, in addition, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity.

Part G Prisoners of war Rights in detention Art. 109 Geneva Convention III No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article, may be repatriated against his will during hostilities.

Part G Prisoners of war Rights in detention Art. 110 Geneva Convention III The following shall be repatriated direct: (1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished. (2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely diminished. (3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.

Part G Prisoners of war Part G Detention of persons having participated in hostilities without having the status of combatant 197 197

Rights in detention Part G Prisoners of war Art. 45 AP I
1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.

Rights in detention Part G Prisoners of war Art. 45 AP I
2. If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence. The representatives of the Protecting Power shall be entitled to attend the proceedings in which that question is adjudicated, unless, exceptionally, the proceedings are held ' in camera ' in the interest of State security. In such a case the detaining Power shall advise the Protecting Power accordingly.

Detention of fighters captured in non-international armed conflicts
Part G Prisoners of war Part G Detention of fighters captured in non-international armed conflicts 200 200

Rights in detention Part G Prisoners of war Art. 5 AP II
1. In addition to the provisions of Article 4, the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained: (a) the wounded and the sick shall be treated in accordance with Article 7; (b) the persons referred to in this paragraph shall, to the same extent as the local civilian population, be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict;

(c) they shall be allowed to receive individual or collective relief; (d) they shall be allowed to practise their religion and, if requested and appropriate, to receive spiritual assistance from persons, such as chaplains, performing religious functions; (e) they shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population. .

2. Those who are responsible for the internment or detention of the persons referred to in paragraph 1 shall also, within the limits of their capabilities, respect the following provisions relating to such persons: (a) except when men and women of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women; (b) they shall be allowed to send and receive letters and cards, the number of which may be limited by competent authority if it deems necessary;

(c) places of internment and detention shall not be located close to the combat zone. The persons referred to in paragraph 1 shall be evacuated when the places where they are interned or detained become particularly exposed to danger arising out of the armed conflict, if their evacuation can be carried out under adequate conditions of safety; (d) they shall have the benefit of medical examinations;

(e) their physical or mental health and integrity shall not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned, and which is not consistent with the generally accepted medical standards applied to free persons under similar medical circumstances.

Part G Visit to detainees
Part G Prisoners of war Part G Visit to detainees 206 206

Visits to detainees Part G Prisoners of war
Art. 33 Geneva Convention III: Medical Personnel Art. 81 Geneva Convention III: Prisoners Representatives Art. 105 Geneva Convention III: Advocate and Counsel Art. 125 Geneva Convention III: Relief societies and other organizations assisting prisoners of war

Part H Occupation Part H Occupation 208 208

Definition; beginning and end of occupation
Part H Occupation Part H Definition; beginning and end of occupation 209 209

Definition Part H Occupation Art. 42 Hague Convention
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.

ICJ, DRC v. Uganda, Judgment of 19.December 2005
Part H Occupation Definition ICJ, DRC v. Uganda, Judgment of 19.December 2005 173. In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an “occupying Power” in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question.

ICJ, DRC v. Uganda, Judgment of 19 December 2005
Part H Occupation Definition ICJ, DRC v. Uganda, Judgment of 19 December 2005 In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government. In that event, any justification given by Uganda for its occupation would be of no relevance; nor would it be relevant whether or not Uganda had established a structured military administration of the territory occupied.

Prohibition of annexation
Part H Occupation Part H Prohibition of annexation 213 213

Part H Occupation Prohibition of annexation ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 121. Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature (see paragraph 116 above), it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access.

Part H Occupation Prohibition of annexation ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory The Court considers that the construction of the wall and its associated régime create a "fait accompli" on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.

Rights and duties of the occupying power
Part H Occupation Part H Rights and duties of the occupying power 216 216

Rights and duties of the occupying power Art. 47 Geneva Convention IV
Part H Occupation Rights and duties of the occupying power Art. 47 Geneva Convention IV Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

Part H Occupation Rights and duties of the occupying power Art. 49 Geneva Convention IV Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. (…) The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Part H Occupation Rights and duties of the occupying power Art. 55 Geneva Convention IV To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.

Part H Occupation Rights and duties of the occupying power Art. 55 Geneva Convention IV The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. Subject to the provisions of other international Conventions, the Occupying Power shall make arrangements to ensure that fair value is paid for any requisitioned goods.

Part H Occupation Rights and duties of the occupying power Art. 55 Geneva Convention IV The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical supplies in occupied territories, except where temporary restrictions are made necessary by imperative military requirements.

Rights and duties of the occupying power
Part H Occupation Rights and duties of the occupying power Art. 69 AP I 1. In addition to the duties specified in Article 55 of the Fourth Convention concerning food and medical supplies, the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship.

Humanitarian Assistance
Part I Humanitarian Assistance Part I Humanitarian Assistance 223 223

Humanitarian Assistance Art. 23 Geneva Convention IV
Part I Humanitarian Assistance Humanitarian Assistance Art. 23 Geneva Convention IV Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

Part I Humanitarian Assistance Humanitarian Assistance Art. 70 AP I 1. If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with the supplies mentioned in Article 69, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts.

Part I Humanitarian Assistance Humanitarian Assistance Art. 70 AP I In the distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection. 2. The Parties to the conflict and each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel provided in accordance with this Section, even if such assistance is destined for the civilian population of the adverse Party.

Part I Humanitarian Assistance Humanitarian Assistance Art. 70 AP I 3. The Parties to the conflict and each High Contracting Party which allow the passage of relief consignments, equipment and personnel in accordance with paragraph 2: (a) shall have the right to prescribe the technical arrangements, including search, under which such passage is permitted; (b) may make such permission conditional on the distribution of this assistance being made under the local supervision of a Protecting Power;

Part I Humanitarian Assistance Humanitarian Assistance Art. 70 AP I (c) shall, in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned.

Part I Humanitarian Assistance Humanitarian Assistance Art. 71 AP I 1. Where necessary, relief personnel may form part of the assistance provided in any relief action, in particular for the transportation and distribution of relief consignments; the participation of such personnel shall be subject to the approval of the Party in whose territory they will carry out their duties. 2. Such personnel shall be respected and protected. 3. Each Party in receipt of relief consignments shall, to the fullest extent practicable, assist the relief personnel referred to in paragraph 1 in carrying out their relief mission. Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted.

Part I Humanitarian Assistance Humanitarian Assistance Art. 18 AP II 1. Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. The civilian population may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked.

Part I Humanitarian Assistance Humanitarian Assistance Art. 18 AP II 2. If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

Implementation of International Humanitarian Law
Part J Implementation Part J Implementation of International Humanitarian Law 232 232

Part J Preventive measures
Part J Implementation Part J Preventive measures 233 233

Art. 49 para. 1 Geneva Convention I
Part J Implementation Preventive measures Art. 49 para. 1 Geneva Convention I The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Art. 49 para. 4 Geneva Convention I
Part J Implementation Preventive measures Art. 49 para. 4 Geneva Convention I Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

Part J Implementation Part J Means of control 236 236

Art. 8 Geneva Convention I
Part J Implementation Means of control Art. 8 Geneva Convention I The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.

Art. 8 Geneva Convention I
Part J Implementation Means of control Art. 8 Geneva Convention I The Parties to the conflict shall facilitate, to the greatest extent possible, the task of the representatives or delegates of the Protecting Powers. The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties. Their activities shall only be restricted as an exceptional and temporary measure when this is rendered necessary by imperative military necessities.

Means of control Part J Implementation Art. 5 AP I
4. If, despite the foregoing, there is no Protecting Power, the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy, after due consultations with the said Parties and taking into account the result of these consultations, to act as a substitute. The functioning of such a substitute is subject to the consent of the Parties to the conflict; every effort shall be made by the Parties to the conflict to facilitate the operations of the substitute in the performance of its tasks under the Conventions and this Protocol.

1. (a) An International Fact-Finding Commission (hereinafter referred to as "the Commission") consisting of fifteen members of high moral standing and acknowledged impartiality shall be established.

(b) When not less than twenty High Contracting Parties have agreed to accept the competence of the Commission pursuant to paragraph 2, the depositary shall then, and at intervals of five years thereafter, convene a meeting of representatives of those High Contracting Parties for the purpose of electing the members of the Commission. At the meeting, the representatives shall elect the members of the Commission by secret ballot from a list of persons to which each of those High Contracting Parties may nominate one person.

(c) The members of the Commission shall serve in their personal capacity and shall hold office until the election of new members at the ensuing meeting.

Common Article 1 of the Genava Conventions
Part J Implementation Means of control Common Article 1 of the Genava Conventions The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

Means of control Part J Implementation
ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 158. The Court would also emphasize that Article 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.

ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.

ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by lsrael with international humanitarian law as embodied in that Convention.

Repression of violations and development of international justice
Part J Implementation Part J Repression of violations and development of international justice 247 247

Repression of violations
Part J Implementation Repression of violations Art. 51 AP I 6. Attacks against the civilian population or civilians by way of reprisals are prohibited.

Part J Implementation Repression of violations Art. 89 AP I In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.

Part J Implementation Repression of violations Art. 91 AP I A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.

International Criminal Justice
Part J Implementation International Criminal Justice Art. 25 Rome Statute 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

Part J Implementation International Criminal Justice Art. 28 Rome Statute In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

Part J Implementation International Criminal Justice Art. 28 Rome Statute (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Part J Implementation International Criminal Justice Art. 28 Rome Statute (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

Part J Implementation International Criminal Justice Art. 28 Rome Statute (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Part J Implementation International Criminal Justice Art. 30 Rome Statute 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct;

Part J Implementation International Criminal Justice Art. 30 Rome Statute (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

Future perspectives/outlook
Part K Outlook Part K Future perspectives/outlook 258 258

‘Asymmetrical wars’; international terrorism
Part K Outlook Part K ‘Asymmetrical wars’; international terrorism 259 259

Part K Outlook Transnational armed conflicts‘ Supreme Court of the United States, Hamdan v. Rumsfeld, , p. 72 Common Article 3 obviously tolerates a great degree off flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

Definition Part K Outlook
Military Commissions Act 2006, Chapter 47A, subchapter I, para 948B (g) No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

Part K Outlook Transnational armed conflicts‘ Prosecutor v. Delalic, 16 November 1998, ICTY-96-21 271. It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied.

Cyberwarfare and new technologies
Part K Outlook Part K Cyberwarfare and new technologies 263 263

Vorlesung - International Humanitarian Law – Sommersemester 2017

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Vorlesung - International Humanitarian Law – Sommersemester 2017

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