Humanitarian Law
Chris C. Wigwe PhD (Leeds) BL
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International Humanitarian Law by Chris Chizindu Wigwe. LLM, PhD, BL
Published by Readwide Publishers 2010
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Acknowledgements
I acknowledge with many thanks the contributions of my former students;
George Igonibo, Amakoromo Mark, Ohochukwu Chigoziri, Aladetuyi
Ademola, Uti Emetekoba, Anabaraba Titi and Soberekon Sokeipiri who
were employed as Research Assistants by my law firm (Chrismarcus
Chambers) to put this book together. Similarly, I acknowledge with great
thanks the influence of distinguished highly academic authors, Dieter
Fleck, Michael Bothe, Horst Fischer, Hans-Peter Gasser, Jann K Kleffner,
Nilender Kummar and Stefan Qeter that propelled me to write this book.
Finally I acknowledge the sacrifice made by my wife Veronica who at the
time of writing this book was rounding up her doctorate degree program
in law at the University of Dundee Scotland UK but still found time to make
valuable contribution to this book.
Chris C. Wigwe PhD (Leeds) BL
iv
Table of Contents
Acknowledgements iv
Table of Cases
xiii
Table of International Statutes
xiv
CHAPTER 1
1
4
c) Humanitarian Intervention
II.
Historical Origins
III. Sources of International Humanitarian Law
International Agreements
12
16
17
Custom 19
IV.
21
Judicial Decisions
24
25
27
28
CHAPTER
33
I.
Armed Conflicts
II. Acts of War
III. Area of War
Hospital zones and Localities
IV.
30
33
39
40
41
42
Neutralized Zones
43
Demilitarized zones
43
Non-Defended Localities
45
Termination of Hostilities
Parlementaires and Protecting Powers
Ceasefire and Armistice
47
47
51
Table of contents
Capitulation 53
Conclusion of Peace Treaty
54
57
61
I. Introduction
II. Means of Warfare
Certain Conventional Weapons
61
64
65
65
66
Protocol on Prohibitions or Restrictions on the use of Mines, BoobyTraps and other devices (1980 Protocol II) 67
Restrictions on the use of Incendiary Weapons
79
82
83
Nuclear Weapons
84
Chemical Weapons
95
98
99
100
108
121
Psychological Warfare
123
Reprisals 125
CHAPTER 4
127
Introduction 127
Who is a Civilian?
128
Rights of Civilians in Armed Conflict Situations
133
Specific Prohibitions and Restrictions
140
Collective Penalties
140
vi
Table of contents
I. Introduction
II. Wounded, Sick And Shipwrecked Persons
Duty to search, collect and evacuate the wounded,
sick and shipwrecked
167
171
177
180
183
186
189
189
191
197
198
200
IV.
201
201
201
203
vii
203
Table of contents
Medical Personnel
206
210
211
V Medical Aircraft
Prohibition against Gaining Advantage
211
213
Obligation to Seize
VI.
VII.
213
214
215
216
217
219
220
221
222
223
CHAPTER 6
I. Introduction
II. Who is a Prisoner of War?
How prisoners of war were treated before the 19th Century
227
227
229
232
232
233
233
235
235
236
236
237
238
viii
Table of contents
239
240
IV.
Commencement of Captivity
The Nexus between Combatant and Prisoner of War
252
252
253
255
256
257
259
260
262
264
265
Conditions in Captivity
Minimum Criteria
267
269
270
270
271
272
274
274
276
277
278
279
280
ix
284
285
Table of contents
286
287
288
290
CHAPTER 7
I. Introduction
II. Rights and Duties of Neutral Parties
Innocent Passage through Territorial Sea
and Archipelagic Water
Protection of Neutral Merchant Shipping
CHAPTER 8
285
CHAPTER 9
Peacekeeping Operations
I. Introduction
History and Development of International
Peace Keeping Operations
292
292
299
307
313
323
323
330
332
334
342
342
347
347
347
348
350
351
351
351
355
356
Table of contents
357
365
368
I. Introduction
368
371
372
374
CHAPTER 10
376
376
377
378
Fear of Reprisals
378
379
382
383
International Fact-Finding
383
384
384
385
Diplomatic Activities
387
389
389
390
391
392
394
xi
395
396
Bibliography 402
Index 406
xii
Table of Cases
1.
2.
3.
4.
5.
Frontier Dispute Case (Burkina Faso v. Mali), 1986 ICJ Rep 554
6.
7.
Horgan v Taoiseach (2003) 468 2IR, The decision of the Irish High Court of
Appeal 28, 2003
8.
Netherlands v Belgium (The River Meuse Case) (1937) PCIJ Series A/B, No.
9.
12. Sea Land Service Inc. v Iran 6 Iran- US CTR 149 at 168-9 (1984).
13. South West Africa v Liberia 1996 ICJ Rep. 294.
14. Texaco Case (1978) 17 ILM 28; (1997) 53 ILR 422.
15. The Prosecutor v Kunarac et al Judgement of February 22, 2001 (ICJ).
16. The Prosecutor v Naletilic and Martinovic case No. IT-98-34-1.
17. The Prosecutor v Radoslav Brdjanin Momir Talic case No. IT-99-36-AR 73.9,
Decision on Interlocutory Appeal, 11 December, 2002.
18. The Prosecutor v Tadic; Case No. IT-94-1-AR-72 Appeal Chamber Judgment
of July 15, 1999.
19. United States v Noriega Case No. 88-79 CR US.
20. United States v Pohl et al, US Military Tribunal at Nuremberg 1947.
21. United States v Scott
22. Uzoho v NCP (2007)) 10 NWLR (pt.1042) 320.
xiii
I.
II.
1949.
1981.
1874.
xiv
Geneva Convention (II) for the Amelioration of the Wounded, Sick and
Shipwrecked members of the Armed Forces at Sea (GC II) of 12 August 1949.
Hague Convention (IV) respecting the Laws and Customs of War on Land
(HC IV). With Annex: Regulations respecting the Laws and Customs of War
on Land (Hague Regulations) of 18 October 1907.
Hague Convention (V) respecting the Rights and Duties of Neutral Powers
and Persons in case of War on Land (HC V) of 18 October 1907.
1966.
xv
xvi
CHAPTER
1
Historical Evolution and Legal Basis of
International Humanitarian Law
I.
outbreak of war between one or two nations, the international law or the law
of peace ceases to operate while the international humanitarian law comes
into full operation.
Perhaps, it can be said that the predominant sources of modern
international humanitarian law are the Laws of The Hague and the Laws
of Geneva conventions. The Law of The Hague (or the law of war proper)
is expressed in the Hague conventions of 1899 and 1907. It determines the
rights and duties of belligerents in the conduct of operations and limits
the choice of means and methods of fighting.4 On the other hand, the
Geneva Conventions were developed from 1864 to 1949 and provided for the
protection of civilian persons during the times of war as well as prisoners
of war (POW) amongst other things. Apart from The Hague and Geneva
Conventions, other treaties, resolutions of UN Security Council and General
Assemblies, case laws as well as customary international law also form part
of the body of international humanitarian law.
The terms international humanitarian law and laws of war are often
used interchangeably. While it may appear that they cover the same
subject matter, slight differences exist between them. The laws of war focus
on the rules governing the resort to armed conflict. On the other hand,
international humanitarian law focuses attention on the central issue of
the treatment of the individual whether civilian or military. According to
one respected legal author5, a possible disadvantage of the use of the term
international humanitarian law is that it might exclude some aspects of the
laws of war (e.g. the law of neutrality). Nevertheless, this work shall deal
with such areas that belong to the laws of war and avoid comparisons except
where necessary.
Another issue which needs to be treated here is the difference between
international humanitarian law and international human rights law.
While there may be no apparent difference between these terms to a
layman, the same should not be said of a student of the law, legal author
or legal practitioner. It is true that both bodies of law are concerned
with the protection of the individual. However, while human rights law
operates primarily in peace time, international humanitarian law starts
as soon as there is armed conflict and seeks to regulate the relationship
between adversaries.
4
5
Although, the employment of the term use of force as opposed to the term
war is a deliberate attempt by the UN to broaden the scope of application of
the humanitarian and international law. The debate on whether a particular
conflict can rightly be described as war is thus avoided and Article 2(4) will
apply once there is use of force or aggression by one state against another.10
The general rule is that, the use of force is prohibited however there are
exceptions to this general rule. The use of force may be permitted under the
following circumstances:
a) When it is authorized by the UN Security Council11 and
6
This was affirmed by the ICJ in its Advisory Opinion on the Threat or Use of Nuclear
Weapons, ICJ Reports 1996, 226 at para. 25
7
Section 30-38 Federal Republic of Nigerian Constitution 1999
8 120 ILR 10
9
In its advisory opinion on nuclear weapons, the ICJ held that the right to life provision
during times of armed conflict was subject to the relevant humanitarian law.
10 This is without prejudice to internal armed conflicts which take place within a state.
11 Articles 39-43 of the UN Charter
Article 51 UN Charter
Article 40 UN Charter
Under Articles 41 and 42 of the Charter
The right of self defence is not only limited to defence of the individual or
the civilian population as a whole but also extends to the defence of other
objects (e.g. factories, military installments) within the territory of the
state being attacked. Where measures are taken in self defence, Article 51
further states that these measures shall be reported to the Council and this
will not affect the authority of the Council to take necessary action in order
to maintain peace and security. The provisions under articles 51 of the UN
charter implies that the use of force, war or armed conflicts are not totally
illegal and can validly be termed legal if the provisions of sections 39-43 and
51 of the UN Charter are complied with.
The case of Nicaragua v. United States16 is instructive with respect to the
right of self defence. Here, the United States claimed they were acting in the
collective self defence of El Salvador and this necessitated their attack on
Nicaragua. Although El Salvador had not requested the assistance of the US
on grounds of self defence. However it was held by the International Court
of Justice (ICJ) that the US had been involved in the unlawful use of force.
They could not rely on Article 51 of the Charter since they acted without the
15 By UN Security Council Resolution 678
16 1984 ICJ REP. 392
consent of El Salvador and thus the claim of collective self defence cannot
succeed or be sustained.
It is important to note that when a state acts in self defence, it must limit
itself to rejecting the armed attack. In the Nicaragua case, the ICJ stated that
self defence only warrants measures which are proportional to the armed
attack and necessary to respond to it.17 The State acting in self defence
must not occupy the aggressor states territory unless such occupation
is aimed at preventing the latter from continuing the acts of aggression.
Furthermore, where the Security Council has stepped in and taken effective
steps to curb the aggression, the self defence by the victim state ought to
come to an end. The question may arise as to what will happen where the
victim state prolongs its occupation of the aggressors territory long after the
aggression has been curbed? In such instances, it is submitted that Article
51 of the Charter ought not to be extended to cover such prolonged military
occupation and self defence must cease since its purpose has been achieved.
By virtue of Article 51 of the UN Charter, there is a duty to report actions
of self defence to the Security Council. In the Nicaragua case, the Court held
that the absence of a report may be one of the factors indicating whether
the state in question was itself convinced that it was acting in self defence.18
Where a State reports actions taken in self defence, it is often seen as a sign
of good faith in favour of the reporting state showing that they were actually
and in the real sense of it, acting in self defence. During the US-Vietnam
conflict in 1964, the fact that the USA reported its acts of self defence
against attacks by North Vietnamese naval vessels was sufficient evidence
to show that they were acting in self defence. Conversely, where there is a
failure to report, it may provide evidence against the claim to self defence.
However, it is now firmly established that the reporting requirement is
merely procedural and failure to comply does not invalidate a claim to self
defence.19
One basic element of self defence by victim states is that such actions
must be necessary and proportionate to the acts of aggression by the other
State. This does not mean that the defending State is restricted to the same
weapons or the same number of armed forces of the attacking state.20
Once self defence has achieved its purpose of curbing the aggression, the
victim state should not be further allowed to rely on self defence to carry
17
18
19
20
Fleck D, op cit, p. 6
The reason why anticipatory self defence is frowned upon is that states
should not be allowed on their own to determine what should be called
preventive acts. If so, this would lead the world back to the law of the jungle
and far away from the new international legal order convocated on the
principles of the present Charter of the United Nations.22 On the other hand
the other class of states in favour of anticipatory self defence, their argument
is that a state should be allowed the right to launch a defensive military
attack against a likely aggressor and thwart the armed attack it would have
possibly suffered. When such attack is bound to happen and may involve the
use of lethal force, these states believe that a pre-emptive attack is necessary
to prevent rather than cure the effects of an armed attack.
In carrying out pre-emptive attacks on other states, states prefer to adopt
a wider interpretation of self defence rather than pleading anticipatory self
defence out rightly. In 1967, Israel launched pre-emptive attacks against
Egypt, Jordan and Syria. These were clear instances of anticipatory self
defence but instead Israel argued that they were responding to prior armed
attacks by these Arab nations. Similarly, when the USA intercepted Cuban
missiles on the High Seas in 1962, the USA did not rely on anticipatory self
defence but rather claimed they were acting under regional peacekeeping
duties pursuant to Chapter VIII of the UN Charter.
Despite this resort to a wider definition of self defence, states have in a
few instances expressly declared that they were acting in anticipatory self
defence. When Israel attacked Iraq in 1981 with the aim of destroying the
Iraq Nuclear Reactor, they claimed anticipatory self defence. The Iraqi
nuclear plant would have been capable of producing nuclear weapons whose
target would have been Israel. In light of this, the Israeli Government felt it
was necessary to destroy the nuclear reactor which would have constituted a
serious threat to Israels continued existence.
In the light of terrorist activities that have rocked the very foundations of
the world in recent times (particularly the September 11 2001 attacks on the
World Trade Center), it would appear that acts in anticipatory self defence
may likely enhance and strengthened efforts in curbing terrorist activities.
However, since Article 51 does not expressly cover anticipatory self defence,
it is submitted that a wider interpretation should be applied regarding the
inherent right to self defence and thus permit states to act in anticipatory
self defence against likely terrorist attacks.
22
c) Humanitarian Intervention
This is the third exception to the general that prohibits the use of force,
but there is no express provision in the UN Charter which provides for
humanitarian intervention as an exception to the rule of force. Even where
Article 2 (4) is closely read, no clear inference can be made to suggest that
humanitarian intervention is permitted under international humanitarian
law. Thus, unlike authorization by the UN Security Council and the
right of self defence which has sound legal backing, the rules governing
humanitarian intervention are not stated in any Charter.
Humanitarian intervention usually arises where one State uses force in
the territory of another state not pursuant to the right of self defence or under
the authority of the UN but with the aim of protecting against human rights
violations in the latter state. Since humanitarian intervention does not enjoy
any clear legal backing, states do not always raise it as a defence to their
actions of invasion even where it can be inferred from the facts that such state
may have performed the acts on the bases of humanitarian intervention.
Prior to 1990, claims were made by states that they acted on the basis
of humanitarian intervention, their arguments were generally rejected by
the UN Security Council. In 1971, India entered Bangladesh with the aim of
helping the people secure their independence from Pakistan. The Security
Council rejected this argument. Similarly, when Vietnam claimed this
right concerning its actions in Cambodia, their claim was rejected by the
Security Council. Surprisingly however, the invasion of Uganda by Tanzania
in 1979 which secured the overthrow of the Idi Amin Government seemed
to receive greater international support. Perhaps the reason was because of
the widespread violation of human rights under the Amin administration
coupled with the dictatorial tendencies of the self-proclaimed Field Marshall
Idi Amin Dada.
By 1990, military actions made on the basis of humanitarian intervention
met with lesser resistance from the UN. When ECOWAS intervened in Liberia
through the instrumentality of the ECOWAS Military Observer Group
(ECOMOG), it was a welcome development considering the violation of
human rights and extreme humanitarian concerns in Liberia at the time.
Similarly, when US, British and French forces intervened in Iraq in 1991 and
1992, their action received little opposition by the United Nations.
With regard to the post 1990 instances of humanitarian intervention, the
situation in Kosovo, Yugoslavia deserves special consideration here. In 1999,
the North Atlantic Treaty Organization (NATO) embarked on an action in
Kosovo aimed at the protection of the Kosovo Albanians. To achieve this,
they carried out a bombing campaign against Yugoslavia and aimed its
assault at strategic locations all over Yugoslavia. This action represented
a departure from the traditional NATO role of acting in collective self
defence. Although NATO did not expressly state that they were acting based
on humanitarian intervention, it was the only tenable ground for the use
of force.
At a Security Council meeting held to vote on a resolution condemning
the use of force by NATO, the Security Council rejected the resolution by
twelve votes to three votes in favor.23 This draft resolution would have
condemned the NATO action as illegal but the apparent justification was
based on the continuing violence against the people of Kosovo as opposed to
the act being in violation of the UN Charter particularly Article 2 (4).
With respect to humanitarian intervention being used as an exception
to the general rule prohibiting the use of force, it is submitted that such a
development is welcome but in the absence of clear rules found in treaties,
it does not constitute a proper exception to Article 2 (4). The rationale for
this statement is that states should not be allowed to unilaterally resort
to the use of force without receiving the green light from the Security
Council or in the least, acting in pursuance of some written law. While
humanitarian intervention has indeed contributed to peace in some regions
of the world (consider the Tanzanian intervention), the truth remains that
there is no express right to use force against another country in the name
of humanitarian intervention. For such a right to be recognized, it ought
to be codified in the conventions and treaties dealing with the use of force.
Besides, where a state is allowed to act unilaterally, the possibilities for abuse
are manifest.24 And while the right to act on the basis of humanitarian
intervention is welcome, such right ought to be given legal validity.
According to Dixon, there is no moralistic magic that can manufacture
the right simply because it ought to exist.25 In light of these arguments,
the UN should make a deliberate effort towards codifying rules relating to
humanitarian intervention which will serve to embolden states acting in
response to situations of extreme humanitarian need.
Perhaps a proper conclusion to this section on the meaning of
humanitarian law would be to list out the basic principles of international
humanitarian law. While the body of law governing humanitarian law may
be found in conventions, treaties and protocols, it became necessary to
23 SC 3989th Meeting 26 March 1999
24 Dixon M, Textbook on International Law, p. 325
25 ibid
10
highlight the basic rules of humanitarian law and make this information
available to combatants. These itemized rules do not attempt to supplant
the larger body of laws on international humanitarian law but are aimed
at ensuring ease of understanding of the basic rules of international
humanitarian law. They are as follows:
1. Persons who do not or can no longer take part in the hostilities are
entitled to respect for their lives and for their physical and mental
integrity. Such persons must in all circumstances be protected and
treated with humanity without any unfavorable distinction whatever.
2. It is forbidden to kill or wound an adversary who surrenders or who
can no longer take part in the fighting.
3. The wounded and sick must be collected and cared for by the party
to the conflict which has them in its power. Medical personnel and
medical establishments, transports and equipment must be spared.
The Red Cross or Red Crescent on a white background is the sign
protecting such persons and objects and must be respected.
4. Captured combatants and civilians who find themselves under the
authority of the adverse party are entitled to respect for their lives,
their dignity, personal rights and their political, religious and other
convictions. They must be protected against all acts of violence or
reprisal. They are entitled to exchange news with their families and
receive aid.
5. Everyone must enjoy basic judicial guarantees and no one may
be held responsible for an act he has not committed. No one may
be subjected to physical or mental torture or to cruel or degrading
corporal punishment or other treatment.
6. Neither the parties to the conflict nor members of their armed forces
have an unlimited right to choose methods and means of warfare. It
is forbidden to use weapons or methods of warfare that are likely to
cause unnecessary losses or excessive suffering.
7. The parties to the conflict must at all times distinguish between the
civilian population and combatants in order to spare the civilian
population and civilian property. Neither the civilian population as a
whole nor individual civilian may be attacked. Attacks may be made
solely against military objective.
11
Historical Origins
The history of war in all its respects can be traced to the ancient times when
it was mainly considered as a political tool to assert authority of the strong
community over the weak ones. During that era, there were no clearly
written or codified rules regulating the conduct of war. It was only by the
19th Century that the evolution of international humanitarian law gained
full force through international conventions and treaties. However, the
rules existing prior to the 19th Century played vital roles in the evolution
of the current body of the international humanitarian law and some of the
rules that will be considered here.
In ancient times, Hammurabi, King of Babylon (1728-1686 BC), wrote a
Code aimed at protecting the weak against all forms of oppression. This
Code of Hammurabi (as it was known) also ordered that hostages should be
released on the payment of a ransom. In similar fashion, Cyrus 1 the King
of the Persians during the 7th Century BC ordered that wounded Chaldeans
were to be treated like his own wounded soldiers and not subjected to
degrading or inhumane treatment.
The principles of Islam also recognized the essential requirements of
humanity. According to Abu Bakr (about 632 BC):
The blood of women, children and old people shall not stain your
victory. Do not destroy a palm tree, nor burn houses and cornfields
with fire, and do not cut any fruitful tree. You must not slay any flock
or herds, save for your subsistence.
Abu Bakr being the first Caliph to lead the Islamic faith after the death of
Prophet Mohammed indicates by this statement, the principles which would
later form an integral part of humanitarian law: that the civilian population
should not be harmed.
Apart from Abu Bakr, other Islamic leaders such as Sultan Saladin in the
12th Century also showed respect for the principles of humanitarian law.
During his reign at the time of the Crusades, he ordered that wounded
persons from both armies were to be treated outside the city of Jerusalem
and granted permission to the members of the Order of St John to discharge
their hospital duties. These acts of humane treatment were unusual in those
days but they set the foundation for what would subsequently be regarded as
international humanitarian law.
St. Augustines influence on the evolution of humanitarian law is also
noteworthy. He developed the theory of the just war and was of the opinion
that Christians committed no sin by engaging in a war which had a just
12
cause and as backed by a lawful authority. This opinion was also held by St
Thomas Aquinas (1225-1274) and he argued that for a war to be just, it must
be backed by a lawful authority. He further argued that war was not to be
commenced without prior notice to the warring parties.
Between 1618 and 1648, the world witnessed a horrifying war which was
fought in Europe under the Roman Empire. There was unlimited belligerent
practice which brought untold hardship to all the parties to the conflict.
During this period, a man named Hugo Grotius (1583-1645) wrote a book
called De iure belli ac pacis. In this work, he complained of the prevailing
attitude at the time where men resorted to arms for trivial or no reasons at
all. In his words,
when arms have once been taken up, there is no longer respect for
law, divine or human; it is as if, in accordance with a general decree,
frenzy had openly been let loose for the committing of all crimes.26
Although his work was to have a direct influence on the growth of the laws
governing wars at the time, it did not achieve this purpose but still made a
vital contribution in the evolution of international humanitarian law.
In 1762, Jean Jacques Rousseau (1712-1778) in his work Du Contrat Social
pointed out that war is not between a man and another man but exists
between states. Men fighting in wars do not fight as citizens but as soldiers
defending their countries and once they have surrendered their arms, no
person has a right to take their lives. This opinion laid a proper foundation
for the Geneva Convention dealing with prisoners of war which provide
that such captives should not be killed once they have surrendered.
One of the first declarations with respect to acts of war was the 1856
Paris Declaration with respect to maritime law. Although it was limited to
maritime law, its importance cannot be underestimated. Its origin lies in the
Crimean war when France and Great Britain were making plans for a joint
military support for Turkey against Russia. Their major concern was on how
to deal with the neutral states that traded with belligerents. The Declaration
was signed in 1856 and it prohibited the seizure of enemy or neutral property
(except contraband) from enemy or neutral ships. It also stated that
blockades were to be maintained by a force which was capable of preventing
access to an enemy coast.27 The Declaration also abolished privateering
(where belligerents authorized private ships to engage in hostilities at sea
26
27
13
and prey on enemy merchant ships) which was legally recognized prior to
the Declaration.
The evolution of humanitarian law took a leap in the 19th Century. In 1861,
one of the foremost professors at the time named Francis Lieber, prepared a
Code for the Union army during the American Civil war.
This was upon the request of then President Abraham Lincoln of the
United States.
The Lieber Code (as it was called) represents the origin of what is now
known as the Hague Law.
The origin and development of the International Committee of the Red
Cross (ICRC) also played a very vital role in the evolution of the international
humanitarian law. In 1859, a merchant named Henry Dunant while traveling
through Italy, came across about 40,000 Austrian, French and Italian
soldiers wounded on the battlefield at Solferino. He organized volunteers
to collect the wounded at Solferino and cater for them. Subsequently, he
published his experiences in his book A Memory of Solferino. In this book,
he made two solemn appeals:
1. That relief societies or associations should be formed in the peacetime
with nurses that would cater for the wounded during wartime and
2. That the volunteers being called upon to assist the military medical
services should be respected and protected through an international
agreement to be signed by all member nations.
These appeals soon led to the formation of the International Committee
for relief to the wounded which later became the International Committee
of the Red Cross.
Flowing from the formation of the ICRC, a Diplomatic Conference was
held in Geneva in 1964. Twelve governments took part in this conference
and adopted a treaty prepared by the International Committee entitled
Geneva Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field. This represented a giant leap in the
growth of international humanitarian law aimed at protecting wounded
enemy soldiers.
It should also be noted that the first step towards the prohibition of the
use of any particular weapon was taken in 1868 through the instrumentality
of the 1868 St Petersburg Declaration. This Declaration came into existence
to prohibit the use of bullets which exploded upon impact with a hard
surface. This bullet was subsequently modified to explode even upon impact
with a soft surface and even shattered upon explosion. Due to the danger
14
15
the 1929 Geneva Conventions and included for the first time provisions
relating to the protection of civilians in times of war.
The 1949 Geneva Conventions represents to a large extent the primary law
governing matters of international humanitarian law today. To complement
these are the two Additional Protocols of 1977. This is without prejudice to
all other treaties and conventions which in one way or another form part of
the larger body of international humanitarian law.
III.
Like every other body of law, international humanitarian law does not exist
in the abstract but is directly traceable to particular sources. Where rules
governing a particular legal principle are sought at the national level, such
rules are usually clearly identified and may be found in statutes, judicial
precedent, customary law etc. With respect to international humanitarian
law, the sources are less clearly defined. This may either be due to the absence
of a universal legislative body corresponding or similar to the legislative
organ in a State or the absence of universal judicial jurisdiction with a wide
range of precedent. Nevertheless, international humanitarian law still has
its sources exactly identical to sources of international law and they are to
be considered here.
Article 38 (1) of the Statute of the International Court of Justice (ICJ)
contains the general list of the sources of international humanitarian law. It
provides as follows:
1) The Court whose function is to decide in accordance with international
law such disputes as are submitted to it shall apply:
a) International conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
b) International custom, as evidence of a general practice accepted as law;
c) The general principles of law recognized by civilized nations;
d) Subject to the provisions of Article 59, judicial decisions and the
teachings of the most qualified publicists of the various nations, as
subsidiary means for the determination of the rules of law.
Note that this provision shall not prejudice the power of the court to
decide a case ex aequo et bono if the parties agree thereto.29 The qualification
under Article 38 (1) (d) is contained in Article 59 which is to the effect that
29Article 38 para 2 Statute of the ICJ
16
the Courts decision has no binding force except between the parties and
in respect of the particular case. According to some legal authors,30 the
contents of national manuals of military law and related texts as well as the
resolutions of various international bodies form part of the sources of law.
These shall be examined, analyzed and discussed much later in this book.
International Agreements
As a source of law, international agreements are arguably the most
predominant source of international humanitarian law. These agreements
usually come under various designations and may be termed conventions,
declarations, protocols or statutes. The term treaty is often used to
represent different categories of international agreements. While this may
be proper in some cases, there are others where its use as a generic term
may give rise to some doubt. For instance, the term protocol is used to
designate a treaty amending another treaty (e.g. The 1977 Geneva Protocols)
and substitution by the term treaty will give a different meaning to the rules
contained therein.
The question may arise as to why treaties must be complied with? The
answer lies in the principle of pacta sunt servanda set out in Article 26 of
the 1969 Vienna Convention on the law of treaties. Article 26 provides that
every treaty is binding upon the parties to it and must be performed by them
in good faith. The principle of pacta sunt servanda ensures that treaties are
binding on all parties who have signed, acceded to or ratified them and
further ensures that parties to a treaty do not back out of their obligations.
In practice, some treaties are viewed with more reverence than others.
The 1949 Geneva Conventions enjoy this privilege and have come to be
binding upon all states. Their importance cannot be underestimated and
with 194 parties involved in the making of the treaties, it is observed in every
international armed conflict. They contain more detailed provisions than
their predecessors and introduced for the first time rules for the protection
of civilians in times of war.
Apart from the Geneva Conventions, the Additional Protocols of 1977
also form an important class of international agreements. They supplement
the 1949 Geneva Conventions and make provisions for the protection of
victims of international (API) and non-international (APII) armed conflicts.
A 3rd Additional Protocol was signed on 8th December 2005 and relates
to the adoption of an additional distinctive emblem. It should be noted
30Roberts A and Guelff R, ibid at p. 4
17
that this 3rd Additional Protocol is yet to receive worldwide acclaim like
its predecessors.
The 1949 Geneva Conventions and the Additional Protocols are not the
only international agreements in existence but are supplemented by other
treaties and conventions which deal with specific matters. Important among
these in the conduct of war are:
- The 1907 Hague Conventions
- St. Petersburg Declaration 1868
- Dum-Dum bullets Hague Declaration 1899
- Geneva Protocol on Gas Warfare 1925
- Cultural Property Convention 1954
- Biological weapons Convention 1972
- Chemical Weapons Convention 1993
- Land Mines Convention 1997
While most of these conventions are aimed at preventing the use of
particular weapons in times of war (e.g. Land Mine Convention 1997), others
(like the 1954 Cultural Property Convention) may serve different purposes.
The question may arise as to whether a state being a non party to a treaty
may be bound by it. According to some authors, it is possible that a state could
simply by conduct indicate its acceptance of the regime of the convention as
applicable to itself.31 This was the argument proffered by Denmark and the
Netherlands in the North Sea Continental Shelf Case.32 They argued that the
Federal Republic of Germany had by their conduct, public statements and
proclamations assumed the obligations of the 1958 Geneva Convention on
the Continental Shelf to which Germany had signed but not ratified. The
ICJ rejected this contention and held that only a very definite and consistent
conduct on the part of a State could lead to such a conclusion. The Court did
not rule out the possibility that a state could accept a treaty by its conduct
so it seems that consistency on the part of such a state could lead to such a
result. On the other hand, where there is persistence objection to a treaty
signed by Nation States, every Nation State is bound by the treaty.
There are obvious imperfections which arise from the operation of
international agreements. These imperfections highlight the inherent
31
32
18
Custom
From the history of international humanitarian law, it is clear that custom
played a pivotal role in what subsequently emerged as treaties, conventions
and other international agreements. What exists currently as codified
international agreements has its roots in the general customs prevailing at
the time. This is the nexus that exists between international agreements and
customs and explains why there are some international agreements that
merely restate a previously existing custom and vice versa. For instance,
there is a customary principle to the effect that the rights of belligerents
to adopt methods and means of injuring an enemy are not unlimited.
This customary rule was formally codified in Article 22 of the 1907 Hague
19
Regulations, Article 35 (1) of API 1977, as well as in the preamble of the 1997
Ottawa Convention on anti-personnel mines.
It may be argued that the making of international agreements was aimed
at ousting the operation of the customary international law. However, at
the time when international agreements began to gain importance, rules
of customary international law were still expressly preserved. This was
achieved through the instrumentality of the Martens Clause. It was to the
effect that:
populations and belligerents remain under the protection and
empire of the principles of international law, as they result from
the usages established between civilized nations, from the laws of
humanity and the requirement of the public conscience.33
20
such a scenario, the objecting state is known as the persistent objector and
such initial and sustained objections may prevent the objecting state from
being bound. This was the situation in the Anglo-Norwegian Fisheries case
concerning Norway and their rejection of the 10 mile rule.
With respect to the time or duration within which a state practice may
acquire the status of customary international law, it is now settled that even
a single act can be the basis of custom.36 This is without prejudice to the
decision in the North Sea Continental Shelf case where it was suggested
that the length of time will vary depending on the subject matter and also
that where only a brief period of time has passed, it will not constitute a
hindrance to the formation of customary international law.
The importance of custom as a source of international law has been the
subject of some debate. On one side, it is argued that custom is too clumsy
and slow moving so that it cannot accommodate the evolutionary nature
of international law.37 On the other side of the debate, custom is viewed as
a dynamic process of law creation and even as being of more importance
than treaties considering its universality.38 It is conceded here that while
custom may not be the best source of international law, it performs a vital
supplementary role in the absence of clear provisions in any treaty relating
to a particular subject matter. Worthy of mention is the aptly-called instant
custom39 which dispensed with the need for a long period of time to
elapse before a practice could be treated as custom. Such an instant custom
would have adequately dealt with gaping lapses in international agreements
as sources of international law.40 In the end, the ability of custom to cure
certain inadequacies of treaties and conventions is praiseworthy and serves
to establish custom as a viable source of international humanitarian law.
40
Dixon M, Op Cit, P 34
e.g. Fried Mann, The Changing Structure of International Law, 1964, pp. 121-123
e.g. DAmato, The Concept of Custom in International Law p. 12
Advanced by Cheng B (1965), United Nations Resolution on Outer Space: Instant
Customary Law?, 5 Indian J Int L 23-48 (reprinted in Cheng, B (ed) (1982), International
Law Teaching and Practice (London: Stevens and Sons), p 237)
The principle is no longer in operation and was rejected by the ICJ in Nicaragua v. USA
ICJ Reports 1986, p 14 paras 184 and 188 as well as in the Advisory opinion on the
Legality of The threat or use of Nuclear Weapons, ICJ Reports 1996, p 226, para 73
21
22
In addition to the general principles of law, the Courts have often had
recourse to the principles of equity in arriving at their decisions. The
adoption of equitable principles has been a subject of differing opinions
and the principal argument against their application lies in the subjective
element that is part and parcel of the doctrines of equity. The application of
equity is not necessarily desirable since it serves to encourage States to act
on the basis of what they deem to be equitable but not seen as equitable by
their adversaries. Be that as it may, it cannot be denied that international
courts and tribunals indeed apply the principles of equity.
In the case of Netherlands v. Belgium46 references were made to the
doctrine of equity. The facts center on claims by the Netherlands that
Belgium had infringed a treaty obligation by building canals which
subsequently altered the flow of water in the River Meuse. It was discovered
as a fact that the Netherlands had also constructed a similar canal in its own
territory. The Court applied the equitable maxim of clean hands and held
per Hudson J that:
where two parties have assumed an identical or a reciprocal
obligation, one party which is engaged in a continuing nonperformance of that obligation should not be permitted to take
advantage of a similar non-performance of that obligation by the
other party
On this basis, the Court refused to grant the Netherlands the relief sought
since they were also guilty of acting in the same way.
It is not in all circumstances that equity will step in, in its typical fashion,
to ameliorate the rigidities of the application of the law. In the Frontier
Dispute Case,47 between Mali and Upper Volta (now Burkina Faso) the
Court held that there was no reason to have recourse to the principles of
equity in order to modify a frontier inherited from colonial powers. The
Court further held that the principles of equity are not to be arbitrarily
imposed by any court or tribunal and on this ground refused to alter the
frontier on the basis of equity.
To conclude the matter, Article 38 (1) (c) expressly provides for the general
principles of law but no such words are used with respect to the principles of
equity. While equitable principles are adopted by the Courts, the subjective
nature of equity no doubt is a cause for concern. In addition, the courts are
not always bound to apply the principles of equity as was seen the Frontier
46 The River Meuse Case (1937) PCIJ Rep., Series A/B, No 70, pp 76-7
47 1986 ICJ Rep 3
23
case. Nevertheless, the application of equity is still welcome not only because
it helps to cure the rigidity of the law, but also because its application serves
to prevent a situation where a non liquet (i.e. absence of applicable law) may
be pleaded.
Judicial Decisions
By virtue of Article 38 (1) (d) of the Statute of the ICJ, judicial decisions
constitute a subsidiary source of international law. This is however subject
to the exception under Article 59 which is to the effect that the Courts
decision has no binding force except between the parties and in respect of
the particular case. Judicial decisions are treated as subsidiary means in the
determination of disputes since in arriving at their decision, the Courts are
duty bound to make reference to the treaties or custom which guided their
decisions. In effect, while treaties, customs and the general principles of law
may be treated as primary of formal sources of law, judicial decisions are to
be treated as material or subsidiary sources but accorded a great measure
of authority.
Before and after the 2nd World War, the practice was for national or
military courts to try persons who had been accused of violations of the
laws of war. Due to the lack of uniformity inherent in this system, appeals
were made for courts or tribunals of a more international nature to deal
with subsequent violations of humanitarian law. It was these appeals that
culminated into the formation of the International Military Tribunal at
Nuremburg (1945-46). This Tribunal as well as its equivalent (Tokyo 194648) successfully tried and prosecuted major war criminals of the 2nd World
war. In addition, the Tribunal laid down some general rules with respect to
the implementation of the laws of war at the time.
Apart from the Military Tribunals at Nuremberg and Tokyo, other
tribunals have subsequently arisen to deal with specific instances of
violations of international humanitarian law. In 1993, the International
Criminal Tribunal for the former Yugoslavia was established48. Its aim
was to prosecute serious crimes committed in the former Yugoslavia
including breaches of the 1949 Geneva Conventions, violations of the
laws and customs of war, genocide and other crimes against humanity. A
similar tribunal was established in Rwanda (The International Criminal
Tribunal for Rwanda 199449) for the prosecution of persons responsible for
48
49
24
25
known today. They were the ones who first introduced the idea that there
should be a binding set of rules to govern the relationship between states to
ensure that the sovereignty of states in the international arena is guaranteed.
In present times, it may appear that the relevance of the writings of jurists
has withered away. On the contrary, the writings of jurists may be more
important now than in previous times. This is because of the need to clarify
the rules of international law due to the presence of numerous treaties and
customs. It is only through the writings of such legal scholars that one can
have a general view of the laws of war as well as how these laws are to be
applied in situations of armed conflict. In a certain sense, conventions and
treaties may be viewed as being cold and impersonal since they do nothing
more than to merely state the law as it is. This may sometimes be done in
highly definitive language as well as the problem of multiplicity of provisions
governing any subject matter. It thus becomes the job of these qualified
jurists to water down the somewhat concretized nature of treaty law.
In the modern era, jurists are not limited to academicians but there
are international lawyers as well members of the international bench that
are qualified jurists within the meaning of Article 38 (1) (d). In practice,
judges do rely on these writings to arrive at their decisions not as a binding
authority but in a persuasive or elucidating capacity. Precaution should be
taken by judges in relying on these writings to ensure that their decisions are
not based on improperly researched works. It is also true that the writings
of these qualified judges may be influenced by political inclinations or
other forms of bias. Judges should thus be careful and preferably rely on the
opinion of a neutral jurist and not the opinion of one with some elements
of bias affecting the reasoning and outcome in his work. It is also advisable
that judges do not rely on the opinion of a single jurist since this may limit
the courts understanding of any particular rule. In such a scenario, it is
preferable to adopt the concurrence of opinions of several highly qualified
jurists from different countries.
As a source of international law, the writings of publicists are still of very
great importance. It should however be noted that no matter how convincing
or qualified an author is, his opinions in writing cannot create law in any
form. Such writings should be aimed solely at expounding or elucidating the
law and not to make new legislation on the laws of war.
26
27
28
29
new international law was to be made, this would lead to some obvious
difficulties as well as delays in the law making process. Thus by making these
resolutions, these international bodies reduce the burden in the process of
law making. They are thus still of great value and have been shown to be of
immense importance particularly with respect to humanitarian law.
IV.
Out of the several international organizations in the world, the role of the
ICRC with respect to international humanitarian law is arguably the most
vital and important. Its impact has been seen right from its origin and till
date continues to play vital roles in armed conflict between and within
states. As may be seen from the history of the international humanitarian
law, it was the after effects of the battle at Solferino that led Henry Dunant
to create the International Committee for Relief to the Wounded which later
became known as the International Committee of the Red Cross (ICRC).
The formation of the ICRC was only the first step towards the evolution
of international humanitarian law. After its formation, Henry Dunant and
other members of the Committee were desirous of some sort of official
recognition for the Red Cross. The only way this could be achieved was
through an international agreement and so in 1864, the Swiss Government
convened a Diplomatic Conference in Geneva that considered the
institulization of a permanent body to perform humanitarian duties. Twelve
Governments took part in this Conference and adopted a Treaty entitled
Geneva Convention for the Amelioration of the Condition of the Wounded
in Armies in the Field. This was the first universally applicable codification
of international humanitarian law. Over a period of time, further
conferences were held which extended the scope of the 1864 Convention. In
all the amendments leading up to the 1949 Geneva Conventions, the ICRC
played an active role.
Despite the scope covered by the 1949 Geneva Conventions, there were
still some inadequacies particularly with respect to the protection of
victims of military conflicts. To this end, the Swiss Government convened
a Diplomatic Conference in 1974 to bridge this divide by making provisions
for the protection of victims of international and non international
armed conflicts. At this Conference, the ICRC proposed 47 Articles out
of which only 28 were adopted. This did not however change the spirit of
the Protocols and by June 10th 1977, there was an official ceremony for the
signing of the Protocols. Considering the threat posed by non international
30
armed conflicts, the role of the ICRC in the formulation of the Protocols is
indeed noteworthy.
With respect to the constitution of the ICRC, it is basically a Swiss
organization with its headquarters in Geneva, Switzerland. The body of the
ICRC responsible for the making of policy is known as the Assembly and
consists of 15-25 members which are entirely Swiss citizens. For its efforts in
humanitarian law, the ICRC has received the Nobel Peace prize four times:
through Henry Dunant in 1901 and in 1917, 1944 and 1963.53 As at the time of
writing, the President of the ICRC was Dr. Jakob Kellenberger.
Apart from its assistance in the formulation of the Geneva Protocols and
Conventions the ICRC has also played several roles in humanitarian law and
continues to perform these duties. One of the roles played by the ICRC is
the provision of relief supplies to the victims of armed conflict. It should
be noted that where supplies are being distributed by the ICRC, they shall
be in the order of priority established under Article 70 API.54 However,
in order to facilitate this aim, Article 81 goes further to provide that state
parties and parties to the conflict are to assist the ICRC in carrying out its
humanitarian functions.
The ICRC also has a role to play with respect to the establishment of
hospitals and safety zones. By Article 23 GCI, the protecting powers and the
ICRC are invited to lend their good offices in order to facilitate the institution
and recognition of hospital zones and localities. To perform this duty, the
ICRC has the right55 to suggest such zones to the parties to the conflict and
may further provide assistance in their various establishments.
With respect to prisoners of war (POW), the ICRC has a vital role to
play from the moment of their capture until they are released. This duty
is conferred on the ICRC by Article 126 of the Geneva Convention III
(GCIII) which grants ICRC delegates permission to visit interment camps,
concentration camps and labor camps where imprisoned persons are kept.
The delegates shall also be able to interview prisoners without witnesses.
Where the delegates have chosen where they wish to visit, they are not
to be prohibited from undertaking a visit except in cases of extreme or
imperative military necessity. The delegates are also entitled to evaluate the
prisoners lodgings as well as the attitude towards them. If the conditions
are too inhumane and degrading, representatives of the ICRC may make
53 Bouchet Saulnier F, The Practical Guide to Humanitarian law, p.362
54 i.e. children, expectant mothers, maternity cases and nursing mothers
55 By Article 9 GCI-III, Article GCIV That gives the ICRC the right of initiative in
humanitarian matters.
31
56
57
32
CHAPTER
2
Scope of Humanitarian Law
It has now been established that humanitarian law will begin to take effect
once it is shown that there is an armed conflict between states. International
humanitarian law thus takes the place of the laws of war and will begin
to operate whenever there is an international or non international armed
conflict. Once there is an outbreak of armed conflict between states, it is
inevitable that the ordinary laws of peace between nations will be superseded
by the international humanitarian law due to its special status regarding
armed conflict situations. It will be generally irrelevant which party initiated
the conflict since international humanitarian law seeks primarily to protect
hapless civilians, environment and regulate the conduct of hostilities among
other things.
As part of its functions, humanitarian law seeks to define what armed
conflicts are and what are not in a bid to know which laws will be applicable.
It also seeks to determine what constitutes acts of war by one state against
another. Where hostilities have reached a critical stage or crescendo, it is
the international humanitarian law which seeks to delimit certain areas as
being within the areas of war and others as neutral zones. Similarly, with
the termination of hostilities between the warring sides, international
humanitarian law steps in to ensure that such termination is in accordance
with the rules of the law. These instances mentioned above constitute
the scope of the international humanitarian law. An attempt shall also
be made here to relate international humanitarian law with other related
disciplines. In effect, the Chapter is aimed at elucidating the scope covered
by international humanitarian law.
I.
Armed Conflicts
33
that they were not at war and so the laws of war did not apply to them. To
correct this therefore, a definition of armed conflict was avoided so that
new categories of hostilities would fall within the open ended interpretation
given to the term.
Be that as it may, an attempt was made in the ICRC Commentary on the
Geneva Convention to describe what constitutes an armed conflict. Armed
conflict was described thus:
Any difference arising between two states and leading to the
intervention of members of the armed forces is an armed conflict
within the meaning of Article 2, of the United Nations Charter even
if one of the parties denies the existence of a state of war. It makes
no difference how long the conflict lasts or how much slaughter takes
place.58
It seems that this broad definition has been applied with respect to isolated
incidents. However, it appears that states do not always take such a broad
view because isolated incidents such as border disputes do not necessarily
lead to the conclusion that there is an armed conflict between states. In
fact, such border disputes may not disturb foreign relations between states
despite the clashes experienced. This was the situation in the border dispute
between Nigeria and Cameroon over the Bakassi Peninsula. Despite the
clashes, it could not be said that there was armed conflict between the two
states since foreign relations were not manifestly affected.
To determine what constitutes armed conflict between states, reliance
is placed on the intensity of the clashes. Where it is shown that fighting
has exceeded the level of intensity generated by isolated incidents, such a
situation should be treated as an armed conflict and the rules of international
humanitarian law will be called into operation.
The provisions of Article 1 para 4 of the Additional Protocol I (API)
deserve some consideration here. It provides that armed conflicts are to
include peoples fighting against colonial domination, alien occupation and
racist regimes in the exercise of their right of self determination. In modern
times, the fight for freedom from colonial domination is not common. This
is because most countries have attained their independence from their
colonial masters. Recent developments have suggested that Article 1 para 4
may be used to cover a situation where ethnic groups in a state or persons
belonging to a particular territory seek to secede from the parent state. This
view was the source of constant controversy and this explains why the USA
58
34
refused to ratify API. In practice however, the provision has been relied upon
in the right of self determination with respect to the Republic of Yugoslavia.
With respect to this provision being relied upon by ethnic groups seeking
to secede, it is submitted here that the provision should not be extended
to support such an interpretation. One can only imagine what would
happen where secession from a state receives backing by the international
community. The potential for abuse would be unlimited and every state
would attempt to separate itself from the parent state in a bid to become
self sustaining. In the Nigerian scenario, such an interpretation would grant
legal backing to the attempt by Biafra to secede from Nigeria.59 Also, with
the movements being made in the Niger Delta Region of Nigeria for control
of resources, such an interpretation would encourage their separation
from the Nigerian state. To lay the matter to rest, it is advisable that the
interpretation to be confined to the literal wordings of the provisions. Where
the international community regards such an interpretation of Article 1
para 4 as necessary, they should proceed by making relevant provisions on
the subject through the appropriate channels.
In ancient times, wars were usually commenced by a formal declaration
of war by one state against another. This practice is now a thing of the past.
In modern times, the rules of international humanitarian law come to play
whether or not the states at war made a declaration. In fact, the last known
formal declaration of war was during the 2nd World war. Now what is
essential to be proved is that there is a minimal armed conflict between the
states for international humanitarian law to set in and not necessarily a full
blown state of war between the parties.
In practice, most states do not even agree that they are at war even
where it is apparent from the surrounding circumstances that they are. For
some other states, they may make explicit statements that they regarded
themselves as being at war but not by means of a formal declaration. The
reason behind this reluctance lies in the consequences that can arise from
making such a categorical declaration. War is not a word to be taken lightly
in the relations between states and before such a declaration (if any) is to be
made. Cognizance must be taken of the grave consequences that will follow
a declaration of war not just the declaring state but also for the state that war
is being declared against and the effect on the international community.
Where a state is acting in individual or collective self defence pursuant
to Article 51 of the UN Charter, no formal declaration of war is required.
The state acting in self defence will be permitted to use force and such force
59
Even though the API came into being after the Nigeria-Biafra Civil war
35
36
The effect of this Article is that a state cannot hide behind the law of
neutrality when called upon to render assistance to the United Nations. This
provision supersedes the law of neutrality and States are to lend their support
to the UN even if this would be in violation of the laws governing neutrality.
Once there is armed conflict between States, the laws of international
humanitarian law come into play. With respect to parties not involved,
it is usually the law of neutrality that governs their relationship with the
belligerent parties. It has been suggested that the laws of neutrality are to
apply only when there is a formal state of war. However a more current view
would be that the laws on neutrality will apply in any armed conflict and not
only when there is war.
64
65
37
Apart from armed conflict between two or more independent states, the
rules of international humanitarian law recognize the presence of noninternational armed conflicts. Fundamentally, Article 3 of the Geneva
Conventions contains rules to govern non-international armed conflict
and prohibits certain acts in the conduct of armed hostilities. Paradoxically
in order to supplement this Article, the Additional Protocol II was
introduced and it contains more detailed provisions with respect to noninternational conflicts.
It appears that APII will only apply in a civil war between the government
of a state and a seceding party or a rebel group. This is because Article 1
para 2 is to the effect that the Protocol will not apply in situations like riots
or other isolated and sporadic acts of violence since they are not armed
conflicts. Thus, it is only when hostilities have escalated to being more than
isolated attacks that the provisions of APII will apply. During the Nigerian
Biafra Civil war (1967-1970) the APII had not yet been formulated, so
reliance, if any, must have been placed on Common Article 3 of the Geneva
Conventions with respect to the rules of international humanitarian law.
However, a situation may arise where the internal conflict is between
rebel groups in a state fighting for power and not in the traditional civil
war sense of fighting against the ruling government. In such a scenario, it
seems that the provisions of the APII will have no effect and only a broader
interpretation of Common Article 3 will be able to cover such a situation.
This kind of internal conflict happened in Somalia after 1991and the
provisions of APII were inadequate to cover the situation.
While the rules governing non-international armed conflict are basically
contained in Common Article 3 of the Geneva Conventions and the 1977
APII, there is a possibility that laws of international armed conflict may
become applicable in non-international armed conflict. The authority
for this is still pursuant to Common Article 3 which provides that the
parties to the conflict should further endeavour to bring into force by means
of special agreements, all or part of the other provisions of the present
Convention. Where there is foreign intervention, it may also have the effect
of making international humanitarian law applicable to non-international
armed conflicts.
In conclusion, the term armed conflict has taken over the reigns from the
term war and humanitarian law will apply once it is shown that there is
an armed conflict between the states. It is irrelevant which party instigated
the conflict, international humanitarian law will be applicable to regulate
the conduct of hostilities. Formal declarations of war are no longer a
38
Acts of War
39
humanitarian law. This is in line with the equitable maxim that equity
looks to the substance rather than the form and so each act of war has to be
isolated and examined to determine whether it is legal or illegal.
Circumstances may arise where a state that was not originally a party
to the conflict may make itself a party by lending support to either party
to the conflict. The nature of the support to constitute an act of war must
be the direct support in military operations by one party which is likely to
cause harm to the adversary. Where the support is of a financial or political
nature, they are not to be considered as acts of war. The rationale behind
this line of reasoning is obvious. If for instance political support can make
the supporting state a party as well, some states could find themselves
being parties to numerous conflicts at the same time just for showing
political support.
With respect to the current trend of terrorist attacks by particular armed
groups against other States, it appears that military operations against such
attacks will constitute acts of war. It does not matter whether the terrorist
attack was initiated by the State or by an armed Militia group within the
State. The victim State in seeking to curb these activities may resort to acts
of war, thus bringing the international humanitarian law into operation. To
conduct such attacks, it is not uncommon for the Victim State to attack a
region in a State where it believes the terrorists are located. Such a situation
will most likely lead to armed conflict between the Victim State and the State
hosting such terrorists. For instance, even though the militant organization
A1-Queda claimed responsibility for the September 11, 2004 attacks on the
USA, the acts of war carried out by the US against Afghanistan gave rise to a
situation of armed conflict between the states.
Every armed conflict must of necessity involve acts of war by one state
against another. However, in line with the basic rules of international
humanitarian law, such acts of war must be directed against military objects
and installations. Weapons used should not cause unnecessary suffering
to combatants in the armed conflict. The constituents of acts of war are to
be carefully examined to determine whether a state acted properly in any
armed conflict. Where the state fails to act accordingly, they may be held
accountable under the international humanitarian law.
III.
Area of War
40
territories of the belligerent States. The reason behind this is that military
operations are to be carried out only in the areas of war. In practice, the
area of war often comprises of the territories of the parties to the conflict
as defined by the national boundaries; the high seas (including the airspace
above and the sea floor), and exclusive economic zones.66 With respect to
the national territory of a State, this shall include the land territory, rivers
and land-locked lakes, national maritime waters and territorial waters; and
the airspace above these territories.67 Apart from these, it is unlikely that
any other area may be viewed as an area of war. However, the Exclusive
Economic Zone (EEZ) of a neutral State may constitute an area of war.
With respect to the territory and airspace of neutral States they will only
be considered as areas of war where either party to the conflict has been
permitted to conduct military operations from the neutral territory.
While military operations are only to take place within the area of war,
there are other areas which have been excluded from any military activities.
These areas are collectively known as protected areas and zones and are
distinguished under the Geneva Conventions and Protocols. The different
categories of protected areas and zones include:
1. Hospital zones and localities
2. Hospital and safety zones and localities;
3. Neutralized zones;
4. Demilitarized zones; and
5. Non-defended localities.
While these zones are similar in many respects, some differences exist
between them as each zone was established pursuant to international
humanitarian law for differing purposes. They shall now be treated one after
the other.
Fleck D, op cit, p. 59
ibid
41
42
Neutralized Zones
Neutralized zones are provided for pursuant to Article 15 of GCIV which
provides thus:
Any party to the conflict may, either direct or through a Neutral state
or some humanitarian organization, propose to the adverse party to
establish, in the regions where fighting is taking place, neutralized
zones intended to shelter from the effects of war the following persons
without distinction:
Demilitarized zones
Article 60 of the API contains extensive provisions dealing with demilitarized
zones. Where the parties to a conflict have by agreement, conferred on a
zone the status of being demilitarized, they are prohibited from extending
their military operations to that zone. No military operations are to be
conducted in a demilitarized zone neither are purposes related to military
operations permitted in these zones.
Where parties to a conflict have by agreement made a zone demilitarized,
such agreement may be concluded either verbally or in writing. The
agreement may be concluded either directly between the parties to the
conflict, or through a protecting power or any impartial humanitarian
organization.68 Reference to an impartial humanitarian organization must
of necessity include the ICRC considering its pivotal role with respect to the
growth of the international humanitarian law.
68
43
69
70
71
44
Non-Defended Localities
It is prohibited for the parties to the conflict to attack, by any means
whatsoever, non-defended localities.72 Article 59 para 2 goes further to define
a non-defended locality as any inhabited place near or in a zone where armed
forces are in contact which is open for occupation by an adverse party. These
localities are aimed at avoiding combat and destruction and no fighting is to
take place within these vicinities. The requirement of such localities being
at a place near or in a zone where armed forces are in contact implies that
such localities do not extend to places deep within a states territory. Such
areas within a States territory not being open for occupation cannot qualify
as non-defended localities.
The requirements for a zone to acquire the status of a non defended locality
are in pari materia with those for a demilitarized zone. Thus, pursuant to
Act 59 para 2 AP1, all combatants and military equipment must have been
evacuated from such locality. In addition, there shall be no hostile use of
fixed military installations. Furthermore, acts of hostility are prohibited by
either the authorities or the population and no activities supporting military
operations are to be undertaken therein.
Unlike other protected zones and localities, non-defended localities may
be established without agreement between the parties.73 Where the parties
come to agreement on the establishment of non-defended localities, the
fact that the localities do not fulfill the conditions spelt out in Act 59 para
2 will not be a barrier to granting such localities the non-defended status.
Any agreement reached in such circumstances should define as precisely
as possible the limits of the non-defended locality and may lay down the
methods of supervision.
Principally, similar to demilitarized zones, the party in control of any
non-defended locality is to mark it by signs as agreed upon with the other
party. In the event that a locality loses its status as a non-defended locality
(by failure to fulfill the conditions under the API), it shall continue to enjoy
the protection provided under other provisions of the Protocol and other
rules of international humanitarian law.
Other safe areas established by the UNSC:
In addition to the different protected zones and localities which enjoy
legal backing in the Geneva Conventions and Protocols, the UN has by
means of different resolutions established new safe areas with respect to
72
73
45
46
war and any attempt to extend this area must be in accordance with the
provisions of the international humanitarian law.
IV.
Termination of Hostilities
While hostilities between some states may last for decades (possibly
centuries), there comes a time when hostilities will certainly come to an end.
Such termination may either be temporary or permanent. In a temporary
cessation of hostilities, the aim is usually to facilitate the treatment of
wounded soldiers and to provide relief supplies for victims of war. Where
hostilities are being permanently terminated, the armed conflict is deemed
to have come to an end.
For armed conflict to come to an end, it appears that a peace treaty or
some kind of agreement is necessary to bring it to its conclusion. For
instance in the conclusion of the 2nd World War where although armed
hostilities ended in may 1945 in Europe, the USA in 1946 still made a formal
declaration announcing that the war had come to an end. In modern armed
conflict, hostilities may be terminated not necessarily by conclusion of
peace treaty but through the activities of parlementaires and protective
powers. In addition, hostilities may be terminated by a ceasefire, armistice
or capitulation. These shall be treated below for better comprehension
and elucidation.
47
74
48
49
In pursuance of Art 34, any of the following acts may constitute acts
detrimental to the military operations of the adversary:
- gathering intelligence beyond the observations he inevitably makes
when accomplishing his mission;
- acts of sabotage;
- inducing solders of the adverse party to collaborate in collecting
intelligence;
- instigating soldiers of the adverse party to refuse to do their duty;
- encouraging soldiers of the adverse party to desert; and
- organizing espionage in the territory of the adverse party.77
To ensure secrecy of the activities of the adversary, parlementaires are
not to take photographs or prepare maps with the aim of assisting the other
party to the conflict. Where they do this, they will be in violation of Art 33
para 3 of the Hague Regulations and may be liable to be tried by the adverse
party. Where the Commander of the adverse party permits a parlementaire
to make certain observations concerning their military operations, that
parlementaire will be able to disclose what he has seen to the other party to
be conflict since he was acting under express or implied permission.
Apart from the vital function performed by parlementaires, the Geneva
Conventions makes provisions for Protecting Powers also for the purpose of
facilitating the termination of hostilities. By Art 8 of the GCI, it shall be the
duty of the Protecting Powers to safeguard the interests of the parties to the
conflict. To perform this function, the parties to the conflict can make use
of intermediaries to the Protecting Powers to facilitate communications. It is
for the parties to the conflict to designate a Protecting Power for the purpose
of applying the Conventions and the Protocol.78 In modern practice, parties
to a conflict do not always come to agreement to use a particular Protecting
Power. Where no Protecting Power has been designated by the parties, the
ICRC is required to offer its good offices to the parties to the conflict with
a view to choosing a protecting power for the parties to the conflict.79 To
do this, the ICRC shall request for a list of 5 states from both parties and
through comparison of both lists, seek the agreement of any state named
as a Protecting Power. In the event of a failure to choose a protecting
power after these procedures, the ICRC may act as a Substitute Protecting
77
78
79
50
One clear instance of the use of armistice was in the termination of the 1st
world war. This was achieved through the instrumentality of the Armistice
of Rethondes in 1918 which led to the Treaty of Versailles in 1919 and the
subsequent termination of the 1st world war. There are circumstances where
a ceasefire may have the character of an armistice by being of indefinite
duration. In such situation, the distinction between them becomes harder
80
81
51
52
Capitulation
Another means for the termination of hostilities is through capitulations.
In international law, a capitulation is an agreement to surrender a fortified
place or a military or naval force.85 Narrowing it down to international
humanitarian law, capitulations are agreements made unilaterally or
mutually for the termination of hostilities. By Article 35 Hague Regulations,
such capitulations agreed between the parties must be in accordance with
the rules of military honor. The parties are further required to observe the
capitulation faithfully.
A capitulation may either be total or partial. Where it is a total
capitulation, its aim is to apply to all the armed forces of a State. On the
other hand, a partial capitulation is designed to apply to only specific
units of the entire armed force. When there is a partial capitulation, this
does not change the fact that the state of armed conflict still exists between
the parties. When there is a total surrender, the presumption arises that
the parties are no longer engaged in a state of armed conflict. Where this
happens, several issues have to be resolved particularly with respect to the
repatriation of prisoners. This was the situation during the Falkland conflict
between Argentina and Great Britain. After the surrender by Argentine
forces in the Falkland Islands, prisoners of war were released shortly after
and repatriated since it was clear that Argentina would stop carrying
out hostilities.
83
84
85
53
54
55
and independence of the different states of the Holy Roman empire were
fully recognized.8629 The conclusion of a peace treaty between the parties
should also deal with any exiting debts between them and how they are to
be paid. Relations existing between the parties prior to the conflict are also
to be resumed and the treaties to which are signatories will start to apply to
them again.
The question may arise whether a peace treaty may be used to end a civil
war. The answer will be in the negative. Consider the repercussions where
the government of state concludes a peace treaty with a seceding section of
the state. Treaties are intended to be concluded between independent states.
By concluding a treaty with the seceding section of a state, the parent state
risks granting some sort of legitimacy to the seceding state. In effect, when
hostilities have come to an end in any civil war and the parent state has
prevailed, a capitulation, ceasefire or armistice would suffice and not the
conclusion of a peace treaty. At the end of the Nigerian-Biafra Civil war, a
formal surrender (and not a peace treaty) was signed by Philip Effiong87 on
January 15 1970 and Biafra was reincorporated into the Nigerian State. Where
on the other hand the seceding state succeeds against the parent, state, it
appears that a subsequent agreement between them at the termination of
hostilities may be by a peace treaty.
One of the most significant treaties that led to the conclusion of war
between states, was the Peace of Westphalia Treaty signed on October 24,
1648 to signify the ending of the 30 years war in Medieval Europe. The Treaty
of Versailles which was signed at the end of the 1st World War was also of
historical significance. This treaty subsequently led to the establishment
of the League of Nations as the first international peacekeeping body. It
also contained detailed provisions on the disarmament of Germany and
reparations to be made by her as well as post war territorial adjustments on
the European continent and in Germanys colonial empire.88
In modern situations of armed conflict, the conclusion of peace treaty is
indeed rare. One instance of the completion of a peace treaty was between
Egypt and Israel that concluded a Peace Treaty in 1979. In 1982, Israel entered
another peace treaty with Lebanon though it was not ratified. The practice
now is for armed conflict to terminate when there is a cessation of hostilities
either by capitulation, armistice or ceasefire.
86
87
88
56
57
89
90
Article 75 API
Fleck D, op cit, p.75
58
such treaty relations will not be affected despite the situation of hostilities
between the parties.
The peacetime rules are to have continuing relevance particularly in the
relationship between the parties to the conflict and neutral states. While
the law governing such situations should be the law of neutrality, parties
often rely on peacetime rules in many modern conflicts. This does not mean
that the law of peace therefore ousts the jurisdiction of the law of neutrality.
Rather, the law of neutrality performs a qualifying role on the law of peace.
However, it should be noted that in applying peacetime rules, the parties are
not bound to apply those rules which by their agreement, they are permitted
to disregard in situations of armed conflict. Also, circumstances are bound
to arise where the law on armed conflict will supersede the operation of the
laws on neutrality.
The International Criminal law is also of direct relevance to the
international humanitarian law. While humanitarian law seeks basically to
regulate the conduct of hostilities between warring states, the international
criminal law is aimed primarily at the punishment of persons who have
offended against the humanitarian law. In effect, the relationship between
these two bodies of law operates in such a way that one starts to operate
after the other. The dynamics of their operation however does not mean
that humanitarian law ceases to exist at the closure of hostilities since
punishment under the international criminal law is to be based on violations
of the humanitarian law.
In practice, different tribunals have been set up to punish offenders
of the international humanitarian law. Such punishment is often made
pursuant to international criminal law principles. The Military Tribunal
at Nuremberg (1945-46) was instrumental in the successful trial and
prosecution of major war criminals in the 2nd world war. In similar fashion,
the International Criminal Tribunal for Yugoslavia (1993)91 was established
to prosecute violations of humanitarian law. This was the same purpose of
the International Criminal Tribunal for Rwanda 1994.92 The more recent
development in international criminal law is the establishment of the
91
92
Adopted by SC Res. 827 (1993) of 25 May 1993, amended by SC Res. 1166 (1998) of 13
May 1998, and 1329 (2000) of 30 November 2000
Adopted by SC Res. 955 (1994) of 8 November 1994, amended by SC Res. 1165 (1998)
of 30 April 1998, 1329 (2000) of 30 November 2000, 1411 (2002) of 17 May 2002, and
1431 (2002) of 14 August 2002
59
93
Of 17 July 1998
60
Chapter
3
Methods and Means of Warfare
I. Introduction
Under the modern and growth of international humanitarian law, limits are
to be set on the methods of warfare employed by the parties to the conflict
as well as the means of warfare to achieve any military objective. While the
methods of warfare refer to the tactics or strategy used against any enemy
in times of conflict, the weapons or weapons systems used are the means
of warfare.94 It is impossible for any armed conflict to take place without
the application of methods and means of warfare. Attempts in the past to
completely ban the use of force or resort to warfare between states have
proved futile. In modern times, it is only possible to regulate the means and
methods of warfare and this is achieved through the rules of international
humanitarian law on the subject. As history will show however, that such
attempts at regulation have encountered major setbacks but have gradually
evolved into the modern humanitarian law on methods and means
of warfare.
In ancient times, there was little room for rules regulating the methods
and means of warfare. Any rule existing at that time where either grossly
inadequate or limited to armed conflict between a numbers of states. The
absence of such regulatory rules meant that where there no limits on the
methods or means of warfare applied in any conflict. As a resultant effect,
weapons were used which caused unnecessary suffering to persons. Also,
there was no proper distinction between civilian and military objects as
the aim of war at the time was to annihilate as many persons as possible
in any conflict. In addition, there were no rules relating to necessity and
proportionality of armed attacks. Such armed attacks were not aimed simply
at weakening the opponents forces but at exterminating the opposition.
The change of attitude towards the indiscriminate application of methods
and means of warfare came due to the effects of the thirty years War of 16181648. There was unlimited resort to various methods and means of warfare
which caused unnecessary suffering to civilians and military forces alike. At
94
61
the end of the war, about a third of Central Europes population had fallen
victim to the excesses of unlimited warfare.95 In his work De jure Belli ac
Pacis Libri Tres, Hugo Grotius detailed what was experienced during the 30
years war, established principles to be observed during armed conflict and
set limits to regulate the conduct of war.
Due to the works of Grotius, there was a shift in the attitude towards
means and methods of warfare and over the years, States began to recognize
some basic principles that would regulate the conduct of war. Unlike in the
past where no distinction was made between civilians and the military,
the attitudinal change in methods and means of warfare led some States
to recognize that only military objects were to be attacked and not civilian
population. For instance, the Lieber code of 1863 in operation during the
American civil war recognized that civilians were not to be attacked in any
armed conflict. Another important codification of such rules was the 1868
St. Petersburg Declaration renouncing the use of explosive projectiles under
400 grammes weight. This Declaration was aimed at curbing the use of
means of warfare which cause unnecessary suffering to combatants.
Despite the various regulations made during this period, there were
still instances of violation by parties to the conflict. The provisions proved
to be inadequate since they were often based on methods and means of
warfare adopted in the past and failing to take cognizance of any future
technological developments. The Hague Peace Conferences of 1899 and 1907
broke new ground in humanitarian law but were not completely successful
in setting limitations on the methods and means of warfare. Nevertheless,
the Hague Regulations embodied a basic rule of international humanitarian
law that the right of belligerents to adopt means of injuring the enemy is not
unlimited.963 The Conferences also led to the formulation of the Martens
Clause which is to the effect that:
Until a more complete code of the laws of war has been issued, the
High Contracting Parties deem it expedient to declare that, in cases
not included in the Regulations adopted by them, the inhabitants
and the belligerents remain under the protection and the rule of
the principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity, and
the dictates of the public conscience.97
95
96
97
62
The general effect of the clause is that customary international law will
continue to apply even after a treaty has been adopted. Thus, where the
treaty is not exhaustive with respect to certain matters, the operation of the
Martens Clause will introduce the provisions of the customary international
law with respect to any particular subject matter. However regards to
the laws of war, customary law will take effect where treaty provisions
are inadequate.
With technological developments, new species of means and methods of
warfare began to appear. Aerial warfare became a very effective means of
decimating enemy populations. The various conventions and declarations
did not anticipate these technological advancements in warfare. As a result,
many persons lost their lives during the 1st and 2nd World Wars. The
Hague Rules of Aerial Warfare (HRAW) 1923 which were aimed at regulating
aerial warfare were largely unsuccessful as states refused to consent to its
operation. Civilians were not spared and by the end of the 1st World War,
about 5% of the Civilian population had been killed. This figure was meager
compared to civilian losses during the 2nd World War where about 50% of
the civilian population were killed.
A new dimension to means and methods of warfare came with the
destruction of the environment by adversary armed forces. These were
aimed at rendering the environment uninhabitable for the military and
civilians alike. At the end of 1945, the US dropped two nuclear bombs, one at
Hiroshima and the other at Nagasaki both in Japan. These bombs not only
led to the death of about 220,000 people (mostly civilians) but the effects
of exposure to radiation led to deaths from leukemia and cancers. Another
instance of environmental destruction was by the US Army during the war
at Vietnam where they carried out large scale deforestation. The effect of
these acts was the destruction of the environment that has a devastating
effect long after the end of the war.
Despite the numerous rules, treaties, regulations or customs regulating
the means and methods of warfare, there are still a lot of violations by
members of the international community. The threat posed by nuclear
weapons has been a source of continuing concern. Efforts have been made to
ban or at least limit their production but these have not stopped some states
from arming themselves with nuclear weapons. Rules regulating methods
and means of warfare continue to evolve everyday and with these rules
come new species of contentious issues. Nevertheless, it is necessary for the
means and methods of warfare adopted in any armed conflict to conform to
the existing rules on international humanitarian law.
63
Means of Warfare
64
While this provision is laudable, practice in warfare over time has shown
that must states do not adhere to such a principle. It would indeed be ideal
for parties to engage in conflict and focus all their attacks at weakening the
100 For further reading, see Roberts and Guellf, Documents on the Laws of War, 3rd Ed,
p.52.53
65
military forces of the adversary. However, practice has shown that in any
armed conflict, civilian losses are mostly unavoidable. This provision on
the other hand, has contributed to the development and growth of current
international humanitarian law. For instance Article 48 of the API is an
extension of this provision which fundamentally provides that distinction
should be made between civilians and members of the armed forces.
The St. Petersburg Declaration also expresses the principal rule that
prohibits the use of weapons which cause unnecessary suffering. Such
weapons that would aggravate the sufferings of disabled men or render their
death inevitable are prohibited under the Declaration. This same principle
of international humanitarian law has been further expressed in Article
23(e) of the Regulations annexed to 1899 Hague Regulation II and 1907
Hague Convention IV, deemed as binding on parties to armed conflicts.
66
101 Such as for Anti tank mines, booby traps and other devices
67
This definition is the same obtainable under the original Protocol II and
its distinctive characteristic is that for a weapon to be called a mine, it is
to be exploded by the proximity or contact of a person or vehicle. On the
other hand, anti personnel mine as defined under Amended Protocol II
ought to be exploded by the presence, proximity or contact of a person.102
No mention is made of vehicle with respect to anti-personnel mines. For the
definition of other devices, these are:
manually-emplaced munitions and devices designed to kill, injure
or damage and which are activated manually, by remote control or
automatically after a lapse of time.103
68
69
70
71
72
the rule as stated under para 1 but does not itemize the variants of boobytraps in a bid to provide a blanket provision for all species of booby-traps.
As mentioned earlier, the indiscriminate use of weapons is prohibited
under Article 3 para 8 Mines Protocol. This is the general rule on prohibition
of weapons. With respect to booby-traps, their use is prohibited in any city,
town, village or other area containing a similar concentration of civilians.117
However, their use may be permitted either where they are placed on or in
the close vicinity of a military object or where measures are taken to protect
the civilian population.
All information related to minefields, mined areas, mines booby-traps
and other devices are to be recorded.118 This is a very important requirement
with respect to mines, booby-traps and other devices. When hostilities
have come to an end, it is necessary for each of the parties through their
engineers, to locate and demine all minefields. This can only be done
effectively through documentation of not only the location of the mines,
but also of the nature, quantity and patterns of delivery. In addition, there
should be specifications on the lifetime of the weapons laid. This provision
under Article 9 of the Amended Mines Protocol represents a deviation
and strengthening of the provisions under the original Protocol II. The
requirement under the original Protocol II was that parties to the conflict
are to record the location of all pre-planned minefields as well as areas where
they have made large-scale and pre-planned use of booby-traps.119
With the passage of time, it became clear that this requirement of
only recording the location of the mines was grossly insufficient. Where
the persons who planted the mines are not the same as those engaged in
demining, there was bound to be serious injury and harm to the demining
engineers who had no knowledge of the type, number or lifetime of the
mines. The rule established under this Article has become of practical
application and in some instances, it is required that every military unit
placing mines must record the necessary information in a standardized
document.120
At the cessation of active hostilities, the parties to the conflict are required
to take all appropriate and necessary measures to protect civilian persons
and objects from the effects of minefields, mined areas, mines, booby-traps
117
118
119
120
73
and other devices.121 To achieve this objective, the parties may use all the
information gathered with respect to the nature type, number and lifetime
of such mines as well as the location of minefields. In every minefield, the
party to the conflict in control may either mark it to prevent civilians from
going there or may post guards whose duty is to prevent civilian entry into a
minefield area. This is to ensure safety of the civilian population.
Where a particular area is no longer under the control of a party to the
conflict, such party is required to make available all information with
respect to minefields, mined areas etc to the other party or parties to the
conflict. This information is also to be made known to the SecretaryGeneral of the United Nations. Where however, the forces of a party to the
conflict are in the territory of an adverse party, they may not be required to
disclose such information to the other party. This may be because of some
overriding security interests which they consider to be of crucial importance
and whose disclosure will be deleterious to their interests. In any event, the
parties to the conflict shall by mutual agreement, seek to provide for the
release of such information at the earliest possible time in a manner that is
consistent with the security interests of each party. Apart from the Mines
Protocol 1996, rules on recording with respect to mines and minefields etc
are also provided for under the Explosive Remnants of War Protocol.122
The Amended Mines Protocol 1996 makes provision for the removal of
minefields, mined areas, mines booby-traps and other devices. It further
calls for international co-operation from High Contracting parties as well as
the parties to the conflict. It is imperative that as soon as there is a cessation
of active hostilities, all minefields, mined areas etc are to be cleared,
removed, destroyed or maintained.123 Such clearance, removal, destruction
or maintenance however, must be done in accordance with Article 3 and
Article 5.2 of the Amended Mines Protocol.
All the High Contracting Parties as well as the parties to the conflict bear
responsibilities with respect to mined fields and mined areas under their
control.124 Where the party that laid the mines is no longer in control of
that area, it is required to provide the necessary technical and material
assistance to the party in control of the area.125 The responsibility with
respect to these areas is not borne solely by the parties to the conflict. On
121
122
123
124
125
74
their own, they may agree among themselves on the provision of technical
and material assistance and may even in appropriate circumstances consider
the undertaking of joint operations. They may also, where circumstances
permit, agree with other states as well as with international organizations
on the provision of such assistance and for joint operations necessary to
fulfill their responsibilities.
To ensure proper implementation of the Protocol, the High Contracting
parties are expected to facilitate the exchange of equipment, material and
scientific and technological information.126 They are to provide information
to the database on mine clearance as well as provide assistance for mine
clearance all within the United Nations System.
Article 12 Mines Protocol makes provision for special protection for
international or humanitarian missions. Where UN or humanitarian
operations are being undertaken with the consent of the state involved in the
armed conflict, such operations and their officers or representatives are to
enjoy special protection from the effects of minefields, mined areas, boobytraps and other operations. This special protection is to be made available to:
- any UN force or mission performing peacekeeping, observation, or
similar functions in any area pursuant to the United Nations Charter;
- any mission of the ICRC and its related bodies acting with the consent
of the relevant states;
- any other humanitarian missions or missions of inquiry as provided
under the Genera Conventions.
With respect to the missions mentioned above, the persons acting under
that authority must be protected provided that they are acting with the
consent of the party on whose territory they are performing their functions.
It should be noted that UN peacekeeping missions are not covered by this
requirement. This is the effect of Article 12 para 1 (a) which provides that:
with the exception of the forces and missions referred to in subparagraph 2 (a) (i) of this Article,127 this Article applies only to
missions which are performing functions in an area with the consent
of the High Contracting Party on whose territory the functions
are performed.
75
other devices in the area in which it is performing its functions.128 This will
apply to UN peacekeeping missions. The parties to the conflict also has duty
of informing the head of the mission where the minefields, mined areas etc
are located.
For all other missions apart from UN peacekeeping missions, the states
parties are to take all such measures as are necessary to protect the force or
mission from the effects of mines, booby-traps and other devices in areas
under its control. The states parties are to also provide safe passage for
personnel of the mission to or through any place under their control.
The use of mines in any armed conflict, whether international or internal,
has been a source of controversy due to the aftereffects of their use. Whether
designed to be exploded by the presence or proximity of a person or a
vehicle, mines have been known to cause serious damage in areas of war
especially to the civilian population. Over the years, the use of mines has
been propagated primarily by reason of the low cost of manufacturing
them. They are used either to prevent access to certain territories or simply
to strike fear in minds of the civilian populace. The ICRC has estimated
that two thousand individuals, three-quarters of whom are civilians are
injured or killed each month by mines.129 The United Nation Childrens
Fund (UNICEF) has also estimated that since 1975, one million individuals
have been victims of mines, one-third being children under the age of
15. With the ban of landmines by the Ottawa Convention 1997, the effect
of their use has been greatly reduced. Demining activities have taken
place in countries such as Cambodia, Mozambique, Afghanistan and the
former Yugoslavia. It is approximated that about 110 million landmines lie
in seventy countries.130 The International Committee to ban landmines
(ICBL) estimates that it would take more than a millennium and $33 billion
to remove all existing mines in the world. This exorbitant cost is predicated
on the high cost involved in demining. Thus, while the average mine may
cost from $3 to $30, it will take between $300 and $1,000 to demine each.
With the adoption of the Ottawa Convention in 1997, the problem posed
by landmines has been greatly reduced and the expectation is that their use
will be completely avoided.
Ottawa Convention on the Prohibition of the Use, Stockpiling, Production
and Transfer of Anti-Personnel Mines and on their destruction:
76
The Ottawa Convention was adopted in 1997 and entered into force on 1
March 1999. Its primary aim was to prohibit the use, stockpiling, production
and transfer of anti-personnel mines. As to what is an anti-personnel mine,
Article 2 of the Convention provides.
Antipersonnel mine means a mine designed to be exploded by the
presence, proximity or contact of a person and that will incapacitate,
injure or kill one or more persons.
77
It was their view that the 1996 Amendments were not sufficient and that the
only proper thing to be done was a total ban of anti-personnel landmines.
Worthy of mention also in the process leading up to the formation of
the Ottawa convention was the Ax worthy challenge. This was a challenge
issued by Lloyd Ax worthy, the then Foreign Prime Minister of Canada.
Canada hosted an international convention with the aim of limiting the
use of anti-personnel landmines. At the close of the convention, Lloyd Ax
worthy called for a total ban of landmines. He further dared the delegates to
return in a years time to sign a treaty which would be absolutely prohibitive
of the use of landmines. This speech received a resounding applause from
the delegates and contributed to the signing of the Ottawa Convention by
the next year.
The Ottawa Convention is known for its widespread acceptability. Within
a short period of time, it had been signed to, acceded to and ratified by
countries. This is unlike the process for the prohibition of any other weapon
of warfare which usually takes a long time before the convention will
become applicable. Also worthy of note is that the treaty did not come into
force based only on the efforts of the so called superpowers. It was countries
such as Belgium, Canada, Germany, Ireland, Mexico, Netherlands, Norway,
Philippines, South Africa and Switzerland that started the process to bring
about a total ban of anti-personnel mines. As at 1st April, 2007, Russia,
China and the United States had not yet ratified the treaty. The US had called
for a geographical exception in South Korea and proposed that the existing
minefields at the border between North and South Korea be left untouched.
This was the primary reason for their refusal to sign. Notwithstanding,
the treaty came into effect and it completely prohibits antipersonnel mines
and the use, stockpiling production and transfer. State parties are to
destroy all stockpiled antipersonnel mines not later than 4 years after the
treaty enters into force.133 Also, the number of landmines in storage is to
be drastically reduced. What are to be left are just landmines to be used
for training persons on how to detonate landmines. By 10 years after the
adoption of the treaty it is expected that all mined areas would have been
completely destroyed.134
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at least take all feasible precautions to avoid loss and injury to civilian lives
and property.
Apart from weapons which have incidental incendiary effects, incendiary
weapons do not also include:
munitions designed to combine penetration, blast or fragmentation
effects with an additional incendiary effects, such as armour- piercing
projectiles, fragmentation shells, explosive bombs and similar
combined-effects munitions in which the incendiary effect is not
specifically designed to cause burn injury to persons, but to be used
against military objectives, such as armored vehicles, aircraft and
installation or facilities.138
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humanitarian law, nuclear weapons and their use OR non-use has been the
subject of much controversy in the recent times.
Nuclear Weapons
The use of nuclear weapons has been the subject of controversy over the
years. The first known military uses of nuclear weapons were at the end
of World War II. The United States dropped a nuclear bomb code named
Little Boy on Hiroshima in Japan. Three days later, another nuclear bomb
code named Fat Man was dropped on the city of Nagasaki also in Japan.
These bombings resulted in the immediate deaths of around 120,000 people
(mostly civilians).149 These deaths were caused from injuries sustained
directly from the explosion and indirectly from the after-effects of radiation.
The typical nuclear weapons are characterized by their ability to explode
over a wide area, causing serious damage to everything that crosses their
paths. It is an explosion device deriving its destructive force from nuclear
reactions, either by fission or a combination of fission and fusion.150 It
appears that from the day fission was discovered in 1938, the world has
known little rest regarding the control of that technology.
Comparatively speaking, the nuclear weapons used at the end of World
War II by the USA against Japan are much bigger and less effective than those
being manufactured in present times. In the modern era, nuclear weapons
are now smaller in size but with higher explosive qualities.
Apart from the US, other countries have been known to be in possession
of nuclear weapons. The other four members of the UN Security Council (UK,
Russia, France and China) are signatories to the Nuclear Non Prohibition
Treaty and while their use of nuclear weapons is strictly regulated, they are
still known to have nuclear weapons in their possession. The US tested its
first nuclear weapon in 1945 code named Trinity, Russia in 1949 (Joe- 1),
UK in 1950 (Hurricane), France in 1960 (Gerboise Bleue) and China in
1964 (the 596 test).
Some states not being signatories to the NPT have been involved in
nuclear weapons testing and also have stockpiles of nuclear weapons. For
instance, India tested a nuclear explosive code named Smiling Buddha in
1974. In Pakistan, the use of nuclear weapon was spurred by Indias nuclear
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capabilities. They conducted their first nuclear tests at the Chagai Hills in
1998. In 2006, North Korea tested its own nuclear device.151
There are some States which have not expressly declared themselves to
be in possession of nuclear weapons but still do not state that they have
no nuclear weapons. Israel is one of such States and has adopted a policy
of strategic ambiguity concerning their possession of nuclear weapons.
Regardless of their statements strengthening their stance of opacity, Israel is
suspected to have nuclear weapons in her arsenal. According to the National
Resources Defence Council and the Federation of American Scientists,
Israel is in possession of about 75200 weapons.152 A similar assertion was
made by former US President Jimmy Carter who stated that Israel has 150 or
more nuclear warheads in its possession.
Countries such as Iran and Syria have been accused of developing
nuclear weapons technology. Iran is rich in uranium which is used for the
production of nuclear weapons. However, there is currently no concrete
evidence which shows that Iran is involve in nuclear weapons testing or has
nuclear weapons facilities. In similar fashion, Syria has suspected to have
nuclear weapons intentions. To that effect, Israel had bombed a site which
was later declared to be for a nuclear reactor undergoing construction.153
The US Government also issued a statement to the US Congress and the
International Atomic Energy Agency (IAEA) that Syria had been creating
a covert nuclear reactor. Syria refuted this allegation and described the
facts as being fabricated and forged. In these two States, there is no concrete
evidence to show that they have nuclear weapons in their possession.
There are States which used to be in possession of nuclear weapons but
have subsequently transferred or disassembled their nuclear stockpiles. The
situation in South Africa is noteworthy and recommended. In the early
1990s, South Africa disassembled its six nuclear weapons which had been
made in the 1980s. The transfer of nuclear weapons was more common
after the collapse of the Soviet Union. For instance, Ukraine had about
5,000 nuclear weapons after the Soviet Union collapse. This made Ukraine
the third largest in terms of nuclear possession around the world.154 These
nuclear weapons were voluntarily transferred to Russia in 1996. Similarly,
151 it should be noted that North Korea was a member of the NPT. However, it withdrew in
2003
152 Israels nuclear Weapons, Federation of American Scientists (Aug. 17, 2000) Retrieved
from http://wikipedia.com on 27/07/2009
153 The bombing took place on September 6, 2007.
154 Ukraine special weapons, GlobalSecurity.org
85
155 It should be noted that Belarus, Kazakhstan and Ukraine are all signatories to the
Nuclear Non proliferation Treaty.
156 e.g. Tlalteco Treaty on the Prohibition of Nuclear weapons in Latin America 1967;
Rarotonga Treaty on the establishment of a Nuclear Weapon Free Zone in the
Southern pacific Area 1985; Treaty on the Southern Asia Nuclear Free zone 1995;
African Nuclear Weapon Free Zone Treaty 1996; Treaty on a nuclear weapon free zone
in Central Asia 206.
157 Fleck D, ibid, p. 187
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From the underlined portion, it can be inferred that the court did not
consider itself n a proper position to decide on the use or non use of nuclear
weapons. This further highlights the delicate nature of nuclear weapons as a
means of warfare.
It may be argued that the prohibitions against indiscriminate warfare
should be extended to prohibit nuclear warfare. In view of current
developments in nuclear technology, such a line of argument may have
proper foundational basis. The use of precision guided missiles which
are targeted at military establishments ensures that military objectives
are attacked not civilians. While the collateral effect of the use of such
weapons may give rise to civilian losses, the loss in numbers may not differ
much from use of conventional weapons. This statement does not in any
way seek to justify the use of nuclear weapons but show that prohibitions
on indiscriminate warfare do not necessarily translate to prohibitions of
nuclear weapons.
It has been contended that nuclear weapons falls either within the scope
poisonous weapons under Article 23 of Hague regulations or poisonous
gasses under the General Gas Protocol 1925.163 The application of these
provisions to the use of nuclear weapons is likely to constitute an overstretch of their scope. Both Article 23 Hague Regulations and the 1925
Geneva Gas Protocol expressly prohibit the use of weapons whose primary
purpose is to act as a poison. While it is conceded that nuclear weapons do
indeed release poisonous substances, the release of poison is an unintended
side effect or secondary effect, the primary purpose being to explode objects
within its vicinity. Not being weapons designed primarily for the release of
poisonous substances, nuclear weapons do not fall within the purview pf
Art 23 (a) Hague Regulations and the 1925 Geneva Gas Protocol.
Despite the inapplicability of Art 23 Hague Protocol and the 1925 Geneva
Protocol on nuclear weapons, as well as the absence of any comprehensive
still imposes certain restrictions on the use of nuclear weapons. Since there
is lack of will to ban completely nuclear weapon, then the use of it must
162 Advisory Opinion 2E. The court was divided on this point by seven votes to seven.
163 Singh/McWhinney, Nuclear Weapons and Contemporary International Law 2nd Ed p
307-312
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use is mentioned. The effect of the explosion alone could cause of numerous
deaths. The first people to die from nuclear weapons are usually those within
the area of explosion known as ground zero. These people will be killed
instantly by the gamma rays emitted from the blast. The area covered by the
blast will depend on the explosive qualities in the nuclear weapons. Thus, a
one megaton blast will cover a larger area than a one kiloton blast.
The bright light emitted from the nuclear bomb will produce the next
set of casualties, permanently blinding both animals and human beings.
According to some experts, the brightness from the explosion is capable of
causing blindness 10 miles around in every direction for a 1 megaton bomb.
The experts argued thus, that:
Even from fifty miles away a 1 megaton blast will be many times
brighter than the noonday sun. Those looking directly at the blast will
have a large spot burned into their retinas, where the light receptor
cells will have been destroyed.166
Apart from deaths caused by the initial explosion and the blindness
caused by the bright light emitted from the explosion, there exists the
possibility of a firestorm arising from the explosion. The extent of the
burning equally depends on the explosive capacity of the nuclear bombs.
This firestorm will release great quantities of heat which will equally lead to
massive loss of lives. The spread of radioactive material in the atmosphere
is also a contributory factor to deaths after the use of nuclear weapons.
This will give rise to diseases such as leukemia and cancers. For instance,
it was reported that after the bombings of Hiroshima and Nagasaki in 1945,
231 deaths were observed from leukemia while 334 deaths were attributed
to solid cancers167 all flowing the release of radioactive material. The
release of radioactive substances into the atmosphere will also give rise to
contamination of vegetation and water and may lead to death of wildlife,
fishes and other living organisms.
Apart from loss of human life and property, wildlife, vegetation etc, a
nuclear explosion releases an Electromagnetic Pulse (EMP) which is capable
of switching off all electrical appliances at the same time. While this may
appear trivial considering massive losses to the human population, we live
in an information-technology age where our lives depend to a large extent
on the functioning of certain electrical appliances. Imagine what would
166 Hoffman R, Effects of nuclear weapons 1999. Retrieved from http://www.
animatedsoftware.com on 26/09/2009
167 http://www.wikipedia.com Retrieved 31-07-2009
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happen where the EMP arising from a nuclear blast affects a plane in the air
which depends largely on electrical equipment. This may lead to significant
loss of life to persons as the plane may possibly crash. This will pose further
difficulties of transferring relief supplies to persons affected by the explosion
through the planes which will not be available.
The aftereffects of the use of nuclear weapons are very much dreaded
by individuals and governments alike. This explains why even the threat
to resort to nuclear warfare is greeted with massive disapproval from all
quarters. While nuclear weapons are still being tested by nuclear weapons
States, it is only in Hiroshima and Nagasaki that they have been used in
an actual armed conflict and the inhabitants are still suffering from its
aftereffects. Indeed, there is reason to be petrified at the mention of nuclear
weapons considering that with advances in technology, the devastation
that may be caused by their use will be much greater than that suffered by
Hiroshima and Nagasaki.168 In an ideal world, it would have been better if
there were no such things as nuclear weapons. Being that they are already
in existence, the proper course would have been to ban their use entirely.
But it is clear that there is a reluctance to do so and what now exists is a state
of mutual deterrence whereby one state refrains from it using its nuclear
arsenal for fear of being attacked by another nuclear weapon state.
Finally, the issue that needs to be resolved as regards nuclear weapons
is whether it is right for some States to insist that others do not engage in
nuclear weapons research in a bid to develop their own nuclear arsenal.
As at the time of writing, the 5 permanent members of the UN Security
Council169 were all nuclear weapons states and signatories to the Nuclear
Non Proliferation Treaty. India, Pakistan and North Korea are also nuclear
weapons states but are not signatories to the Nuclear Non Proliferation
Treaty. For Iran and Syria, their possession of nuclear weapons has been
largely suspected but remains unconfirmed.
Iran has been noted for being rich in uranium, a key element for the
making of nuclear weapons. Even though there has been no concrete
evidence of nuclear weapons presence in Iran, the international community
(the US and Israel in particular) has persistently and vehemently opposed
the possibility of Iran creating their own nuclear weapons. It appears
the reasoning behind this opposition is based on statements made by
the President of Iran, Mahmoud Ahmadinejad, which were viewed as
168 This is primarily because by modern standards, the bombs used in Hiroshima and
Nagasaki are small bombs.
169 UK, US, China, France, Russia
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Iran is a signatory to the NPT. As such the provisions of the NPT under
Art 2 apply to them and they are not to manufacture or otherwise acquire
nuclear weapons or other nuclear explosive.
Be that as it may, it is argued here that Art. 2 of the NPT should not be a
bar to Iran in their quest to obtain nuclear weapons. By Article 2.1 of the
United Nations Charter, the United Nations is based on the principle of the
sovereign equality of its members. As used here, sovereign equality suggests
that each state is entitled to its territorial integrity and that no state has the
right to interfere with the functioning affairs of another state. By extension,
sovereign equality is also taken to mean that all states are equal in the eyes
of the law, are entitled to equal rights, subject to equal obligations and that
no state is higher than the other. On the basis of Article 2 para 1 UN Charter
therefore, all states are equal and some are not more equal than others.
Under the NPT, distinction is made between states which are nuclear
capable (nuclear weapons states) and non nuclear weapon states. Art. I of
the NPT relate to nuclear weapon states and to the effect that:
170 e.g. Landmine Ban Convention, 1997
171 e.g. mines Protocol II 1996
172 The CTBT is yet to be ratified by India, Pakistan and Korea
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A literal interpretation of this Art 1 NPT will reveal that there is nothing
restricting nuclear weapons states from producing or manufacturing more
nuclear weapons for themselves. Their only obligation is not to transfer
nuclear weapons to any state and not to assist a non nuclear state in the
acquisition of nuclear weapons. It is true that the world exists in a state of
mutual deterrence where one state is hindered from displaying its nuclear
strength for fear of being attacked by another. While this is plausible, why
should there be contradictory provisions which do not prevent nuclear
weapon states from producing more nuclear weapons on one hand and
absolutely preventing another set of states (non-nuclear states) from having
nuclear weapons at all? Such a situation will certainly create (if it has not
already) a huge gap where you have nuclear weapons states on one side and
non nuclear weapons states are on the other. Thus, while the nuclear weapons
states are capable of creating more nuclear weapons, the non nuclear states
are left with nothing. Any blown out armed conflict or war between any
nuclear weapons states using nuclear warfare will definitely render true the
African Proverb: When the elephants fight, it is grass that suffers.
It is submitted here that it is highly discriminatory for one state to be
nuclear weapon capable (with the possibility of acquiring more nuclear
weapons for itself) while another state with no nuclear capabilities is
prevented from having or manufacturing a single nuclear weapons. All
states have been declared to be equal and entitled to equal rights and
obligations under Art 2 para 1 of the UN Charter 1945. On that basis, if the
US, Russia and other states are nuclear capable, there should be no bar to
non-nuclear states preventing them from having nuclear weapons. While it
is conceded here that nuclear weapons use has grave consequences attached
to it, the proper thing to be done should be a complete prohibition or ban of
nuclear weapons. Such a prohibition should be in line with the Landmine
Ban Treaty 1997 which successfully outlawed the use of landmines in any
armed conflict. The current restrictions on the use of nuclear weapons under
the NPT are grossly inadequate, highly discriminatory and do not accord
with the principles of rule of law which advocates for equality before the law.
It is true that the statements made by the Iranian President Mahmoud
Ahmadinejad constitute threats to the existence of the state of Israel which
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Chemical Weapons
The first proper codification of rules relating to chemical weapons came
by means of Art 23 (a) Hague Regulations. This Article made it especially
forbidden to employ poison or poisoned weapons. With the development
of new weapons of warfare, this provision was interpreted as prohibiting
weapons which had asphyxiating or poisonous effects. During the 1st
world war, the effectiveness of Art 23 was tested and it proved to be grossly
inadequate. In fact, there was a massive reliance by the military of poisonous
gasses during the war.
Due to the inadequacies of Art 23 the need arose for an enlargement
provisions with respect to poisonous weapons. One of such was in the 1919
Treaty of Versailles which provided that:
The use of asphyxiating, poisonous or other gases and all analogous
liquids, materials or devices being prohibited, their manufacture and
importation are strictly forbidden in Germany.174
While this provision was restricted to Germany alone, it set the pace
for further rules regulating the use of poisonous weapons in any armed
conflict.175
It was the need for a universally acceptable and applicable treaty
restricting the use of poisonous weapons that led to the formulation of the
Geneva Gas Protocol of 1925. The intention of the Protocol was to prohibit
the use of asphyxiating, poisonous and other gasses during war as well as
bacteriological methods of warfare. However, at the time that the Geneva
Gas Protocol was being formulated, many states made reservations on the
application of the Protocol. This reservation was to the effect that states
would not be bound by the Protocol in any situation where an enemy state
failed to respect the prohibition and made use of poisonous weapons.
Article 21 of the Vienna Convention 1969 deals with the legal effects of
reservations and is to the effect that reservations modify the provisions of
the treaty in its relations with another party and vice versa. By reason of
these reservations, the prohibitory nature of the protocol was whittled down
from a prohibition on the use of poisonous gasses to an agreement not to
use such weapons first. Thus, if a State violated the Protocol by attacking
another State with poisonous weapons, the latter State would be entitled to
use similar weapons in exercise of its right to reprisal. Such a reprisal would
174 Art 171 Treaty of Versailles.
175 Similar provision was made under the 1922 Washington Treaty which prohibited the
use of poisonous gasses. However, this Treaty did not enter into force.
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be considered legally acceptable even though the latter State was a signatory
to the 1925 Geneva Protocol.
Despite the restrictions on the use of poisonous weapons, there were still
instances of non observance. For instance, when Ethiopia was being invaded
by Italy in 1935-6, the Italian forces made use of gas. In similar fashion, the
Japanese government authorized the use of gas and biological weapons
against China during the 2nd world war.
The UN General Assembly has called for the strict observance of the 1925
Geneva Protocol. In one of its resolutions, the UNGA declared its prohibition
of the use in international armed conflicts of:
a) any chemical agents of warfare chemical substances, whether
gaseous, liquid or solid which might be employed because of their
direct toxic effects on man, animals or plants.176
Apart from Art 23 (a) Hague Regulations and the 1925 Geneva Protocol,
the 1977 Additional Protocol makes provisions that are directly connected to
prohibitions against the use of poisonous weapons. It is prohibited to attack,
destroy, remove or render useless objects indispensable to the survival of
the civilian population.177 Such objects as are listed include foodstuffs
and drinking water installations amongst others. This prohibition under
Article 54 para 2 API may be interpreted to mean prohibition against toxic
contaminations of food supplies as well as drinking water installations. Thus
poisonous substances are not to be introduced into such essential objects
and doing so will be in violation of the international humanitarian law178
The provisions relating to chemical weapons though laudable but they
were still subject to several situations of non-observance. For instance, there
was use chemical weapon during the Iran-Iraq war (1980-88).179 Iraq also
used chemical weapons in March 1998 against its Kurdish inhabitants in
Halabja in Northern Iraq.
To settle all these issues on non-compliance, the Chemical Weapons
Convention180 was formulated. While other provisions merely prohibited
the use of chemical weapons, this Convention provided for a comprehensive
prohibition on the development, production, stockpiling, transfer and
176
177
178
179
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use of chemical weapons. This intent was clearly shown in Art 1 which
provides that:
1. Each State Party to this Convention undertakes never under
any circumstances:
a) To develop, produce, otherwise acquire, stockpile or retain
chemical weapons to anyone;
b) To use chemical weapons;
c) To engage in any military preparations to use chemical weapons;
d) To assist, encourage or induce in any way, anyone to engage in
any activity prohibited to a state party under this Convention.
The Convention goes further to compel State parties to destroy all nuclear
weapons they own or possess within their jurisdiction or in the territory of
another State party in accordance with the provisions of the Convention.
Where a State party to the Convention owns or possess a chemical weapons
production facility which is located within its jurisdiction, such a facility
must also be destroyed. With respect to riot control agents, Art 1 para 5
CWC stipulates that they are not to be used in warfare. In effect, the CWC
did not out rightly prohibit the use of all chemical weapons as riot control
agents (such as teargas) may be used for purposes not prohibited under the
Convention. The provisions of the Chemical Weapons Convention 1993
are more comprehensive and detailed that the 1925 Geneva Protocol. It
deals specifically with chemical weapons and outlaws their use completely
in any armed conflict. The 1925 Geneva Protocol still has some relevance
in modern day armed conflict as some states are not signatories to the
Convention but are bound by the Treaty. As such, the Protocol will apply
to them at least to the extent of prohibition against first use. Also, since the
Protocol deals with poisonous weapons and not strictly chemical weapons,
it is still valid with respect to those other poisonous weapons outside the
scope of the Chemical Weapons Convention. Perhaps, the most important
contribution of the CWC is its comprehensive verification regime which
goes beyond routine inspections and permits one state to challenge another
states lack of compliance. In any event, the different laws regulating the use
of chemical weapons have assisted greatly in regulating the sufferings of
both combatants and civilians alike.
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Military Objectives
As a general rule, the humanitarian law requires that:
The Parties to the conflict shall at all times distinguish between the
civilian population and combatants and between civilian objects and
military objectives and accordingly shall direct their operations only
against military objectives.185
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towards the civilian population. in effect, since attacks also includes acts
of defence, a state (acting in self defence) cannot be seen to endanger its
civilian population in the name of carrying out defensive strategies. Their
obligations to the civilian population remain binding and so they must at all
times ensure the protection of the population in accordance with the rules
of international humanitarian law. Where for instance a state sets traps for
the adversarys armed forces, the protection of the civilian population still
remains of paramount importance. Article 49.2 provides that:
The provisions of this Protocol with respect to attacks apply to
all attacks in whatever territory conducted, including the national
territory belonging to a party to the conflict but under the control of
an adverse party.
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The first limb of this Article deals with military objectives and limits them
to objects which make an effective contribution to the military action. It is
required under the Article that the nature, location, purpose or use of the
objects must be known by the attacking forces. This limb of Article 52 API
(para 2) has been largely criticized as being too restrictive and limiting the
category of legitimate objects that may be attacked.192 Military objectives as
used here refer to installations, buildings or ground sectors which contribute
effectively to the military action.
The second limb of Article 52 API (para 2) lends support to the flailing
first limb. It further defines military objectives to include objects whose
189
190
191
192
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103
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problems of distinction raise serious issues and it is for the armed forces to
exercise great care before attacking such installations. Finally, the research
and development sectors of the armaments industry are military objectives
liable to be attacked.197
With respect to industries of fundamental importance, problems may
arise particularly relating to the supply industry of arms as well as other
subcontractors of the Ministry of Defence in any State. These two do not
fall within the category of military objectives but are intrinsically linked to
the armaments industry. Where these industries are not targeted as military
objectives, states may be tempted to decentralize their production of arms
to these subcontractors and thereby, rendering it legally impossible for such
industries to be attacked without being in violation of the international
humanitarian law. The proper thing to be done is to review the existing laws
on the subject to ensure that such a situation does not arise in the future.
As has been established under Article 52 para 2 API, objects which offer
definite military advantages in the event of their destruction, capture or
neutralization may be considered military objectives. The meaning to be
attached to the term definite military advantage has given some cause for
concern. The interpretation under Article 52 para 2 is likely to lead one to
believe that even the attack of a single military objective may give rise to this
definite military advantage. It has now been settled that an isolated attack is
not likely to give a definite military advantage but the operation considered
as a whole. Such an interpretation may be traced to an interpreting
declaration signed by the German government and other States198 that
settled the issue thus:
In applying the rule of proportionality in Article 51 and Article 57,
military advantage is understood to refer to the advantage anticipated
from the attack as a whole and not only from isolated or particular
parts of the attack.
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enjoy non- combatant status as provided under Article 4 GC III and Article
43 API.
A civilian will lose his non combatant status (and thus be liable to attack)
if he/she takes direct part in the hostilities.200 Thus, in a situation where
members of the civilian population take up arms alongside the regular
armed forces, they will be viewed as combatants and the protection afforded
to them pursuant to Article 51 para 1 API will not avail them. A civilian person
who finds himself situated in a military objective liable to be attacked does
not thereby become a combatant. However, the place where they are located
is likely to be attacked and no protection will be available to him. In effect,
the presence of civilian persons in the midst of military objectives does not
change the character of the military installation. The presence of civilian
persons in an army barracks, for instance, does not make the barracks a
civilian object. Problems however arise where the concentration of civilians
in a military zone is high and the question of proportionality arises. This is
why it is not unusual for civilian persons to be deliberately used as a human
shield to prevent attack by adversary forces. For instance, Iraqi civilians
were used as a shield for military operations in the Iraq- US conflict. Such
deliberate injection of civilians makes it more difficult to determine whether
any particular attack is justifiable. Article 53 para 3 API is to the effect that:
In case of doubt whether an object which is normally dedicated to
civilian purposes , such as a place of worship, a house or other dwelling
or a school, is being used to make an effective contribution to military
action, it shall be presumed not to be so used.
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ensure that these losses are not excessive in relation to the expected military
advantage. The principle of military necessity steps in at this point and each
party to the conflict must abstain from acts of unnecessary violence and the
use of such weapons likely to cause great harm to the civilian population.
As a corollary to this rule on the protection of the civilian population, it
is expected that they (civilians) must be warned of attacks which may affect
them.204 The requirement of effective advance warning will be fulfilled only
where the circumstances make it possible for such warning to be given.
This means that armed forces are not bound to give advance warning to the
civilian population in all circumstances. Such would be highly deleterious to
military operations as the concept of surprise attacks which are necessary
to catch enemy armed forces unawares will be rendered useless.
The duty to minimize losses to civilian lives and the population does not
rest solely in the hands of the attacking State. The State acting in defence
must also ensure that civilian losses are minimized. To achieve this, the
State must endeavor to remove the civilian population, individual civilians
and civilian objects under their control from the vicinity of military
objectives.205 The State is required to take necessary precautionary measures
which may include provision of shelters to achieve this objective.
The first limb of this Article 51 para 2 establishes the general rule relating
to the protection of the civilian population, individual civilians and other
civilian objects. It is prohibited to make any of these the object of attack.
The principle of distinction steps in to ensure that only military objectives
are targeted. This rule is an established principle of customary international
humanitarian law and Article 51 para 2 serves to restate or reaffirm the
validity of the law.
204 Article 26 Hague Regulations; Article 57 para 2 (c) API
205 Article 58 API
206 Article 51 para 2 API
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between civilians and military personnel. When the mines are not properly
recorded,209115 it further endangers the civilian population.
The 3rd category of indiscriminate attacks refers to those that employ
methods or means of combat whose effects cannot be limited. Where the
effects of the weapons being used cannot be curtailed, such use will be
contrary to the rules of humanitarian law. The use of nuclear weapons falls
within this category. Their effect cannot be limited to a particular area and
long after the conflict has come to an end, they still negatively affect the
lines of the population. The signing of a peace treaty does not stop the effects
of nuclear weapons use. The question of proportionality comes into play
with respect to the 3rd category of indiscriminate weapons. While collateral
damage has become a norm in armed conflict, Article 51 para 4 frowns at
methods and means of warfare whose effects cannot be restricted and which
are disproportionate to the military advantage sought. In the Kosovo air
campaign, NATO forces dropped about 1400 cluster bombs each containing
between 147 and 202 sub-munitions on targets in Serbia and Kosovo.210116 In
the Nigerian scenario, the aerial attack by Nigerian Armed Forces against
the population of Gbaramatu in Delta State of Nigeria in a bid to quell
militant uprisings in the state cannot be limited to only military objects. The
effects cannot be limited as required under the Additional Protocol I
Apart from the categories of indiscriminate attacks under Article 51 para
4, the following types of attacks may be considered as indiscriminate:
a) an attack by bombardment or any other means which treats as a
single military objective a number of clearly separated and distinct
military objectives located in a city, town, village or other area
containing a similar concentration of civilians or civilian objects; and
b) an attack which may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and
direct military advantage anticipated.211
111
112
The parties to the conflict are further prevented from directing the
movement of the civilian population so as to shield military objectives or
military operations. Despite this directive, it will be difficult for proper
implementation as the deliberate use of human persons as protective shield
has proved in certain circumstances to be a very potent tool in preventing
attack from adversary forces. This technique was adopted by Iraq during
the Iraqi-US conflict and made it increasingly difficult for US forces to attack
Iraqi forces as they operated from within the civilian population.
In addition to the different classes of protection made available to
civilians, the humanitarian law further prohibits civilian objects from being
the object of reprisals.213 Reprisals are measures of pressure carried out
by a state in response to unlawful acts committed against it by another
state and are intended to force that state to respect the law.214 There are
circumstances where reprisals are legal. They must be in response to an
attack and only combatants and military objectives are to be attacked.
Article 52 para 1 makes it unequivocally clear that civilians are not to be
attacked in reprisal attacks. The attacking state is duty bound to restrict its
attacks to military objectives. Even where one state has attacked civilians in
another state, the responding state may only attack its military objectives.
Any act beyond that goes out of the scope of reprisals and falls into the
class of acts of revenge which are unauthorized under the international
humanitarian law.215
As an extension to the protection of the civilian population, there are
certain objects which are guaranteed protection under the humanitarian
law. Article 53 API provides:
Without prejudice to the provisions of The Hague Convention for
the Protection of Cultural Property in the event of armed conflict
of 14 May 1954, and of other relevant international instruments, it
is prohibited:
212
213
214
215
113
Article 53 API
Article 52 para 3 API
Article 14 APII
Art 56 para 1 API
114
forces leading to severe civilian losses. As such, parties to the conflict shall
endeavor to avoid locating any military objectives in the vicinity of the
works and installations in a bid to prevent them from being attacked.220
The interests of the civilian population must be placed first. The only
permissible military installations that may be located close to these
installations are those for security purposes and defending the installation
against terrorists and saboteurs.
Despite the special protection against attack accorded to these works and
installations, they may be subject to attack in the following circumstances:
a) for a dam or dyke only if it is used for other than its normal function
and in regular, significant and direct support of military operations
and if such attack is the only feasible way to terminate such support;
b) for a nuclear electrical engineering station only if it provides electric
power in regular, significant and direct support of military operations
and if such attack is the only feasible way to terminate such support;
c) for other military objectives located at or in the vicinity of these works
or installations only if they are used in regular, significant and direct
support of military operations and if such attack is the only feasible
way to terminate such support.221
The effect of (a) above is that where the dam or dyke is being used
beyond its common contribution to military activities, then it is liable
to be attacked. It is only where the attack of the dam or dyke is the only
feasible way to terminate the military support that the protection is lifted.
The standard imposed on military commanders in this regard is very high
considering the effects that the release of dangerous forces could have on the
members of the civilian population. Where it is possible to attack a different
objective that will have lesser consequences for the civilian population but
which will achieve a similar military objective, that objective should be
attacked instead.
With respect to (b), nuclear power plants become subject to attack where
they provide electric power in regular, significant and direct support of
military operations. For nuclear plants, it is harder to determine whether
they are being used in direct support of military operations since by their
normal function, they support military operations as the central source
of electrical energy. As with dams and dykes, the attack on nuclear plants
220 Art 56 para 5 API
221 Art. 56 para 2 API
115
will only be permissible when it is the only permissible way to terminate the
direct military support.
For other military objectives envisaged under (c) above, the exceptions
under which they may be attacked are similar to (a) and (b) above. Once it
is shown that they are being used in regular, significant and direct support
of military operations, the special protection under Art 56.1 API is lifted and
they may be attacked. Also, the attack will only be permitted where there
are no alternative objectives to be attacked and the objective located close
to the installation is the only feasible way to terminate the military support.
Where for instance, there are two strategically important bridges, one being
closer to the installation and the other further from the installation, the
more distant bridge should be attacked in a situation where the destruction
of either bridge will result in a similar military advantage.
To further protect the civilian population and ensure their survival
during armed conflict there are certain places which are not to be
attacked. Also, certain personnel who help to guarantee the continued
existence of the civilian population are not to be attacked. For example, it
is prohibited for parties to the conflict to attack non-defended localities.222
Demilitarized zones are also protected from attack pursuant to Article 60
API. The only circumstances where demilitarized or non-defended localities
may be attacked are where the obligations imposed under Art 60 and 59
respectively are breached. In both instances, the zones continue to enjoy
the basic protections available under the Protocol in the event that they lose
their status.
Article 22 of GCII 1949 provided for the protection of military hospital
ships. They are not to be attacked or captured in any circumstances but
shall at all times be respected and protected. Protection is also available
to medical and religious personnel. When measures have been taken
for the removal or exchange of wounded and sick persons, the passage of
medical and religious personnel and equipment on their way to that area is
to be guaranteed.223 Fixed establishments and mobile medical units of the
medical service (hospital) may in no circumstances be attacked.224 Hospital
zones and localities,225 hospital and safety zones and localities226 as well as
116
117
This provision restated the rule on proportionality set out under Article
51 para 5 API dealing with indiscriminate attacks. Military commanders
must refrain from launching attacks where the collateral damage will be
disproportionate to the military advantage anticipated. The use of human
beings as shields makes it more difficult for military commanders to attack
military objectives for fear of harming the innocent civilian population.
Be that as it may, it is the responsibility of commanders at all times to
take precautions before launching attacks to prevent or at least minimize
civilian losses.
Where it becomes apparent that an objective to be attacked is not a
military one that attack is to be suspended or cancelled.231 Article 57 para
229 Fleck D, op cit, p. 210
230 Ibid
231 Art. 57 para 2 (b)
118
2 (b) further provides that where the attack is subject to special protection
or may be expected to cause disproportionate loss to civilian objects, such
attack is also to be suspended or cancelled. This provision constitutes itself
as a further safeguard in the protection of the civilian population, individual
civilians and civilian objects.
Article 57 para 2 (c) provides that effective advance warning must be given
of attacks which may affect the civilian population unless the circumstances
do not permit. This provision restates the rule set out in Article 26 Hague
Regulations which provides that:
The officer in command of an attacking force must, before
commencing a bombardment, except in cases of assault, do all in his
power to warn the authorities.
119
attacked. In effect, both the civilians and the military win in this scenario as
the civilian lives are preserved and the military advantage sought is gained.
Children, women and other persons who are hors de combat are not to
be caught in the midst of the fighting. In the Liberian civil war, the forceful
recruitment of children as child soldiers has been frowned upon by the
international community. As at the time of writing, the former President
of Liberia, Charles Taylor, had been charged (amongst other charges)
for the use of child soldiers during his alleged involvement in the Sierra
Leone conflict.
The rules on proportionality are set in place for the protection of the
civilian population. Civilian casualties are a part of warfare but no attack
must be initiated which will lead to excessive civilian losses. Where a
military commander acts in violation of the rules on proportionality, he
may find himself liable for the crime of genocide. In modern armed conflict,
the persons usually charged with genocide are the president of the country
(usually military heads of state) as well as their superior commanders.233
This was the fate of the former President of Chile, Augustine Pinochet who
was charged with and sentenced for the crime of genocide. In similar fashion
the former President of Iraq, Saddam Hussein, was charged with and found
guilty of genocide amongst other crimes.
Protection of the civilian population and objects remains of paramount
importance in any armed conflict. Gone are the days when total war
was in vogue and both civilian and military objects were subject to
attack. The principles of distinction and proportionality help to ensure
that only military objectives are attacked and in event that civilian losses
are necessary, they must not be excessive in relation to the direct military
advantage anticipated. While military operations are often planned before
time, if it becomes apparent during the military operation that the civilian
losses will exceed the military advantage expected, the attacking forces are
required to retreat.234 War is to be aimed at bending the political will of
states which can be done by attacking only military objectives. Civilians
should only be seen as distant observers and not active participators in any
armed conflict.
233 This will depend on whether the superior commander are listed as parties to the said
234 uch retreat must be based on the command of the superior officer. A junior officer
retreating on his own according may be tried under martial law for mutiny
120
121
Perhaps the only contribution made by Art. 37 para 2 API to the pre-existing
Art 24 Hague Regulations was to give some examples of ruses of war vizthe use of camouflage, decoys, mock operations and misinformation. In line
with these examples of ruses of war, it is permissible to transmit misleading
messages, to fake retreat operations, use dummy weapons amongst other
ruses. There is indeed a very thin line between ruses of war and acts of
perfidy but the distinguishing element is the instilling of confidence with
237 Art. 37 para 2 API
122
intent to betray inherent in acts of perfidy. Ruses of war on the other hand
are military strategies intended to bring about a desired advantage by
deceptive reasoning. Ruses of war stops at the point of deceptive reasoning
and perfidy goes further with the aim to betray confidence instilled in the
adversary party.
In line with acts of perfidy and ruses of war, Article 38 prohibits the
improper use of distinctive emblems of the Red Cross, Red Crescent or
Red Lion and Sun as well as other internationally recognized protective
emblems. It is also prohibited to make use of the distinctive emblem of the
United Nations except its use is authorized.238
In similar fashion, it is prohibited to use in any armed conflict, the flags,
military emblems, insignia or uniforms of neutral of other states not party
to the conflict.239 With respect to the use of such symbols of the adversary, it
is prohibited to use them while engaging in attacks in order to shield, favour,
protect or impede military operations.240 The uses of the adversary symbols
do not constitute perfidy under Article 37.241 However, they are still not
permissible under the humanitarian law.
Deception of adversary forces is an effective military strategy and has been
proven to work time and again. The humanitarian law does not frown at all
forms of deception; it only goes against the principles of military honour
(perfidy). In any event, the humanitarian law has imposed restrictions on
what deceptive strategies are permissible and which are not.
Psychological Warfare
There are no express provisions relating to psychological warfare under API.
Psychological warfare consists of the dissemination of military and political
propaganda to reduce the adversarys will to fight. On the legality or
otherwise of psychological warfare, it appears that it is permissible to resort
to this method of combat. This will however depends on the circumstances
of each instance that is used. Article 23 of the Hague Rules of Aerial warfare
(HRAW) 1923 lends credence to the legitimacy of psychological warfare. It
provides that:
The use of aircraft for the purpose of disseminating propaganda shall
not be treated as an illegitimate means of warfare.
238
239
240
241
123
The United States Joint Chiefs of Staff during the 2nd world war offered a
broader definition of psychological warfare thus:
Psychological warfare employs any weapon to influence the mind
of the enemy. The weapons are psychological only in the effect they
produce and not because of the weapons themselves.243
124
Reprisals
Reprisals are coercive measures which would normally be contrary
to international law but which are taken in retaliation by one party to a
conflict in order to stop the adversary from violating international law.247
Reprisals are recognized under the humanitarian law as a legitimate means
of coercing other states to refrain from initiating more attacks against the
state carrying out the reprisal. In practices, one reprisal leads to another
and the situation may have the tendency of escalating into armed conflict
between the two states.
For a reprisal to come within the confines of the humanitarian law, it
must fulfill two basic conditions:
1) The reprisal must be proportionate to the initial attack.
2) There must be formal advance warning of an impending reprisal attack.
Apart from these, reprisals must only be carried out as a last resort. This is
primarily because reprisals have the tendency to escalate into full scale war
between the parties. They must also be armed at persuading the violating
state to desist from such acts in future.
Under the 1949 Geneva Conventions, several provisions have been put in
place with respect to reprisal and prohibit reprisals with respect to certain
objects. For instance, Article 46 of the GC I provide that:
Reprisals against the wounded, sick, personnel, buildings or equipment
protected by the convention are prohibited.248
125
249
250
251
252
253
254
126
CHAPTER
4
The Civilian Population and Its Protection
Introduction
The protection of the civilian population is of paramount importance in any
armed conflict. In ancient times, this protection was not readily available
as both civilians and military personnel were liable to be attacked, taken
prisoner or killed by the adverse party. Under the modern international
humanitarian law, safeguards have been put in place to guarantee the
protection of the civilian population during an armed conflict. In similar
fashion, the civilian population is also to be protected in a non-international
armed conflict from the effects of war. The rules designed to protect the
civilian population are embodied primarily in the Geneva Conventions
and the Law of The Hague. Customary International humanitarian law also
has a role to play in the protection of the civilian population as well as the
Additional Protocols of 1977 amongst other international agreements.
The protection available to civilians in non-international armed conflict
is provided for under Common Article 3 of the Four Geneva Conventions
as well as the provisions of the Additional Protocol II. Article 3 imposes
a duty on the parties to the non-international conflict to treat all persons
who take no active part in hostilities humanely without any distinction on
the basis of race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria. Civilian persons fall within the category of those who take
no active part in hostilities and as such should be treated humanely. Article
3 goes further to prohibit violence to life and person as well as outrages upon
personal dignity which include humiliating and degrading treatment. This
provision fortifies the protection available to civilians in times of internal
armed conflict.
The Additional Protocol II contains further provisions relating to the
protection of the civilian populace during internal armed conflict. For
instance, it provides that:
All persons who do not take a direct part or who have ceased to
take a direct part in hostilities, whether or not their liberty has
been restricted are entitled to respect for their person, honour and
127
Who is a Civilian?
The Additional Protocol II provides for the definition of a civilian thus:
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.257
This provision does not expressly define who a civilian person is and so
recourse must be had to the Article 4 A (1), (2), (3) and (6) GCIII and Article 43
APII mentioned above. Article 4 GCIII deals with prisoners of war who have
fallen into the power of the enemy. These include members of the armed
255 Article 4 APII
256 Fleck D, The handbook of International humanitarian law, p. 238
257 Art 50 para 1 API
128
A joint reading of Article 4 A (1), (2), (3) and (6) of GCIII and Article 43
of API 1977 reveals all categories of armed forces which constitute military
objectives and as such are liable to be attacked. None of these categories
of persons may be termed civilians. Article 50 para 1 API adopts a negative
definition of civilians as persons who are not members of the armed
forces. This definition is apt in circumstances of armed conflict since by
determining who are armed forces (through their uniforms and open
display of weapons amongst other criteria), the rest of the populace may be
classed as civilians. In the case of any doubt whether a person is a civilian or
not, that person shall be considered a civilian.262
Civilians must be distinguished from combatants at all times during an
armed conflict. This is primarily because combatants are military objectives
and as such may be attacked the adverse party. When a person has acquired
the status of combatant, it means that such person may undertake military
operations provided such operations are within the confines of permissible
conducts during armed conflict. Combatants also have a license to kill in
accordance with the rules regulating armed conflict. Civilians are thus
prohibited from taking an active part in hostilities as this may entitle the
adverse party to treat them as combatants making them subject to attack.
When a person takes no active part in hostilities, it is easy to conclude
that the person is a civilian. However, circumstances arise where even
258
259
260
261
262
129
130
131
132
combatants is to carry their weapons openly and must show respect for the
laws and customs of war.
The conditions under which a civilian will lose his or her protection under
the humanitarian law remain the same whether it is an international or noninternational armed conflict. As such, the civilian population shall enjoy
protection against the dangers of military operations in a non-international
armed conflict provided they do not take a direct part in hostilities.270 Even
where members of the civilian population directly take part in hostilities,
they are still entitled to humane treatment.271 Where these civilians by
taking up arms, have been involved in crimes against the humanitarian law,
they may be prosecuted under the relevant law. In any event, they will be
entitled to a fair trial as envisaged under the humanitarian law.272
Civilians fall within the category of protected persons during any armed
conflict and as such are entitled to the protection available under Article
27 GCIV. Civilians are to be respected which according to one author
means that all acts that might unjustifiably cause harm to a civilian must
133
134
135
276
277
278
279
136
It does not matter what kind of conflict is being faced. Civilians are not to
be the object of being attacks. Article 3 GC I-IV buttresses this provision by
stating that persons in non-international armed conflicts who take no active
part in armed hostilities shall be treated humanely in all circumstances.
Furthermore, acts or threat of violence aimed at spreading terror among the
civilian population, whether in international or non international armed
conflict, are prohibited.280
The presence of rights for the protection of the civilian population does
not avail in all circumstances. There are situations where the rights may be
suspended during the armed conflict and force may be applied against such
civilian(s). As has earlier been established, when the civilian population
takes up arms to resist invasion by the adverse party, they lose the protection
available under the humanitarian law and may be attacked. It should be
noted that even where some members of the civilian population have lost
their civilian status temporarily, the attacks initiated against them must
accord with the rules of proportionality. Another instance where the rights
will be lifted is where the civilian is suspected of committing an offence
against the humanitarian law. If the offence is one that will lead to the arrest
of the civilian, then he may be arrested by any of the parties to the conflict
even where such arrest may involve the use of force against him.
Circumstances may arise where the civilian population may disregard the
obligations imposed on them under the humanitarian law. Even where this
happens, the parties to the conflict still have legal obligations with respect to
the civilian population and civilians.281 They are still to be protected from
military operations and are not to be the object of attack. Indiscriminate
attacks against the civilian population are still prohibited282 even where the
civilians have disregarded the obligations imposed on them. Reprisals283
and the use of the civilian population as human shield284 are equally
prohibited. Article 51 para 8 further provides that the parties to the conflict
still have to comply with the legal obligation to take precautionary measures
as envisaged under Article 57 API.
280
281
282
283
284
137
138
in Armed Conflict which sets the age limit at eighteen years either for taking
part in combat or the age of recruitment into the armed forces.
The parties to the conflict are to facilitate the reception of children to a
neutral country for the duration of hostilities.287 This should be with the
prior consent of the Protecting Power. With respect to the evacuation of
children, it will only be permissible as a temporary measure for compelling
reasons such as health or medical treatment or for the safety of the
children.288
Women are also accorded certain rights under the humanitarian law.
This comes in the form of special protection made available to them during
the duration of the armed conflict. The API provides that:
Women shall be the object of special respect and shall be protected
in particular against rape, forced prostitution and any other form of
indecent assault.289
287
288
289
290
291
292
Article 24 para 2 GC IV
Article 78 API
Article 76 API
Article 147 GC IV
Article 76 para 2 API
Article 76 para 3 API
139
When a person has been suspected of or has engaged in acts hostile to the
security of the state, such person loses the rights readily available to civilians
during an armed conflict.293 In any event, such persons are still entitled to
certain rights. Firstly, the person is entitled to be treated with humanity
and is not to be subjected to inhumane treated.294 Art 5 para 3 GC IV goes
further to state that such persons shall not be deprived of the rights of fair
and regular trial. The third right available for this category of persons is that
they are to be granted the full rights and privileges of a protected person.
Collective Penalties
No protected person may be punished for an offence he or she has not
personally committed.295 Any attempt to punish a person for a crime
which he/she has not committed personally will be against the principles
of individual penal responsibility and will work contrary to the rules
guaranteeing free and fair trial of persons. When a crime is being prosecuted
at the municipal level for instance, each accused person is entitled to enter
a plea of guilty or not guilty. Also, different lawyers may represent different
accused persons for the commission of the same crime. These procedures
highlight the principle of individual penal responsibility otherwise all
accused persons would be treated as a whole and if one person was guilty,
all others would invariably be guilty. In line with the rules on fair trial, the
courts are required to apply only provisions of the law which were applicable
before the offence in question was committed and which accord with the
general principles of law.296 The prohibition against collective penalties and
the requirement for fair trial are reiterated under Art 75 para 4 (b) API thus:
293
294
295
296
Article 5 para 1 GC IV
Article 5 para 2 GC IV
Article 33 para 1 GC IV
Article 67 GC IV
140
Article 6 para 2 (b) also prohibits collective penalties and lays down the
principle of individual penal responsibility with respect to non international
armed conflicts.
141
Reprisals
The humanitarian law prohibits reprisals against protected persons as well
as their property.299 Civilians are not to be the object of reprisals. Where
civilians are targeted, such an attack goes beyond the scope of reprisals and
enters the class of acts of revenge. In traditional armed conflict, reprisals
against the civilian population were recognized. The current rules on
reprisals prohibit such conduct which has led to severe criticisms against
the prohibition.300 These criticisms were primarily based on the unduly
restrictive nature of the rules prohibiting reprisal under Art 51 para 6 API
which provides that attacks against the civilian population or civilians by
way of reprisals are prohibited. Where for instance one state attacked the
civilian population of the other in breach of humanitarian law, the latter
state could only reply by attacking military installations since reprisals are
prohibited. The provisions of Art33 para 3 GC IV and Art 51 para 6 API however,
are still of current validity and expressly prohibit acts of reprisal aimed at
the civilian population. Even where a state acting in reprisal deliberately
targets a military installation within the vicinity of the civilian population,
the rules on proportionality as they relate to the military advantage sought
must be taken into consideration.
Article 52 para 1 API restates the prohibition of reprisal and provides
that civilian objects shall not be the object of reprisals or of attack. With
respect to non-international armed conflict, there is no express provision
prohibiting reprisals against the civilian population under the API. Despite
this, civilians in non international armed conflicts are still entitled to the
general protections available to them under the humanitarian law.
142
Pillage
Pillage refers to the forcible seizure of anothers property especially in
a war.301 Under the international humanitarian law, pillage is formally
forbidden.302
The provision under Article 33 para 2 GC IV simply states that pillage
is prohibited. The property of the civilian population are not to be seized
unless in accordance with the principles of the international humanitarian
law. Each civilian person has the right to own property which must be
respected by all parties to the conflict. Article 46 para 2 also provides that
private property cannot be confiscated. This is in accordance with the rules
prohibitory of the act of pillage and should be adhered to by all parties to
the conflict.
Hostage Taking
The taking of hostages is prohibited.303 In the past, the taking of hostages
was viewed as a permissible method of combat. Person were held hostage
with a view to obtaining some benefit from the other party to the conflict.
In modern times, the humanitarian law has expressly prohibited such acts
through Article 34 GC IV. With respect to non international armed conflicts
Common Article 3 of the Geneva Conventions prohibits the taking of
hostages. This prohibition of hostage taking is reinforced under the API.304
Article 147 GC IV crowns these prohibitions by making the taking of hostages
a grave breach of the international humanitarian law.
In the Nigerian conflict between the Federal Government of Nigeria
and Niger Delta militants, the taking of hostages has been a predominant
feature. Expatriates, government officials and private individuals have not
been spared as there have been numerous instances of kidnap and hostage
taking in the Niger Delta region. From the perspective of these militants,
the taking of hostages is aimed at bending the governments will to grant
resource control to the states which produce oil and which have been
affected by the drilling of crude oil on their lands. Be that as it may, the
taking of hostages is expressly prohibited as a method of warfare. To this
end, the Rivers State of Nigeria House of Assembly passed a law which is
absolutely prohibitive of the taking of hostages and which makes persons
301
302
303
304
143
found guilty of kidnapping and hostage taking liable to the death sentence.
Such an approach while viewed as extreme by some quarters is the proper
path to be taken towards ridding the world of the scourge of hostage taking.
144
The underlined portion of Article 51 para 5 (b) API is directly related to the
rule of proportionality. The humanitarian law recognizes that civilian losses
are inevitable in any armed conflict. It will be impossible to make a law
which prohibits attacks leading to civilian losses. Thus, the humanitarian
law in this regard shows that it is not far removed from reality neither does it
base its provisions on abstract notions which exist only in utopian societies.
All civilian losses during a military operation must be proportional
to the military advantage sought to be obtained. Where the military
installation is located outside the vicinity of the civilian population, the
issue of proportionality poses a lesser cause for concern. Similarly, where
they are few or no civilians in a military establishment, the attack of such an
establishment would be less cumbersome. In either of these circumstances,
the military commander of the attacking party only has to concern himself
with ensuring that the attack does not violate other rules of humanitarian
145
law (e.g. unnecessary suffering) but does not have to bother about the rule
of proportionality.
Practice has however shown that military establishments are placed close
to the civilian population to make attacks more difficult for the adversary
party. Similarly, civilians may be deliberately placed in the military
establishment. The average military barracks for instance, does not contain
only military armed forces but also their families and children who are
civilians. In Port Harcourt Rivers State of Nigeria, most of the barracks are
built close to civilian residential areas. The Bori camp barracks is surrounded
by Ikwerre villages that have high concentration of civilians because of
its cosmopolitan nature. In initiating any attack therefore, the military
commander of the adversary party has to take feasible precautions309
minimize loss to civilian lives and objects.
A military commander cannot be expected to obtain all the information
necessary before any attack. The humanitarian law sets the benchmark for
information gathering on what is feasible in the circumstances. On the
meaning to be attached to the term feasible, several states in a declaration
submitted upon the ratification of the API were of the view that feasible
means:
that which is practicable or practically possible, taking into accounts
all circumstances ruling at the time including humanitarian and
military considerations.310
146
147
148
Article 59 API
Article 60 API
Article 85 para 3 (d) API
For more on protected zones, see Areas of war in Chapter 2 of this book
149
Relief Actions
In any armed conflict, circumstances arise where relief supplies are necessary
to ensure the continued survival of the civilian population. Commercial
activities do not thrive in wartime as they do in peacetime and so when the
armed conflict has fully kicked into gear, basic necessities like food, medical
supplies and clothing become a rare commodity. For instance, during the
Nigerian civil war, it was said that members of the civilian population had to
eat all sorts of creatures and plants for the lack of anything better.
When such dire circumstances arise, it is only through relief actions that
the civilian population can continue to survive. Such relief actions are often
provided by neutral states or international organizations such as the ICRC.
The GC IV provides that:
Each High Contracting Party shall allow the free passage of all
consignments of medical and hospital stores and objects necessary
for religious worship intended only for civilians of another High
Contracting Party, even if the latter is its adversary. It shall likewise
permit the free passage of all consignments of essential foodstuffs,
clothing and tonics intended for children under fifteen, expectant
mothers and maternity cases.320
The obligation here is imposed on all the parties that are signatories to the
Convention. They are required to permit the free passage of relief supplies
through their respective territories. Members of the civilian population are
entitled to relief supplies as of right. Article 38 GC IV guarantees this right
by providing that protected persons (civilians) shall be enabled to receive
individual or collective relief sent to them. One reason behind this right is
that it should be unheard that military tactics involve the starvation of the
civilian population. Any acts intended to starve the members of the civilian
population is absolutely prohibited under the humanitarian law.32169 It
320 Article 23 GC IV
321 Article 54 para 1 API
150
151
Humanitarian Organizations
Humanitarian organizations such as the ICRC, the National Red Cross and
Red Crescent Societies as well as other private relief organizations have
significant obligations with respect to the protection of civilians during any
armed conflict. Article 9 of the GC I provides that:
The provisions of the present Convention constitute no obstacle to
the humanitarian activities which the International Committee of
the Red Cross or any other impartial organization may subject to the
consent of the parties to the conflict concerned, undertake for the
protection of wounded and sick, medical personnel and chaplains for
their relief.
The ICRC usually takes a central role in activities for the protection of the
civilian population. The ICRC operates on the basis of its seven fundamental
principles: Humanity, Impartiality, Neutrality, Independence, Voluntary
service, Unity and Universality. Its guiding force in the protection of the
civilian population is in its first three principles of humanity, impartiality
and neutrality. As such, the ICRC endeavors to prevent and alleviate human
suffering wherever it may be found. Furthermore, no discrimination is
made on the basis of nationality, race, religious beliefs class or political
opinions. The governing criterion is the needs of the civilian population at
any particular time. Finally, the ICRC aims to be neutral so that it may enjoy
the confidence of all and may not take part in hostilities nor engage itself in
controversies bordering on political, racial, religious or ideological issues.324
Among its numerous functions, the ICRC assists in the restoration of
family links. This is achieved through its Central Tracing Agency325 and
facilitates not only the exchange of correspondences, but may also trace
individuals lost or displaced due to the effects of armed conflict. The ICRC
also has programs in place aimed at responding to the specific needs of
girls and women during any armed conflict, especially those that have been
sexually abused.326
Representatives and delegates of the ICRC are entitled to go to all
places where prisoners of war may be particularly places of internment,
imprisonment and labour and shall have access to all premises occupied by
324 Bouchet Saulnier F, The Practical Guide to Humanitarian Law p. 360-361
325 Art 140 GCIV
326 Address by Angelo Gnaedinger on the protection of civilians in conflict- the ICRC
perspective 9-05-2007
152
prisoners of war.327 This is to enable them view the living conditions of the
prisoners of war and to ensure that they are not being subjected to inhumane
treatment. The ICRC in this regard, performs a vital role by safeguarding the
interests of prisoners of war, some of whom may be civilians. In the event that
the prisoners of war are not being treated in accordance with the principles
of humanitarian law, such crimes may be reported to the United Nations.
To the obligations imposed on the ICRC and other humanitarian
organizations, protected persons (civilians) have a corresponding right
to make application to these bodies for humanitarian assistance.328 These
requests must be facilitated by the ICRC in conjunction with the Protecting
Power. Whether the request is for relief or for some sort of intervention
which only the ICRC can provide, they must do all in their power to fulfill
this obligation.
In circumstances where the whole or part of an occupied territory is
inadequately supplied, the Occupying Power is to agree to relief schemes
on behalf of the population. These schemes may be undertaken by the
ICRC or any other impartial humanitarian organization and shall consist
of the provision of foodstuffs, medical supplies and clothing.329 The ICRC
may thus enter the occupied territory without being seen as a threat or as
interfering in the affairs of the other state. The right of entry by the ICRC
into any occupied territory can only be suspended subject to temporary
and exceptional measures imposed for urgent reasons of security by the
Occupying Power.330 The question of what will constitute temporary and
exceptional measures depends on what the Occupying Power considers as
such. Be that as it may, a balance has to be struck between making provision
for humanitarian assistance and the temporary security measures imposed
by the occupying power. What will happen where the civilian population
is in need of relief supplies but cannot be reached? It is submitted here that
the needs of the civilian population must always be taken into consideration
having in mind that starvation of civilians as a method of warfare is
prohibited under Article 54 para 1 API.
The AP II does not contain express provisions that compel parties to the
conflict to permit the entry of the ICRC and other impartial humanitarian
organizations in relation to non-international armed conflict. However,
Article 18 AP II provides that relief societies may offer their services for the
327
328
329
330
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154
The second category of civilians who loses the rights available to them
under the humanitarian law is those who take direct part in hostilities. The
distinguishing factor between civilians and military armed forces is the fact
that civilians are not to take part in hostilities. The fact that they take part in
hostilities does not make them combatants. They remain civilians but may
find themselves subject to attack by adversary armed forces once they take a
direct part in hostilities. Article 51 para 3 API embodies this rule thus:
Civilians shall enjoy the protection afforded by this section, unless
and for such time as they take a direct part in hostilities.
155
The idea of taking direct part in hostilities does not mean that all persons
who by reason of their work are located in military establishments actually
take part in hostilities. It is only those whose acts can either affect the military
activities of the adversary party or who directly cause death or injury to
persons, or the destruction of objects. As such, civilians persons who for
instance, are employed in armaments industries for the maintenance of
military installations will not be viewed as taking direct part in hostilities.
The presence of civilians in such establishments does not however deprive
them of their status as military objectives and as such, they may be attacked
by the adversary forces. During any attack on a military establishment
containing civilian personnel, the military commander ordering the attack
must take the rules of proportionality into consideration.
When hostilities have come to an end, civilians who committed crimes
against humanitarian law by taking up arms are to be held accountable.
Thus, the fact of hostilities coming to an end does not free civilians who
have violated the law from facing the music even though the civilian status
has been reinstated. In any event, such civilian persons are still entitled to a
fair and regular trial.334
With respect to non-international armed conflicts, civilians shall equally
enjoy the protections available to them under the humanitarian law unless
they take a direct part in hostilities.335 As with international armed conflicts,
civilians must be shown to have taken a direct part in hostilities before their
civilian status will be suspended temporarily.
The rights of the civilian population are not to be violated at will by the
parties to the conflict. They are to be protected from the effects of war and
are not to be attacked unless it is clear that they have taking direct part in
hostilities. There is no room for opacity as regards their direct involvement
in hostilities. Thus, where there are doubts as to whether a civilian is
participating temporarily in hostilities or has assumed more permanent
functions, the presumption will be in favor of such person still being
protected as a civilian. The parties to the conflict must thus determine
with certainty that a person has taken direct part in hostilities before the
protection available to him can be suspended.
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Belligerent Occupation
The law of belligerent occupation is based on the relationship that exists
between a party to the conflict occupying territory of the adverse party (the
Occupying Power) and the residents of such occupied territory. At every
point in time during the armed conflict, it is necessary to determine the
rights and obligations of both the Occupying power and residents of occupied
territory in a situation recognized under the international humanitarian
law as one of belligerent occupation. In ancient times, residents under the
control of belligerents had no rights at all and as such they were subjected to
rape, beatings and were even killed. The modern humanitarian law however,
imposes some duties on belligerents which are intended for the safety of the
civilian population.
The modern law on belligerent occupation is set out primarily under
The Hague Regulations and the GC IV. It should be noted that the law on
belligerent occupation does not include nationals of the occupying power
(excluding refugees), nationals of states not bound by GC IV, and nationals of
a third, neutral state.336 Similarly, these laws do not apply to foreign citizens
that are unprotected under the humanitarian law while being resident in
occupied territories. For this category of persons the laws ordinarily available
to foreign residents will be applicable.337 Worthy of mention also is that the
law of belligerent occupation does not apply in non-international armed
conflicts. Where for instance, rebels take over a part/portion of a state, they
cannot be said to be the Occupying power since they are also residents and
citizens of that state. In the Niger Delta conflict in Nigeria, the different
militant groups while having control over the Niger Delta creeks, cannot be
said to be in the territory of the adverse party (the Nigerian Government), to
which they also belong. Situations of internal conflict do not fall within the
definition of belligerent occupation. On the other hand, the regular armed
forces of a state that recapture a region previously occupied by rebels cannot
be said to be in occupation. All they have done is to re-establish control over
territory which was originally theirs. In any event, rebels controlling part
of their states territory must abide by the laws relating to non-international
armed conflicts under Common Article 3 GC I IV and the AP II 1977.
The laws put in place to regulate belligerents in the territory of the
adversary state are primarily aimed at preventing colonization. Gone are
the days when powerful states conquered weaker states and territories were
336 Fleck D, op cit, p. 271-272
337 The Provisions of Article 13 26 GC IV and Article 75 API are instructive in this regard.
157
amassed for the benefit of ancient warlords and kings. Alexander the Great
of Macedonia conquered territories during his campaigns and would leave
some Greeks behind in each territory to inculcate the Greek culture in the
conquered peoples. In more recent times, the quest for the domination of
Africa led states like Britain, France, Portugal and Belgium to impose their
authorities on these weaker states and colonize them. The local resistance
in each of these African states had to be crushed to pave the way for
colonialism. The current laws on belligerent occupation do not outlaw such
acts since they are necessary incidents of armed conflicts between States.
It however, imposes conditions on the belligerent States for the protection
of the civilian population under its control. Such conditions did not exist
during or before the colonial era and so the conquered peoples were made
to suffer unjustly as well as being unable to control their respective polities.
The importance of the law on belligerent occupation has received a
boost in the light of the different instances where states have taken over
the control of territory belonging to the adverse party. These instances of
belligerent occupation are not often clear-cut as disputes as to whether
there is a state of belligerent occupation or not exist. The occupation for
instance of Nagorno-Karabakh in Azerbaijan by Armenia was disputed to
be a military occupation by the local population.338 Disputes also remain
as to whether the Gaza strip is still occupied despite the institution of a
unilateral disengagement plan by Israel in 2005. Similarly, it was disputed
that the West Bank capture by Israel in 1967 was a situation of belligerent
occupation. With respect to both the Gaza strip and the West Bank, is
disputed that they are not proper occupied territories since they do not form
part of the territory of any sovereign state. Other instances of occupation
(which remain unrecognized by the UN or unanswered) included: the US
invasion of Grenada (1983) and Panama (1989), Israeli invasion of Southern
Lebanon (1982) and 2006), the Soviet Presence in Afghanistan (1979 1989)
and the occupation of Georgian territories by Russia (1992 2008) including
the recent occupation of Iraq by the US army amongst others are said to
be illegal.
338 Mr. David Atkinson, United Kingdom, European Democrat Group, (Rapporteur). The
conflict over the Nagorno_Karabkh region dealt with by the DSCE Minsk Conference
parliamentary Assembly of the Council of Europe, 29 Nov. 2004 Retrieved from http://
wikipedia.com 24-08-2009.
158
The law of belligerent occupation received its greatest boost from the ICJs
Advisory Opinion of 2004 on the Wall in Palestine.33988 On the question
of the legality of the construction of the wall by Israel, the ICJ by fourteen
votes to one, found and held that the construction of the wall by Israel and
its associated regime are contrary to international law. It also held that Israel
is under obligation to cease the construction work of the wall, to dismantle
it, and to repeal all legislative and regulatory acts related to it. Israel was
also required to make reparation for all the damage caused by constructing
the wall. Furthermore, all states were put under obligation to refrain from
recognizing the illegal situation which arose from the walls construction
and were prohibited from rendering any assistance to maintain the
situation. By the Advisory Opinion, the ICJ has shown that annexation of
occupied territories by belligerent states is illegal. In the event that one state
takes over territory belonging to the other party to the conflict, it must show
that its acts are legal and should not attempt to annex or colonize territories
not belonging to it. The annexure of Kuwait by Iraq as one of its provinces in
1991 was resisted by the UN and the entire world.
339 ICJ, Legal Consequences of the construction of a Wall in the occupied Palestinian
Territory, Advisory Opinion of a July 2004 89 in accordance with para 151 of the
Advisory Opinion.
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do not apply to their occupation of both regions. In its view, neither Jordan
nor Egypt can be said to be territorially sovereign with respect to these
territories and as such, Israel was not in occupation of a foreign territory.
It is submitted here that the argument by Israel has no proper foundational
basis and as such, they are bound by the rules relating to belligerent
occupation. Both the Gaza strip and the West Bank were under the control
of Egypt and Jordan respectively prior to Israels occupation. The residents
of these places were under the control of these governments at the time. As
such, Israels invasion takes on the character of a foreign intervention and so
any control they exercise over these regions must comply with the rules on
belligerent occupation.342
At the outset of the invasion of Iraq by US forces in 2003, the reason given
for the invasion was that Iraq has Weapons of Mass Destruction (Nuclear
Weapons) in its possession. These weapons were never found. Despite these
faulty reasons, the United States became the belligerent occupying power of
Iraq.343 While the Security Council never expressly mentioned that there
was a state of belligerent occupation in Iraq, the facts of the occupation and
the wordings of their resolutions made it clear that such a state did exist in
fact. With the signing of a Status of Forces Agreement (SOFA) between US
Ambassador Ryan Crocker and Iraqi Foreign Minister Hoshyar Zebari on
November 17, 2008, all U.S. troops were expected to leave Iraq by June 30,
2009. As at the time of writing, the deadline had been exceeded. However
the US is in a continuing state of effective withdrawal of its troops from Iraq.
Once a hostile army takes control of territory belonging to any other
party to the conflict, the sovereignty of the occupied state is suspended with
respect to the occupied territory pending such a time that the territory is
seized from or handed over to its rightful owners. The fact that there is a
suspension of the sovereign rights in the occupied territory does not mean
that the Occupying Power is a successor-in-title to the rights originally
vested in the government of the occupied state. As such the occupying state
is not to extend its sovereignty to the occupied territory. Article 43 of the
Hague Regulations goes further to provide that:The authority of the legitimate power having in fact passed into the
hands of the occupant, the latter shall take all the measures in his
342 Israels view has been rejected by all other states parties to the Geneva Conventions
directly or through international organizations. The UN, the ICRC and other
organizations have also rejected this view on the non applicability of GC IV to Israel in
respect of these occupied territories.
343 Formally recognized by UN SC Resolution 1483 of 22 May 2003
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impose its religious beliefs on the civilians living in occupied territory. This
will not only be a breach of Article 27 GC IV but also of the general principles
of human rights law.
Finally, Article 27 GC IV requires that norms and customs must be
preserved. The Occupying Power must not impose its customs on the
persons residing in occupied territories. During the French colonization
in Africa, the French adopted a system of assimilation whereby all persons
in their colonies were inculcated in French culture. This gradually eroded
the local cultures and at present, members of these countries are arguably
French men. It is to avoid such a situation that Art. 27 GC IV expressly
provides that all norms, manners and customs of members of the occupied
territories must be respected and preserved.
Article 27 GC IV does not contain express provisions relating to the
protection of private property. The Hague Declaration is instructive in this
regard and provides expressly that private property cannot be confiscated.346
This prohibition related directly to situations of belligerent occupation.347
The Occupying Power cannot confiscate property belonging to the civilian
population either for their own use or for the benefit of some other party.
Such acts will be in violation of the international humanitarian law. Where
there is extensive destruction and appropriation of private property which is
not justified by military necessity and carried out unlawfully and wantonly,
such destructive acts will constitute grave breaches under the International
Humanitarian Law.348
Article 75 para 1 API is to the effect that persons in the power of a party
to the conflict (i.e. including a situation of belligerent occupation) are to be
treated humanely in all circumstances and are to enjoy as a minimum:
The protection provided by this Article without any adverse
distinction based upon race, colour, sex, language, religion or belief,
political or other opinion, national or social origin, wealth, birth or
other status, or on any other similar criteria.
163
equal treatment and the Occupying Power should endeavour to ensure that
its acts are not seen to give preference to one class of persons over another.
To lend more support to the provisions on discrimination, the API considers
practices of apartheid and other inhuman and degrading practices based on
racial discrimination as grave breaches of the international humanitarian
law.34998 During the 2nd World War, it was the anti-semitist attitude of the
German forces that led to the massacre of millions of Jews. Such acts are
now considered as grave breaches of the humanitarian law and constitute
valid grounds for prosecution of the crime of genocide.
Reprisals against protected persons and their property are prohibited.35099
No civilian persons within the territory controlled by an Occupying Power
may be the target of reprisals. Reprisals are only lawful when they are aimed
at military objectives and even then strict conditions must be fulfilled before
a reprisal attack will pass the test of legitimacy. Threats of reprisal attacks
are also outlawed under the humanitarian law as such would constitute
threats of violence whose primary purpose is to spread terror among the
civilian population.351100
Collective penalties and all measures of intimidation or of terrorism
are also prohibited under the law.352101 No person may be punished for a
crime he or she has not committed personally. The humanitarian law only
recognizes individual penal responsibility as the basis upon which a person
may be tried and convicted for violations during any armed conflict. In
practice, such collective penalties may come hand in hand with measures of
intimidation and terrorism. Thus for instance, a family may be punished as a
whole for the offences of a single family member. The Occupying power has
a duty towards the civilian population in occupied territory to ensure that
they are not subjected to collective penalties neither are they intimidated or
terrorized either by the Occupying Power itself or some other 3rd party.
Acts of pillage which involve seizing or stealing property during any
armed conflict are also prohibited.353102 The Occupying Power must not
forcefully seize property belonging to the civilian population. In similar
light the Occupying Power has a duty to respect cultural property located in
the occupied territory in accordance with the Cultural Property Convention
1954. The era of looting and the amassing of spoils of war by reason of
349
350
351
352
353
164
conquering a new territory are long gone. The modern humanitarian law is
absolutely prohibitive of any acts which may constitute pillage.
At every point in time during a period of belligerent occupation, the
residents of the occupied territory are to be protected from all acts of
violence. The GC IV in Part II deals with the general protection of populations
against certain consequences of war. In effect, the provisions of Article 13
26 are aimed primarily at guaranteeing this general protection. Article
27 GC IV goes further to provide that protected persons shall be treated
humanely at all times and are to be protected especially against all acts or
threats of violence. The Occupying power thus has a duty to ensure that the
civilian populations under its control are not subjected to acts or threats of
violence. All organs or units acting under the authority of the Occupying
Power must refrain from applying violence to the civilian population unless
the circumstances make it necessary. Such units may include members
of the armed or police forces belonging to the Occupying Power. In the
Guantanamo Bay Detention Facility in Cuba, some of the members of the
US Armed forces have been suspected of allegedly committing breaches of
human rights law against the detainees there. Such conduct is unacceptable
under the humanitarian law. The Occupying Power must take necessary
measures to prevent acts of violence not only by its own forces but even from
other 3rd parties.
The humanitarian law also prohibits the taking of hostages in occupied
territory.354103 The peculiar nature of belligerent occupation (i.e. the
Occupying Power being in control of the territory belonging to the hostile
army) makes hostage taking even easier as the civilian population are
directly under the control of the Occupying Power. As such, hostages may
easily be taken and used as bargaining chips in their negotiations with
the other party to the conflict. However, the humanitarian law expressly
prohibits hostage taking in all respects. This prohibition is universal and
extends even to non-international armed conflicts.355104 The prohibition
against hostage taking is further supplemented by Article 147 GC IV which
makes the act a grave breach of the international humanitarian law.
All the rules put in place to be applied during situations of belligerent
occupation are aimed primarily at guaranteeing the protection of the
civilian population. This protection continues even at the end of hostilities
as the parties to the conflict are required to forward information of persons
354 Article 34 GCIV
355 Common Article 3 GC I-IV
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who are in its power and control.356 Information must also be forwarded
with respect to the wounded, sick, shipwrecked and dead357 as well as
for prisoners of war.358 In any of these situations, the humanitarian law
requires that an Official Information Bureau is to be established to facilitate
the search for and location of all protected persons. All parties to the
conflict are obligated to establish such bureau. In practice, such information
bureaus are not known to exist. The duty characteristically falls on the
Central Tracing Agency of the ICRC to perform these functions based on the
authority granted to them under the humanitarian law.359
The law of belligerent occupation will continue to operate until the
Occupying Power is no longer in control of the occupied territory and its
residents. The occupation may be terminated either when the party originally
in control regains such control of the territory or where there is a voluntary
withdrawal by the Occupying Power or in a situation of debellatio.360 The
fact that military operations have ceased does not automatically mean that
the state of belligerent occupation has ceased as well. The rules on belligerent
occupation will continue to apply until one year after the general closure
of military operations.361 If the state of belligerent occupation continues to
exist after the 12 months, the Occupying Power will only be bound to abide
by the fundamental rules listed under Article 6 paragraph 3 GCIV.11362
It is submitted here that such distinction on the applicability of the laws
of belligerent occupation is unacceptable. Why should the entire body of law
not apply until the end of the occupation? There is no proper justification for
the 12 month ceiling placed on the full application of the laws on belligerent
occupation. These laws are aimed primarily at the protection of the civilian
population and to remove this protection even while the state of occupation
still subsists is not in the best interests of the residents of occupied territory.
The civilian populations in occupied territory are protected persons and
should be entitled at all times to every possible protection available under
the humanitarian law.
The law on belligerent occupation is essential to the survival of the civilian
population resident in occupied territories. Without such rules, there would
356
357
358
359
360
Article 136 GC IV
Article 16 GC I; 19 GC II
Article 122 GC III
Article 140 GC IV; Article 33 para 3 API
This refers to a situation where a party to the conflict has been so defeated that it is its
adversary alone that can decide the fate of its territory.
361 Article 6 paragraph 3 GC IV.
362 The rules are set out in Articles 112, 27, 2934, 47, 49, 5153, 6177 and 143 GC IV.
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167
and annexed Kuwait under the Saddam Hussein regime. These actions were
condemned by the US which, being authorized by the UN Security Council,
led a coalition of 34 nations which fought the Gulf War and successfully
reinstated Kuwait as an independent nation. The humanitarian law frowns
at such acts of annexation thus expressly prohibiting any acts which could
lead to the annexation of territories.
Article 49 para 1 GC IV provides that:Individual or mass forcible transfers, as well as deportations of
protected persons from occupied territory to the territory of the
Occupying Power or to that of any other country, occupied or not are
prohibited, regardless of their motive.
168
169
Despite this Resolution, Israel only withdrew from Sinai in Egypt while
remaining in occupation of Syrian and Palestinian territory. By 1980,
another UN resolution was adopted to settle the question of transfer and
settlement. This resolution determined that:
all measures taken by Israel to change the physical character,
demographic composition, institutional structure or status of the
Palestinian or other Arab territories occupied since 1967, including
Jerusalem, or any party thereof, have no legal validity and that
Israels policy and practices of settling parts of its population and
new immigrants in those territories constitute a flagrant violation of
the Fourth Geneva Convention relative to the protection of civilian
persons in time of war and also constitute a serious obstruction to
achieving a comprehensive, just and lasting peace in the Middle
East.372
170
171
The effect of this provision is that requisitions in kinds and services will
be permitted in an occupied territory, where it is demanded to meet the
needs of the occupying armed forces. It must be noted at all times however,
that the needs of the civilian population in occupied territory takes priority
over the needs of the occupying armed forces. Article 55 para 1 GC IV
provides that the Occupying Power has the primary duty of ensuring that
the civilian population under its control has the necessary food stuffs and
medical supplies. The requisition may be made for the occupying armed
forces only if the requirements of the civilian population have been taken
into account.376
The Occupying Power is further required to make requisitions that are
proportionate to the resources of the country. It is submitted here that the
requirement of proportionality should be based on the resources available
in the region under the control of the Occupying Power and not the entire
country. For instance, in Nigeria the mainstay of the economy is crude oil.
This oil is primarily produced in the Niger Delta region which is in the
Southern part of the country. Should a neighboring country invade and take
376 Article 55 para 2 GC IV
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173
174
175
176
177
laws of the occupied territory, they are required to put new laws in place to
restore and guarantee the public safety. In all situations of law making, the
laws made by the Occupying Power must be justified by considerations of
military necessity or public order and safety.
While the Occupying Power is recognized as an administrator in occupied
territory, the day-to-day administration of the territory is to be facilitated
by the administrative and judicial officials of the occupied territory. This
is based on Article 43 of the Hague Regulations which is to the effect that
the public order will be preserved unless absolutely prevented by certain
circumstances. The rationale behind this principle is that the uprooting
of all administrative and judicial officials will work great difficulty in the
operation of the occupied territory. For instance, the success of indirect
rule in Northern Nigeria was due to the maintenance of existing executive,
legislative and judicial structures. The British colonialists did not attempt
to rule directly but controlled the ruling class from the background. On
the contrary, indirect rule failed in the Eastern part of Nigeria because the
colonialists attempted to impose chiefs on the Igbo population who were
used to an egalitarian society characterized by age grades and family heads.
Attempts to uproot the existing administrative and judicial machinery in
the occupied territory will lead to upheavals and uprisings which may lead
to losses for the civilian population.
Where there is no administrative or judicial machinery in the occupied
territory (probably because the officials are unwilling or unable to perform
their functions), the occupying authorities may set up their own bodies to
perform these functions. This is to safeguard the public order and ensure
safety of the civilian population in occupied territory. The establishment of
new bodies however, should not be used as an opportunity by the Occupying
Power to completely erode the pre-existing order through the laws that
establish the administrative or judicial bodies. The bodies established by the
occupying authorities are only to exist alongside the national institutions of
the occupied territory.
With respect to public officials and judges, the GCIV provides that:
The Occupying Power may not alter the status of public officials or
judges in the occupied territories or in any way apply sanctions to
or take any measures of coercion or discrimination against them,
should they abstain from fulfilling their functions for reasons of
conscience.384
384 Article 54 para 1 GCIV
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179
180
where they are viewed as deliberately starving the civilian population which
is contrary to the humanitarian law.388
By Article 55 para 2 of the GC IV, available foodstuffs, articles or medical
supplies available in the occupied territory may not be requisitioned except
for use by the occupation forces and administrative personal. Even then, the
needs of the civilian population must have been taken care of. This provision
places the interests of the civilian population before and above those of
the occupying armed forces. It will be unfair for the civilian population
in occupied territory to suffer unjustly while the Occupying Power satisfy
their interests first and even the interests of their own population in
some circumstances.
When the Occupying Power is unable to cater for the supply needs of the
population under its control, the onus shifts to either the authorities of the
unoccupied part of the country, or to a neutral party, or to a recognized
humanitarian organization. The Occupying Power is not obliged to accept
offers of relief from any of these sources when the population is adequately
supplied. However, the occupying authorities are advised to do so in the
interests of protected persons in the occupied territory. Where they refuse
to accept relief from these sources, perhaps for reasons of security, the GCIV
provides that the protected persons in occupied territory are permitted to
receive individual or private relief consignments sent to them.389
Where the relief supplied is still not sufficient to cater for the needs of the
civilian population, they are obliged under the humanitarian law to allow
aid from other states or humanitarian organizations. The relief activities
from any other source must be facilitated by the Occupying Power. Despite
this, they (the occupying authorities) may impose restrictions such as
determining what routes the relief supplies must pass through and may
search relief vehicles for their protection.
All contracting parties (which need not be involved in the armed
conflict) must permit the free passage of relief supplies and guarantee their
protection.390 The interest of the civilian population in any armed conflict
supersedes all laws that restrict the movement of persons and objects in and
out of sovereign territory. Third party states must permit the free passage of
relief supplies intended for the civilian population in occupied territory. To
ensure their protection, these third party states are entitled to search relief
181
vehicles so that they may not be used to convey illegal substances such as
hard drugs or weapons into their territory.
From the requirement of the GCIV, the Occupying Power as well as other
neutral states has a duty to provide relief supplies for civilian persons in
occupied territory. In practice however, it is the International Committee
of the Red Cross (ICRC) that undertakes this function. Over the years, the
ICRC has proven itself to be a neutral organization and it does not make any
adverse distinctions in the distribution of relief supplies. Furthermore, the
ICRC is not often seen as interfering with the government of the Occupying
Power which is also due to its neutral status. The ICRC further enjoys legal
backing under Article 63 GCIV which permits them to pursue their activities
even in occupied territories unless subject to temporary and exceptional
measures imposed for urgent reasons of security by the Occupying Power. It
should be borne in mind that relief materials do not carry themselves. They
are to be transported by relief personnel and these persons are afforded
protection under the API.391
The legal backing available to the ICRC and other humanitarian
organizations under Article 63 GC IV apply equally to the National Red
Cross or Red Crescent Society. In fact, it is these latter bodies that are
expressly mentioned by Article 63. However, since the ICRC is responsible
for the recognition of these societies, they may also rely on Article 63 GC
IV. They are required to pursue their duties in accordance with Red Cross
Principles of Humanity, Impartiality, Neutrality, Independence, Voluntary
Services, Unity and Universality. The Red Cross Societies must be guided
by these principles (impartiality and neutrality in particular) in the course
of carrying out relief operations for the benefit of the civilian population
resident in occupied territories.
Article 56 of the GC IV imposes on the Occupying Power, the duty of:
ensuring and maintaining, with the cooperation of national and local
authorities, the medical and hospital establishments and services,
public health and hygiene in the occupied territory
As with the general relief supplies (food, clothing etc), the Occupying
Power is duty bound to provide the necessary medical care. This may be
achieved through the maintenance of the existing medical infrastructure and
personnel. In circumstances where the pre-existing medical establishments
are inadequate as well as the medical supplies, the Occupying Power is
required to provide them with the fullest amount of the means available to
391 Article 71 API
182
Article 64 para 1 shows here that the national laws of the occupied
territory remain valid even in a state of belligerent occupation. The only
circumstances in which the application of the domestic penal laws may be
suspended or repealed are either where:
1. They constitute a threat to the security of the Occupying Power; or
392 Article 64 para 1 GCIV
183
Similar provision also exists under Article 75 para 4 (c) of the API.
Retroactivity should never be used as a means to ensure that persons are
punished. In addition, a heavier penalty than the one applicable at the time
the offence was committed is not to be imposed. All penal laws enacted
by the Occupying Power shall not come into force unless they have been
published and brought to the knowledge of the population in occupied
territory in their own language.395 This requirement of Article 65 GC IV is
very necessary as it serves to propagate the knowledge of the new laws as
well as guarantee observance on the part of the civilian population.
Any breach of the penal laws enacted by local authorities prior to the
invasion of the Occupying Power is to be prosecuted by the local courts. This
makes it easier for the civilian population to submit to the courts authority
as they recognize these courts as their own. It is only where the indigenous
courts refuse or are unable to perform their duties effectively that the courts
established by the Occupying Power may replace them.
With respect to offences committed before the invasion of the Occupying
Power, the courts established by this foreign power may, as a general rule,
refrain from prosecuting crimes committed by the civilian population before
the occupation. The exception to this general rule is set out under the GC
IV which provides that the Occupying Power may prosecute in cases of the
393 Article 64 para 2 GCIV
394 Article 15 ICCPR 1966
395 Article 65 GC IV
184
breaches of the laws and customs of war396 These may include crimes against
humanity as well as grave breaches envisaged under Article 147 GC IV.
Where there is a breach of the penal laws enacted by it, the Occupying Power
may hand over the accused to its properly constituted, non-political military
courts. Such courts must however, sit in the occupied territories.397 The courts
established by the Occupying Power are usually military courts and as such,
the judges are members of the armed forces. Circumstances may arise where
a person convicted of crimes against the law wishes to appeal this decision. By
Article 73 GC IV, convicted persons have the right to appeal pursuant to the
laws applied by the court. To satisfy this situation, the Occupying Power may
establish an appeal court. In the absence of an appeal court, the convicted
person may appeal to the competent authority of the Occupying Power. In
all legal proceedings before a court established by the Occupying Power, the
principles of the rule of law shall be the governing criteria.398
Article 67 GC IV is to the effect that the penalty imposed on any accused
person must be proportionate to the offence committed. This provision
is of great relevance in situations of belligerent occupation to prevent the
Occupying Power from imposing harsh penalties for lesser offences. Article
68 para 1 GCIV goes further to provide for minor offences. From the wordings
of the Article, acts which do not constitute bodily harm to the occupying
armed forces and which do not damage the property of the Occupying
Power are minor offences liable to simple imprisonment or internment.
For more serious offence like espionage, acts of sabotage or international
offences causing death of one or more persons, the Occupying power may
impose the death penalty.399 However, it must be shown that such offences
were punishable by death under the law of the occupied territory in force
before the occupation began. In any case where the death penalty is imposed,
Article 68 para 4 GC IV provides that it shall not be pronounced against a
protected person who was under eighteen year of age at the time the offence
was committed. The API in Article 76 para 3 goes further to provide that the
death sentence shall not be executed against pregnant women or mothers
having dependent infants.
In no case shall persons condemned to death be deprived of the right of
petition for pardon or reprieve.400 Where the petition is granted, the penalty
396
397
398
399
400
Article 70 para 1 GC IV
Article 66 GC IV
Article 67, 69 75 GC IV; Article 75 API
Article 68 para 2 GCIV
Article 75 para 1 GCIV
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which the accused person would have been subjected to will be lifted. This is
in accordance with the general principles of law recognized among civilized
nations. As a corollary to this rule, Article 75 para 2 provides that no death
sentence shall be carried out until 6 months have passed after the sentence
was issued. This is to give the convicted person the opportunity to appeal to
a higher authority for pardon.
Article 76 GC IV provides that protected persons accused of offences
shall be detained in the occupied territory and shall serve their sentences
therein if convicted. While in detention, they shall enjoy food and hygiene
conditions necessary for good health and which will at least be equal to
those obtainable in other prisons in the occupied territory. In addition to
this, detained persons are entitled to the following treatment:
1. To receive medical attention required by their state of health (Article
76 para 2)
2. To receive any spiritual assistance they require (Article 76 para 3)
3. Women are to be confined to separate quarters and under the
supervision of women (Article 76 para 4)
4. Special treatment for minors (Article 76 para 5)
5. To be visited by the delegates of the Protecting Power and the ICRC
(Article 76 para 6)
6. To receive at least one relief parcel monthly (Article 76 para 7)
At the end of the state of belligerent occupation (which may be occasioned
by different means), protected persons who have been accused or convicted
are to be handed over to the authorities of the liberated territory. This is
the effect of Article 77 GC IV and it is aimed at ensuring accountability on
the part of the Occupying Power and also that persons who have allegedly
or actually violated the law are held responsible even after the Occupying
Power has handed over the occupied territory.
186
187
accordance with the law of the detaining power as soon as possible after the
close of hostilities.402
The rules on the protection of the civilian population has evolved from
an era where rules were non-existent or grossly inadequate to the current
situation under the humanitarian law which have numerous provisions
to safeguard civilian persons in any armed conflict. The primary purpose
of armed hostilities within and between nations shall never be to cause
unnecessary harm and suffering to the members of the civilian population.
Only military objectives are to be attacked. It is only where individual
civilians or members of its population act in breach of certain protections
available to them that the civilian status may be lifted temporarily. While
the hostilities persist, the civilian population is entitled to several rights
which must be guaranteed despite the presence of hostilities.
Specific prohibitions are put in place to prevent certain acts against
members of the civilian population. Similarly, special protection is available
to some categories of persons such as children, pregnant mothers and
mothers of dependent children. Once a person is shown to be a civilian, the
general requirement of humane treatment immediately becomes applicable
to that person.
The ICRC, the National Committees of the Red Cross and Red Crescent
Societies have specific obligations in relation to the protection of the civilian
population. Other international and national humanitarian organizations
also have similar duties with respect to the civilian population. These
functions and duties must be performed without fear or favour to further
guarantee that the members of the civilian population are catered for even
during armed conflict situations.
Despite the extensive provisions relating to the protection of civilians,
there is still room for improvement of the existing laws. Stiffer penalties
are necessary with respect to certain violations are detrimental to the
existence of the civilian population. The gap between law making and
its implementation must be narrowed down to guarantee protection of
the civilian population and reduce violation of the humanitarian law.
Compliance to the laws must be ensured and failure to comply must not be
treated lightly by the United Nations and states around the world.
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CHAPTER
5
Protection of the Wounded, Sick and Shipwrecked
I. Introduction
The protection available for the wounded, sick and shipwrecked during
armed conflicts has a long history in various traditions and cultures.403
Notwithstanding, however, much as in other areas of international
humanitarian law to be specific and public international law generally
speaking, the basis of the codification in international legal instruments
of this universal idea lies in Europe. It was also in Europe, that the first
ever general multilateral convention, the 1864 Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field,
took shape. The 1864 Convention was the brainchild of Henry Dunant, a
Swiss businessman. Having witnessed the fate of those wounded during the
battle of Solferino in 1859 and having personally attended to them alongside
other volunteers, he wrote Un Souvernir de Solferino (1862) in which he
chronicled and recorded the lack of arrangements made for those who had
been wounded in battle.
Two fundamental and laudable suggestions as to the measures, which
should be taken to alleviate the situation: the setting-up of relief societies
for the purpose of giving care to the wounded in wartime by enthusiastic,
committed and highly competent volunteers404 and to formulate some
international principle, backed by a convention inviolate in character,
which, once it has been agreed upon and ratified, may form the basis for
societies for the relief of the wounded in the different European countries.405
No doubt, his book had an overwhelming impact on the political elites and
the public generally in Europe and the two suggestions he made saw the
light of the day afterwards. The years 1863 and 1864 saw the establishment of
International Committee for Relief of the Wounded (which later became
the International Committee of the Red Cross in 1876) and Geneva
403 Henry Dunant Institute (Ed.) International Dimension of Humanitarian Law (2007)
117-125
404 Dunant, H The Battle of Solferino, (Geneva: ICRC 1986)
405 Ibid, at 30
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190
The wounded, the sick and the shipwrecked are taken care of under the
Geneva Conventions. The Geneva Convention for the Amelioration
of the Condition of the wounded and sick to Armed Forces in the Field
(First Convention), Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (second
convention) and Convention Relative to the Protection of the Civilian
Persons in Time of War part II (Geneva Protection of Populations against
Certain Consequences of War), and Additional Protocol of 1977, Part II
(wounded, sick and Shipwrecked).
It is instructive to note that two different set of rules are brought into
application under the Geneva Conventions depending on whether the
wounded, sick or shipwrecked persons are members of the armed forces
or only civilians. However, Protocol I did away with this distinction and
came up with just one law for both categories which essentially simplifies
the practical application of the provisions. There are now only wounded
and sick, whether military or civilian and only medical units whether
under military or civilian administration. As a result of this, a civilian
wounded can be treated in military hospitals and combatants equally in
civilian establishments.
Article 8, Additional Protocol I provides that wounded and sick mean
persons, whether military or civilian, who because of trauma, disease
or other physical or mental disorder or disability, are in need of medical
assistance or care and who refrain from any act of hostility. These terms
also cover maternity cases, newborn babies, and other persons who may
be in need of immediate medical assistance or care, such as the infirm or
expectant mothers, and who refrain from any act of hostility.
Shipwrecked persons are those classes of persons, whether military or
civilian, who are in danger at sea or in other waters as a result of misfortune
and who desist from all known acts of hosstility411
Clearly, the definition of persons protected under the various treaties
for the protection of the wounded, sick and shipwrecked came about
from the adoption of the 1864 Geneva Convention, which applied only to
combatants. It was the 1906 Geneva Convention that widened the scope of
411 Article 8, Additional Protocol I
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192
attacked during their descent and upon landing in territory controlled and
occupied by an enemy. They must also be given the opportunity to surrender
before being attacked, unless it is undoubted that they are involved in a
hostile act.
Where a person engages in hostile activities, such a person ceases to enjoy
the protection available for those that are wounded, sick or shipwrecked,
even if he/she is in dire need of medical attention or is in danger at sea or
other waters. Such a person is not protected from being made the object of
attack within the ambit of international humanitarian law. It is however not
clear what acts would be considered hostile as the law is not unequivocal
about that. However, hostile acts are those which by their nature and
purpose are intended to be actually harmful to the personnel as well as
equipment of the enemy armed forces.418 Acts in this category will include
vandalization of installations and military equipment, firing of shots, a
planned attempt to escape or to communicate with the party to the conflict
to which the wounded, sick or shipwrecked person belongs, except this
communication affects the wounded and sick who need assistance from the
partys medical services.419
As soon as a person in need of medical attention or in danger at sea or
in other waters stops committing hostile acts, that person automatically
becomes entitled to be protected as a wounded, sick or shipwrecked person.
This does not however affect any possible prosecution for a war crime of
perfidy, provided the conditions of Article 37 Additional Protocol I are met.
To qualify or enjoy the protection open for the wounded or sick
person, a person must therefore be in actual need of medical aid or care
occasioned by trauma, disease or other physical or mental disorder or
disability.420
Invariably, this definition in Additional Protocol I extend also to persons,
who are not sick or wounded in the literal meaning of these words,
which is evident from the inclusion of new born babies and pregnant
mothers into the definition. 421 The word shipwrecked has been given a
rather broad definition by Additional Protocol I. it is not limited to those in
danger at sea but also include those in peril in other waters.
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194
Medical Care and Attention: The requirement that wounded, sick and
shipwrecked are also to be cared for is derived from the duty to protect:
it requires belligerent parties and individual soldiers to make sure the
medical care and attention required by the person is duly given to him/
her. These persons are entitled to medical care, and should not be neglected
as enemy persons on account of their origin. However, the clear instance
of complying with the duty to provide such care is circumscribed by the
material practicability to do so.425
A visitor who came into Nigeria and stopped over in Gbaramatu
Kingdom, in Delta State to be precise, sometime in May, 2009 would think
that the Nigerian Army was at war with a foreign foe. The relevance of
that epic showdown to our discourse is that it raised a lot of humanitarian
issues. A humanitarian crisis of immense proportion brewed in the raided
Niger Delta communities of Nigeria where reports have it that thousands
of persons including women and children are stranded in the bush.426
Following this inhumane treatment the Committee for the Defence of
Human rights (CDHR) in the state called for restraint by the feuding groups
to assuage the suffering of innocent civilians, women and children caught
up in the fighting. It is quiet shocking that a matter, such as flushing out
of militants, assumed an unspeakable dimension. The issue is why didnt
the Nigerian Army respect all known International humanitarian laws in
engaging the militants with cross fire? A situation where women, children,
and indeed defenseless civilians were not respected, protected, cared for,
no access to medical care falls short of humane treatment. It was therefore
not a surprise that foremost human rights group, Amnesty International
called on members of the Armed Forces and militants engaged in the
425 Article I0
426 The Nation, Monday 18, 2009 p.4
195
ongoing fight in the Niger Delta not to trigger human rights abuses. The
group in a strongly worded statement urged the soldiers and armed group
not to forcibly displace people and ensure unlimited access to those in need
of medical attention. The statement tagged Nigeria: unlawful killings/
displacement/access to medical care:, reads partly: Amnesty International
is calling on the Joint Task Force (JTF) and armed groups to use force only
in a way that does not result in human right abuses, not to forcibly displace
people and ensure free access to those in need of medical care.
Since 13 May, 2009, thousands of villagers have been displaced and
thousands more are trapped in the cross fire between the JTF, which is
composed of troops of the Army, Navy, Air Force and the mobile police set
up in 2004 to restore order in the Niger Delta and armed groups in Delta
State in Southern Nigeria.
The JTF offensive began on 13 May after the JTF was reportedly attacked
by armed groups in Delta State. The JTF has been conducting land and
air strikes on communities across the Warri South and South-West local
government areas where the Nigerian government believes the camps of the
armed groups are located. Hundreds of people are feared dead427
It is very fundamental at all times for belligerents to respect humanitarian
law as it has to do with the protection of civilian population and civilian
establishment. Failure to adhere to this will make mockery and nonsense of
all known international humanitarian law doctrines.
The obligation to respect and protect wounded, sick, and shipwrecked, it
must be borne in mind, is applicable in all circumstances. The postulation
means that parties to an armed conflict cannot invoke military expediency
as a justification for preventing the wrongfulness of non-compliance,
except the appropriate rule is overly subject to a number of exceptions on
grounds of military necessity.428 Article 10 Additional Protocol I provide an
example of openings for considerations of military expediency in the area
of the protection of the wounded, sick, and shipwrecked, but do not have a
collective suspensory effect429
Any contrary distinction between wounded, sick and shipwrecked
on other basis other than medical ones is forbidden. The reason for that
prohibition is to ensure that the wounded, sick and shipwrecked, be it a
friend or foe, military personnel or civilian, are to enjoy the same protection,
427 The Nigerian Nation Newspaper, Friday, May 22, 2009 pp 2 and 3
428 Kalshoven/Zegveld Constraints pp. 37 and 84
429 McCoubrey, H. The Nation of the modern doctrine of military Necessity (1991), 215252 (229)
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respect and care, to the extent and if they are in need of it. The rules
already mentioned in GC I and II and in Additional Protocol I are a further
manifestation of the general principle of non-discrimination, which is at the
heart of humanitarian law as a whole.430 It is pertinent to emphasize that
the principle only forbids adverse distinctions, but does not in any way
prevent special treatment and care for those in more precarious and urgent
need of medical attention than some others.431 Such special or preferential
treatment and care may be occasioned by the very nature of the wounds
of the protected person, but also by some other features (physical).432 The
preferential treatment for women is made mandatory by Article12 GC I and
II on the condition that they shall be treated with all consideration due to
their sex. In terms of criteria for the justification of treating one protected
person differently from another person, international humanitarian law
does not stipulate a standard set of medical grounds or reasons. Such
criteria instead are derived from standards of medical ethics and practice.
The parties to an armed conflict are under the sacred duty to search
for, collect and evacuate the wounded, sick and shipwrecked, provided
circumstances allow them to so act. That obligation is compelling on them
especially after engaging in armed conflict. Article 15 also enjoins parties to
an armed conflict to arrange for a cease fire, local arrangement or armistice
with the aim of removing, exchanging and transporting the wounded left
on the battlefield. The obligation imposed on parties to take all possible
measures to search for, collect and evacuate and to ensure the prompt
medical assistance of the wounded, sick and shipwrecked equally means that
parties to an armed conflict, which are evidently unable to do so themselves
430 Rule 88 CIHL Other examples on the prohibition of adverse distinction as it concerns
the protection of the wounded, sick and shipwrecked Article 9, Additional Protocol I
and Article 9 Additional Protocol II
431 Rule 110 CIHL
432 Pictet J. S Commentary I, 138
433 Article 18 GC II, Article 19 GC II, Article 16 GC IV
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198
contagion and medical and scientific tests not justified by the persons state
of health. The condition would have been met where for example; parties
to an armed conflict take all hygienic steps to prevent a concerned persons
wounds from becoming infected. Commentary on the Additional Protocols
(ICRC 1987)438 equally provides that medical experiment, which adversely
affect the mental capacity of protected persons are prohibited. In addition,
Article 5 Additional Protocol II expressly prohibit any procedure in the
field of medicine, which is not signaled by the state of health of the person
involved and which is contrary to universally accepted medical standards
which will be applied under identical medical circumstances to persons
who are by no means denied of their freedom.
All persons who are in the power of adverse party or who are incarcerated,
detained or deprived otherwise of freedom arising from international armed
conflict or occupation are also prohibited. Civilian internees, persons who
have been denied permission to have the territory occupied of the adverse
party, prisoners of war, persons living in the territory occupied by the
adverse party or who are one way or the other in the power of the adverse
party will enjoy the protection offered in Article II Additional Protocol I. It
is instructive to note that a violation of Article II Additional Protocol II in
the form of acting or failing to act which grievously endangers the physical
or mental health or integrity of any person, result in grave breach of the
Article only if the victim is a person who is in the power of a party other
than the one on which he depends.439 But Solf440 has argued that violations
of Article II Committed against a partys own nationals do not amount to
grave breaches.
The generic obligations in Article II Additional Protocol II has been
translated into a number of more precise rules on the protection of these
persons within the context of their medical treatment by the law of
international armed conflict. Physically mutilating or carrying out medical
or scientific experiments and removing tissue organs for transplanting is
not permitted, even where the person subject to such treatment permits
same, unless when these acts can find justification. Each party to the armed
conflict must maintain a medical record of blood donation.441
199
200
and the dead and communicating same via information bureau has a nexus
with the system under Articles 120 and 122 of GC III.
201
202
GC II which provides:
Parties to the conflict shall ensure that burial at sea of the dead,
carried out individually as far as circumstances permit, is preceded
by a careful examination, if possible by a medical examination of the
bodies, with a view to confirming, establishing identity and enabling a
report to be made. Where a double identity disc is used, one half of the
disc should remain on the body.
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204
205
well-being of the wounded and the sick that are nursed in them.454 Property
belonging to aid societies like the Red Cross may not be seized unless it
can be shown that the case was of urgent necessity, only after the ensuring
of the welfare of the wounded and sick. The law that governs occupation
subjects the power of an occupying power to seize medical units to stiff
conditions. The bedrock of this regulatory guideline is the collective duty of
an occupying power for ensuring and maintaining the medical and hospital
establishments and services, health relating to the public and hygiene in area
occupied by it.455 Resulting from this, where occupying power seizes civilian
hospitals in occupied territory, such requisition may only be for a while and
must be of urgent necessity for the care of military wounded and sick. In
addition, seizing civilian hospitals based on the conditions aforementioned
can only be permitted if and when proper arrangements are made timeously
for the care and treatment of the victims and for the wants of the civilian
population for hospital accommodation. Seizing of civilian medical units
and the resources attached to them is legal only if arrangements are made
presently to ensure that the medical needs of the civilian populace and those
of any wounded and sick receiving treatment who are affected by the seizure
is continuously satisfied.
Medical Personnel
Articles 24-26 GC I456 in summary provide:
Medical personnel mean those persons assigned, by a party to the
conflict, exclusively to medical purposes or the administration
of medical units or to the operation or administration of medical
transports. Such assignments may be either permanent or temporary.
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207
208
209
Additional Protocol I spelt out the duty to give all available assistance
required by civilian medical personnel in areas where there has been
disruption of medical services as a result of feuding activity. Similarly, an
occupying power is under an obligation to assist civilian medical personnel
in occupied areas.
Article 16 Additional Protocol I and Article 10 Additional Protocol II
provide a comprehensive protective arrangement for medical personnel to
act in consonance with medical profession. The arrangement (framework)
is made up of three prohibitions: the prohibition of reprimanding medical
personnel for carrying out their medical duties, the prohibition of forcing
them to act in dissonance with their duties and the prohibition to force
them to reveal information related to the wounded and sick if they consider
that information to be detrimental to the patients or their families.
The issue of medical ethics raise the question as to what these ethical
standards really contain. Accordingly, the chief duties of a medical
personnel are to his/her patient and he/her is, among other things, obligated
to constantly exercise his/her discretional independent professional
judgments and maintain the highest standards of professional decorum;
respect a fit patients right to either accept or decline treatment; not allow his/
her judgments to be prejudiced by personal gain or unfair discrimination;
be committed to giving standard medical service in full professional and
moral independence, with love, compassion, and respect for the dignity
of humans and also act in the patients best interest whenever the need to
provide medical services arise.
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V Medical Aircraft
Article 39 GCII 464 is to the effect that:
Medical aircraft are military or civilian aircraft, designed exclusively
for medical transport on a permanent or ad hoc basis and subordinate
to a competent authority of a party to the conflict. As well as the
national emblem they must carry the distinctive emblem on their
wings and hull and may not be attacked.
Medical aircraft are basically used for the removal of wounded, sick
and shipwrecked and the transportation of medical personnel and their
equipment. They can be the subject of ownership of the armed forces, seized
or be owned by a relief society. Where they are wholly used for medical
464 Also found in Article 26 and 29 Additional Protocol I
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transportation without been used for other purposes, they are seen as
perpetual medical aircraft.
The protection of medical aircraft is only effective if they are flying at
the agreed altitude and time by the parties to the armed conflict. But where
no such agreement exists, they may not fly over enemy territories already
occupied by enemy.465 Protection and respect of medical aircraft is not made
dependent on any agreement (whether oral or in writing) surrounding areas
regulated by an opposing party to the conflict. To be on the safe side when
flying in the areas, a party to the armed conflict is obliged to inform the
adverse party, especially when the aircraft is within what they technically
call, the surface-to-air weapons systems of the adverse party. Within the
contract zone which are controlled physically by friendly forces and those
areas where control is not firmly established, it remains that protection for
medical aircraft can only be fully efficacious by an already existing between
the competent authorities of the parties to armed conflict.466 In the absence
of any prior agreement, medical aircraft operate at their own peril; however
they shall be respected as soon as they have been recognized.
The scenario becomes quite complicated where a medical aircraft flies
over an area controlled by the enemy violating the terms of the agreement
or have not entered into any contract. This can arise probably owing to
navigational defect or as a result of an exigency affecting the safety of the
flight. The way out of this quagmire for the medical personnel on board, is
to identify themselves and to intimate the adverse party of the situation. The
moment recognition is accorded such medical aircraft, it is incumbent on
the enemy to take sensible efforts which permit it to either land or alight on
war. Also it has to take other reasonable measures to protect its own interests
and equally give time to the aircraft for compliance before attacking.467
Marking medical aircraft with the distinctive emblem in addition to
the national colors is a very fundamental requirement that must be taken
seriously. This is for purely identification purposes. In the illustration
involving countries X and Y, where the medical aircraft of country Y is not
properly identified (by marking) or not marked at all with the distinctive
emblem on their lower, upper and lateral surfaces, the adverse party to the
conflict, in this case country X, has no option but to take all reasonable steps
and measures to safeguard its own interests. Any other markings or means
of identification shall also be made available. But this must be agreed upon
465 Article 39, GCII (para.3)
466 Article 26 Additional Protocol I
467 Article 27 Additional Protocol I
212
Under no guise should medical aircraft (e.g. hospital ships, and protected
vessels) be used to perpetuate acts injurious to the adverse party. This
principle, though customary in nature, has found its way into Article 28
Additional Protocol I. They automatically lose their protection if they
convey any equipment meant to collect or pass on intelligence data. They
shall not carry with them any form of arm except acquiring small arms for
the purposes of self defence. A medical aircraft may only be attacked where
no other route for landing, inspection and search and possible capture;
there is no other available method for controlling military regulations; the
non-compliance is very serious that the aircraft is assumed to be a military
object and the civilian casualties is not equal to the military benefit derived.
Obligation to Seize
Article 30469 states:
If inspection discloses that the aircraft has not met the requirements
for special protection or has acted in breach of its obligations, it may
be seized. An aircraft which has been assigned as a permanent medical
aircraft and is seized may be used thereafter only as a medical aircraft.
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could be shot down before they were visible. Protection for such aircraft was
made subordinate to any agreement between the belligerents, as it has to do
with the means of identification and the routes to be taken by planes.
It was in 1977 that a more realistic view was achieved in Additional
Protocol I to the Geneva Convention. By this time, science has supplied a
panacea for the evil which it created, because, contrary to what had been
supposed, identification of aircraft in flight is now a possibility. A highly
technical annex to this Protocol provides a system with three types of
signals which has already been mentioned.
VI.
214
The establishment of hospital and safety zones and localities can be done
in peace time or when the war commences and when the hostility is on.
Nevertheless, the special protections they enjoy in times of conflict are
dependent on what the parties to the conflict have agreed on.
In line with the Draft Agreement contained in both GC I and IV, persons
living in a hospital and safety zone must desist from engaging in any work
directly linked to military activities or the manufacture of materials meant
for war. In addition, it is within the exclusive power of the authority setting
up such a zone to ensure that they restrict persons who have no right of
residence in the zone from entering it. Significantly, by the tenor of the Draft
Agreement, four conditions which a hospital and safety zone must fulfill
appear to have emerged.
215
216
By Article 15:474
Parties to an armed conflict may propose to establish, in the regions
where fighting is taking place, neutralized zones.
217
localities and neutralized zones are the wounded and sick and civilians of
certain categories.
The Diplomatic Conference476 has to its credit the reinforcement of the
rule that belligerents must make a distinction between military objectives,
on the one hand, and civilians and civilians object on the other. This
obligation is aptly expressed in Article 40477 as follows:
In order to ensure respect for and protection of the civilian
population and civilian objects, the parties to the conflict shall at all
times distinguish between the civilian population and combatants
and between civilian objects and military objectives and accordingly
shall direct their operations only against military objectives
It is submitted that in as much as they and persons and objects that are
pivotal to ensure that the medical care they get is respected and protected
no matter the situation, so also must the zones in which they are with the
aim of shielding and providing shelter for them from the consequences of
the war. The only express provisions to that effect in Article II of the Draft
Agreement added to GC I and GC IV, is only a form of suggestion as to the
most likely content of an agreement to set up a hospital or safety zones or
locality. It is never compulsory for the parties to the armed conflict to add
this establish hospital and safety zones or localities not to talk of neutralized
zones. Where the parties involved in the armed conflict for reasons best
known to them decide not to add the sample provisions in Article II of the
Draft Agreement into another agreement to set up such zones, they would
be prohibited from launching an attack against the zone and requested to
respect and protect same.
It should however be noted that the gathering of vulnerable populations
into protected locations may add to their vulnerability and the risk they
face. They may, for instance, see themselves exposed and defenseless to
military activities. It is therefore of utmost importance to find out in limine
who has the legal and military responsibility to protect persons domiciled
there and the zone itself.
To illustrate this, the safe areas established by the UN in the defunct
Yugoslavia and the secure humanitarian areas set up in Rwanda failed
the yardstick set up by humanitarian law for the safety zones. They instead
were the fall out of diplomatic and military compromise entered into by
the UN Security Council. The issue of who was in charge of protecting the
476 1974-1977
477 Additional Protocol I
218
219
of some state to make use of the two recognized distinctive emblems or not
use any one at all. Further, some parties to an armed conflict inaccurately
saw the emblems as having political, national and religious flavour; thereby
watering-down the respect other states have for their neutral status. These
set-backs culminated, in 1992, to the call by the International Committee
of the Red Crescent which in addition requested for the establishment of a
working group to provide a comprehensive and lasting solution acceptable
to all parties in terms of substance and procedure.479 It was Article 2 of
Additional Protocol III that gave birth to an additional emblem together
with the Red Cross and Red Crescent. Thus, a new emblem (called the Red
Crystal) emerged and it is made up of a frame in the mould of a square on
edge on a white ground. It can be utilized for the exact purpose and in the
same situation as the Geneva Conventions distinctive emblems.
By Article 44480 identical respect and equal status are to be accorded the
distinctive emblems.
Emblems and signs are to be used for identifying and guiding specific
humanitarian or peaceful activities, persons or places. As has been
mentioned, the Geneva Conventions and their Additional Protocols
enumerate these distinctive symbols which are the signal that the persons or
objects putting on or carrying the signs gain from particular international
protection and must not be targeted for any attack or act of violence.
479 Resolution 3 was adopted by the 27th Intl Conference of the Red Cross and Red
Crescent 31 October to 6 November 1999 in Geneva.
480 GCI
220
221
482
483
484
485
486
487
222
Any use of the distinctive emblem which is not properly done is out
rightly forbidden. As a way of enforcing this prohibition, states must take
all incidental measures including making use of the legislative instrument.
These obligations, which are for the prevention and repression of abuses
of the distinctive signs, is incumbent upon states notwithstanding
whether the abuse relates to the protective or indicative aim served by the
distinctive emblem. Where the misuse touches on the protection function
of the emblem, the consequences is more severe, including the compulsory
criminalization as a breach of Additional Protocol I, if the improper use
results into an act of perfidy.
Article 53 provides a number of specific prohibitions, which border on the
improper or misuse of the distinctive emblem and the arms of Switzerland
as the sign very identical with it. Flowing from this, no individual, society,
company or firm, which has no authority to do so by virtue of the Geneva
Conventions or Additional Protocols, may be allowed to use the distinctive
emblem. Similar prohibition affects the description Red Cross or Geneva
Cross and the alternatives Red Crescent and Red Crystal.489 Imitating
the two distinctive emblems and the descriptions are equally not allowed.
The motive behind the use or imitation of the emblem or description is
immaterial as the prohibition still applies in such cases. The prohibition
equally affects commercial purpose, no matter how will intentioned it was
meant. A doctor, who for instance, purports to act for any of the parties to
the armed conflict and who makes use of the distinctive emblem without
any authorization is guilty no matter how well intentioned is mission will
appear. It follows therefore that obtaining the consent of the appropriate
authority is a sine qua non in the use of the distinctive emblem.
488 GC I; Article 45 GC II
489 Article 53 GC I (para. 4)
223
The prohibitions are never relaxed. In other words, the prohibitions apply
at all times both during peacetime and armed hostilities as it relates to
previous practices of misuse and in relation to misuses of the present and
future. It will therefore afford no excuse to a party who uses the distinctive
emblem during peacetime without obtaining the consent of the appropriate
authority. The same applies also during armed conflicts.
To clear any doubt or uncertainty, the misuse of the arms of Switzerland
by individuals private in nature, firms or societies or imitating those
arms is prohibited with equal force. The prohibition is however related to
the use of the arms of Switzerland forming part of registered trademarks
or commercial marks or putting it into use for a purpose which is against
commercial honesty or in other circumstances which could injure Swiss
national sentiment.490.
Visibility
224
225
Some tests were also carried out with customized Red Cross and Red
Crescent boards to check various types of paint and production processes
aimed at ensuring optimum visibility at night, in bad weather or making
use of electro-optical means of observation.
Lastly, visibility tests were carried out at sea with a coastal rescue craft
that had a Red Cross flag on the bridge, two stickers of the Red Cross
unequal in size in its sides and a flashing blue light firmly positioned at the
top of the mast.
Penalties
The perfidious use of the distinctive emblem of the Red Cross, Red
Crescent Red Crystal, Red Lion and Sun or other protective symbols known
to Geneva Conventions and protocol amount to a serious violation of the
laws of war. This in other words means committing a war crime which falls
under the principle of universal jurisdiction.494
As it concerns the Red Cross and Red Crescent emblems, parties to the
Geneva Conventions are under the obligation to subscribe to laws and
sanctions to be enforced in their national courts, which precludes and
equally reprimand the perfidious use of these emblems in either peacetime
or during armed conflict. To execute such steps, home-grown laws must be
adopted to facilitate the integration of the protection of these emblems.
226
CHAPTER
6
Prisoners of War and their Protection
I. Introduction
The protection enjoyed by prisoners of war is purely premised on military,
ethical and political considerations. Since captured combatants no longer
pose any form of threat to the lives of those who captured them, there is
therefore the belief to treat them humanly. The types and procedures of
treatment will however be tied to the former conduct of the prisoner during
combat. In any case, standard rules of protection apply since they are firmly
established in international humanitarian and human right law.
The treatment of prisoners of war equally has military considerations. No
doubt, prisoners are of military value to the enemy party. They are often
used as a source of gathering information or to mount pressure on their
comrades who are very much in the battlefield.
For the most part of human history, taking into cognizance the culture of
the winners combatants who are on the receiving end in an armed conflict
could expect to be massacred or put into slavery thus bringing economic
and social gains to the victorious party. There was no clear-cut distinction
between combatants and civilians, even though women and children are
in all cases more likely to be spared. At times, the aim of a battle, if not
an armed conflict, was to take women into captivity, a practice known and
recognized as raptio;495 the Rape of the Salines was a well recognized mass
capture by the founders of Rome. It was typical to hold then that women
had no rights and were held legally as Chattel and would not be taken back
by the families of their birth the moment they have produced children to
persons who had murdered their mothers, brothers and fathers.
In the same manner, the difference between Prisoner of War (POW) and
slave is nebulous. Some of the Native Americans captured Europeans and
forced them as both labourers and bargaining chips.
During the middle Ages, a number of religious wars were fought
ferociously. In Christian Europe, exterminating the heretics or non
495 The Latin term raptio (in archaic or literary English rendered as rape) means the
abduction of women
227
496
497
498
499
500
228
229
230
Any person who participate in an armed conflict and fall into the power
of an enemy party shall be taken to be a prisoner of war. The person will
be protected under the Third Convention only if he claims the status of
prisoner of war, or if he reasonably appears to be a beneficiary of such status,
or if the party he relies on claims such status on his behalf by intimating the
Protecting or Detaining Power. In case there is any uncertainty surrounding
any such person as to his/her prisoner of war status, he/she will continue to
enjoy the protection afforded such status until the time when his/her status
will be determined by a competent tribunal.505 It is in this light that using
the nomenclature unlawful combatants to prevent some combatants from
502
503
504
505
231
232
233
234
510 1957 Standard Minimum Rules for the Treatment of Prisoners (UN DOC. A/CONF/611
Annex 1, E.S.C Res 663C (XXIV) 31 July 1957
235
236
does not ipso facto represent reprimanding but only serve to deter further
participation in military activities against the detaining power. As a result of
this important understanding of legitimate activities in course of the armed
conflict, the conditions in which prisoners of war are to be detained must be
different from persons who have been convicted by a competent tribunal.
GC III only allows prisoners of war to be incarcerated in prisons only in
rare cases. In a situation where, say, a prisoner of war has been sentenced
to imprisonment for acts he/she perpetrated before his/her capture, he/
she may nevertheless still be remanded in prisons if members of the armed
forces of the detaining power would receive similar treatment.
237
conduct of its arms can only be directed against the detaining power as
contained in the well known principles of international responsibility.
238
239
240
The mere act of transferring prisoners of war to another power does not
ipso facto absolve the transferring power of its duty or responsibility for the
prisoners. The transfer is clothed with legitimacy and becomes effective
only when the receiving state without any dilution applies GC III in all its
fundamental respects. Where there is a breach of these rules, the power
transferring does not only have a right, as suggested by Article 12 (para. 3),
but also a responsibility to adopt effective steps in order to provide a panacea.
The USA, it will be recalled, altered the way they transferred prisoners of war
to the south of Vietnam during the Vietnam armed conflict when breaches
of the letter and spirit of GC III by South Vietnam during the stage which led
to the transfer that were made public. The detaining power should not and
cannot escape responsibility by siting the prisoner-of-war camp in another
locality outside its territory or by deliberately allowing the detained persons
519 UN doc. 47/428 of 16 Dec. 1992, Prisoners of war and persons missing as a result of
war in Afghanistan
241
longer period on ships or planes. Where the transferring States ask for the
return of prisoners of war, such demand may not be turned down.
The Statutes of the International Criminal Tribunal for the Former
Yugoslavia52024 and International Criminal Court generate issues as to the
nature of the responsibilities of States under GC III. These statutes provide
that States that have suspected criminals of war in their control are under
obligation to transfer these suspected criminals to the tribunal 521 or take a
decision about the request for surrendering. The United Nation not being a
signatory to the Geneva Conventions, there is inconsistency in this statutory
duty as it negates Article 12, GC III (para. 2).
Important Rules on How Prisoners of War are to be treated
242
243
of war by the detaining power. It is most likely that only two known cases
may be allowed. First if the photographic reports or the photograph do
not make way for the identification of each prisoner, then there is no
violation of the principle of humane treatment. The second permitted case
is on making a report on prisoners and their conditions in captivity by the
protecting power, ICRC or other internationally acclaimed organizations.
In such exceptional instances, even though the prisoners are exposed to
public curiosity, making a report about them facilitates the enforcement of
international humanitarian law and to better the conditions in captivity. The
defunct Yugoslavia instance of reports on prisoner-off-war camps, further
exemplify the requirement to balance the protection of prisoners vis--vis
the rule that forbids their exposure to public curiosity. Where the report is
carried out by international observers, then in that case, the protection of
prisoners prevails.
Discrimination Prohibited
244
245
The appointed delegates of the Protecting Powers are subject to the approval
of the opposing party with which they are to collaboratively carryout their
respective duties.
The Protecting Powers mandate is to closely observe and protect the
interest of the parties to the conflict and their nationals. In this regard, they
benefit from certain particular rights and duties:526
The right to supervise the distribution of relief materials;
The right to ensure that judicial guarantees are respected, in case of a
trial, especially in cases that has to do with death penalty;
The right to evaluate their living conditions in cases of internment or
in occupied areas;
The right to pay a visit to persons generally protected by the Geneva
Conventions and their Additional Protocols
Persons who are protected have the right to refer their cases to
Protecting Powers;
The duty to ensure that humanitarian activities are of a civilian and
unbiased nature and to prevent this relief from being hijacked for
military purposes;
The right to supervise the concrete execution of protective measures
for protected persons mostly in cases of internment, detention and
occupied territory.
In theory at least, Protecting Powers are representatives of states that
are not in any way involved in the armed conflict at hand and that agree to
confirm that humanitarian law is not being disrespected in the territory of
a given party to the conflict. In reality, however, since the adoption of the
Geneva Convention in 1949, no state has ever taken this role for any of the
armed conflicts that have taken place. On this evidence alone, it is quite clear
that states lack the needed commitment to actually defend the execution
of humanitarian law. The Geneva Conventions foresaw this diplomatic
lethargy and established various provisions for replacement mechanisms.
Since no state has ever accepted the role of a Protecting Power, a substitute
became inevitable. The ICRC is one of the substitutes to undertake this role.
The ICRC s mediation task is strongly established in the Conventions. It must
request each party to the conflict to make available a list of five states that
526 GC IV Article 30 and 143
246
527
528
529
530
247
Even at that, Article 5 para 4 provides that the substitute protecting power
must also be accepted by the parties to the armed conflict prior to beginning
its functions.
The principal role of the delegates of the protecting powers is to pay a visit
to the prisoners of war and to quiz them without persons witnessing same.
In order to ensure that delegates get a full and clear notion of the scope to
which the provisions of GC III are being fulfilled, they can, going by the
rules, pay a visit to places where prisoners of war are being held captive.
This is not only applicable to prisoner-of-war camps but also to some
other areas of detention and or, points of departure, transit and arrival of
531 Additional Protocol I
248
The protecting powers mediative roles are however not limited to these
cases alone.
Since the Second World War, the arrangement of protecting powers has
been utilized scarcely. In 1956, during the Suez crisis, protecting powers were
nominated by Israel but Egypt did not give them the go ahead to carryout
out their tasks. The consent of the detaining power is a sine qua non to the
protecting powers delegates kick starting their operations, is a considerable
infringement on the proper working of the system of protecting powers in
international humanitarian law.
A further development in the understanding of the function of protecting
powers arose as a result of the response of the international community
to the armed conflicts in the defunct Yugoslavia. Such duties may be
undertaken by international organizations and specially created organs.
For example, delegations of the Conference for Security and co-operation in
Europe paid a visit to the prisoners of war camps in the defunct Yugoslavia.
A person visiting a prisoner of war camp should have at least a general
idea if not detailed knowledge of what the Third Geneva Convention or
individual regulations relating to camp activities require. Some idea about
the law should make it unattractive for a capturing power to prevent the
outside world with a faade of compliance while, in reality, it is breaching
the precepts of the law.
532 GC III
249
533 1870-1871
534 Probst, R. (1989) Good offices in the Light of Swiss Intl Practice and Experience
Fischer, T. (2002) Switzerlands good offices: a changing concept 1945-2002
535 Fischer, T. (2002) Switzerland`s good offices: a changing concept 1945-2002
250
Report of the ICRC on its activities during the Second World War vol. 1 p. 352
251
Commencement of Captivity
537 Article 4 and 6 GC III; Article 44 and 45 Additional Protocol I; Article 23 Hague
Regulation (para. 1)
252
and treaties between the parties to the hostilities are the basis for granting
combatant status.
No doubt, humanitarian law has further advanced by Article 43 Additional
Protocol I, which equally altered the constitutive pre-requisites for the
nomenclature as a combatant. Resulting from this, problems are bound to
crop up in the area of uniformly applying international humanitarian law
in any armed hostility involving different states but only some of them
are subject to Additional Protocol I. In a situation where only party to the
armed conflict is bound by the provisions of Additional Protocol I, members
belonging to its armed forces shall be taken and treated as prisoners of war
irrespective of whether or not they only bear their arms openly before an
attack. Rosas538 has however vehemently made the point that for parties to
the hostility only bound by GC III, the scenario will obviously not be the
same in order that prisoner of war status is not claimed.
A novel controversy arose during the Second Gulf War as when and what
action can entitle persons to becoming members of the armed forces. Can a
mere inclusion on a reserve list present one as a member of an armed force?
The United Kingdom detained students of Iraqi descent who were scholars
in London and held them as prisoner of war. The U.K. justified its action on
the suspicion that the students were duly registered on a list of Iraqi reserve
forces. This position adopted by the British was heavily criticized for failing
to distinguish between passive and active reservists. It is the responsibility
of states to independently determine how their armed forces are to be
composed. Thus, the time when service in the armed forces is begun and
when it ends must be determined in accordance with the national law of the
state concerned.
Persons not involved in the combat are also entitled to enjoy the prisoner
of war status. The term may suggest otherwise but in reality, they are not
part of the civilian population are rather members of the armed forces who
have been delegated special non-combatant roles. As a result, whenever they
are captured, they shall enjoy the treatment offered to prisoners of war.
253
By this provision, prisoners of war, falling into the hands only arises
if the combatants are taken hostage or interned by the appropriate State
organs. Merely remaining on the enemys territory does not meet the
requirement of falling into the hands. This is illustrated by the Iraqi
soldiers example of surrendering to journalists in the desert. However, they
were not still recognized as prisoners of war not before they were handed
over to the Allied Armed forces to the conflict. In other words, custody of
a prisoner of war only begins with the performance of an act by a proper
State arm. It is inconsequential if the prisoners of war surrendered to the
adversary as a result of halting of their States military activities. Any other
person held captive after the surrender of their power are equally deemed to
be in the hands of the adversary. They are not to be treated differently; they
shall equally be taken and treated as prisoners of war.540
254
255
256
concern itself with ownership of items bore by prisoners but on the use of
the objects to cause damage to the prisoner. Articles relating to personal use,
irrespective of whether they are possessed by his/her state of descent may
not be seized. Also included in this list are clothing and food items which
form part of the prisoners military equipment may not be carted away. It is
equally important for the safety of prisoners of war that gas masks, helmets
and other similar items used for their personal safeguard are not taken away
but left with them.
Paragraph 3545 listed some personal items which are not also to be
confiscated. Wedding rings fall into this group. It is not all articles of
personal or sentimental value that have been confiscated by the detaining
power. In this regard, the GC III adopted a less flexible approach than the
1929 Convention which did not allow any objects of value to be carted away.
However, as provided above, the seizing of arms, horses, military equipment
and military data is allowed, whether or not the items are the personal
acquisition of the prisoner of war.
Where the issue is whether prisoners of war need permission to safeguard
objects which could aid in the absconding, the security interest of detaining
power and the interest of providing protection for the prisoner of war must
be taken into cognizance. Seizure is only allowed if these conditions are
fulfilled: the objects must be directly connected for the escape. In other
words, it must aid or facilitate the escape and they should have substitute
objects made available by the detaining power. For example, where there is
similarity between the prisoners clothes and that of the civilian population,
the detaining power has the discretion to replace same with other clothing.
257
care of personal data like names, designation, first name, place and full date
of birth, army, personal or serial number etc; useful information concerning
the health status of seriously indisposed prisoners, and information of relief,
repatriation, escape, admissions to hospital etc. The extent of compliance
with the obligation by the detaining power relating to the personal data is
dependent on the conduct of the prisoners of war. The detaining power can
only relay this information if they provide details beyond what is needed in
Article 17. But where the prisoners of war are unable to furnish the detaining
power with such details, the ambit of the GC III regulation provided in
Article 122 cannot be held against the latter.
The setting-up of an official Information Bureau does not foreclose
the obligation imposed on the detaining power to provide information.
Armed with the relevant rules of GC III, the detaining power can engage
the services of prisoners of war to work in the bureau. The principal role of
the bureau is to send the information gathered to the state of the prisoner
of war. This is usually done without further delay. In previous conflicts,
the issue as to which party bears the financial burden for sending such
communications by international mail and telegraph service was of hot
contention. This controversy may be slowly fading away under todays
technological sophistication.
The obligation to forward the information to the home state can either
be undertaken by the Central Prisoners of War Information (CPWI) Agency
or the protecting power. This agency (CPWI) was established by the ICRC in
Article 123 GC III. Its duties are not only limited to the forwarding and receipt
of information from the national information Bureaux, but it also receives
all information and sometimes undertake to perform the mediating task.
The issue relating to persons missing as a result of armed hostilities
and other situations evoking armed mayhem has led to ever rising
problems, notwithstanding the appreciable advancement of modern
information technology.
During the Second World War, and in most of the conflicts, parties to
the conflict flagrantly breached their duties as provided in Article 122 GC
III to gather and send information. Serious breaches took place for instance
during the territorial crisis in 1962 involving India and China, the Vietnam
War and the Korea War.546 In a bid to correct breaches of the responsibility
to duly report, States most times finalized agreement, the moment conflict
tare resolved, to plan for the combined search for missing war victims
and prisoners of war. In other conflicts, the parties involved fail to fulfill
546 Levie, H. Prisoners of War (1978) pp. 156&157
258
259
260
261
Transport conditions during the Second World War were very appalling
as it created unimaginable difficulties in the treatment of prisoners of war.
In most cases, prisoners of war became deceased on their way from the
place they were captured to the camps owing to insufficient care. The ugly
experience of the Second World War facilitated the provisions in Article
20 GC III, which clearly underscores the requirement of humane treatment,
stipulated express and total limitations on the treatment meted out to
prisoners of war in course of their transportation. It can be argued that since
Article 13 GC III contains the general Principle of humane treatment, Article
20 GC III only provides a specific example of this general principle. The
nexus between Article 13 and 20 reveals that treatments which are forbidden
by article 13 are equally prohibited during transportation. The allusion to
clothing, sufficient food and medical care provides three obvious examples
of areas vital to humane treatment.
The argument has been made that in armed conflicts, it is most unlikely
that the transport of prisoners of war will be executed in a similar manner
to the transfer of forces of the detaining power,549 even though this standard
is needed by the provision of Article 20 GC III. Transporting own troops
is of necessity different from those for the transport of prisoners of war.
Referring to the requirements of transport of the detaining powers troop
can only be comprehended as providing back bone for the creation of
humane treatment. The fact that the detaining power transports its own
troops with inadequate care is not a justification for inhumane treatment of
prisoners of war.
Apart from insufficient care, excessively prolonged everyday marches
have also led to the death of a good number of prisoners of war both in
548 GC III
549 Levie, H. prisoners of war (1978) p. 101
262
the Korean War and world war II. The 1929 Geneva Convention expressly
prohibited marches above 20 km per day but prisoners of war were compelled
to cover longer distances. In spite of other available modes of transport
open to every army, marches played an integral role in the evacuation and
transfer of prisoners of war. However, Article 20 GC III which contrasts
sharply with the 1929 Geneva Convention does not stipulate a maximum
number of kilometers the prisoners of war can be required to march each
day. The argument against this avoidable lacuna is that by not specifying a
maximum kilometer prisoners of war can march per day, the prisoners of
war can be made to march for even longer distances. The consequence of
such long marches is that it would result in more deaths when this happens;
there is a severe violation of the Geneva Conventions. The present position
remains that today; a limit for prisoners of war of about 20km or 12 miles
each day is advanced for marches.550 This was the same figure provided in
the 1929 Convention.
No matter the distance or kilometer that the prisoners of war are to cover
in practice however, the physical fitness of the prisoners of war, their neutral
capability, clothing, and the geographical and climatic conditions will be
the decisive factors as to the required marching distance.
In transit camps, the detaining power is also under a duty to humanely
treat prisoners of war. The two transit camps are permanent establishments,
housing prisoners of war pending when they are to be relocated to
other camps.
Prisoners of war are to be protected from any attack by the civilian
population. This obligation is a general principle of the treatment of
prisoners of war. This is equally applicable during the transport stage which
period the prisoners of war are likely to come into contact with the civilian
population. Attacks on prisoners will include any real attacks, defamations,
insult and abuse. Parading of prisoners of war shall be taken as a forbidden
violation as it is never allowed to expose prisoners of war to public curiosity.
263
264
Forming part of the best known rules of GC III are the provisions on the
right to question and the limits placed on this right. The detaining power
has a solid interest in retrieving information about military planning of the
adversary. Prisoners of war however cannot decide how the quizzing officer
would respond if denied information. They would be seen as not loyal and
unpatriotic to their state if they venture to give information about military
operations of their units and armed forces. The information relating to
name, personal or serial number, army etc allows the detaining power
to know the prisoner of war and to communicate the information to the
relevant and official information Bureau in line with Article 122 GC III.
The detaining power is not restricted to ask further questions unlike
the limitation imposed on the prisoner of wars obligation to provide
information. This in effect means that whereas the detaining power has an
unlimited right to ask questions, the answers or responses to be given by the
prisoner of war is limited. This particular provision is somewhat strange.
Of what use is the unlimited right to question when the respondent has
just limited answers? The manner of questioning is regulated particularly
as to the procedure of questioning, the responsibilities placed on the
prisoner of war to assist and most likely reactions of the detaining power.
The interrogation must be done in such a way that prisoner of war is able to
provide answers to the questions asked. It is therefore fundamental that a
language understood by the prisoner must be chosen for the interrogation.
It will not be out of place to use the native tongue of the prisoner of war
if he does not speak and comprehend any other language. Resorting to
coercion by those questioning with the aim of securing vital information
265
553 Dept. of Defense, Conduct of the Persian Gulf war, Appendix 0-19
554 GC III
266
Conditions in Captivity
Article 23 GC III further strengthens the usual duty of the detaining power
to intern prisoners of war to prevent them from taking further part in armed
conflicts. The movement of prisoners can be restricted by the detaining
power, but this will solely depend on the organization of particular prisonerof-war camps. This could have a coincidence with the borders of the camp.
The movement of prisoners of war may not be restricted, as they may be
granted greater freedom of movement. However, they may be detained in
cells as a corrective or final measure. Binding (tying) of prisoners of war in
designated camps is highly prohibited.
The right to internment connotes that the detaining power equally has a
right (even though as a last resort), to make use of weapons against prisoners
of war. An apt example is escape and attempted escape expressly provided in
Article 42 GC III. It will be safe to conclude that the use of weapons against
prisoners of war who riot is not prohibited bearing in mind the aim of the
detention and the detaining powers general responsibilities towards the
prisoners of war. Using of weapons is dictated by the actual necessity to use
555 GC III
556 GC III
267
same. This in other words means that if an individual prisoner of war uses
force against guards, this action alone does not entitle them to use weapons.
Greenspan 557 has however suggested that the only time that the guards are
allowed to shoot at prisoners of war is when they are in grave peril. There
is no regulation on what precaution the guards have to follow. However,
even where the prisoners are seen to be rioting, excessive use of force is to
be avoided. Shooting a prisoner of war who has already surrendered while
fleeing is also prohibited as the intention for using arms no longer exists.
Before the guards resort to using weapons, such intention must be
followed by an appropriate warning. Firing a warning shot will suffice as
reasonable warning. The vital point remains that the prisoner of war can
decode the warning for what it stands for. The argument has however been
made that setting up of so-called death lines, the crossing of which results to
the instant firing of the prisoner of war without any form of warning is not
allowed.558
The duty to meticulously decide on which location is to be used for the
camps has two resultant effects for the detaining power. The detaining power
is not allowed to use camps with the aim of getting a military advantage. The
second factor is the distance from the combat zone. There is no definition
ascribed to certain points or areas by Article 23 559 which can be rendered
protected from military activities by the presence of prisoner of war camps.
Referring to the definition of military objectives contained in Article 52560
no doubt gives the impression that only military objectives of the detaining
power are part of it, as other premeditated attacks against other civilian
objects have already been prohibited by international humanitarian law.
Using prisoner of war camps as a cover for civilian objects can therefore be
by-passed by definition. There was a clear breach of Article 23 GC III when
some US prisoners of war were interned at the headquarters of the Iraqi
secret service in Baghdad which was itself a military objective.561
557
558
559
560
561
268
Minimum Criteria
Article 22562 states:
Prisoners of war may be interned only in premises located on land
and affording every guarantee of hygiene and healthfulness.
269
270
the death of on estimated 1,000 prisoners resulting from air raids. The
prisoners of war camps were marked with letters PG (prisonniers de guerre)
or PW (prisoners of war).565 The powers concerned may however, agree
upon any other system of marking. This duty is however made subject to the
words when the military situation permits. The issue could arise whether
the marking is left to the unfettered whim and caprice of the detaining
power. The position it appears, has been stated correctly that marking is not
dependent solely on the requirements to be decided by the detaining power
alone.566 In reality however, during the world the marking of prisonerof-war camps resulted into hardships the rule in GC III notwithstanding.
During the Korean War, United States aircraft attacked designated Korean
prisoner-of-war camps. This led to the death of US soldiers.
271
forces which they were serving at the time of their capture, unless they give
their consent.
272
273
569 para.2
570 GC III
274
The 1929 Convention and GC III also mandated the detaining power to
employ prisoners of war for work, thus amplifying the same provision in the
Hague Regulations. By Article 49 GC III (para.3), the detaining power has the
right to force prisoners of war to work.
In the past world wars, the importance of the labour of prisoners of war
to the detaining powers economy became an issue. This is because work was
initially regarded from the angle of its significance to the health condition
of the prisoners of war. The detaining power is not expressly mandated to
provide work for prisoners of war. The provision of Article 49 GC III is rooted
on the entitlement of the detaining power. In line with Article 49 GC III, a
specially arranged work can be done to keep the prisoners of war in a good
frame of physical and mental health. The obligations of the detaining power
as provided in Articles 29 and 38 GC III do not in any way provide that the
prisoners of war have the right to work.
The detaining power has an unlimited right to utilize the labour of
prisoners of war. However, only healthy prisoners of war are obliged to
work. While compelling them to work, the detaining power must take into
account their sex, rank, age and physical aptitude. Utilizing indisposed
prisoners of war for labour is forbidden. Also the use of feeble prisoners
of war for hard physical work is prohibited. Women are provided special
protection in this regard.
The nomenclature of work allowed and the working environment of
prisoners of war are provided in detail in the Convention of 1929. Employing
prisoners of war in industries that are of military significance is prohibited.
Article 49 GC III further provides exceptions from the obligation to work
for officers. This provision has firmly preserved the varying treatment which
has been widely acknowledged since the nineteenth century. Definition as to
the meaning of supervisor work, which non-commissioned officers may be
asked to perform is not provided by GC III. However, the general consensus
has been that manual labour does not fit into this. It has been submitted
that the special rules affecting officers were adhered to for most part during
World War II.571
Where a prisoner of war has been assigned certain functions to perform,
then such a person is exempted from the responsibility to work. Prisoners of
war, who are doctors and nurses and are not part of the medical service of
their armed forces, may be tasked with the duty of caring for other prisoners
571 Levie, H., Prisoners of War (1978) p 224 provides instances where Japan breached
this rule.
275
by the detaining power. When that happens, they are equally exempted
from the duty to work.
276
574 Case No. IT-98-34-T, Trial Chamber Judgment of 31st March 2003 (para.323)
277
postcards sent. Notwithstanding, two letters (at least) and four postcards
monthly must be allowed.
The permitted quota of letters and postcards is divorced from the
notification to the family and the Central Prisoners of War Agency about
the capture in line with Article 70 GC III. The card affords the prisoners
of war the opportunity to communicate with their relative and also with
the Central information agency set up by the ICRC. The detaining power
cannot hinder or delay this communication. The message must equally be
forwarded by the fastest means provided. The first message meant for the
families and the information agency or normal correspondence may be
hampered for reasons other than discipline. This is equally applicable to
both incoming and outgoing post. The correspondence no doubt establishes
contact between prisoners of war and their relatives; hence, it is illegal for
the detaining power to improperly utilize the post for calumny purposes.
278
279
280
In other words, the audi alteram partem rule must be complied with. This
is on the basis of fair hearing. The basis and connotation of the principle
of fair hearing is that fairness is the determinant for the application of the
principle of natural justice. In other words, natural justice is fair play in an
action. Therefore, the hearing of a matter in court cannot be said to be fair if
any of the parties appearing before the court is refused a hearing or denied
the opportunity to present his case or call evidence in support of his case.
However, the principle of fair hearing is satisfied if the party complaining
was given the opportunity to be heard.577
The fundamental requisites of due process are the opportunity of all
parties to be aware that a matter is pending, to make an informed choice
whether to acquiesce or contest the matter and to be heard on it. Procedural
fairness therefore entails affording parties in a matter the right to be heard
before the court decides the matter. That is the principle of natural justice
which embodies the rule that the other party must be heard.578 The rule of
fair hearing and natural justice is equally codified in Article 9 GC III (para.4)
which provides:
576 Case No. 88-79 CR U.S, District Court for the Southern District of Florida. Judgment
was delivered on 8 June 1990
577 Uzoho v N.C.P (2007) 10 NWLR (pt. 1042) 320
578 Ibid at 327
281
579
580
581
582
http://www.zmag.org/znet/view Article/15604
282
283
(1) he has joined the armed forces of the Power on which he depends or
those of an allied Power;
(2) he has left the territory under the control of the Detaining Power, or
an ally of the said Power;
(3) he has joined a ship flying the flag of the Power on which he depends,
or an allied Power, in the territorial waters of the Detaining Power,
the said ship not being under the control of the last named power.
284
285
286
287
part in conflicts by joining the armed forces of their own country. This is
why captivity aims to prevent prisoners of war from further participating
in the hostilities against the detaining power. This informs the reason why
Article 117 GC III expressly forbids the employment of repatriated persons
still active in military service. During the Vietnam War in 1972, Falk 587
states that, the United States actually respected this obligation following the
repatriation of some pilots by the Northern part of Vietnam.
The assumption is made that the prisoners of war cannot be made to
answer for any breach of Article 17 if recaptured by the detaining power
since this obligation is properly addressed to the home state. It is unlikely
that prisoners of war will be charged with war crime for getting involved in
the hostilities again.
288
The duty to release is closely tied with the duty to repatriate. Merely
releasing a prisoner of war after the cessation of active hostilities does not
meet this obligation as the two terms are linked by the wording of Article
118 GC III (para.1). Repatriation entails a well worked out arrangement which
may be finalized either by consensus among the parties to the conflict, or
may be set-up by the detaining power. Repatriating of prisoners of war
without having a well thought plan is not permitted by Article 18 GC III. To
this end, a repatriation plan must set out:
The type of repatriation
The time frame and
The prisoners of war involved.
The requirements provided in Article 119 become very useful during
repatriation. Articles of importance or that are valuable must be restituted
to the prisoners before repatriation. They are allowed to take along their
personal effects, money, and other parcels they received during internment.
The actual cessation of hostilities automatically paves the way for the
duty to release prisoners of war. The meaning of cessation of hostilities
and who decides when it eventually occurs remains vague. However,
Schwarzenberger589 formulated that hostilities ceases if neither side expects
a resumption of hostilities. By this definition, parties to the conflict allowed
to estimate subjectively the intention of the enemy. More specifically,
State parties that are ideologically antagonistic may always claim that a
resumption of hostilities is still a part of the other partys political chicanery.
To provide protection for prisoners of war, it is apposite to make reference
to the military circumstances following the halting of hostilities and to
choose a practical approach. It should be noted that an armistice agreement
does not necessarily mean cessation of hostilities within the contemplation
of Article 118 GC III. The surrounding circumstances of each individual case
will signal whether an armistice appears to have ushered in lasting peace or
a mere interruption of the armed conflict. A solid way of assuring that the
armistice would eventually lead to a lasting peace is when it is monitored
589 Schwarzenberger, G. International Law (1968) p.134
289
290
291
CHAPTER
7
The Law of Neutrality
I. Introduction
Neutrality as defined by International Law is to the effect that a state is
not party to an armed conflict in as much as that state does not in any
ramification involve itself in acts of hostilities among the parties to the
conflict, or render help or assistance of any form to belligerents. Since such
state does not partake in any way in the armed conflict,591 they are not to
be adversely affected by the armed conflict or hostilities. Neutrality laws are
laws governing a States abstention from participating in a conflict or aiding
a participant of such conflict and it also imposes a duty on participants to
refrain from violating the territory, seizing their possession or hampering
the peaceful commerce of such neutral state, so long as the neutral state does
not partake in hostilities and are impartial.592 The right of the neutral state
not to be adversely affected connotes that the relationship between neutral
and belligerent states is governed by the law of peace. Particularly, neutral
states must tolerate certain control in the area of Maritime commerce.
The duty of non participation and impartiality of neutral States suffices
that such neutral states must entirely abstain from supporting parties to
the conflict. Once a State decides on a position of neutrality, it must take
steps to prevent its territory from becoming a base for military operations,
organizing of military personnel, the organizing of military expeditions,
and the constructing, outfitting, commissioning and arming of warship
for belligerent use. The duty of impartiality furthermore enunciates
that a neutral State is under no obligation to eliminate difference in the
commercial relations between itself and each of the parties to the conflict.
Such State is under no obligation to prevent private persons or companies
from advancing credits or selling commodities to belligerents. Thus, it
can continue existing commercial relations and such sales are not illegal
under the international law of neutrality. However, a change in commercial
591 R. Bindschedler, 111 EPIL, 549 et seq; Kussbach, 35 Annales de troit International
Medical (1991), 82.
592 Hague Convention Nos. V and X111 of 1907.
292
293
294
which is the right of all States to assist a victim of aggression but not a duty
to do so. Thus, it is lawful if a State does not support a victim of aggression
by remaining impartial and neutral. This negates the impartiality principle
as postulated by neutrality laws.598 The situation may differ only if and to
the extent that the Security Council uses its powers under Chapter VII of
the Charter to oblige states to conduct enforcement measures (Articles 41,
42, 43 and 48 UN Charter 1945). This inherently means that the traditional
duty of non participation and impartiality has in no way been revoked by
the Charter. When taking such a decision on impartiality, the Security
Council may also differentiate the supporting duties imposed on particular
states.599 Thus, the issue of distinguishing between enforcement measures
in the strict sense and measures undertaken by the United Nations under
the directive of the Security Council from military operations undertaken
by one or more States and authorized by the Security Council has to be
clearly elucidated. It is important to distinguish between the authorization
to conduct military operations and authorization given only to States co
operating with the government. A good example is the invasion of Kuwait
by Iraq and subsequent military operations against Iraq by the UN Security
Council. This clearly implies the legal admissibility of non participation
and non military enforcement measures against Iraq. In particular, the
interruption of commercial relations and of monetary transactions imposed
as a duty to deviate from the principle of Courant normale to the extent that
there was a modification of the rules of neutrality. The authorization given
by the Security Council to take military actions against Iraq also modified
the duty of non participation.
It is trite to note here that every State, being independent and sovereign
is free to participate in armed conflicts but only on the side of the victim of
the an armed attack (collective self defense), not on that of the aggressor.
Also, permanent neutrality is a status under which a State undertakes in
peacetime, a legal obligation to remain neutral in case of an armed conflict
between two other States. This status requires the neutral State in peacetime
not to accept any military obligations and to abstain from acts which will
render the fulfillment of its obligation of neutrality impossible should the
armed conflict occur.
A clear distinction should be made between such a legal obligation to
remain neutral and neutrality policy. The legal neutralization of certain
states was one of the political tools used for the maintenance of balance
598 Scindler Loc.cit; no. 8
599 Torrelli, 35 Annales de droit Internationnale Medicale (1991) 38 et seq
295
of power in Europe under the European Concert during the last century.
The States that still posses a legally based status of permanent neutrality
are Switzerland and Austria.60010 The permanent neutrality status of
Switzerland is based on mutual unilateral declarations made by Switzerland
and by the most important European powers in connection with the Vienna
Congress in 1815. The international legal basis of permanent neutrality of
Austria is also a unilateral act namely, the Austrian Notification of the
Federal Constitution Act of 26 October, 1955. Whether and to what extent
both states are under an international legal duty to maintain this status of
permanent neutrality is not clear.
During peacetime, a state which is permanently neutral e.g. Switzerland
and Austria, may not accept any obligation which would render it
impossible to fulfill in times of armed conflicts, i.e. neutrality duties. Thus, a
permanently neutral state may not become a member of a military alliance.
In relation to Austria, there was a lively discussion as to whether the
economic obligations involved in Austrian membership of the Economic
Commission will be incompatible with its status of permanent neutrality.
In clear concise terms, permanent neutrality means a renunciation of the
right of collective self defense i.e., the right to grant assistance, but not a
renunciation of the right to accept help from others if the permanently
neutral State is attacked. Except for those rules which are legally based,
permanent neutrality applies in times of peace. Neutrality in war times
begins with the outbreak of armed conflict or hostilities of significant scope
between two other States.601
The Law of Neutrality leads to considerable modifications in the
relationship between the neutral and belligerent States, i.e. States involved
in armed conflicts and States not involved in hostilities. There exists a
traditional thesis which is defended till date to the effect that the application
of the law of neutrality requires the existence of war in the legal sense.602
There is still a widespread opinion that in addition to the objective existence
of harmed hostilities, there must be a subjective element; the intent to
conduct war (animus belligerandi). If this were correct, a State could impose
upon a party to the conflict by the law of neutrality. States not party to the
conflict which have not reached the threshold of the application of the law
of neutrality are not neutral in the legal sense, i.e. they are not bound by the
particular duties of the law of neutrality. In those fields, where the rules of
600 R. Bindschedler 111 EPIL, 1011 et seq.
601 Bother N. Dekker/ Post(Eds), 205 et seq.
602 Castren Greenwood, Dekker /Post (Eds) 212 et seq.
296
297
298
The basic and most fundamental rule in the law of neutrality is found
in Article 1, HC V which provides that the territory of neutral powers
is inviolable. This is to the effect that any act of hostility carried out in
whatever capacity in the territory of a neutral state is prohibited. Thus,
formulating a fundamental right of neutral states to remain outside the
armed conflict and not to be adversely affected by it. Parties to the conflict
may not in any way use the neutral territory for its military operations,
transit or for similar purposes. It should be noted here that the right of self
606 For example, during the Iran-Iraq war, the un-neutral services rendered to Iraq by the
United States, Saudi Arabia and Kuwait did not entitle Iran to adopt measures against
those states involving the use of military force.
299
defence does not in any way legitimize the use of any means contrary to
the laws of war, neither does it legitimize military measures against States
which have not committed aggression themselves. The right of self defence
does not constitute a comprehensive right of self help against innocent third
states. The inviolability of neutral territory applies not only to neutral land
but also neutral waters which includes internal waters which are waters
within the territorial sovereignty of a state, territorial sea, and the airspace
of such a neutral territory.
The inviolability of neutral territory is also to the effect that the neutral
state must not be affected by the collateral effects of hostilities. The parties
to the conflict do not have any right to cause damage to neutral territory
through hostilities. It is unlawful for the effects of attacks directed against
belligerents (i.e. the other party to the conflict), to be felt in a neutral
state. In recognition to this rule, allied governments paid compensation
for damage occurring during World War II in Switzerland (which is a
neutral state), caused by attacks on targets in Germany which had impacts
in Switzerland. To every rule they say exists an exception. Therefore the
inviolability of neutral territory exception applies only where for instance
in maritime warfare, certain impact of hostilities occurs in a neutral states
interest. As regards land warfare, there is no rule of customary law which
would lower the normal standard of peacetime protection against transboundary impact.
Article 5, HC V provides that
A neutral power must not allow any of the acts referred to in Articles
2 4 to occur in its territory.
300
301
support to the war effort of Iraq. The supply of arms by western states to Iraq
was objectionable under the law of neutrality. This prohibition on supplies
is absolute and applies also where assistance is given to both parties to the
conflict. The supply of any war material is forbidden except where expressly
stated by the Security Council that such is adopted for the maintenance
of peace.
Article 14 HC V provides that
A neutral power may authorize the passage over its territories of the
sick and wounded belonging to the belligerent armies, on condition
that the means of transport bringing them shall carry neither
personnel nor war material.
302
will make to prevent the export of war material, because one has to assume
that besides arms exports controlled by the state, there is a black market
which evades State control. The more stringent the controls, the greater the
incentive to undertake transfer to circumvent them.
Discussion about the supply of equipment for the production of chemical
weapons in Libya and Iraq is a typical example. In the field of chemical
weapons, the new Convention on the Prohibition of Chemical Weapons
entails specific duties of export control. In the area of nuclear weapons, the
Non-Proliferation Treaty has a similar function of the non-nuclear weapon
owing states.
While the troops of a neutral state may not take part in any war operations,
it cannot and is not required to prevent its nationals from entering the
service of a party to the conflict on their own initiative and responsibility.
Article 4 HC V expressly provides that
Corps of combatants cannot be formed nor recruiting agencies
opened in the territory of a neutral power to assist the belligerent.
War on land can be referred to the acts of combat within the land mass
of parties to the conflict or within the territories of their States. It is trite
knowledge that combat activities should be within the territories of the
parties to the conflict. Article 2 HC V makes it known that troops or supply
movements must not be carried out on a neutral territory. Thus any act of
combat between belligerents carried on neutral land violates the principles
of the law of neutrality. Article 14 HC V provides that;
303
Thus, if the whole unit of the armed forces of a party to the conflict arrives
on neutral territory, it would be a violation of the duty of non-participation
should the neutral state be permitted to take part again in the hostilities.
Therefore, those troops must be interned. War materials also have to be
withheld until the end of the conflict. On the issue of prisoners, the neutral
state has to prevent escaped prisoners arriving on its territory from taking
further part in the hostilities. Articles 13 HC V expressly states inter alia that
the escaped prisoners must remain free. Certain authors conclude from
this that they must be permitted to go back to their home country. This is
however unclear but it should supported. Helping the escaped prisoners
608 The decision of the Irish High Court of April 28, 2003, HORGAN V. TAOISEACH (2003)
468, 2 IR.
304
of war to get back to their home does not vitiate or diminish the status
of neutrality.
Naval Warfare
609 Rights and Duties of Neutral Powers in Naval War of October 18, 1907 (Hague XIII).
610 Any natural or artificial body or stream of water within the territorial limits of a country
canal (Blacks Law Dictionary, Seventh Edition, edited by Bryan A. Garner
611 All maritime waters within archipelagic baselines which are neither internal waters
nor territorial waters but can be controlled by the archipelagic state (Law of the sea by
Robin Rolf Churchill and Alan Vaughan, Lowe, Manchester University Press 1997)
612 Self of coastal waters extending at most, twelve nautical miles from the baseline of a
costal state (1982 UN Convention on the Law of the Sea).
613 Paras 31 33 San Remo Manual on International Law Applicable to Armed Conflicts at
Sea, 12 June, 1994.
305
Thus, acts of war are prohibited in neutral waters to the same extent as
they are forbidden on neutral territory. Forbidden acts of war includes the
exercise of the law of prize such as stop, visit and search, orders to follows a
specific course, capture of merchant ships, etc. The jurisdictional water to
be respected consists of the territorial sea and the internal waters belonging
to the sea.614 The exclusive economic zone and the sea area above the
continental shelf do not constitute neutral waters. Therefore acts of war are
as a matter of principle permitted in such areas. This is because the exclusive
economic zone615 and the continental shelf, constitute a freedom of the use
of such waters like navigation because they are international waters. The
parties to the conflict must however, in conducting hostilities, take into
account the economic interest of the neutral coastal state in whose exclusive
economic zone, hostilities are taking place. Article 3, para 1 HC XIII provides
that
When a ship has been captured in the territorial water of a neutral
power, this power must employ, if the prize is till within its jurisdiction,
the means at its disposal to release the prize with its officers and create
and to intern the prize crew.
This raises a pertinent issue of the duty to defend neutrality. If the right
of prize is exercised in neutral waters contrary to the laws of neutrality, the
neutral state must make an effort to undo this violation by freeing the prize
captured in its waters. This liberation of the prize is consistent with the
prohibition of the use of force, since it constitutes an exercise of sovereign
rights in the states own jurisdictional area where the justification of self
defence is not required.
Article 3, para 2 HC XIII emphatically states that
If the prize is not in the jurisdiction of the neutral power, the captor
government, on the demand of that power must liberate the prize with
its officers and crew.
This is to the purport that a neutral state may demand the release of a ship
captured within its waters even if the ship has already left the neutral waters.
614 Article 8 of the United Nations Convention on the Law of the Sea
615 The Exclusive Economic Zone extends for 200 nautical miles (300km) beyond the
baselines of the territorial sea, thus including the territorial sea and its contiguous zone.
Right of control of all economic resources is permitted. However it cannot regulate
or prohibit passage or loitering above, on or, under the surface of the sea, whether
innocent or belligerent within that portion of its exclusive economic zone beyond its
territorial sea.
306
It is a secondary obligation derived from the primary rule and the prize (i.e.
the ship) must be taken.
Article 15 GC II states that
If the ship of a neutral state takes wounded, sick or shipwrecked
persons on board, it must to the extent required by international law;
ensure that these persons take no further part in hostilities.
307
The twenty four hour rule is the most important exception to the rule
that the rights of passage or transit existing in peacetime apply equally in
times of armed conflicts. The reason being to prevent parties to the conflict
from using neutral waters as a refuge from enemy warships. According to
the text of The Hague Convention the twenty four hour rule applies. This
was the case during the Second World War in the Altmark case where a
German auxiliary warship has spent two days passing through the coastal
waters of Norway, which at the time was still neutral, in order to avoid being
capture by the British fleet. At that time, Norway claimed that the twenty
four hour rule did not apply to mere passage. The view has not prevailed.
An exception to the twenty four hour rule applies where the passage
through neutral waters is not possible within twenty four hours. This will
be the case particularly for archipelagic shipping lane passage in such a
case; the rule is modified to the effect that the time required for the shortest
possible passage is permitted. The assistance permissible during a stay of
ships of a party to the conflict in neutral wars constitute a compromise
between the prohibition of assisting armed forces of the belligerents and the
requirements of seafaring solidarity. Sea faring solidarity requires granting
such help to a ship which is necessary, taking into account the seaworthiness
308
Article 18 is to the purport that the warships of belligerents may not use
neutral ports, road steeds or territorial waters for replenishing or increasing
their supplies of war material or their armament or for completing
their crews.
Article 24 HC XIII amongst other things provides that if a belligerent
warship does not leave a port where it is not entitled to remain, the neutral
power can take such measures as it deems necessary to render the ship
incapable of taking the sea and command the officer of the ship to stop any
such measures. The crews and officers should also be detained. Officers may
be left at liberty on giving their word not to quit the neutral territory without
permission. Therefore if a warship of any of the parties to the conflict stays
longer than the permissible time which is 24 hours, it violates the Laws of
Neutrality and in accordance with the above provision shall be invoked.
Article 16 HC XIII provides that
When warships belonging to both belligerents are present
simultaneously in a neutral port or road steed, a period of not less
then twenty four hours must elapse between the departure of the ship
belonging to one belligerent and the departure of the ship belonging
to the other. The order of the departure is determined by the order of
arrival, unless the ship which arrived first is so circumstanced that an
extension of its stay is permissible.
The reason for a fixed period between the departures of warship belonging
to different parties to the conflict is to prevent confrontation between
them immediately after they leave neutral waters. Otherwise the order of
departure may influence the outcome of the conflict.
In Article 25 HC XIII, the prohibition of non-neutral series was modified
in the interest of navigational safety. It provides that a neutral State is bound
to prevent within its means at its disposal, any violation of the rules of
309
It further provides inter alia that a neutral power may nevertheless forbid
a belligerent vessel which has failed to conform to the orders and regulations
made by it or which has violated the law of neutrality to enter its ports or
roadsteads. Thus, in armed conflict, the neutral State may regulate passage
through its waters and any stay therein by imposing its own rules. It may
limit passage rights or impose other limitations so long as it does not create
more advantageous conditions for one party to the detriment of the other.
Nevertheless, in specific geographic circumstances, one party to the conflict
may benefit from such rules than the other.
Another pertinent issue is as regards control by the parties to the conflict.
The control of neutral commercial shipping by parties to the conflict is
very important. The state of international customary law is controversial in
many details concerning the extent of this control. The London Declaration
of 1909 which codified these rights of control was not ratified. In recent
conflicts, such rights of control were exercised without objection although
certain specific measures and some status were controversial. Warships of
a party to the conflict are entitled to stop, visit and search merchant ships
flying the flag of a neutral state on the high seas and control the contents
and destination of their cargo. The control by the parties to the conflict of
neutral shipping constitutes an essential exception to the principle that the
existence of an armed conflict. The purpose of such control is to impede
the provision of goods imported for the war effort to the other party to the
conflict. It is the right of warship of a party to the conflict to stop neutral
commercial ships and to search them in order to find out whether they
have goods aboard which could assist the war effort of the other party to
the conflict.
As a last resort, warships of a party to the conflict may use force but only
that which is necessary against neutral merchant ships to exercise such
control only such force is permissible which is indispensable to enforce
the right of control in particular to prevent a merchant ship from evading
310
311
312
This rule adds further precision to the principle that neutral territory may
not be used for any act which causes damage to the enemy.
313
314
neutrality. The neutral state however must exercise all due controls so as to
prevent the over flight of civilians from being used for military purposes.
Permission is required for over flight and stopover. A neutral State has the
right to place conditions and restrictions on over flight.622 Medical as well
as war aircrafts are not permitted to penetrate into neutral airspace without
authorization. In that respect, such aircraft, even medical may require
specific authorization, the granting of this is discretionary to the neutral
State. Where such permission is granted by the neutral State, conditions
may be attached especially as regards routes which must be followed and
necessary stopover. Article 31 paragraphs 2 AP I provides that
At a stopover an aircraft may be inspected to verify that it is
medical transport.
315
or be force to land. The obligation to intern their crews is from the federal
principles afore mentioned.
Under general international law which is applicable in peacetimes,
there is no general right for foreign aircraft, be it private or state owned to
over fly the territory of another state or to land therein. For instance, the
Chicago Convention provides certain rights of over flights and landing in
peace times only for private non scheduled air services. According to the
war clause of the Chicago Convention on International Civil Aviation of
December 7 1944 (Article 89), the provision of the Convention does not
affect the freedom of action of the contracting parties in a war be they
belligerent, or neutral. Thus, the rights of neutral aircraft to over fly the
territory of the parties to the conflict is regulated by International Law rules
on the protection of national airspace and the rules of space international
air traffic. Traffic rights for scheduled air services are as a rule derived from
agreements made bilaterally. Generally speaking, the legal situation is that
a State which is a party to the conflict can grant or not grant rights of over
flight to aircraft flying neutral flags subject to the provisions of bilateral air
transport agreement.
Special rules apply to airspace above specific types of jurisdictional
waters. As aforementioned, the right of innocent passage over territorial sea
is treated in the same way as the land areas around it. Therefore, it is now
Customary Law that the right of transit and passage includes a right of over
flight. (Articles 35 and 53 of the UN Convention on the Law of the Sea). The
relevant rules of naval warfare apply to the control, capture and confiscation
of neutral above sea areas and to the treatment of their passengers and crew
(Article 35 HRAW). An aircraft which does not carry elucidating visible
neutral national emblem may be treated as an enemy aircraft. When The
Hague Rule of Aerial Warfare was elaborated, the rules regarding the control
of neutral shipping were brought in. The increase in air traffic gave rise to
the issue of the control of neutral commerce. As far as air traffic over high
seas of concerned, account must be taken of the fact that aircraft constitute a
considerable threat to warships of parties to the conflict.
Thus, those ships will definitely react to any perceived threat where
it is herculean to identify if the aircraft is an enemy or a neutral one. The
shooting down of an Iranian civilian airbus by a US warship during the
conflict between Iraq and Iran shows the kind of tragic errors which may
result. Therefore both belligerent and neutral warships must endeavour to
ascertain the nationality and the category of any aircraft flying across the
airspace in such conflict time so that they can be identified. An aircraft
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which is not identifiable and does not carry any distinct emblem of
nationality or neutrality (for humanitarian purposes), must be considered
an enemy aircraft and may therefore be attacked.
In conclusion therefore, the sources of the international law of neutrality
are customary international law and for certain questions international
treaties, in particular, the Paris Declaration of 1856, the 1907 Hague
Convention No. V Respecting the Rights and Duties of Neutral Powers
and Persons in case of War on Land, the 1907 Hague Convention No. XIII
Concerning the Rights and Duties of Neutral Powers in Navel War, the four
Geneva Conventions of 1949 and Additional Protocol I of 1977.
The United Nations Charter of 1945 and Security Council decisions based
on the Charter may in certain circumstances modify the law of neutrality.
For example Article 2(5) of the Charter requires members states to give the
UN every assistance in any action it takes. Article 25 requires UN members
to accept and comply with the decisions of the Security Council; the
enforcement measures spelled out in Chapter VII can also have an impact
as they are governed by particular rules which differ from those of the law
of neutrality.
The territory of a neutral state is inviolable. Thus it is prohibited to commit
any act of hostility whatsoever on such territory. Neutrality described the
formal position taken by a state which is not participating in an armed
conflict or which does not want to become involved. This status entails
specific rights and duties. On the one hand, the neutral state has the right
to stand apart from and not be adversely affected by the participation and
impartiality. Neutral space comprises the national territory of the neutral
state its territorial waters and its national airspace.
Neutral persons are nationals of neutral states. They lose their neutral
status if they commit hostile acts against a belligerent. Individuals may join
the armed forces of a belligerent party only when they lose their neutral
status. Once they lose their neutral status, they still have all the guarantees
of protection that a member of those forces would enjoy and therefore are
entitled to POW status if they are subsequently captured. As long as their
home state maintain normal diplomatic relations with the belligerent state
they are living in or visiting, neutral persons are to be treated in the same
way as they would in peace time. They remain under diplomatic protection.
If there is no such diplomatic relations, neutral persons are entitled to be
treated as protected persons under the Fourth Geneva Convention.62333 It
623 GC IV. Art. 4.
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320
responsible at the end of hostilities for making good the costs incurred. In
the absence of any agreement, the internees should as a minimum be given
treatment equivalent to that of POWs under GC III.626
As regards hot pursuit into neutral territory, it is generally accepted that if
belligerent forces enter neutral territory and the neutral authority is unable
or unwilling to expel or inter them, the adverse party is entitled to under
take their hot pursuit and attack them there. It may even seek compensation
from the neutral state for this breach of neutrality. Military equipments
taken from belligerent internees also have to be kept by the neutral State
until the end of hostilities. Also escaped POWs who reach neutral territory or
POWs who are held by a belligerent party seeking refuge there are to be left
at liberty. If the neutral State tolerates their stay on its territory, it can assign
them a place of residence. By arrangements between the States concerned
(i.e. parties to the conflict with the co-operation of neutral States), POWs can
be admitted and interned on neutral territory until the end of hostilities.
This rule caters for those States that might not be able to provide POWs
with the treatment they must receive under GC 3. Agreements between the
belligerent parties and a neutral state mutually agreed by them may also be
drawn up to cover the transfer of able bodied POWs who have undergone a
long period of captivity.
The wounded and the sick in a neutral territory, may authorized passage
through its territory, or the treatment there of the wounded and sick of the
armed forces of a belligerent, while in the neutral state, they are governed
by the relevant GCs and Additional Protocol I. Wounded and sick must not
be accompanied in transits by combatant personnel, arms or other military
suppliers. In the event that they are, the neutral State must take such steps
for safety and control that are necessary. The sick and wounded brought into
a neutral State must under these circumstances be guarded to ensure that
they do not take part in military operations again.
An aspect of neutrality related to the sea, which chiefly concerns the
armed forces of a neutral state which might be involved in port operations.
Although passage through neutral waters is permitted, neither the port
facilities nor the waters may be used as a basis for warlike operations,
warships of the belligerent parties may be admitted into a neutral port
for repair and restored to peacetime standards or to refuel to the extent
necessary to enable them reach the nearest home port. Their stay must not
exceed twenty-four hours except in case of damage or stress or weather. A
maximum of three vessels of one belligerent are allowed in port at any one
626 HC V, Arts. 11 & 12
321
time. If two belligerent have vessels in the same port, they must depart at
different times. Medical ships of the belligerent parties are not subject to the
restrictions imposed on the warships in neutral ports.
With respect to neutrality on air which involves air defence or airfield
security duties, military aircraft of the belligerent parties are excluded
from neutral airspace just as belligerent ground forces are excluded from
neutral territory. If they break this rules they can be ordered to land and be
impounded if they fail to respond to warnings on land, they can be forced
down or destroyed by an anti aircraft missiles or air attack. In emergency
situations, a belligerent aircraft may have to land in neutral territory. The
pilot should signal his plight using the normal emergency radio signal
procedure. In such cases, the neutral state must allow the aircraft to land.
The pilots and crew must be interned until the end of hostilities and the
aircraft impounded.
Medical aircraft may however fly over neutral airspace and even stop over
but only by previous notification and agreement. Aircraft flying without
agreement should make every effort to identify themselves. They will be
ordered to land and inspected. If the inspection shows that they are being
used for non medical purposes, the aircraft can be impounded and the crew
detained. If they were on legitimate medical mission, they should be allowed
to continue with appropriate notifications and clearances given to your own
forces. If they fail to respond to the order to land, they can be attacked but
you should allow enough time for them to comply with the order.627
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CHAPTER
8
Internal Armed Conflicts
1. General Rules on Internal Armed Conflicts
Internal armed conflicts (also known as non- international armed conflicts)
are armed confrontations which occur within the territory of a State and
in which the armed forces of no other State are engaged against the central
government. Even when a foreign State extends its military support to the
government of a State where there is an internal armed conflict, the conflict
still remains internal but when a foreign State extends military support to
an armed group acting against the government, the conflict will assume
another dimension, thus metamorphosing into an international armed
conflict. Internal disturbances and tensions such as riots, isolated and
sporadic acts of violence or other acts of similar nature, do not amount to
internal armed conflict.
Many armed conflicts today take place largely within the territory of a
State; it involves the confrontation between the authorities of a State and
armed groups or among armed groups that do not operate under the
authority of the State. Such armed conflicts are referred to as internal or
non- international armed conflicts, although they do not occur between
sovereign States, they are regulated by international law and governed by
the Geneva Conventions and Additional Protocols. Unlike international
armed conflicts, many armed opposition groups may be aiming at State
control, changing political leadership or securing States resources such as
oil, diamonds, gold, wood, etc. it is very typical for non international armed
conflict to have the size, equipment, training and tactics of wars which are
common to international armed conflicts, their activities are coordinated in
the form of guerrilla warfare.
Interventions by States in support of armed opposition groups in the
territory of another State will escalate the conflict and turn it into an
international character, if that intervening State is conducting military
operations or controlling the operations carried out by the armed opposition
323
group. In 1999, the ICTY 628 Appeals Chambers in TADIC case629 accepted the
evidence of overall control of insurgents in Bosnia and Herzegovina (the
Bosnian Serb army), by the Federal Republic of Yugoslavia, beyond mere
financing and equipping of such forces to involving of the participation
in the planning and supervision of military operations as sufficient for
qualifying the ongoing conflict as international armed conflict. The Appeal
held that
International rules do not require that such control should extend to
the issuing of specific orders or instructions relating to single military
actions whether or not such actions were contrary to international
humanitarian law.
324
630 Sassoli (2006), p. 5; Considering that the military operations of Hezbollah were not
attributable to Lebanon as the Lebanese government did not authorize and was unable
to stop them, though Hezbollah was represented in the Lebanese government.
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326
It can be said that states are still reluctant to apply the laws of war in
internal armed conflicts, as they maintain a legal framework which gives
privileges to their own police and armed forces against opposition groups.
The concern in this is not just to insurgents but also on other difficulties
in applying the legally codified rules of war in internal armed conflicts
maintaining key distinctions between civilians and military, which is
usually difficult in war times.
The law of armed conflict is a very relevant statute because of the
seriousness it attaches to human protection; it recognizes combatants as
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328
no doubt that military necessity has already been accounted for in the
formation of these rules. It should be noted that military objective cannot
serve as a ground to violate these fundamental principles, as they are based
principles of customary international law which must be adhered to. They
are derived from the fundamental tenet that the right of belligerents in
choosing means or methods of warfare is limited. This tenant was expressed
in the 1874 Brussels Declaration633 and the 1880 Oxford Manual. It was also
codified formally in the 1899 Hague Regulations and reaffirmed in the 1907
version.634 Subsequently, it appeared in Additional Protocol I as well as other
instruments such as the 1980 Convention on Conventional Weapons.635 The
Convention on Conventional Weapons is of particular relevance because
in 2001 the extension of the entire agreement was also included to noninternational armed conflicts (internal armed conflicts).636 The instrument
represents the first treaty which acknowledges the tenet in the context of
internal armed conflicts.
The three principles which are inherent to international humanitarian
law in general are certainly implied in internal armed conflict. Similarly
they have also been recognized in international Tribunals. The Nuremberg
Tribunal held that the rules included in the 1907 Hague Regulations were
recognized by all civilized nations and were regarded as being declaratory
of the laws and customs of war.637 The ICJ also came to a similar conclusion
in its Advisory Opinion on the threat or use of Nuclear weapons.638 In
another development, the Appeals chamber of the ICTY confirmed the
applicability of the principles to non-international armed conflict in the
Tadic case (supra). There the appellate chamber held that customary rules
had developed to govern internal strife covering such areas as protection
of civilians from hostilities, indiscriminate attacks, protection of cultural
633 The Brussels Declaration was the first comprehensive code regarding the laws of Armed
Conflict. Though never ratified, the Brussels Declaration was the basis for the Hague
Regulations of 1899 and 1907.
634 Art. 22
635 Art. 35.1
636 Preamble convention o conventional weapons amendment to Art. 1, Dec. 21, 2001,
ICRC Treaty data www.ictc.org/ihl
637 Trial of the major war criminals, Nov. 14, 1945 Oct. 1, 1946 Nuremberg 1947 Vol. 1
pg. 254.
638 Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, 1996 ICJ Rep. 226
(July 8) at paragraph 77; Report of the Secretary General on Aspects of Establishing an
international Tribunal for the prosecution of persons responsible for serious violations
of international Humanitarian law committed in the former territory of Yugoslavia
since 1991 (May 3, 1993) UN doc. S/25 704, 32, ILM 1159 (1995)
329
property, and protection of those who do not (no longer) take active part in
hostilities.639 The parties to internal or domestic armed conflict are under
obligation to observe these rules.
The Appeals chamber cited the general Assembly Resolution 2444 of 1968
(Respect of Human Rights in Armed Conflict), which recognized the
necessity of applying basic humanitarian principles in all armed conflicts
regardless of whether it is internal or international. Among these principles
was the declaration that the right of the parties to a conflict to adopt means
of injuring the enemy is not unlimited.640
II.
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332
333
in Somalia after 1991. Additional Protocol II was applied for the first time in
the civil war in El Salvador during the 1980s643
The government of El Salvador did not concede to the applicability of
the Protocol but accepted that it should be applied because its provisions
developed and completed the minimum provisions of common Article 3 to
the Geneva Conventions. Although internal conflict is in principle subject
to a different and more limited legal regime than that which applies in an
international armed conflict, armed conflicts may become applicable in
a conflict which originally was classified as internal. After the adoption
of Additional Protocol II and despite several controversies during its
negotiations, practice has lead to the creation of rules parallel to those in
Additional Protocol I and applicable as customary law to non international
armed conflicts. This applies to the rules on the conduct of hostilities between
belligerents and the respect for specifically protected persons (wounded,
sick and shipwrecked members of the armed forces, civilians, women and
children) and protected properties (cultural historical monuments, places of
worship, archeological sites, works of art and scientific collections).
IV.
The Nigerian Civil War also known as the Nigerian-Biafran war commenced
in July 6, 1967 and ended January 15, 1970. It was a political conflict caused
by an attempted succession of the South Eastern provinces of Nigeria as the
self proclaimed Republic of Biafra. The Nigerian Civil war was fought to
reintegrate and reunify the country. The conflict was the result of economic,
ethnic, cultural and religious tensions among the various peoples of Nigeria.
Like many other African countries, Nigeria was an artificial structure
initiated by the British which had neglected to consider differences in
language, religious or ethnicity. The Federation of Nigeria, as it is known
today, has never really being one homogeneous country since it is widely
made of differing peoples and tribes. This notwithstanding, the former
colonial masters decided to keep the country one in order to effectively
control her vital resources for their economic interest. Although the unified
area contained many different groups, three were distinctly predominant;
Igbo, Yoruba and the Hausa-Fulani. The Igbo formed about 60-70% of the
population in the south-east, the Hausa-Fulani formed about 65% of the
Peoples in the Northern part of the territory while the Yoruba formed about
75% of the population in the West.
643 ICRC Annual Report 39 (1989)
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335
336
along, the bane was to concentrate power in the region with the centre being
almost powerless. The failure of the Wilkin Commission to recommend for
states creation was the seed for instability which grew and matured in the
civil wars.
With the granting of independence in 1960, the dirt of tribalism,
regionalism and unconcern for other regions which were swept under
the carpet as a result of the clamour for independence resurfaced. Nigeria
was now beset by strings of stormy political problems. The first postindependence disturbances was the defence agreement between Great
Britain and Nigeria which was an attempt by Great Britain to swindle
Nigeria out of her sovereignty by contracting with Nigeria to afford each
other such assistance as may be necessary for mutual defence and to consult
together on measures o be taken jointly or separately to ensure the fullest cooperation between them for this purpose. It was an unequal treaty. Through
demonstrations by students and vehement opposition by the general public
and the opposition members of the Federal House of Representatives.
The agreement was abrogated in December 1962. Almost at the same time
in 1962, the crisis within the ruling Action Group party of the Western
Region led to the detention in some of its leaders, including the leader
of the opposition in the Federal House, Chief Obafemi Awolowo. The
proclamation of direct rule by the Federal Government was quickly follows
by the creation of the mid-Western Region out of the Western Region the
smallest of the three regions. Worse still was the announcement that no
more states will be created in the country. This caused uproar. From May
20, 1962, the Western Region of Nigeria knew no peace until January 15, 1966
when the first coup took place. The census crisis of 1062 was yet another
bottle in the neck at the inception of an independent Nigeria, the census was
alleged of an independent Nigeria. The census was alleged to be riddled with
malpractices and inflation of figures of refused to accept them. Another
census was carried out in 1963 and the resulting figures were accepted with
some reservations. The middle belt in the North had grown intolerant of the
Northern Peoples Congress (NPC) and they noted for three years 1962 1965.
The straw which broke the camels back in the post independence crisis
which eventually led to the coup and the civil wars was the general election
of 1964. The elections were used by the ruling parties in the regions to
eliminate opponents. There were boycotts by political parties and the
chairman of the Electoral Commission admitted himself that there were
proven irregularities. In the light of allegations of flagrant irregularities,
the president, Dr. Nnamdi Azikiwe, refused to appoint the prime minister.
337
The president and the prime minister- Sir Abubakar, Tafawa Balewa, were
seeking the support of the armed forces, for four anxious days, the nation
waited until the president announced on January 4, 1965 that he had
appointed Sir Abubakar Tafawa Balewa to form a broad based government.
The western Regional Election of 1965 was nothing to write home about. The
rigging and irregularities in the election were alleged to be more brazen and
more shameful.
Law and order broke down completely, leading to, an almost incomplete
state of anarchy. Arson and indiscriminate killings occurred by the use of
private thugs against the other. Law abiding citizens lived in constant fear of
their lives and properties. This continued until the coup of January 15, 1966
ensued. The aim of the coup was to establish a strong, unified and prosperous
nation, free from corruption and internal strife. The out some of the ill-fated
coup was a change of political balance in the country. Major Nzeogwus aim
for the coup was seen as biased because all the politicians and senior army
officers who were killed were from the North and West. The coup hastened
Nigeria collapsed. According to A.H.M. Kirk-Greene645 the federation was
sick at birth and by January 1966, the sick and bedridden babe collapsed.
The sky high praises of the coup and the apparent relief gotten from the
southern part of Nigeria ended abruptly when the succeeding government
of Major General J. T. U. Aguiyi-Ironsi unmasked his plans. Should Ironsi
have a mentality of one unified Nigeria, he would have relief that finally their
travails has abated. In the North, the suppressed relief and muted favourable
reaction in certain quarters turned to studies silence and a wait and see
attitude which gradually changed to resentment and later riot. The counter
coup of July 29, 1966 which followed the riots had two aims- revenge upon
the East by the North and a break up of the country. But the wise counsel
of Nigerians followed by the concern of well disposed foreigners prevailed
against the break up. After three consecutive days of fear, doubts and nongovernment, Lt. Col. Yakubu Gowon emerged in August, 1966 as the new
Nigerian figure head. The lack of planning and the revengeful intention of
the second coup manifested itself in the chaos, confusion and the scales
of unnecessary killings throughout the country. It was share imbroglio as
there existed general lawlessness, disorder, senseless looting and killing.
Lt Col. Yakubu Gowon in a broadcast to the Northerners said I receive
complaints daily that up till now Easterners living in the North are being
killed, molested and their properties looted. It appears that is going beyond
645 Crisis Conflict Nigeria, 1967 -70, VOL. I January 1965 July 1967 (Oxford University
Press, 1971),pg. 210.
338
339
340
341
342
343
committed by his rebel allies in Sierra Leone was issued by inter Poll but
Nigeria refused to deport him unless they receive a specific request from
Liberia. Vice President Moses Blah replaced Taylor prior to the installation
of a transitional government in October 14, 2003. However, the transitional
government had no real authority over Liberia because eighty percent of
that country was controlled by rebel groups.
During the war, widespread abuses of Liberian children and adolescents
continued.647 According to Julia Freedson, coordinator of the Watch list, a
network of non-governmental organizations;
Young people continue to suffer, their hopes for peace and security
are being shattered by neglect and failure to provide basic protection.
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345
346
CHAPTER
9
Peacekeeping Operations
I. Introduction
The United Nations and other Regional and sub-regional organizations of the
world are usually involved in peace keeping operations in which the police
and other Armed Forces are deployed to engage in the act of maintaining
and securing peace amongst feuding parties or Nation States. 652 However,
there exists a distinction between operations led by the United Nations and
those of other organizations, regional or sub-regional. The peace keeping
operations today also encourage nations that were engaged in conflict to
rebuild and maintain sustainable peace and unity after protracted periods
of hostility. Thus, peace keeping operations are not only geared towards
assisting the host nations to rebuild and provide security and public order,
but also to help them in re-stating essential services and also tackle the root
causes of the conflict thereby achieving an enduring peace and unity. 653
347
Peacekeeping operations
348
Peacekeeping operations
349
Peacekeeping operations
660 Please note that the modern peacekeeping environment is often remote and difficult,
with little infrastructure and communication. The current largest UN peace operation,
the UN mission in the Democratic Republic of Congo (MONUC) is deployed in a
country the size of Western Europe that has only 300 miles of paved
350
Peacekeeping operations
Security Council, based on a clear division of labour and this shows the
comparative advantages of each organization.
351
Peacekeeping operations
352
Peacekeeping operations
353
Peacekeeping operations
been exercised by the other states other than the host state. These challenges,
such as extradition of persons and securing admissible evidence for use in
another jurisdiction are not unique to peacekeeping environment. However,
the group has recommended the development of a new international
convention to address jurisdiction and related issues in other to provide a
sound legal basis for the exercise of jurisdiction by the states, other than the
host state.
Again, Administrative investigations conducted by the UN for purposes
of discipline may be materially relevant in holding a person as criminally
responsible, as they may be the only means of evidence gathering in respect
of the alleged crime. Thus, there is need to take cognizance of the fact that
the material they collect may be used to support both disciplinary actions
and proceedings.
The group also makes a number of recommendations that were designed
to ensure that administrative investigations are carried out to the highest
possible standard.
The Applicable Laws
354
Peacekeeping operations
355
Peacekeeping operations
on
human
rights
all
356
Peacekeeping operations
357
Peacekeeping operations
358
Peacekeeping operations
359
Peacekeeping operations
principles and assumption are require together with the full engagement
of the key UN actors at the headquarters and country level, together
with the full consultations of the national authorities and other relevant
external actors. The IMPP is implemented with flexibility, while taking into
consideration varying circumstances and timeframes. They are equally
charged with ensuring that adequate planning standard outputs and the key
decision points are respected.
360
Peacekeeping operations
361
Peacekeeping operations
changes have been made. While the authority to act is in the resolution,
the permission to use force is in the ROE . The only new thing relates to the
fact that peacekeepers no longer stand and allow the threats to civilians
to continue.
The ROE is predominantly defensive in nature but allows the use of force
under circumstance that requires the implementation of the task assigned.
Again it provides a definition of the circumstance under which the use of
force may be required.
ROE does not exclude a commanders right and obligation to take all the
appropriate and necessary action for self-defense. Every personnel have the
right of self-defense. The ROE should clearly address measures to protect
personnel, premises and property of the mission and to guarantee freedom
of movement of peace operations personnel. Peacekeepers should be allowed
to use up to deadly forces to defend themselves against hostile behaviors.
The ROE define the degree of, and manner in which force may be applied
and are designed to ensure that the application of force is controlled and
legal. ROE prescribes the degree of freedom of the commanders, and their
constrains in carrying out their mission.
However, it is recommended that less lethal means should be applied if
possible. Commanders have been requested to apply other means such as
psychological methods, deception, negotiation and other non lethal means
which may include the maneuver of and deployment of layer forces in order
to demonstrate resolve.
This could be by means of unarmed, which is the use physical of force that
does not require arms. However, in circumstances where unarmed forces
are inappropriate, two other distract levels of armed force could apply.
They are deadly force or non-deadly force.
The non-deadly are those that in their nature are not very likely to cause
death or grievous bodily harm, but regardless of whether death actually
results. These are weapons like firearms, batons etc mostly used as warnings.
Peace keepers also use deadly force the level of which is intended or likely
to cause death regardless of whether death actually results. This is applied
where no other means or remedies are available to the peacekeepers against
the hostile acts of the armed opponents.
Another compulsory feature of the ROE is that once it is finalized and
signed by the relevant authority, a translation which must be clear and
concise should and must be made into the languages of the participating
nationalities. Where armed force is to be used, peace operations personnel
must comply with the international proportionality legal principles, use
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363
Peacekeeping operations
666 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the
protection by victims of international Armed Conflicts (protocol II), Adopted on 8 June
1977, Article 4 (3).
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Peacekeeping operations
365
Peacekeeping operations
3. The procedure for the search must take gender into account and be
sensitive to other factors such as race, religion health etc.
4. Minimum necessary force is required to be used in searching
detainees.
5. The search is ideally to be conducted by persons of the same gender.
6. Commanders must ensure that the confiscated items are
recorded properly.
In the area of apprehension, persons may not be apprehended other than
in accordance with the authorization given in the ROE . All apprehended
persons are to be handed over to the appropriate local authorities, as soon
as possible. However, such persons may remain in detention until such hand
over takes place.
Where possible, detainees are informed of the reason why they are
apprehended or detained. This rule by Article 9 of the Universal Declaration
of Human Rights is not meant to cause too much difficulty provided that
language assistances are readily available. But where this is not the case,
peacekeepers could anticipate by preparing translated written statements
including a caution on detention grounds referring to language derived
from the ROE .
The Principles of Apprehension and Detention
The following are the various principles that should guide the
peacekeepers in detaining of the apprehended persons.
1. Peace operations personnel are fully responsible for the protection of
the safety and well-being of persons whom they apprehend or detain,
as long as those persons are in their custody.
2. Claims based on violations of human rights obligation against the
peacekeepers may come up by relatives or the next of kin of detained
persons if these persons after handover disappear or disease. At
times agreements are had between the troop contributing states
and the host state to stress the mutual responsibility to respect
basic standards of international humanitarian law, national law,
and Human Rights Law, such as right to fair trial, right to life, right
to be protected against future and other inhuman and degrading
treatments etc. These agreements may include an obligation for the
host state to allow full access to detainees after they are refereed to the
host state by representatives of a national human rights commission,
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presumed
innocent
until
the
courts
367
After its formation in 1945, the United Nations became the primary
international organization concerned with the maintenance of international
peace and security. Due to the multiplicity of armed conflicts all over the
world, problems of enforcement have arisen inevitably since the UN does not
have sufficient resources and personnel to deal with all situations of armed
conflict as they arise. To solve these problems, allowance has been made
under the international law for regional, sub regional and ad hoc initiatives
aimed at complementing the peacekeeping functions of the UN.
The UN Charter provides that:
Nothing in the present Charter precludes the existence of regional
arrangements or agencies for dealing with such matters relating to the
maintenance of international peace and security as are appropriate for
regional action and provided that such arrangements or agencies and
their activities are consistent with the purposes and principles of the
United Nations
368
There was a marked increase in UN activities after the Cold War which made
it more difficult for the UN to cope financially as well as in maintaining
sufficient troops to carry out peacekeeping operations. It was this necessity
that led the UN to rely on regional organizations to lighten the burden of
securing international peace and security.
In his Agenda for the Peace Report of 1991, the then UN Secretary General
Boutros Boutros-Ghali called on regional organizations to combine forces
with states and other international bodies to work together to guarantee
international peace and security. In his words, the achievement of the wider
mission of the UN will demand:
The concerted attention and effort of individual states, of regional
and non-governmental organizations and of all of the United Nations
system, with each of the principal organs functioning in the balance
and harmony that the Charter requires
He further noted that the Cold War impaired the proper application of
Chapter VIII of the UN Charter which is devoted to regional arrangements
or agencies dealing with such matters relating to the maintenance of
international peace and security as appropriate for regional action. The
Report also pointed out that the UN had been involved in encouraging a
rich variety of complementary efforts relating to regional action. With
particular respect to Africa, the Report mentions three different regional
groups- the Organization of African Unity, the League of Arab States and
the Organization of the Islamic Conference- that combined efforts with the
United Nations to solve the conflict in Somalia.
The Agenda for Peace Report by the UN Secretary General did not proffer
any formal pattern of relationship between the regional organizations and
the UN neither did it call for any specific division of labour. However, based
on the potentials possessed by regional organizations, they are to combine
efforts with the UN to achieve its functions such as preventive diplomacy,
peacekeeping, peacemaking and post conflict peace building. In any event,
the primary responsibility for the maintenance of international peace and
security rests on the shoulders of the UN. Regional action becomes necessary
not only to lighten the UNs burden by decentralization, delegation and cooperation with UN efforts but to create a sense of participation, consensus
and democratization in international affairs for regional organizations.
To create this deep sense of participation, the UN Secretary General
mentioned three steps:
369
370
371
372
373
As with Liberia, normal decision making processes were not followed. It was
only later that ECOWAS issued a formal statement on their mission in Liberia
and even then, they did not specify the legal basis for their operations.
Perhaps the lack of concern over the constitutionality of regional
peacekeeping actions is rooted in the inability of the UN to keep pace with all
conflicts as they arise. The UN does not have sufficient funds and personnel
to handle every situation of armed conflict in the world. It has thus, adopted
a principle of flexibility with respect to regional peacekeeping missions. Be
that as it may, there needs to be a definite constitutional basis for all regional
peacekeeping missions to prevent abuse and ensure that there is compliance
with the laws designed to regulate situations of armed conflict.
669
374
375
CHAPTER
10
Enforcement of International Humanitarian Law
I. Introduction
376
377
Fear of Reprisals
Reprisals are retaliatory measures against the adversaries who commit
serious violations of International Humanitarian Law. Some authors
describe reprisals as the unlawful act of a party to a conflict, against her
adversary who violates the provisions of International Humanitarian Law.
But in the circumstances where this act becomes necessary to deter the
other party from further violations of settled provisions of the International
Humanitarian Law, then the unlawfulness becomes excusable. That is to
say, reprisals are permissible only in exceptional circumstances, and for
the enforcement of compliance with international humanitarian law.
But, decisions to commence reprisals are not left in the hands of military
commanders in the field. They are decisions of the highest political level, and
thus must give due consideration to the relevant international regulation on
the use of this measure.
Reprisals are prohibited to be used against the wounded and the sick, and
the shipwrecked670; Prisoners of war671, civilians; objects indispensable to
the survival of the civilian population672 and the national environment673 as
well as works and installations containing dangerous forces.674
670
671
672
673
674
378
379
380
381
382
International Fact-Finding
In 1991, a commission of International Humanitarian fact-finding was
established, comprising of fifteen independent members. The commission
was charged with the duty of investigating any incident alleged to be a grave
violation of the rules of International Humanitarian Law within states
where the competence of the commission is recognized.684
678
679
680
681
682
683
684
383
This provision of Article 90 API has always been considered to have binding
effect on parties to a conflict Vide the ICRC commentary, but the bindingness
is most unrealizable since it provided for a consensual institution of such a
fact finding commission. A party can however recognize its bindingness by
signing or ratifying API to the effect that it recognizes the competence of the
commission, vis--vis every other contracting party which accepts the same
obligations for declaration of this nature has been signed by 69 states.685
Unless all parties to the conflict so request, the commission in accordance
with Article 90 para 5 Lit C API does not communicate the results of its fact
finding publicly. This assists states in its initiative to take necessary measures
within their own responsibility, without outside pressures. In practice, these
services are hardly used.
384
385
386
Diplomatic Activities
Diplomatic activities, no doubt serve a very great purpose in the
enforcement of the provisions of International Humanitarian Law. Apart
from the measures taken by the United Nations, individual states and other
humanitarian organizations will engage in diplomatic intervention cause
the states to adhere to the provisions of International Humanitarian Law
in deserving circumstances. In recent times, states have countered massive
breaches of international law with sanctions, although, such states may not
be directly involved in the conflict.
The European Community of Foreign Ministers, in a framework of
European Political Co-operation resolved to carry out measures necessary
for the imposition of sanctions against Iran. In a later decision, the ICJ
upheld this action on the hostage taking in Teheran. It was determined that
the international law violations concerning the entire international law
community and called upon that community to assist in this effort. The
economic sanctions against Poland in reaction to the martial law imposition
of November 13 1981 provide a further example.
In 2005, the European Union Guidelines on promoting compliance with
International Humanitarian Law was adopted, stressing the obligation of
states and non-states actors and the political, as well as the humanitarian
interest in improving compliance with International Humanitarian
Law throughout the world. This guidelines call for early identification
of situations where International Humanitarian Law may apply, for
monitoring and appropriate actions including political dialogue, general
public statements, demarches, restrictive measures, co-operation with
other international bodies, crazies management operation, measures to
stress individual responsibility, training and a responsible arms export
policy in full consideration of compliance with humanitarian standards by
the importing states. These guidelines have been welcomed by the ICRC in
387
388
389
Individual Responsibility
Grave are these offences of war crimes and crime against humanity that
the prohibitions were judged by the tribunals as fundamental principles
of international law, having there perpetrators punished accordingly. It
didnt matter who committed the offence as both individuals and states
faced criminal liability in any event of violations of the rules. According to
Professor I. E. Sagay, an individual cannot hide behind a state or superior
orders to commit war crimes and crimes against humanity or genocide.
International law therefore imposes a duty in this respect on both individuals
and state alike. Individuals are particularly directly liable for any violations
in this regard.
In the Nuremberg Tribunal it was submitted that international law is
concerned with the actions of sovereign states and provides no punishment
for individuals; and further that where the act in question is an act of state,
those who carry it out are not personally responsible, but are protected by
the doctrine of the sovereignty of the state. However, these submissions
were out rightly rejected by the Tribunals who then stated thus:
That international law imposes both duties and liabilities upon
individuals as well as upon states has been long recognized. Crimes
against international law are committed by men not abstract entities,
and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.
390
391
ones enumerated above) will be liable to imprisonment for not more than
7 years.
This Act enjoys universality of application in line with the Geneva
Conventions which allows the various states (i.e. High Contracting parties)
to apprehend and try any culprit, regardless of the persons nationality. The
four Geneva conventions provide in identical terms in their various third
paragraphs (that is paragraph 3 of Article 50, 51, `30 and 147 of the first,
second, third, and the fourth conventions, respectively):
Each High Contracting Party shall be under the obligation to
search for persons alleged to have committed, or to have ordered to
be committed, such grave breaches and shall bring such persons,
regardless of their nationality before its own courts. It may also, if it
prefers and in accordance with the provisions of its own legislation,
hand such persons over for trial to another High Contracting party
concerned, provided such high contracting Party has made out a
prime facie case.
392
prohibits the unauthorized use and abuse of the Red Cross emblem and
others like the Red Crescent and the Red Lion and Sun.
In line with the philosophy of enforcement or implementation of the
rules of international humanitarian law, the willingness of the Nigeria
Government to further implement the relevant principles of international
humanitarian law as provided in the Hague and Geneva Conventions,
including the Additional Protocols to the Geneva Conventions, a further
Rules of the society was enacted in 1961 and amended in 1962 and 1987. Rule
2 of the said rules states the following as the duties of the society:
a. to train personal and maintain a permanent organization to relieve
sickness, suffering and distress, especially the causalities of war
or disaster;
b. when engaged in relief work to supplement official services where they
exist, and in particular to be prepared to supply trained auxiliaries
for the medical service of the Armed Forces, for other medical and
nursing services; to provide stores, special equipment and extra
comforts where needed, and to be ready to take the initiative where
an official services does not exist or is limited;
c. to be ready in any emergency to organize relief services and supply
personal, stores and equipment as a temporary measure until the
official services are ready to take over or the need ceases to exist, and
to cooperate with other organizations, if necessary, in organizing
such services;
d. generally to act as a channel through which the public may
express their sympathy for the sick and suffering, but except in the
circumstances set out in paragraphs (b) and (c) not to subsidies
government schemes or assume responsibilities which are the
legitimate function of the government: provided that where the
society is informed by the government that the government is unable
to undertake any such responsibilities the society may undertake
them until such time as the government if able to do so;
e. to undertake work in accordance with the above mentioned principles
for the improvement of health and prevention of disease, including
course of instruction open to the public;
f. to encourage and promote the enrollment of adult and
junior members;
393
394
disobedience of unlawful act, such as those that offend against the principle
of international humanitarian law.
To mark it all, the constitution of the federal Republic of Nigeria 1999 also
recognizes some international humanitarian law principles in its chapter
four when it provided for right to life, and right to the dignity of human
person in its sections 33 and 34 respectively. This provision should guide
both the members of the Armed Forces, and others who may be engaged in
one armed conflict or the other.
These provision of Sections 33 and 34 as a matter of fact should be applied
as a principle in cases of peace operations embarked upon by the Armed
Forces of Nigerian origins (e.g. the Liberian peace operation). Very important
here is that the Nigerian government through an elaborated written code of
conduct had in the period of 1967 -1970 encouraged the implementation of
the rules of international humanitarian law in the Nigerian civil war.
395
396
397
and the adversary opinion delivered 10 years later on July 1996 concerning
the threat of the use nuclear weapon, the Corfu channel case, the adversary
opinion on Reservation to the crime of Genocide in Bosnia, Yugoslav and
Herzegovina in ICJ Report687. The ICJ through its decisions and advisory
opinions has contributed in the enforcement of humanitarian and
international law. The ICJ in most cases exercises jurisdiction over States,
although prior to the establishment of International Criminal court, there
is nothing that prevents the ICJ from trying individuals for the offence of
genocide and crimes against humanity as it has done in the past where Serbia
and Bosnia leaders that violated international humanitarian law were tried.
International Criminal Court
398
Apart from the activities of the Red Cross Society in the involvement
of resolving the crisis between the parties to an armed conflict which has
been repeatedly mentioned in almost all the chapters in this book, other
international organizations like the international financial institutions (IFIs)
are increasingly involved in conflict situations and countries in which the
violations of international humanitarian are widespread and devastating to
civilian population and the countrys economic prospects. Any policy an
international financial institution enacts in countries marked by conflicts
and atrocities will send an unequivocal message about the institutions level
of tolerance for or abhorrence of humanitarian law violators. The financial
weight of the institutions can positively dissuade States and other actors
involved in violating humanitarian law to stop.
Although the Articles of agreement of the major international financial
institutions prevents them from involvement into political affairs of member
689 Article 50 GC1
399
states,690 but sometimes the UN and the public opinion may jettison that
provision. The then apartheid regime in South Africa could be used as a
typical example when the World Bank and the IMF were prevailed upon to
stop dealing with then apartheid regime. To some extent it can be argued
that the influence of the UN and that of NGOs including public opinion
helped to bring the apartheid regime to a conclusive end.
Contributions of International Committee of the Red Cross
400
in the course that, the current US President Obama based proven facts
that Yemen is a safe haven for terrorist has issued a warning similar to the
warning given by President Bush to Charles Taylor and Saddam Hussein to
leave their respective countries because of their alleged different offences.
Where a state cannot act to prevent internal crisis or engage in acts that
are inconsistent with rules of international humanitarian law, customary
international law permits another national government to act and prevent
further violation of international humanitarian law. It should be noted
that the general principle of state responsibility does not only refer to what
the violating state has to do but includes rules on the responsibility of
the third states or the international community not to assist or permit by
conduct or necessary implication the systematic violation of international
humanitarian law. Another national government can enforce humanitarian
on behalf of a third state where the later is incapable or unable to control
and take full charge of their state. This happened in Nicaragua where the
USA got involved in the internal crisis and also in Iraq where it was claimed
amongst other things that the then President Saddam Hussein have been
systematically committing crimes against humanity. Similarly it also
happened in Uganda as earlier mentioned where the Tanzanian government
removed Idi Amin for also violating the rules of international humanitarian
law. It should noted that where a state is unable to manage its internal
crisis to the extent that there became extreme violation of humanitarian
law, neutral states or the UN can get involved in order to put an end to the
violation of humanitarian law. A perfect example of this, is the Sudans
crisis where there was extreme case of crimes against humanity. The UN and
other regional bodies got involved in stopping the consistent violation of
humanitarian law in Dafur.
Finally, with the permanent institutions in place like the internal
criminal courts, it has become increasingly easier to enforce international
humanitarian law unlike the past when adhoc tribunals were set up for
individual cases.
401
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405
Index
A
Abu Bakr 12
Actions of invasion 9
Acts of terrorism 4, 141
Acts of War 39
Aggression 3, 4, 6, 294, 295, 298, 299, 300, 398
Amelioration xiv, 14, 28, 30, 189, 190, 191, 195
Aptly 21, 218
Area of War 40
Armed Conflicts xv, 33, 225, 305, 323, 332, 342, 364
Armistice 51, 402
Asphyxiating xiv, 98
assimilated 22
Authorization 4, 370
Blindfolding 49
Brussels Declaration concerning the Laws and Customs of War xiii
Caliph 12
Capitulation 53
capitulations 53, 54
Ceasefire 51
Cessation of hostilities 47, 55, 56, 149, 259, 289, 297, 331, 358
Civilian Casualties 112, 117, 138, 144, 147, 213
Civilian Population 5, 11, 12, 15, 40, 42, 46, 62, 63, 68, 69, 71, 72, 73, 74, 76, 79, 80,
81, 82, 89, 96, 100, 101, 103, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116,
117, 118, 119, 120, 126, 127, 128, 131, 132, 133, 135, 136, 137, 138, 140, 141, 142, 143, 144,
145, 146, 147, 148, 149, 150, 151, 152, 153, 156, 157, 158, 160, 162, 163, 164, 165, 166,
167, 170, 171, 172, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 187, 188, 194,
196, 198, 206, 208, 218, 253, 257, 263, 269, 270, 328, 361, 378, 380, 386, 399
Collateral Damage 100, 111, 112, 118, 144, 147
Conceded 21, 88, 93, 107
Conventional Weapons xiii, 65, 77, 81, 329, 402, 403
Custom 19, 21
406
Index
Du Contrat Social 13
E
IMF 400
Independence 3, 9, 34, 56, 169, 179, 210, 299, 335, 336, 337, 344, 345, 374, 396
Instant 21, 268, 361
interchangeably 2
International Agreements 17
International Committee of the Red Cross; ICRC 14, 28, 30, 152, 182, 189, 193, 198,
225, 235, 248, 279, 384, 400
International Criminal Tribunal xv, 24, 59, 242, 277, 324
international peace and security 4, 5, 301, 351, 354, 368, 369, 370, 371, 386
Islamic faith 12, 92
407
Index
Islamic leaders 12
J
Judicial Decisions 24
Jurisdiction 16, 25, 59, 97, 144, 226, 282, 306, 308, 314, 326, 330, 353, 354, 355, 357,
397, 398, 399
Lawful authority 13
Legal Specialists 25
Legal validity 10, 170
Lieber Code 14, 27, 232
Opinio Juris 20
Ottawa Convention xiv, 20, 67, 76, 77, 78, 332
408
Index
R
Warfare 1, 11, 15, 19, 61, 62, 63, 64, 65, 69, 78, 83, 88, 91, 93, 95, 96, 97, 98, 99, 100,
101, 110, 111, 114, 117, 120, 123, 124, 125, 128, 143, 144, 153, 183, 192, 203, 225, 260,
270, 300, 305, 307, 314, 315, 316, 323, 329, 333, 345, 360, 363, 379, 380, 382
White Flag 48, 221
Wright Brothers 15
409