ASSIGNMENT ON INTERNATIONAL HUMANITARIAN LAW.docx

8/18/2019 ASSIGNMENT ON INTERNATIONAL HUMANITARIAN LAW.docx

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HISTORICAL DEVELOPMENT OF

INTERNATIONAL

HUMANITARIAN LAW

INTRODUCTION:

“International Humanitarian Law applicable in armed conficts”

means international rules, established by treaty or custom, which

are specically intended to solve humanitarian problems that

arise directly rom international or non international armed

conficts. For humanitarian reasons, these rules protect persons

and property that are, or may be, aected by confict by limitin!

confictin! parties" ri!hts to choose their methods and means o

warare. #he e$pression “international humanitarian law

applicable in armed confict” is oten abbreviated to International

Humanitarian Law or Humanitarian Law.1 #hou!h the military

tends to preer the e$pressions “Laws o %rmed &onficts” 'L(%&)

or “Laws o *ar”, these two e$pressions should be understood as

synonymous with “IHL”. (ne can say that the laws o war are

almost as old as war itsel. +ven in ancient times, there were

interestin! althou!h rudimentary customs that today would

be classied as humanitarian. It is interestin! to note that the

content and aim o these customs were the same or almost every

civili-ation around the world. #his spontaneous !eneration o

humanitarian standards, at dierent times and amon! peoples or

states that possessed limited means o communication with each

other, is also an important phenomenon.

#his phenomenon lends credence to the historical ar!umentre!ardin!

/ #he necessity o havin! rules that applies to armed conficts0


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/ #he e$istence o a eelin! in many civili-ations that, undercertain circumstances, human bein!s, riend or oe, must beprotected and respected.

______________________________________

1. 1enition elaborated by the International &ommittee o the 2ed &ross and

!enerally accepted. 3ource &ommentary on the %dditional 4rotocols o 5 6une 7899,

I&2&, :eneva, 7859, p. ;;


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commencement o hostilities between dierent peoples thatcorrespond, to a lar!e e$tent, to the classical +uropean traditionalobli!ation o declarin! war. Doreover, in a treatise called “#he%rts o the *ar”, written in E?? @&, the &hinese writer 3un #-u,

e$pressed the idea that wars must be limited to militarynecessity, and that prisoners o war, the wounded, the sicC, andcivilians should be spared. LiCewise, in the Indian subcontinent,similar rules can be ound. For e$ample, in the Code o Manuwritten in ?? @&, one nds rules relatin! to behavior in combat.

#he &ode declared that barbed or poisoned weapons wereprohibited, that wounded soldiers had to be cared or, and thatsurrenderin! combatants must be spared.

#hese e$amples o humanitarian customs in various civili-ationsdemonstrate that, even i the :eneva or Ha!ue &onventions werenot universal at inception, since they were drated and adoptedby lawyers and diplomats belon!in! to the +uropean &hristianculture, their sentiments are nearly universal, since the principlesthey contain can be ound in very dierent systems o thou!ht both +uropean and nonG+uropean.

#he cultural history o +urope also provides e$amples o bothbarbarism and humanity. #he rst si!nicant development inrespect to the law o war occurred in ?? @&, with the :reeCphilosophical school called “stoicism”. #his school advocated apath towards humanity throu!h understandin! and “sympathy”,the need to understand and respect each other.

@etween the 7=th and 75th centuries, in the 2enaissance and %!eo 2eason, GGGan interestin! and humanitarian practice developedin +urope. FreBuently, warriors met beore the hostilities anddecided on !uidelines to be respected durin! the battle. #hesespecial a!reements could, or e$ample, establish the observanceo an armistice two days per weeC, the obli!ation to collect thewounded, or a responsibility to release prisoners at the end o thewar. %lthou!h these a!reements were concluded on an ad hoc


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basis, and had a limited scope o application, such precedentsplayed a very si!nicant role in the creation o IHL.From this historical perspective developed the documented ori!in

o IHL in the midG78th &entury. p to that point, the practice o

the accepted rules o warare refected the theories ophilosophers, priests or Jurists with local and special a!reements.$

However, these customs were !eo!raphically limited and there

were no international 'states were not yet born) or universal rules.

#he rst universal treaty on Humanitarian Law is the :eneva

&onvention o 75=>.

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$. % !ood e$ample o such a!reements is the “Lieber Instruction o 75=”, a &odeo conduct promul!ated by the 4resident o the nited 3tates durin! the 3 &ivil

*ar. 3ee also inra, Lesson >,

#he conception o IHL can be traced to the @attle o 3olerino, aterrible confict between French and %ustrian orces that tooCplace in northern Italy in 75E8. (ne witness o that carna!e, abusinessman rom :eneva named Henry 1unant, was appallednot so much by the violence o that battle, but rather by thedesperate and miserable situation o the wounded let on thebattleelds. *ith the help o the local inhabitants, 1unantimmediately decided to collect and care or the wounded.

@acC in :eneva, 1unant published a short booC in 75=, AMemory o Solerino, in which he vividly depicted the horrors othe battle

“When the sun came up on the twenty-th June 1!" itdisclosed the most dreadul si#hts ima#ina$le% &odies o menand horses co'ered the $attleeld( corpses were strewn o'er


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roads, ditches, ra'ines, thic)ets and elds*+he poor woundedmen that were $ein# pic)ed up all day lon# were #hastly paleand ehausted% Some, who had $een the most $adly hurt, had astupeed loo) as thou#h they could not #rasp what was said to

them* thers were anious and ecited $y ner'ous strain andsha)en $y spasmodic trem$lin#% Some, who had #apin# woundsalready $e#innin# to show inection, were almost cra.ed withsuferin#% +hey $e##ed to $e put out o their misery, and

writhed with aces distorted in the #rip o the death stru##le%/ 3

In his booC, 1unant not only described the battle, but tried tosu!!est and publici-e possible measures to improve the ate owar victims. He presented three basic proposals desi!ned tomiti!ate the suerin! o the victims o war. #o this end he

proposed

7) #hat voluntary societies be established in every countrywhich, in time o peace, would prepare themselves to serve asau$iliaries to the military medical services.) #hat 3tates adopt an international treaty !uaranteein! le!al

protection to military hospitals and medical personnel.

) #hat an international si!n o identication and protection o

medical personnel and medical acilities be adopted .

______________________________________________________

%. A Memory o Solerino, I&2&, :eneva 785=, p.>7

#hese three proposals were simple, but they have had deep andlastin! conseBuences.

/ #he whole system o ational 2ed &ross or 2ed &rescent3ocieties 'o which there are today 755 around the world) stemsrom the rst proposal0

/ #he second proposal !ave birth to the “First :eneva&onvention” in 75=>0

/ #he third proposal led to the adoption o the protectiveemblem o the 2ed &ross or the 2ed &rescent.


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1unant"s booC enJoyed enormous success throu!hout +urope.%lthou!h it did not present entirely ori!inal ideas, the merit o thebooC is in lar!e part due to the timeliness o its messa!e.

%t that time, a private welare association e$isted in :eneva #he3ociety or the 4ublic :ood. Its 4resident, :ustave Doynier, wasimpressed by 1unant"s booC and proposed to the members o the3ociety that they try to carry out 1unant"s proposals. #hissu!!estion was accepted and ve members o the 3ociety, Dssrs.1unant, Doynier, 1uour, %ppia and Daunoir, created a specialcommittee Min 75=N, the “International 3tandin! &ommittee or%id to *ounded 3oldiers.” #his committee would, 7E years later,become the International &ommittee o the 2ed &ross 'I&2&, 3eeinra, Lesson 5.).

In 75=, the &ommittee convened military and medical e$perts ata conerence in :eneva. #he aim o that meetin! was to e$aminethe practicability and easibility o the proposals made by 1unant.

#he results o the meetin! were encoura!in!, and the members o the &ommittee persuaded the 3wiss Federal &ouncil to convene adiplomatic conerence, whose tasC would be to !ive a le!al ormto 1unant"s proposals. #o this end, a diplomatic conerence washeld in 75=> in :eneva and the 7= states represented nallyadopted the “:eneva &onvention o nd %u!ust 75=> or the%melioration o the &ondition o the *ounded in %rmies in theField.” Its result was an international treaty opens to universalratication 'i.e. an a!reement not limited to a specic re!ion orconfict, with bindin! eects on the 3tates that would ormallyaccept it) in which states a!reed to voluntarily limit their ownpower in avour o the individual. For the rst time, armed confictbecame re!ulated by written, !eneral law.

T&e 'irt& of Mo(ern Internationa H!"anitarianLa#:


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#he First :eneva &onvention !ave a le!al ormat to 1unant"sproposals and established a special status or medical personnel.

#he act that this conerence lasted less than 7? days provides aclear indication o the !eneral support !iven to the propositions.

( course, this ori!inal convention has been replaced by moremodern and comprehensive treaties. However, it illustrates in aconcise manner the central obJectives o humanitarian lawtreaties. #he ori!inal convention is reproduced on the ollowin!pa!e. @e!innin! in 75==, the :eneva &onvention proved its worthon the battleeld. @y 755, 75 years ater its adoption, it had

been universally ratied.)

The Progressive Development of IHL (1864 – 2012)

#he Cey developments in IHL since the adoption o the 75=>:eneva &onvention. % thorou!h and detailed discussion o thepostG75=> development o IHL would be beyond the scope o thiscorrespondence course. However, the student should be aware othe three main characteristics that marCed this evolution

a) #he constant enlar!ement o the cate!ories o war victimsprotected by humanitarian law 'military wounded0 sicC andshipwrecCed0 prisoner o war0 civilians in occupied territories0 theentire civilian population), as well as the e$pansion o thesituations in which victims are protected 'international and noninternational armed conficts)0

b) #he re!ular updatin! and moderni-ation o the treaties toaccount or the realities o recent conficts. For e$ample, the rulesprotectin! the wounded adopted in 75=> were thus revised in78?=, 788, 78>8, and 7899 'critics have thereore accused IHL o bein! always “one war behind reality”).

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). nder %rt o the 78=8


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c) #wo separate le!al currents have, up until 7899, contributed tothis evolution

/ #he *ene+a La#, mainly concerned with the protection o thevictims o armed confictsG i%e% the noncombatants and those

who no lon!er taCe part in the hostilities0 and/ #he Hag!e La#, whose provisions relate to limitations andprohibitions o specic means and methods o warare.

#hese two le!al currents were practically mer!ed with theadoption o the two %dditional 4rotocols o 7899. #he &onventionscurrently in orce have replaced the older :eneva &onventions.3trictly speaCin!, the “Ha!ue &urrent” ori!inated in the1eclaration o 3t 4etersbur!, which was proclaimed by a

&onerence convened by %le$ander III, the #sar o 2ussia in 75=5. #he 1eclaration prohibited the use o e$plosive bullets andenunciated some basic principles relatin! to the conduct ohostilities 'see Lesson >).

In 7588 the soGcalled “First 4eace &onerence” was convened inthe etherlands by another #sar, icholas II, in #he Ha!ue. #hat&onerence adopted several &onventions whose !eneral !oal wasto limit the evils o war. %mon! other thin!s, these &onventionsprohibited

/ the launchin! o proJectiles rom balloons0

/ the use o poisonous !ases0

/ the use o dumdum bullets.

#he main achievement o this &onerence was the adoption o aprinciple named or its initiator, F. Dartens, the le!al adviser othe 2ussian #sar. #he “Dartens &lause” says that

“until a more complete code o the law o war has $een issued,the 0i#h Contractin# arties deem it epedient to declare that,in cases not included in the 2e#ulations adopted $y them, theinha$itants and the $elli#erents remain under the protectionand the rule o the principles o the law o nations, as the resultrom the usa#es esta$lished amon# ci'ili.ed peoples, rom the

laws o humanity, and the dictates o the pu$lic conscience%/ 5


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KKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKK -. #his Dartens &lause was developed and reaArmed in subseBuent treaties0 e.!. in%rticle 7 para!raph o %dditional 4rotocol I o 7899 and preambular para!raph > o %dditional 4rotocol II o 7899.

%nother important success o the 7588 &onerence was thee$tension o the humanitarian rules rom the :eneva &onventiono 75=> to the victims o naval conficts. #his adaptation isincluded at the ori!in o the present 3econd :eneva &onvention.

In 78?=, the &onvention o 75=> that protected the wounded andthe sicC o armies in the eld was revised. %lthou!h the revisione$panded the convention to articles rom the ori!inal 7? in the75=> version, the undamental principles remained the same.

In 78?9, a second 4eace &onerence was convened in #he Ha!ue.(n this occasion, the &onventions o 7588 were revised and somenew rules were introduced. %mon! the additions were a denitiono combatants, rules on naval warare, rules on the ri!hts andduties o neutral powers, rules on military occupation, and rulesre!ardin! 4risoners o *ar '4(*).

In 78E, as a direct result o the suerin! endured durin! the First*orld *ar '787>7875), a 4rotocol prohibitin! the use o !as wasadopted. %lthou!h it was adopted in :eneva, this 4rotocol clearly

belon!s, accordin! to its content, to the le!al current o #heHa!ue Law.

In 788, a diplomatic &onerence was convened in :eneva by the3wiss &onederation. #he main results o that &onerence were

/ #he second revision 'ater 78?=) o the 75=> &onvention. #his&onvention was a!ain modied. %mon! the new provisions,mention should be made o the rst oAcial reco!nition o theemblem o the 2ed &rescent. %lthou!h that emblem had been

used as early as 759=, it was only in 788 that it was authori-edby law0

/ #he other remarCable success o the 788 &onerence was theadoption o the “&onvention relative to the treatment o4risoners o *ar” 'also a result o the First *orld *ar). 4artiallye$amined durin! the 4eace &onerence o 7588 and 78?9, thisimportant issue was not deeply studied beore 788.


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In 78>8, Just ater the 3econd *orld *ar 'note the parallel to*orld *ar I and the &onerence o 788), the our current :eneva&onventions were adopted. #he First 'protection o sicC and

wounded), 3econd 'protection o shipwrecCed), and #hird&onventions 'prisoners o war), are mainly revised versions oormer &onventions.

#he Fourth &onvention, establishin! protection or the civilianpopulation, is an entirely new amendment and constitutes the!reatest success o the 78>8 &onerence. %nother decisiveimprovement o the 78>8 1iplomatic conerence was the adoptiono %rticle common to the our &onventions, the rstinternational provision applicable in situations o nonGinternational

armed conficts.

In 7899, ater our sessions o 1iplomatic &onerences, twoadditional 4rotocols to the :eneva &onventions o 78>8 wereadopted. #he First 4rotocol is related to the protection o victimso international armed conficts0 the second to the protection ovictims o nonGinternational armed conficts. #o some de!ree, this3econd 4rotocol can be re!arded as an enlar!ement o %rticle common to the our :eneva &onventions.

In 785?, another important convention was adopted under the auspices, the “&onvention on prohibition or restrictions on the useo conventional weapons which may be deemed to be e$cessivelyinJurious or to have indiscriminate eects.” #his instrument limitsor prohibits the use o mines, booby traps, incendiary weapons,and non detectable ra!ments.

In 788, a comprehensive &onvention prohibitin! thedevelopment, production, stocCpilin!, and use o chemicalweapons was adopted. #his treaty supplements the basic

prohibition contained in the 78E :eneva 4rotocol.In 788E, a new 4rotocol, an appenda!e to the 785? &onvention,was adopted. #his new instrument prohibited the use o laserweapons desi!ned to cause permanent blindness.

In 7889, a &onvention prohibitin! the use, stocCpilin!, production,and transer o antipersonnel mines was si!ned in (ttawa.


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In 7885, the Stat!te of t&e Internationa Cri"ina Co!rtICC/ was adopted in 2ome. #his accomplishment was theculmination o years o eort and showed the resolve o the

international community to ensure that those who commit !ravecrimes do not !o unpunished. #he I&& has Jurisdiction overserious international crimes ':enocide, &rimes a!ainst Humanity,*ar crimes, and %!!ression) re!ardless o where they arecommitted.

In 7888, a new 4rotocol to the 78E> &onvention on cultural

property was adopted. Proto0o II enables the 3tates party tothat &onvention to supplement and reinorce the protectionsystem established in 78E>. It claries the concepts osae!uardin! and respect or cultural property0 it lays down newprecautions in attacCs and a!ainst the eects o attacCs0 andinstitutes a system o enhanced protection or property o the!reatest importance or humanity.

In ???, an otiona roto0o to t&e 1232 Con+ention on t&erig&t4 of t&e 0&i( was adopted. #his protocol raises theminimal a!e or compulsory recruitment rom 7E to 75 and callson 3tates to raise the minimum a!e or voluntary recruitmentabove 7E. It provides that armed !roups should not use childrenunder 75 in any circumstances and calls on 3tates to criminali-esuch practices.In ??, the international community adopted a treaty to helpreduce the human suerin! caused by e5o4i+e re"nant4 of#ar and brin! rapid assistance to aected communities.+$plosive remnants o war are une$ploded weapons such as

artillery shells, mortars, !renades, bombs, and rocCets let behindater an armed confict.

In ??E, a diplomatic conerence held in :eneva adopted a T&ir(A((itiona Proto0o to the :eneva &onventions, creatin! anadditional emblem alon!side the red cross and red crescent. #he


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additional emblem, Cnown as the red crystal, should provide acomprehensive and lastin! solution to the emblem Buestion. Itwill appear as a red rame in the shape o a sBuare on a dia!onalon a white bacC!round, and is ree rom any reli!ious, political, or

other connotation.In ??5, !overnments ne!otiated and adopted the Con+entionon C!4ter M!nition4. #his important international humanitarianlaw treaty prohibits the use, production, stocCpilin!, and transero cluster munitions, and reBuires 3tates to taCe specic action toensure that these weapons claim no uture victims.It is worth notin! the support lent by the international communityto the #reaties o IHL. 3ince 78> states are parties to these te$ts,the our :eneva &onventions are now amon! the most universal

instruments o international law. %dditionally, 79 3tates areparties to the First 4rotocol and 7== are parties to the 3econd.6

77777777777777777777777777777777777777777777777777

6. %n updated table showin! the states party to the main treaties is availableonline at httpPPwww.icrc.or!Pen!PresourcesPdocumentsPmiscPpartyKmainKtreaties.htm.

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ASSIGNMENT ON INTERNATIONAL HUMANITARIAN LAW.docx