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As-salamu alaykum wa rahmatullahi wa barakaatuhuعليكم السالم
Ellen Bahler LLM
International Humanitarian Law and Serious Request 2015
Why?
• https://www.youtube.com/watch?feature=player_detailpage&v=K-WpxSrmV4Y
Program
•Development, scope and purpose of IHL
•Basic principles: the conduct of hostilities, protection of civilians
•International and non international conflicts
•Law of occupation and enforcing IHL
•Serious request 2015
•2 cases
Development,scope and purpose of IHL
Henry Dunant, battlefield Solferino.•ICRC as having a natural link with IHL and the military•ICRC's idea is born on the battlefield ( Austrian, Italian or French) (Solferino 1859)
•Tutti fratelli!•Neutral•Victims of armed conflict in 19th century were almost exclusively military, hence military were, historically, ICRC's first "clients"
•ICRC linked to IHL development, implementation and respect since its inception
Rules of war ( in a nutshell), still relevant?
• https://www.youtube.com/watch?v=HwpzzAefx9M&feature=player_embedded
Geneva
• Un souvenir de Solferino• Geneva 1864• GC 1, Geneva Convention 1949• NB: Geneva Convention of 1951 ( refugees).
The Red Cross / Red Crescent Movement
ARMED CONFLICT / OSV DISASTER
ICRC National Societies Federation
ICRC• The ICRC is an impartial, neutral and independant organization…• Whose exclusively humanitarian mission…• Is to protect the lives and dignity of victims …• of armed conflicts and other situations of violence …• And to provide them with assistance • It endeavours to prevent suffering by promoting and
strengthening IHL and universal humanitarian principles.
Principles and modalities guiding ICRC action:
Out of the Movement's 7 principles, four are particularly relevant to ICRC activities in time of armed conflict or armed violence:
• Humanity: is the supreme principle. It encapsulates the ideals and aims of the Movement. It is the main driving force behind the ICRC’s work to get protection for life and health and to ensure respect for the human being.
• Impartiality: rejects any form of discrimination, calls for equal treatment for people in distress, according to their needs. It enables the ICRC to prioritize its activities on the basis of the degree of urgency and the types of needs of those affected with no discrimination as to nationality, race, religious beliefs, class or political opinions.
Neutrality: enables the ICRC to keep everyone’s trust by not taking sides in hostilities or controversies of a political, racial, religious or ideological nature. Neutrality does not mean indifference to suffering, acceptance of war or quiescence in the face of inhumanity; rather, it means not engaging in controversies that divide peoples. The ICRC’s work benefits from this principle because it enables the organization to make more contacts and gain access to those affected. Neutrality is a means to an end, not an end in itself. It is a tool to keep open the channels needed for taking concrete action.
• Independence: the ICRC is independent from any governmental organization (e.g. UN or NATO) and State. Delegates do not represent the States they are nationals of.
• Though not guiding principles, ICRC personnel also respect the following modalities everywhere:
• no weapons and no armed escorts Personnel never carry weapons and those are not tolerated within its premises. The ICRC does not resort to armed escorts (exception: in the case of severe armed banditry).
• dialogue with all parties. ICRC needs to get acceptance for its activities from all parties. This sometime entails notifying its presence, premises or movements.
• no military intelligence. Although they sometime cross frontlines or closely follow the evolution of the armed conflict or other situation of armed violence in order to adequately respond to the needs of the victims, ICRC personnel do not collect or transmit military intelligence.
• National Societies & Federation • IHL secures that the emblem offers protection and cannot be
attacked. The emblem protects not only Red Cross officials, but also buildings, vehicles and military personnel that solely offer medical assistance: they wear the emblem on their arm.
• There are three official emblems: the red cross, the red crescent and the red crystal. These emblems all have the same meaning: do not shoot & there are no weapons here. Buildings and vehicles with these emblems cannot transport weapons and persons wearing the emblem cannot use a weapons other than in self-defence.
• Misuse of the emblems is considered a war crime under IHL.
Jus in bello/ Jus belli
• Jus in bello/ Jus belli- law IN war.
What happens to individuals during warfare.
Particular the rights and duties of the belignerent (aggressive)
powers themselves, and of neutral nations.
“The right of war, that which be done without injustice with regard to the enemy”- Grotius
Jus ad bellum
Do not confuse!
Jus ad bellum- set of criteria before engaging in war or to
determine entering in towar is permissable ( allowed)
( the just war ( theory)).
What is international humanitarian law?
• A. A set of rules aimed at limiting the consequences
of warfare
• B. The field of law that determines the legality of the reasons for the use of force
• C. Human rights, specifically designed for situations of armed conflict
Answer is A!
• @B – jus ad bellum / jus in bello. Regime to use force v. regime how to use force
• @C – human rights are universal and apply independent of and complementary to IHL in situations of armed conflict. They can be derogated from whereas IHL is specifically designed to deal with armed conflict and cannot be limited.
Basic principles:International humanitarian law is …
… a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict.
It protects persons who are not or are no longer participating in the hostilities
and
restricts the means and methods of warfare
• Cavendum quantam fieri potest ne innocente,etiam praeter propositum, occidantur -Grotius
Basic Rules on Lawful Targeting of Persons under IHL• Principle of Distinction
• Who is protected by IHL : Civilians, Medical & Religious Personnel and Personnel hors de combat.
• Martens Clause, Hague II
• Occupation…Hague , Geneva and so on…
Occupation:• Article 42 of the 1907 Hague Regulations (HR) states that a " 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. "
• According to their common Article 2, the four Geneva Conventions of 1949 apply to any territory occupied during international hostilities. They also apply in situations where the occupation of state territory meets with no armed resistance.
• The legality of any particular occupation is regulated by the UN Charter and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful.
• Therefore, for the applicability of the law of occupation, it makes no difference whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an “invasion”, “liberation”, “administration” or “occupation”. As the law of occupation is primarily motivated by humanitarian considerations, it is solely the facts on the ground that determine its application.
Enforcing IHL
• Obligation to respect and to ensure respect• Dissemination and implementation in national legal order• Military lawyers• Military penal law• Fact-finding• Criminal liability• Public opinion• ICRC
IGNORANTIA JURIS QUOD QUISQUE TENETUR SCIRE, NEMINEM EXCUSAT-
W. BLACKSTONE 1787
CASE
• Case 1.
• Case 2.
Departure
• 16.30 hrs the bus will depart (Heumensoord)!
• Have a nice day.
