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International Humanitarian Law Alman-Najar Namla

Report and Syllabus are based on discussions from the:

TENTH SOUTHEAST AND NORTHEAST ASIA SESSION ON INTERNATIONAL HUMANITARIAN LAW

Korea University, Seoul 17-21 August 2015

Scope of the Presentation

HUMANITARIAN ASSISTANCE AND PROTECTION OF THE MEDICAL MISSION IN ARMED CONFLICTS AND OTHER EMERGENCIES

APPLICATION AND ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW

TERRORISM AND INTERNATIONAL LAW

HUMANITARIAN ASSISTANCE AND PROTECTION OF THE MEDICAL MISSION IN ARMED CONFLICTS AND OTHER EMERGENCIES

The legal framework of humanitarian access in armed conflict (Felix Schwendimann, 2011)

The legal framework applicable to insecurity and violence aecting the delivery of health care in

armed conflicts and other emergencies (Breitegger, 2013)

THE RESPONSIBILITIES OF HEALTH-CARE PERSONNEL WORKING IN ARMED CONFLICTS

AND OTHER EMERGENCIES (ICRC, 2012)

PROMOTING MILITARY OPERATIONAL PRACTICE THAT ENSURES SAFE ACCESS TO AND DELIVERY

OF HEALTH CARE (ICRC 2014)

SAFEGUARDING THE PROVISION OF HEALTH CARE. OPERATIONAL PRACTICES AND RELEVANT

INTERNATIONAL HUMANITARIAN LAW CONCERNING ARMED GROUPS (ICRC, 2015)

DOMESTIC NORMATIVE FRAMEWORKS FOR THE PROTECTION OF HEALTH CARE (ICRC 2015)

They came with two guns: the consequences of sexual violence for the mental health of women in

armed conflicts (Josse, 2010)

The legal framework of humanitarian access in armed conflict

Felix Schwendimann is Diplomatic Ocer in the Section for International Humanitarian Law, Directorate of International Law, Swiss Federal Department of Foreign Aairs.

The legal framework of humanitarian access in armed conflict (Felix Schwendimann, 2011)

Obtaining and maintaining humanitarian access to populations in need by humanitarian actors is a challenge.

A wide range of constraints on humanitarian access exist, including ongoing hostilities or an otherwise insecure environment, destruction of infrastructure, often onerous bureaucratic requirements, and attempts by parties to armed conflict to block access intentionally.

The difficulties that these constraints present to humanitarians are frequently compounded by a lack of familiarity on the part of states, non-state armed groups, and humanitarian relief organizations with the legal framework.

The main purpose of this article is to lay out the existing international legal framework regulating humanitarian access in situations of armed conflict.

The international legal framework: why it matters

The legal framework specifies the obligations and rights of parties to armed conflict, for states not participating in the conflict, and for humanitarian actors. It also identifies conditions under which humanitarian actors may or may not gain access to people in need of assistance.

The international legal framework: why it matters

The international legal framework is described below, a section at a time, in order to give answers to the following questions:

1 Who is primarily responsible for ensuring the basic needs of aected populations?

2 If populations remain in need, what can humanitarian actors do?

3 To what extent must relief actions be consented to, and what are the conditions under which relief actions must be conducted under international humanitarian law?

4 What human rights obligations exist with regard to humanitarian access?

5 What are the consequences of violations?

Who is primarily responsible for ensuring the basic needs of affected populations?

Who is primarily responsible for ensuring the basic needs of affected populations?

Each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Hence, the aected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory.

-Guiding Principles on Humanitarian Assistance)

If populations remain in need, what can humanitarian actors do?

If populations remain in need, what can humanitarian actors do?

The answer is that they can oer their services according to international humanitarian law, which contains rules on humanitarian assistance and access to civilian populations aected by armed conflicts.

To what extent must relief actions be consented to, and what are the conditions under which relief actions must be conducted under international humanitarian law?

The extent to which relief actions must be consented to and the conditions under which relief actions must be conducted will be outlined according to the three situations that international humanitarian law regulates:

A. international armed conflict (other than occupation),

B. non-international armed conflict, and

C. occupation.

Consent and conditions in international armed conflict (other than occupation)

In territories other than occupied territories, humanitarian operations are subject to the consent of the parties concerned according to Article 70(1) of Additional Protocol I of 1977. This precondition balances the interests of the civilian population and the interests of the receiving state.

Consent and conditions in international armed conflict (other than occupation)

To what extent is a state obliged to accept relief?

As a minimum, consent cannot be refused on arbitrary grounds.25 A refusal must be based on valid reasons.26 Whether a decision not to accept assistance is arbitrary depends on the circumstances and should be determined on a case-by-case basis.27 In extreme situations, where the lack of relief would amount to starvation, no valid reasons can be invoked to justify the refusal.28 Article 54(1) of Additional Protocol I provides that starvation of civilians as a method of warfare is prohibited.

Consent and conditions in non-international armed conflict

As in international armed conflicts, where the lack of relief would lead to starvation, no valid reason can be invoked to justify a refusal. Article 14 of Additional Protocol II prohibits starvation of civilians as a method of warfare.

the consent of relevant non-state armed groups controlling or operating in the territory in question is necessary for relief actions to be carried out.39 Nevertheless, to ask a non-state armed group for its consent to humanitarian operations does not constitute recognition, nor does it confer any legal status upon that actor.

Consent and Conditions during Occupation

Apartheid wall, Israel

Source: https://palestinediaries.wordpress.com/tag/separation-wall/


Under the law of occupation, there is a clear obligation for the Occupying Power to ensure that the basic needs of the population under its control are fulfilled.


However, if the Occupying Power is not in a position to fulfil its duty to provide the civilian population under its control with essential supplies, it must agree to relief schemes on behalf of this population.48 This obligation is unconditional.49 The Occupying Power must either ensure that the civilian population receives essential supplies or agree to relief actions.

Consent and conditions during occupation

The Occupying Power has the obligation to facilitate relief actions by all the means at its disposal.

Occupying Powers must also facilitate the rapid distribution of relief consignments, which must be exempt from all charges, taxes, or customs duties except if they are necessary for the economy of the occupied territory.

Relief consignments must not be diverted from the purpose for which they are intended.

Exceptions to this rule are allowed in cases of urgent necessity only and if this is in the interest of the occupied population and with the consent of the Protecting Power.

The rights and duties of relief personnel also apply in times of occupation.

What human rights obligations exist with regard to humanitarian access?

What human rights obligations exist with regard to humanitarian access?

International human rights law continues to apply, alongside international humanitarian law, in times of armed conflict, whether of an international or of a non-international character.

What are the consequences of violations?

What are the consequences of violations?

A state is responsible for violations of international law regarding humanitarian access in situations of armed conflict where the violations are attributable to the state.

War crimes

The denial of humanitarian assistance and access to civilians may under certain conditions constitute the war crime of starvation. International humanitarian law prohibits the starvation of civilians as a method of warfare in both international and non-international armed conflict.

The legal framework applicable to insecurity and violence aecting the delivery of health care in armed conflicts and other emergencies

Alexander Breitegger is Legal Adviser at the Thematic Legal Advice Unit of the International Committee of the Red Cross.

The legal framework applicable to insecurity and violence affecting the delivery of health care in armed conflicts and other emergencies

Ensuring respect for, and protection of, the wounded and sick and delivery of health care to them were at the origin of the Red Cross and Red Crescent Movement, as well as the development of international humanitarian law (IHL).

In todays armed conflicts and other emergencies, the problem is not the lack of existing international rules but the implementation of relevant IHL and international human rights law (IHRL) which form a complementary framework governing this issue.

Against the backdrop of the dierent manifestations of violence observed by the ICRC in the field and expert consultations held in the framework of the Health Care in Danger Project,

this article identifies commonalities between the two legal regimes, including with respect to obligations to provide and facilitate impartial health care; prohibitions of attacks against wounded and sick and health-care providers;

prohibitions to arbitrarily obstruct access to health care; prohibitions to harass health-care personnel, in violation of medical ethics;

The article concludes by indicating certain areas where implementation of existing IHL and IHRL is needed, including in domestic normative frameworks, military doctrine and practice, as well as training of health- care personnel on these international legal frameworks and medical ethics.

IHL and IHRL: general observations on the respective scope of application

At the workshops the importance of incorporating pertinent IHL and IHRL into domestic legal frameworks was repeatedly stressed, either by improving such frameworks where they exist or, where necessary, by adopting new domestic legal frameworks.

Some similarities between IHL and IHRL

While generally, both IHL and IHRL are applicable to armed conflicts, other emergencies below the threshold of armed conflicts are governed only by IHRL, and not IHL.

In order to provide clarity as to which set of rules to apply in situations of armed conflict, the principle of lex specialis was recognised as an interpretative and conflict-solving tool by the International Court of Justice (ICJ) in the Nuclear Weapons and Wall Advisory Opinions, as well as by the International Law Commission

Some similarities between IHL and IHRL

Specific protection for medical personnel, units and transport under IHL, but not under IHRL

Complementarity between IHL on the protection of the wounded and sick, and medical activities, and IHRL on the right to health in armed conflicts

One issue that also generally needs to be addressed in terms of the scope of application

of IHL and IHRL is the issue of derogation.

Personal scope of application: the question of applicability of IHRL to non-state armed groups

Another crucial difference between IHL and IHRL is that IHL binds not only states armed forces but also non-state organised armed groups as parties to a conflict.

International human rights treaty law that directly addresses non-state armed groups is still scarce.

With these differences between IHL and IHRL in mind, the next section looks at the commonalities between these legal regimes, irrespective of whether the situation at hand is one of armed conflict or another emergency.

Commonalities regarding the protection of the provision of health care under IHL and IHRL

All possible measures shall be taken to provide and facilitate essential health care on a non-discriminatory basis to the wounded and sick


The wounded and sick and health-care personnel that pursue their exclusively medical function shall not be attacked, arbitrarily deprived of their lives or ill-treated. The use of force against health-care personnel is only justified in exceptional circumstances


Access to health facilities, goods and services shall not be arbitrarily limited and denials to such access must be avoidedas much as possible


Health-care personnel shall not be hindered in the performance of their exclusive medical tasks. They shall not be harassed for the simple fact of assisting the wounded and sick, and must not be compelled to denounce wounded and sick in their care, subject to exceptions expressly provided under IHL, IHRL and national law


The wounded and sick, as well as health-care personnel and infrastructure, must also be protected against interferences with health care by third persons


The red cross, red crescent and red crystal emblems shall not be employed except to identify protected health-care personnel, facilities, medical transport, and associated medical equipment or medical supplies authorised to use them in armed conflicts or to indicate that persons or objects are linked to the Red Cross and Red Crescent Movement. All necessary measures shall be taken to prevent and repress misuse of the emblems

THE RESPONSIBILITIES OF HEALTH-CARE PERSONNEL WORKING IN ARMED CONFLICTS AND OTHER

EMERGENCIES ICRC, 2012

INTRODUCTION

DEFINITIONS

international armed conflict- may be said to exist whenever there is resort to armed force between two or more States;

non-international armed conflicts- are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State party to the Geneva Conventions of 1949.

SCENARIOS FOR HEALTH-CARE PROFESSIONALS IN ARMED CONFLICTS

Armed conflicts and other emergencies give rise to many difficult dilemmas for health-care personnel. Here are some scenarios to consider.

For example: You are a military doctor. Ten wounded soldiers are brought to your mobile surgical hospital following intense fighting. Two of the wounded are enemy soldiers; one has a serous abdominal wound. A senior officer orders you not to treat the wounded enemy soldiers until later.

RESPONSIBILITIES treat the wounded and sick humanely;

not abandon the wounded and sick;

not take part in any act of hostility if you want to be protected as medical personnel under humanitarian law;6

not pose an immediate threat to the lives or the physical integrity of others if you want to be protected

from the use of force under human rights law; remind authorities of their obligation to search for and collect the wounded and sick and to ensure their access to health care without discrimination

on grounds other than medical condition;advocate and provide effective and impartial care for

the wounded and sick without any adverse distinction;

not take undue risks while discharging your duties; respect every wounded or sick persons wishes, confidence and dignity;

RESPONSIBILITIES not exploit the situation or the vulnerability of

the wounded and sick for personal gain;

not undertake any kind of experimentation on

the wounded and sick without their genuine and valid consent;

ensure that your practices are compatible with

humanitarian law, human rights law and health-care ethics; give special consideration to the greater vulnerability of women, children, the elderly and people with

disabilities, and to their specific health-care needs; give special consideration to the specific health-care

needs of victims of sexual violence; respect the right of a family to know the fate and

whereabouts of a missing relative; be aware that, during armed conflicts or other emergencies, health care becomes increasingly susceptible to unscrupulous practices and the distribution

of poor quality / counterfeit materials and medicines; encourage authorities to recognize their obligations under humanitarian law and other pertinent bodiesof international law with respect to protecting health- care personnel and infrastructure in armed conflicts and other emergencies;

do everything within your power to prevent reprisals against the wounded and sick or against health-care workers and facilities;refuse to obey orders that are unlawful or that compel you to act contrary to health-care ethics;

SOURCES OF RESPONSIBILITIES

The two main bodies of international law that are pertinent to you are:

international humanitarian law or humanitarian law; and

international human rights law or human rights law.

SOURCES OF RESPONSIBILITIES

The principle of humanity

The principle of humanity is expressed in a number of different ways. For the purposes of this guide, it means delivering health care as an act of compassion. This implies treating the wounded and sick humanely: it is equivalent to saying to yourself, What would I want if my family or I were wounded or sick? Inherent in the principle of humanity is the imperative to preserve human dignity.

INTERNATIONAL HUMANITARIAN LAW

International humanitarian law or humanitarian law also known as the law of armed conflict or the laws of war

a body of international law that applies only in situations of armed conflict. It has two major branches:

rules protecting victims of armed conflicts, i.e. military personnel who are no longer taking part in the fighting, including military wounded and sick, and people who are not actively involved in hostilities, i.e. civilians, including wounded and sick civilians, or military and

civilian medical personnel;rules regulating the way military operations are conducted by military personnel (methods of warfare) and limiting the weapons (means of warfare) military personnel may use.

INTERNATIONAL HUMANITARIAN LAW

Common Article 3, an important element of the 1949 Geneva Conventions, is recognized as customary law. It states: In the case of armed conflict not of an international character (...)

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 [or] wounds (...) shall in all circumstances be treated humanely (...) To this end, the following acts are and shall remain prohibited at any time and in any place whatso- ever with respect to the above-mentioned persons: 2. The wounded and sick shall be collected and cared for.

International human rights law

The source of all modern human rights treaties is the Universal Declaration of Human Rights (1948).

RIGHTS

to be respected and protected, as do the wounded

and sick you are caring for; to demand that the authorities assist you in carrying out

your work; to demand that the authorities give you access to the

wounded and sick; not to be punished for discharging your responsibilities

in accordance with accepted standards of health care; not to be compelled to act in a manner contrary to the

law and/or health-care ethics; not to be compelled to give information about wounded and sick people beyond what is required by domestic law

or in terms of notification of infectious diseases; if you are detained, to continue your professional work whenever possible;24

not to be punished for disobeying an illegal or unethical order; to carry a light weapon to defend yourself and the wounded and sick in your care.

THE EMBLEMS OF THE RED CROSS, THE RED CRESCENT AND THE RED CRYSTAL

PROMOTING MILITARY OPERATIONAL PRACTICE THAT ENSURES SAFE ACCESS TO AND DELIVERY OF HEALTH CARE (ICRC 2014) ICRC, 2014

Consultations focused on the identification of practical measures to mitigate the effects of military operations in three specific areas or instances, due to their major impact on safe access to and delivery of health care:

y Delays in or denials of passage of medical transports, aecting the ground evacuation of the sick and

wounded, particularly during controls at checkpoints;y The negative impact of military search operations in hospitals and other health-care facilities;y Harm to health-care personnel, transports and facilities or their patients caused by deploying military

objectives inside or in close vicinity to health-care facilities, or when attacking enemy military objectives located within or in close vicinity to health-care facilities.

SAFEGUARDING THE PROVISION OF HEALTH CARE. OPERATIONAL PRACTICES AND RELEVANT INTERNATIONAL HUMANITARIAN LAW CONCERNING ARMED GROUPS (ICRC, 2015)

This report is intended for armed groups involved in non-international armed conflicts.

As parties to non-international armed conflicts, armed groups have obligations under IHL to ensure both safe access to health care for those in need and the ability of health-care personnel to provide health care. First, armed groups must not engage in any action or behaviour that would prevent the delivery of health care. Second, armed groups must take the necessary measures to ensure safe access to, and the safe delivery of, health care.

This report is organized around case studies that are based on these situations and that highlight the relevant principles:

1. Ensuring health-care personnel have access to civilians;

2. Respecting and ensuring the safety of health-care personnel;

3. Understanding and respecting the principles underlying health-care ethics;

4. Respecting health-care facilities and ensuring access to medical supplies;

5. Mapping the location of health-care facilities;

6. Taking precautions when planning and conducting military operations;

7. Respecting wounded adversaries;

8. Collecting and caring for the wounded;

9. Ensuring the safe and speedy passage of medical vehicles at checkpoints;

10. Respecting the protective emblems.

Concluding Remarks

This publication is the first step in a participative process, in which the ICRC collected and recorded insights and practices discussed by armed groups.

The next, crucial step in this process is for armed groups to contextualize and adopt the practical measures presented in this document in order to strengthen their ability to respect and protect health care.

In non-international armed conflicts, armed groups do not operate in a vacuum. Other actors, such as health-care personnel, impartial humanitarian organizations and state authorities, also contribute to building an environment conducive to the safe and impartial delivery of health care. Still, armed groups have an essential role to play in promoting the principles of respect for and the protection of health care, both within their own group and when interacting with other armed groups.

DOMESTIC NORMATIVE FRAMEWORKS FOR THE PROTECTION OF HEALTH CARE (ICRC 2015)

The Seven Fundamental Principles of the Movement

HUMANITY

IMPARTIALITY

NEUTRALITY

INDEPENDENCE

VOLUNTARY SERVICE

UNITY

UNIVERSALITY

THIS IS A REPORT ON NORMATIVE FRAMEWORKS BASED ON THE BRUSSELS WORKSHOP

The present report summarizes the results of the Workshop on Domestic Normative Frameworks for the Protection of Health Care that was held in Brussels from 29 to 31 January 2014, together with the main findings of the background study that was previously conducted by the ICRC Advisory Service on International Humanitarian Law. The workshop was organized jointly by the ICRC, the Belgian Interministerial Commission for Humanitarian Law and the Belgian Red Cross. Participants included civil servants, members of national IHL committees or similar bodies, members of parliament, independent experts and representatives of organizations with expertise in certain issues on the agenda of the workshop.

Violence against patients and health-care personnel, facilities, and medical transports is a

humanitarian issue with far-reaching consequences

Health-care personnel are both witnesses to and victims of very serious threats.

Direct attacks and violent incidents are not the only threat to the delivery of health care.

Even in armed violence, in the middle of a war or during a violent upheaval, it should still be

possible to ensure that the wounded and sick get timely access to health care

Many actors, taking many different measures, are needed to achieve a change.

Violence against health-care facilities and personnel in all its forms is not only morally ques- tionable, it is prohibited by international

law.

They came with two guns: the consequences of sexual violence for the mental health of women in armed conflicts

Evelyne Josse is a psychologist and psychotherapist. She is currently pedagogical co-ordinator at the Institute of Victimology in Belgium, and consultant in psychology in humanitarian action.

Social consequences

Sexuality touches on a myriad of values and taboos governing the behaviour of both individuals and society at large. At individual level, most people are repelled by the idea of engaging in sex outside a given context (e.g. marriage or a loving relationship) being subjected to forced sex is a distressing and humiliating ex- perience.

Impact on marriage Rejection by husband and strain on marital relations

Sexual violence can result in a variety of difficulties between husband and wife: it often has a dire effect on sexual relations (loss of desire or disgust on the part of the victim and/or her husband, pain during intercourse, etc.) and on emotional bonds (trauma-induced suffering can lead to personality disorders that affect in- terpersonal relations, bringing about arguments or conflicts).

Impact on family relations Rejection by and strife within the family

Sexual violence can tear a family apart. A young unmarried woman who has been raped may be barred by her family from returning home. If she is allowed to come home, she may be deliberately ignored by her parents or subjected to humiliation and taunts (insults may escalate into arguments or outright conflicts).

Other social consequences

1. Impaired parenting skills

2. Children of Rape

3. Community level: Rejected by the community

4. Exclusion from jobs and schools

5. Unfit for marriage

6. Trauma of Forced Marrage

7. Violence

Psychological Consequences

Sexual violence can seriously affect the victims mental health, with dire consequences in the short, medium, or long term. In the hours and days following the event, the victim may present a wide range of physical, emotional, cognitive and behavioural symptoms. Although they may be unsettling or appear strange, most of these symptoms are considered to be normal or at least expected responses to an extreme and terrifying event. They may nonetheless be difficult for the victim and her family or friends to cope with.

APPLICATION AND ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW

Various mechanisms and approaches for implementing international humanitarian

law and protecting and assisting war victims (Toni Pfanner, 2009)

The International Committee of the Red Crosss (ICRCs) confidential

approach (ICRC, 2012)

Taking armed groups seriously: Ways to improve their compliance with international

humanitarian law (Marco Sassli, 2010)

Analysis of the punishments applicable to international crimes (war crimes, crimes

against humanity and genocide) in domestic law and practice (ICRC, 2008)

Where do we stand on universal jurisdiction? Proposed points for further reflection and debate (Anne-Marie La Rosa and Gabriel Chavez Tafur, 2012)

Various mechanisms and approaches for implementing international

humanitarian law and protecting and assisting war victims (Toni Pfanner, 2009)

OVERVIEW

This article presents an overview of the various mechanisms to improve the situation of people affected by armed conflict.

Some are anchored in international humanitarian law, but numerous actors are increasingly contributing to its implementation outside the original framework established for that purpose.

Human rights monitoring bodies, the diverse organs and agencies of the United Nations and regional organizations, and governmental and non-governmental organizations are seeking to address situations of armed conflict.

However, humanitarian action unattached to any political agenda and combining protection and assistance is often the only remedy for the plight of the victims of armed conflicts.

Mechanisms originating in international humanitarian law The obligation of parties to a conflict to respect and ensure respect for international humanitarian law

The 1949 Geneva Conventions and 1977 Additional Protocol I thereto stipulate that the parties to an international armed conflict must undertake to respect and to ensure respect for those treaties.

Punishment for breaches

Several articles of the Geneva Conventions and Protocol I25 specify the breaches that are to be punished by the states party to those instruments.

All other violations constitute conduct contrary to the Conventions and Protocol and should be dealt with by means of administrative, disciplinary and criminal measures that the contracting parties are required to take to punish the perpetrators.

Grave breaches are expressly listed; their distinguishing feature is that the parties to a conflict and the other contracting parties have an obligation to prosecute or extradite the perpetrator of such a breach, regardless of his nationality and the place of the breach, in accordance with the principle of universal criminal justice.2

International Criminal Court

The credibility of the International Criminal Court and its ability to perform its role of punishing international crimes depend on the adherence of as many states as possible to it.

The fact that a number of influential states and some states currently involved in armed conflicts have not ratified the Rome Statute indicates a double standard in the implementation of international criminal law.

Enquiry procedure

An enquiry procedure is provided for under the Geneva Conventions,32 but to date has never been used since its inception in 1929.33 Its dependence on the belligerents consent is doubtless one of the reasons why this mechanism has not been put to the test.

Protecting Powers

A Protecting Power is a neutral state mandated by a belligerent state to protect its interests and those of its nationals vis-a`-vis an enemy state.44 Its role is twofold: it can conduct relief and protection operations in aid of victims, and can at the same time supervise the belligerents compliance with their legal undertakings. The Protecting Powers tasks are huge and varied in view of the needs of persons protected for instance by the Third or Fourth Geneva Convention.

Reparations

In an international armed conflict, the warring parties can be held responsible for breaches of international humanitarian law.

An obligation to pay compensation for violations of international humanitarian law is laid down in Article 91 of Protocol I, and even as early as Article 3 of the 1907 Hague Convention.

According to the general international law of state responsibility, compensation is to be understood more broadly as reparations and encompasses a range of measures, including non-monetary means of restitution (re-establishment of the situation before the wrongful act was committed), satisfaction (acknowledgement or apology) and/or rehabilitation (including medical or psychological claim, or legal and social rehabilitation), and guarantees of non-repetition.

The International Committee of the Red Cross (ICRC)

As the mentioned international mechanisms for enforcing international humanitarian law work only very patchily, if at all, it is worth dwelling at greater length on the role assigned to the ICRC in the implementation of this body of law. In practice, the ICRC plays a key role in the protection of war victims.

The primary aim of the ICRCs operations must be to confront the parties to an armed conflict with their responsibilities and get them to comply with their obligations under international humanitarian law to preserve the safety, physical integrity and dignity of people affected by the conflict.

The International Committee of the Red Cross (ICRC)

Co-operation with the National Red Cross or Red Crescent Society

Co-operation with National Societies is indispensable for the ICRC to promote contingency measures for the implementation of international humanitarian law,109 and even more so when it is preparing to conduct operations during a conflict. Humanitarian work by National Societies is mainly based on the Conventions themselves, and the primary responsibility for rendering assistance to the victims of armed conflicts rests with the respective National Society as a humanitarian auxiliary to the public authorities.110 Article 81(2) of Protocol I,111 which is addressed mainly to public authorities and their subsidiary bodies, stipulates that the parties to a conflict shall grant to their respective National Societies the facilities necessary for carrying out their humanitarian activities, in accordance with the fundamental principles of the Red Cross

International Court of Justice

The International Court of Justice, as principal judicial organ of the United Nations, contributes to the implementation of humanitarian law through its jurisprudence and its advisory opinions. It may be called upon to settle a dispute between states concerning the application of international humanitarian law if both states have accepted the Courts jurisdiction.

In Summary

There are obvious tensionsand even frictionsbetween protection of war victims in the midst of fighting and judicial supervision, between consent and enforcement, between humanitarian action and denouncing violations, and between an impartial humanitarian approach and a political approach. Improving the situation of victims of armed conflicts means using an adequate combination of the various means, and building on their comparative advantages.International humanitarian law and its mechanisms remain international laws modest response during periods of armed conflict. Today, international enforcement of the law is still exceptional in the absence of a central enforcement system. Willingness and ability to comply with the rules largely lie in the hands of belligerents, and supervisory mechanisms are merely based on their consent and good faith. Humanitarian law is best suited to supervision on the spot and endeavours to provide protection and assistance directly to the victims of armed conflicts. The goal is to reach all persons affected by armed conflict, unlike the restricted judicial approach which only takes victims of a violation of the law into account.

However, international humanitarian law needs political pressure to have a chance of succeeding.

Yet international humanitarian law would lose its raison detre if politics were to take precedence over humanitarian considerations: the very essence of international humanitarian law is the divide it creates between ius in bello and ius ad bellum, so that victims are protected and assisted whatever the reasons for the conflict.

The International Committee of the Red Crosss (ICRCs) confidential

approach (ICRC, 2012)

Confidential Approach

The crucial struggle against impunity has been reinforced by the establishment of bodies competent to prosecute crimes that are not subject to a statute of limitations and of which the ICRC may have direct knowledge as a result of its field work. In this context, the ICRCs position may be perceived as contra- dictory: on the one hand, it supports and promotes such legal mechanisms as means not only of implementing international humanitarian law, but also of preventing future violations;5 on the other, in asserting its confidential approach, it refuses to participate in the establishment of indictments/defence briefs by testifying or divulging information relating to its activities.

The victims demand that justice be done: the ICRCs confidential approach and consequent refusal to testify can be perceived by the victims of violations as bolstering the perpetrators impunity.

The demand for transparency and rapid results: the ICRC, like other players, is increasingly subject to demands for transparency and rapid and measurable results. Its strategy, which is predicated on the gradual establishment over time of a confidential dialogue with the authorities, may appear not to meet expectations in this regard.

Confidential Approach

The confidential approach, which consists in persuading an authority to meet its obligations without resorting to public pressure, is a means to an end for the ICRC;

it is never an end in itself or an inalienable principle. It is based on a tested method, but it has a point only if the ICRC is convinced that the authorities are willing to cooperate with it and that confidential bilateral dialogue can result in an objective benefit for the victims of violence.

The approach is to be understood as a dynamic process implying that progress is made in terms of results and the commitment of the authorities concerned to put a stop to violations.

It can never serve to justify, by silence, an unsatisfactory and static situation that is unlikely to change for the better in any significant way. This is why the ICRC must be in a position deliberately to breach its undertaking of confidentiality in exceptional cases in which the approach runs counter to the interests of the victims, in accordance with the Policy on ICRC action in the event of violations.

Why Confidential Approach?

In order to discharge its mission, the ICRC considers that it must have direct and sustained access to the people who are victims of situations of violence.

Theconfidential approach is intended to make it easier to obtain access to those people from the authorities exercising control over them or over access to them.

Taking armed groups seriously: Ways to improve their compliance with

international humanitarian law (Marco Sassli, 2010)

SummaryMost contemporary armed conflicts are not of an international character. International Humanitarian Law (IHL) applicable to these conflicts is equally binding on non-State armed groups as it is on States.

The legal mechanisms for its implementation are, however, still mainly geared toward States. The author considers that the perspective of such groups and the diculties for them in applying IHL should be taken into account in order to make the law more realistic and more often respected. It is submitted that the law is currently often developed and interpreted without taking into account the realities of armed groups.

This contribution explores how armed groups could be involved in the development, interpretation and operationalization of the law. It argues that armed groups should be allowed to accept IHL formally, to create amongst other things a certain sense of ownership. T

Their respect of the law should also be rewarded. Possible methods to encourage, monitor and control respect of IHL by armed groups are described.

The author suggests in particular that armed groups should be allowed and encouraged to report on their implementation of IHL to an existing or newly created institution.

Finally, in case of violations, this contribution proposes ways to apply criminal, civil and international responsibility, including sanctions, to non-State armed groups.

Analysis of the punishments applicable to international crimes (war crimes,

crimes against humanity and genocide) in domestic law and practice (ICRC, 2008)

Summary

This analysis of the punishments applicable to international crimes (war crimes, crimes against humanity and genocide) covers 64 countries.

The sample is satisfactory in terms of geographical distribution and covers countries with a Romano-Germanic (civil law) tradition and others with a common law tradition.

The relevant legislation and case law of these States, where such exists and is available, have been studied in order to examine as accurately as possible the punishments applied or applicable by the competent courts.

States obligations under IHL to prosecute and punish international crimes

A substantial number of the IHL rules are set out in the four 1949 Geneva Conventions and the 1977 Additional Protocols. States are obliged to put an end to all the violations set out in these texts. There are special obligations in respect of certain serious violations referred to as grave breaches

States must perform these obligations in peacetime as well as in time of armed conflict. To be eective, the measures set out above must be adopted before the grave breaches have occurred. Finally, it can be armed that, with the exception of some minor dierences, the same obligations apply in respect of genocide and crimes against humanity.

National legislation

Although the Geneva Conventions enjoy practically universal adherence and ratification, the national legislation of a great many States is not in compliance with the above requirements of IHL. For example, several countries have not incorporated into their criminal law the provisions necessary for the prosecution and punishment of international crimes, including grave breaches, and the punishments that apply to them.

National practice

Whereas the international criminal courts and tribunals publish copious case law, the case law published by national courts in relation to international crimes is much more meagre, even though the situation tends to change in some regions which were aected by conflicts (former Yugoslavia, Rwanda). It is therefore more dicult to identify trends. Furthermore, some decisions have been handed down in highly politicized contexts and should accordingly be interpreted with some caution.

Others that might be relevant eliminate all discussion about international crimes, particularly war crimes, by refusing to acknowledge the existence of an armed conflict and applying the law on ordinary crimes (murder, manslaughter, assault). Finally, it should be borne in mind that national courts apply national law, which limits or in some cases reduces to a minimum the exercise of discretion on the part of the judiciary when it comes to applying sentences for the most severe crimes.

Where do we stand on universal jurisdiction? Proposed points for further

reflection and debate (Anne-Marie La Rosa and Gabriel Chavez Tafur, 2012)

SUMMARY

Universal Jurisdiction ensures that perpetrators of serious internationals crimes do not go unpunished.

It is considered a fight against impunity and a matter of global concern.

Having universal jurisdiction will deter such crimes if an eective system of justice are in place.

TERRORISM AND INTERNATIONAL LAW

Terrorism and International Humanitarian Law (Ben Saul, 2014)

Terrorist Acts and Groups: A Role for International Law (Jelena Pejic, 2004)

Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime

of Terrorism under International Law? (Kai Ambos, 2011)

Terrorism and Changes to the Laws of War (John B. Bellinger III, 2010)

Defining the Battlefield in Contemporary Conflict and

Counterterrorism: Understanding the Parameters of the Zone of

Combat (Laurie R. Blank, 2010)

Terrorism and International Humanitarian

Law (Ben Saul, 2014)

Introduction

Terrorism has long presented challenges for both states and humanitarian protection in armed conflict.

Debates have taken place for over a century about irregular combatant status, the legitimacy of non-state armed groups, violence motivated by politically just causes, terrorist means and methods of warfare, and the regulatory challenges of asymmetrical conflict.

Many of these issues resurfaced or assumed a new complexion after 9/11, with stark challenges to international humanitarian law (IHL) presented by a particularly powerful victim of terrorism, the United States.

Purported gaps or inadequacies in IHL have stimulated much discussion, whether from the perspective of state militaries, terrorists, or civilians.

Classification of Terrorism as Armed Conflict

The rhetoric and practice of the post-9/11 war on terror has focused attention on whether violence by and against terrorists can constitute armed conflict regulated by IHL, and if so how such conflict should be classified.

The basic issue is not new, given that earlier internal insurgencies often exhibited terrorist characteristics, and national liberation struggles for self-determination during post-war decolonisation were often treated as terrorist problems.

Some of these situations had cross-border dimensions (particularly in Africa, but also in Asia and Latin America), so that current debates about transnational non-international armed conflicts are also not novel, even if there have been changes in form and scale and the actors involved.

Classification of Terrorism as Armed Conflict A. International conflicts

In principle, terrorist groups may be involved in various types of international and non- international armed conflicts under IHL.

An international armed conflict may also exist where a state deploys irregular forces against another state, as provided under article 4(2) of the 1949 Third Geneva Convention .

Classification of Terrorism as Armed Conflict B. Non-international conflicts

Much of the focus after 9/11 shifted to whether violence involving terrorist groups can be classified as non-international conflict.

Historically in many states terrorism was treated primarily as crime rather than war. This was also the dominant approach of the United Nations and in its various transnational criminal cooperation treaties


A minimum threshold of intensity is required to distinguish non-international armed conflicts from lesser violence under both common article 3 of the four Geneva Conventions 1949 and article 1(2) of Additional Protocol II of 1977.


The description of the group (as guerrilla, insurgent, rebel, or terrorist) is not decisive, particularly since after 9/11 many armed groups acquired a dual characterisation (as terrorist under Security Council measures and armed groups in armed conflict).

Terrorist activity may also possess a dual legal character as both crime and conflict; the categories (as well as the legal approaches to combating them) are not mutually exclusive.


Various indicia have been recognised in the jurisprudence to aid in determining whether the intensity and organization criteria are met, including the scale, nature, duration and spread of hostilities;

the number of fighters and casualties; the weapons used; the extent of human displacement; and the capabilities of the group (in terms of recruitment, training, financing, command and so on).


Conventional examples those where the terrorist groups are based in the territory of the victim state abound.

They include, for instance, the conflicts between Sri Lanka and the LTTE; Colombia and FARC; Peru and Shining Path; Russia and Chechen groups; Turkey and Kurdish groups (such as the PKK); India and Naxalite or Maoist groups; the Philippines and Islamists in Mindanao; Somalia and Al Shabaab; Afghanistan and Al Qaeda; and Iraq and Islamist or sectarian groups.

Again, whether such groups are legally or politically designated as terrorists is not legally determinative of the existence of an armed conflict.

(i) Transnational situations

The most controversial issue in characterising conflicts with terrorists is where such violence has a transnational dimension.

Common article 3 was drafted on the understanding that non- international conflicts were chiefly conventional civil wars by (citizen) rebels against their government on the territory of that state.


The conflict between the US and Al Qaeda on the territory of Afghanistan was accordingly determined to be a non-international conflict.

The Court rejected the US Governments view that the war against Al Qaeda in Afghanistan fell into a lacuna in IHL, as neither an international conflict between two states, nor a non-international conflict (as not a traditional civil war in the US).

The virtue of its finding is that it extended the minimum humanitarian protections of common article 3 even to non-citizen terrorists on a foreign battlefield.


It sounds instinctively strange to say that a state fighting a non-state group abroad is non-international, given that the attacking state must necessarily fight that group on another states territory (but for exceptional and unlikely situations of hostilities on the high seas or in international airspace).

In that sense the conflict seems intuitively international. State practice is equivocal and in flux. The correct legal answer arguably depends on how common articles 2 and 3 of the Geneva Conventions should be interpreted in the light of one another.

Classification of the Status of Terrorists in Armed Conflict

In international conflict, a person is generally either a combatant or a civilian.

Those described as terrorists may be ombatants if they meet the conditions of irregular forces under Article 4(2) of the Third Geneva Convention (discussed earlier), are national liberation forces under Protocol I, or meet the more liberal conditions of guerrilla combatancy under Article 44(3) of Protocol I (namely, by carrying their arms openly during and preceding a hostile act).

Classification of the Status of Terrorists in Armed Conflict Targeted killings

In brief, similar legal principles apply in international and non-international conflict.

A person who takes a direct part in hostilities may be targeted for the duration of such participation; once out of combat, such person regains their protected civilian status.

Classification of the Status of Terrorists in Armed Conflict Detention of Terrorists in Armed Conflict

Where it is not possible to prosecute, IHL provides other security powers for dealing with terrorist threats.

In international conflict, IHL permits states to administratively detain civilians where absolutely necessary for security or for imperative reasons of security.

Detention must be subject to a regular procedure and periodic independent review (at least six monthly) and satisfy minimum conditions of humane treatment.

There are also constraints on transferring inhabitants of occupied territory out of such territory, although the same restrictions do not apply to nationals of third (neutral) states.

4. Prohibitions on and Criminal Liabilities for Terrorism in Armed Conflict A. Substantive Provisions

Most terrorist-type conduct committed in any type of armed conflict is already criminalized as various war crimes.

In addition to IHL offences, domestic criminal (and/or military) law may apply to certain terrorist acts in armed conflict. In international conflicts, the criminal law of the occupied territory will still apply to civilians (including those participating in hostilities), subject to any necessary modifications to ensure the security of the occupying power.

In non-international conflict, the state partys domestic criminal law remains applicable, such that non-state actors may find themselves criminalised for terrorism, rebellion, revolution, treason, treachery, sedition, or other extant national security offences.

4. Prohibitions on and Criminal Liabilities for Terrorism in Armed Conflict A. Substantive Provisions

In transnational non-international conflicts, two domestic legal systems may potentially apply: that of the (non-belligerent) territorial state (which may not be able to practically enforce it), as well as the state whose forces are fighting extraterritorially. In the latter case, the states domestic criminal law will only lawfully apply if two conditions are met.

4. Prohibitions on and Criminal Liabilities for Terrorism in Armed Conflict B. Trial and Prosecution of Terrorists

Some criminal trials since 9/11 have not conformed to the minimum fair trial guarantees of IHL and/or international human rights law.

Even before 9/11, military trials of terrorists, such as by faceless tribunals in Latin America, raised serious human rights problems.

There are extensive guarantees of a fair trial in international conflicts, consolidated in Article 75 of Protocol I, and which approximate the human rights guarantees in Article 14 of the ICCPR.

In non-international conflicts, common Article 3 of the Geneva Conventions provides for a fair criminal trial by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensible by civilized peoples. While vaguely worded, that provision should be interpreted dynamically in the light of the explicit guarantees set out in Article 75 of Protocol I and/or Article 14 of the ICCPR.

Terrorist Acts and Groups: A Role for International

Law (Jelena Pejic, 2004)US Drone

Source: Google Images

Is the international legal framework adequate to confront terrorism?

That answer is based, first, on the conclusion that the "current phenomena of terrorism do not require a shift in legal paradigms.

Terrorism is not a new phenomenon. While some aspects of recent terrorist acts, including their transnational aspects, seem to have produced a quest for new law, this quest is not generated only, or even primarily, by the alleged deficiencies of existing rules.

In conclusion

Finally, this view does not mean that the clarification and development of certain aspects of the international legal framework are unnecessary. What is argued is that good faith attempts to apply the current legal framework must be made, and that deficiencies in practice must be demonstrated before new law is made to replace the old.

It is also by no means certain that new legal rules would garner broad acceptance or that they would necessarily be better implemented than existing ones. That, however, deserves to be the subject of another study.

Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime

of Terrorism under International Law? (Kai Ambos, 2011)

Hezbollah Members in Lebanon

Source: http://www.transatlanticinstitute.org/?p=32

OverviewOn 21 January 2011, the pre-trial judge of the Special Tribunal for Lebanon (hereinafter STL) posed several questions to the Appeals Chamber (Chamber) pursuant to Rule 68(G) of the Rules of Procedure and Evidence.

Three of these questions dealt with the crime of terrorism.3

(i) Should the Tribunal take into account international notions on terrorism even though Article 2 of the Statute only refers to the Lebanese Criminal Code (LCC)? (ii) If so, is there an international definition of terrorism and how should it be applied?

(iii) If not, how is the Lebanese definition of terrorism to be interpreted by the Chamber?

Both the prosecution and defence submitted extensive briefs dealing, inter alia, with these questions.4 Additionally, two amicus curiae briefs weresubmitted.5 On16February2011,theChamber issue dits(interlocutory) decision pursuant o Rule 176 bis (A).6 The Chamber argues, in a nutshell, that terrorism has become a crime under international law and that the respective international definition influences the (applicable) Lebanese law. In the first part of this paper, I will argue that the Chambers considerations, albeit innovative and creative, are essentially obiter, since the applicable terrorism definition can be found, without further ado, in the Lebanese law.

There is no need to internationalize or reinterpret this law; it should be applied before the STL as understood in Lebanese practice. As to the Chambers affirmation that there is a crime of terrorism under international law, I will argue, in the second part of the paper, that the available sources indicate, at best, that terrorism is a particularly serious transnational, treaty-based crime that comes close to a true international crime but has not yet reached this status. Notwithstanding, the general elements of this crime can be inferred from the relevant sources of international law.

Terrorism and Changes to the Laws of War (John B.

Bellinger III, 2010) US Marines in Afghanistan, http://www.abc.net.au/pm/content/2012/s3407002.htm


Obama issued his famous three executive orders that made many changes from the Bush administrations policies.

1 The three orders were: one, to close Guantanamo within one year and review every de- tainees status in order to determine what ought to be done with them;

2 two, to end the CIA interrogation program and to conduct a review of what sort of interrogation program there ought to be;

3 and three, perhaps the most significant and difficult to implement, to review all detainee laws and policies to determine what the appropriate legal framework should be.


US still pursuing, as a legal matter, a global war on al Qaeda and, most significantly, he is applying the laws of war for detention and for targeting.

In his famous Archives speech, he emphasized that the United States is at war with al Qaeda,5 and under some pressure from Republicans recently, has had to repeatedly say

We are at war. We are at war against Al Qaeda . . . .6

What that means is that he continues to rely on the laws of war as the legal basis for our military and our CIA to kill alleged terrorists around the world.

He uses these laws to detain people indefinitely, without trial, and to assert the right to detain people even though they have not been charged with any crime. Furthermore, he has emphasized that it is not the criminal laws that apply, but the Law of Armed Conflict. He has asserted a right to detain people not just in Afghanistan, where there are active hostilities taking place, but essentially anywhere in the world.

Conclusion

In conclusion, the United States is regularly told that there are no problems with the law or gaps in the law with respect to detention and targeting. The problem is only a question of implementation, implying that if the United States would just do a better job of applying the law, it would all be very easy.

I think the answer is that this is not an easy area, that there are not clear rules, and that it is quite difficult to accuse someone of violating the law with respect to targeting and detention.

One can appropriately say that the United States has adopted a number of bad policies, but we are go- ing to be debating for a very long time what the applicable rules are or ought to be.

Defining the Battlefield in Contemporary Conflict and Counterterrorism:

Understanding the Parameters of the Zone of Combat (Laurie R. Blank, 2010)

Counter-terrorists

Source: Wikipedia

Defining the Combat Zone

The Law of Armed Conflict (LOAC) governs the conduct of both states and individuals during armed conflict and seeks to minimize suffering in war by protecting persons not participating in hostilities and by restricting the means and methods of warfare.

This Article demonstrates that traditional conceptions of belligerency and neutrality are not designed to address the complex spatial and temporal nature of terrorist attacks and states responses.

Nor can human rights law or domestic criminal law, which are both legal regimes of general applicability, offer a useful means for defining where a state can conduct military operations against terrorist groups.

LOAC, in contrast, provides a framework not only for when it applies, but where and for how long. By using this framework and analogizing relevant factors and considerations to the conflict with al Qaeda, we can identify factors that can help define the zone of combat.

First Factor

First, some terrorist attacks and activities fall closer to the traditional conception of hostilities as understood within LOAC.

Areas where these types of attacks occur naturally have a stronger link to a battlefield. In addition, when such attacks or activities occur regularly or over a defined time period, we can more clearly define the temporal parameters of the zone of combat as well.

Second Factor

Second, in declaring that it is "at war with terrorists," a state may envision the whole world as a battlefield.

But the state's actual conduct in response to the threat posed offers a more accurate lens through which to view the battlefield.

Areas where the state uses military force, particularly multiple facets of military power, on a regular or recurring basis, should fall within the zone of combat. In contrast, those areas where the state chooses diplomatic or law enforcement measures, or relies on such efforts by another state, do not demonstrate the characteristics of the battlefield.

Third Factor-Territory

The third factor-territory-requires the most creative application.

Terrorist groups do not use or connect to territory in the same manner as either states or non-state actors seeking to gain power or independence.

In conclusion

Besides these factors drawn from the law of armed conflict, we can look to judicial interpretations and policy considerations as well. Taken as a whole, these analytical tools form a first step in the critical task of identifying where and when a state can conduct operations within an armed conflict framework, a necessary companion to the ongoing debate about whether a state can conduct operations within such a framework.

Thank you!

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