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International humanitarian law and the challenges of contemporary armed conflicts: Excerpt of the Report prepared by the International Committee of the Red Cross for the 28th International Conference of the Red Cross and Red Crescent Geneva, December 2003*

Published online by Cambridge University Press:  27 April 2010

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Extract

Over thirty years ago the International Committee of the Red Cross (ICRC) submitted a report on the reaffirmation and development of the laws and customs applicable in armed conflicts to the 21st International Conference of the Red Cross held in Istanbul. The purpose of that report was to identify legal issues that, in the ICRC's view, warranted a new effort to codify international humanitarian law (IHL). As is well known, almost a decade later, the texts of the two Protocols Additional to the Geneva Conventions were adopted and opened for signature and ratification. Additional Protocol I, among other things, codified rules on the conduct of hostilities, expanded the protection of certain categories of persons and included, among others, wars of national liberation within the scope of international armed conflict. Protocol II, although more ambitiously envisaged at the start, elaborated on the provisions of Article 3 common to the Geneva Conventions and laid down basic safeguards that must be applied in non-international armed conflicts.

Type
Faits et documents/Reports and documents
Information
International Review of the Red Cross , Volume 86 , Issue 853 , March 2004 , pp. 213 - 244
Copyright
Copyright © International Committee of the Red Cross 2004

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References

1 Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, report submitted by the International Committee of the Red Cross, (Item 4 a, b and e of the Provisional Agenda of the Commission on International Humanitarian Law and Relief to Civilian Populations in the Event of Armed Conflict), 21st International Conference of the Red Cross, Istanbul, September 1969 (hereinafter “1969 Report”).

2 Apart from armed conflict between States, Additional Protocol I also covers “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right to self-determination” (Article 1 (4)).

3 Additional Protocol I, Article 51 (3).

4 Pursuant to Article 43 (2) of Additional Protocol I, “Members of the armed forces of a Party to a conflict other than medical personnel and religious chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities”. Pursuant to Article 50 (1) of Additional Protocol 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 the 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.”

5 Both combatants and non-combatants may, however, be prosecuted both internationally and domestically for commission of war crimes.

6 Under Article 4 (1) and (2) of the Fourth Geneva Convention: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State-which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

7 In one instance - the levée en masse situation - provided for in Article 4 (A) (6) of the Third Geneva Convention, the inhabitants of a non-occupied territory who spontaneously take up arms to resist the invading forces are, under certain conditions, considered combatants and are recognized as prisoners of war when they fall into the power of the enemy.

8 The Fourth Geneva Convention provides detailed rules for the treatment of persons who have been assigned residence or have been interned in cases where the security of the detaining or occupying power makes such a measure absolutely necessary. See Part III, Section IV of the Fourth Geneva Convention, on regulations for the treatment of internees (Articles 79–141).

9 A summary report of the June 2003 seminar topics and proceedings are attached in annex to the report as circulated at the 28th International Conference of the Red Cross and Red Crescent (Annex 1) and will not be repeated here.

10 Definition of Air Marshall Trenchard from 1928, quoted in Webster, Charles and Frankland, Noble, The Strategic Air Offensive Against Germany 1939–1945. HMSO, Landon, 1961, p. 96Google Scholar.

11 Article 3 (4) of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protocol II) to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. See also Article 3 (10) of Protocol II as amended in 1996 and Article 1 (5) of the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III).

12 Article 2 (1) and (2) common to the four Geneva Conventions.

13 Hague Convention IV, Annexed Regulations, Article 42.

14 Such as the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, and its Protocols; the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

15 For a review of current thinking on ways of improving compliance with IHL in non-international armed conflicts see pp. 24–25 of the present report and Annex 3 attached to the report as circulated at the 28th International Conference of the Red Cross and Red Crescent.

16 By way of reminder, terrorism is not defined under international law. Work on drafting a Comprehensive Convention on Terrorism has been stalled at the United Nations for several years now.

17 Annex 2 to the report as circulated at the International Conference provides the Roundtable agenda.

18 See, e.g. the ICRC's Annual Report for 2002.

19 See, e.g. the ICRC's Advisory Service Biennial Report for 2000–2001.

20 The regional expert seminars were organized by the ICRC in collaboration with the Egyptian National Commission for International Humanitarian Law (Cairo), the Ministry of Foreign Affairs of the Government of the Republic of South Africa (Pretoria), the Ministry of Foreign Affairs of Mexico (Mexico City), and the College of Europe (Bruges).

21 A summary report outlining the results of the five seminars held to date is attached as Annex 3 to the report as circulated at the 28th International Conference of the Red Cross and the Red Crescent.

22 A detailed summary of the discussions in this regard is contained in annex 3 to the report as circulated at the 28th International Conference of the Red Cross.

23 A detailed account of the various proposals on this and other mechanisms is contained in Annex 3 attached to the report as circulated at the 28th International Conference of the Red Cross and the Red Crescent.

24 A study that is currently being completed by the ICRC in fact addresses, among other things, the issue of motivation for IHL application mentioned above.