Which additional measures must be taken? Dapo Akande, Clearing the Fog of War? This text attempts to answer of one the most pressing issues in contemporary IHL: whether the current classification of armed conflicts under the Geneva Conventions - international and non-international - is relevant in the post 9/11 landscape. They range from those that resemble conventional warfare, similar to international armed conflicts, to those that are essentially unstructured. The DLP Forum hereby disclaims any and all liability to any party for any direct, indirect, implied, punitive, special, incidental or other consequential damages arising directly or indirectly from any use of its content, which is provided as is, and without warranties. Challenges inherent to investigations of alleged violations of international law in non-conflict situations are multiplied when investigating possible war crimes, crimes against humanity, and other violations of international humanitarian and human rights law in the context of armed conflicts - be they international or non-international. Are effects upon the civilian purposes of a dual-use object incidental effects subject to the proportionality principle? []. [], [] Most importantly, expediency in dealing with persons suspected of acts of terrorism cannot be an excuse for extra-judicial killings, for denying individuals basic rights when they are detained, or for denying them access to independent and regularly constituted courts when they are subject to criminal process. continued their search with our financial support and guidance. [], Scope and Obligation to Ensure Respect for IHL, [] [I]t was emphasized that the common article 1 obligation provided for in the four Geneva Conventions means that states must neither encourage a party to an armed conflict to violate IHL, nor take action that would assist in such violations. This is particularly important in non-international armed conflicts, in which all acts of violence by organized armed groups against military objectives remain in any event subject to domestic criminal prosecution. as well as by customary international law. Are such situations new? One of the purposes of the law of war is to protect the life, health and dignity of all persons involved in or affected by armed conflict. The purpose of this report, like the previous one, is to provide an overview of some of the challenges posed by contemporary armed conflicts for IHL, to generate broader reflection on those challenges and to outline ongoing or prospective ICRC action. The tendency by some actors to point to alleged violations by others, without showing any willingness to acknowledge ongoing violations of their own, has also been detrimental to the proper application of the law. Moreover, the principle of precaution requires parties to the conflict to take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks.18Customary IHL Rule 22. saw improvements in their conditions thanks to our physical rehabilitation programmes. On the basis of the results, it will evaluate whether there is a need for further clarification or development of the law with a view to strengthening the protection of persons and objects affected by non-international armed conflicts. In the ICRCs view, the nature of any object must be assessed under the definition of military objectives provided for in Additional Protocol I. International armed conflict is by far the most regulated type of conflict under IHL. She is a Pictetist at heart and works as a researcher at a British think tank. Globally, we find a coincidence rate of 9% regarding armed-conflict outbreak and disaster occurrence such as heat waves or droughts. How? In the event of criminal prosecution, the Third Geneva Convention provides that prisoners of war may be validly sentenced only if this is done by the same courts and according to the same procedure as for members of the armed forces of the detaining power. Work on drafting a Comprehensive Convention on Terrorism has been stalled at the United Nations for several years now.]. Regarding the status and rights of civilians who have directly participated in hostilities in an international armed conflict and have fallen into enemy hands, there are essentially two schools of thought. Challenges impede the settling of these questions through the path of a treaty. private character of this form of violence, usually pursued for ideological or political reasons rather than for private gain, has also been a regular feature of terrorism. In case of doubt about the status of a captured belligerent, such status must be determined by a competent tribunal. The Principle of Distinction between Civilians and Combatants. Domestic legislation and regulations have been progressively adopted or adapted, and the necessary structures put in place to give effect to the rules contained in the relevant IHL treaties. firstly, common article 3's protection of all civilians could result in a blanket ban on organ harvesting activities during an armed conflict, if one were to disregard the nexus requirement in niacs. Situation of application, C. Other situations, d) Acts of terrorism? These challenges have caused a lot of travail on humanity especially to the non- combatants or civilians living in places of de facto control by Non -State Armed Groups. What do the concepts of asymmetric warfare and urban warfare refer to? A disproportionate attack is defined as "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." (Additional Protocol I, article 51 (5) (b)). Internal armed conflicts are covered by article 3 common to the Geneva Conventions, by Additional Protocol II to the Conventions adopted in 1977 (156 state parties to date), by a certain number of other treaties. IHL also specifically prohibits measures of terrorism and acts of terrorism against persons in the power of a party to the conflict. The following section focuses solely on challenges related to this facet, contains various illustrations and does not purport to be exhaustive. What could the next step be to improve the law applicable to such conflicts? Given the great diversity of armed conflicts and parties, there is no uniform approach to the problem of lack of respect for humanitarian law. . Any effort to increase respect for the law will be more effective if it takes into account the unique characteristics of a specific situation. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule1. According to the functional approach, when would a territory be occupied? In the ICRCs view given the consequences of direct participation mentioned above and the importance of having an applicable definition that would uphold the principle of distinction the notion of direct participation is a legal issue that merits further reflection and study, as well as an effort to arrive at proposals for clarification of the concept. International humanitarian law distinguishes between two . Some proponents of this view argue that persons suspected of being involved in acts of terrorism constitute enemy combatants who may be subject to direct attack, and, once captured, may be detained until the end of active hostilities in the war against terrorism. The opinions expressed in the articles on the Diplomacy, Law & Policy (DLP) Forum are those of the authors. the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects and its Protocols; the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. This conflict is non-international, albeit with an international component in the form of a foreign military presence on one of the sides, because it is being waged with the consent and support of the respective domestic authorities and does not involve two opposed States. For instance, States could include certain requirements in the companys contract, such as adequate training in IHL, the exclusion of specific activities such as participation in military operations or the vetting of employees to ensure they have not committed violations in the past. [], Participants who endorsed resort to existing mechanisms, rather than the creation of new ones, held strongly to the opinion that more mechanisms would not necessarily lead to more effectiveness. there is no intermediate status into which unprivileged belligerents fulfilling the nationality criteria could fall. INTRODUCTION. Under article 1 common to the four Geneva Conventions, states undertook to respect and ensure respect for these conventions in all circumstances. First, the ICRC believes, [] that the four Geneva Conventions and their Additional Protocols, as well as the range of other international IHL treaties and the norms of customary law provide a bedrock of principles and rules that must continue to guide the conduct of hostilities and the treatment of persons who have fallen into the hands of a party to an armed conflict. They also imply that the occupying power intends to hold on to the territory involved, at least temporarily, and to administer it. Asymmetry often causes todays armed confrontations to take a more brutal turn, in which there is seemingly little place for the rule of law. A party to an armed conflict is usually understood to mean armed forces or armed groups with a certain level of organization, command structure and, therefore, the ability to implement international humanitarian law. Are some of these forms of violence new? 68, UN, Resolutions and Conference on Respect for the Fourth Convention, Geneva Call, Puntland State of Somalia adhering to a total ban on anti-personal mines, Mercenaries & private military and security companies, ICRC and International Red Cross and Red Crescent Movement, Special agreements between the parties to non-international armed conflicts whereby they explicitly commit themselves to comply with humanitarian law (see Article 3 common to the four Geneva Conventions), Unilateral declarations (or declarations of intention) by armed groups party to non-international armed conflicts whereby they commit themselves to comply with IHL, Inclusion of humanitarian law in codes of conduct for armed groups, References to humanitarian law in ceasefire or peace agreements, Grants of amnesty for mere participation in hostilities. Heightened interest in and awareness of IHL must be welcomed and encouraged, bearing in mind the fact that knowledge of any body of rules is a prerequisite to better implementation. The non-application or selective application of IHL, or the misinterpretation of its rules for domestic or other political purposes, can and inevitably does have a direct effect on the lives and livelihoods of those who are not or are no longer waging war. How can existing IHL mechanisms and bodies be used in non-international armed conflicts? According to the interpretation espoused by the ICRC and others, civilians who have taken a direct part in hostilities and who fulfill the nationality criteria provided for in the Fourth Geneva Convention remain protected persons under that Convention. To keep hope from fading away, the entire country must reject persistent violations of humanitarian norms. The conference brought together front-line staff from academia and government agencies and units, to discuss new issues in this area. [See Conventions on the Protection of Cultural Property [A.]] those effects not directly and immediately caused by the attack, but which are nevertheless the product thereof. If, as has been asserted above, IHL principles and rules have entered the public domain over the past few years, it is in large part owing to debate over the relationship between armed conflict and acts of terrorism. In view of all the challenges mentioned in the texts, do you think that IHL is still relevant to regulate organized violence in the contemporary world? This raises unique legal issues that will be discussed later. To date, there is no uniform answer. List of ongoing armed conflicts. This close relationship also means that States can be directly responsible for the acts of PMCs / PSCs when these are attributable to them under the law of State responsibility, particularly if the PMCs / PSCs are empowered to exercise elements of governmental authority or if they act on the instructions or under the direction or control of State authorities. [. Two facts are a sad reminder of this trend: in 2018, the Unit for the Victims Assistance and Reparation recorded a substantial increase in mass displacements, and the number of victims of anti-personnel mines and explosive devices tripled. [, Does the principle of proportionality give permission to cause incidental loss of life among civilians? Urban warfare presents a threat to the civilian population since civilians and civilian structures are placed within close proximity to military objects which are lawful targets in armed conflict. This is especially true with regard to the parties themselves. A party may have no or not enough political will to comply with the provisions of humanitarian law. exposure to armed conflict has social and psychological repercussions that endure long after the termination of hostilities. (, Considering the lack of effectiveness of existing mechanisms to date, what could be done to make the existing mechanisms established under IHL more acceptable to parties to an armed conflict? Why/Why not? benefited from our work in prisons, such as monitoring and improvement of infrastructure, water and health care. Violent conflicts pose a challenge to human civilisations, human health and health systems [1-3].Epidemiological studies indicate that war ranks among the top-ten causes of death worldwide [4-6].Populations affected by armed conflict experience severe public health consequences mediated by population displacement, food scarcity, and the collapse of basic health services, which together . Such practices clearly increase the risk of incidental civilian casualties and damage. The fundamental challenge in quantifying the health impacts of conflict is that health information systems, particularly civil registration systems that record the event and cause of . Should/could such lists be drafted? and inhabitants of host communities received humanitarian aid and better access to health care, water, hygiene and education. In other words, they do not enjoy the combatants privilege of not being liable to prosecution for taking up arms, and they are thus sometimes referred to as unprivileged belligerents or unlawful combatants.. While these provisions have been invoked from time to time, this has not been done consistently. In general, participants who supported the idea of establishing new IHL supervision mechanisms agreed that [] any new supervision mechanism potentially adopted by states should be neutral and impartial, should be constituted in a way that would enable it to operate effectively, should be able to act without the consent of the parties in question (i.e. an intermediate status into which civilians (unprivileged belligerents) fulfilling the nationality criteria would fall. IHL treaties contain no explicit reference to unlawful combatants. This designation is shorthand for persons civilians who have directly participated in hostilities in an international armed conflict without being members of the armed forces as defined by IHL and who have fallen into enemy hands. This is the third report on "International Humanitarian Law (IHL) and the Challenges of Contemporary Armed Conflicts" prepared by the ICRC for an International Conference of the Red Cross and Red Crescent, the first two having been submitted to the 28th and 30th International Conferences in . These tools, which are inter-related and reinforce each other, include the following: [See The Issue of Mercenaries, Part. 1 lays down a responsibility for third States to ensure respect for IHL by parties to a conflict, what kinds of action does this entail? A disproportionate attack is defined as 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. (Additional Protocol I, article 51 (5)(b)). Despite certain shortcomings in some of the rules governing the conduct of hostilities, mostly linked to imprecise wording, these rules continue to play an important role in limiting the use of weapons. indeed, the resurgence of urbanized conflict has affected over 50 million people and has reaped devastating consequences on the civilians bearing the brunt of these conflicts. Many contemporary situations do neither reflect the traditional concept of international armed conflicts where one or more states use force against each other, nor the classical civil wars where there are armed confrontations between government armed forces and armed groups within . Introduction. The question that remains is whether, taken together, all the acts of terrorism carried out in various parts of the world (outside situations of armed conflict such as those in Afghanistan, Iraq or Somalia) are part of one and the same armed conflict in the legal sense. In addition, armed groups lack sufficient incentive to abide by IHL given that implementation of their legal obligations under this body of law is usually of little help to them in avoiding punishment under domestic law. Terrorism, counterterrorism measures, and IHLThe applicability of IHL to fighting terrorism and NSAGs designated as terrorists; counterterrorism measures and principled humanitarian action; and the status and protection of foreign fighters and their families. It was emphasized that foreign interference in many internal armed conflicts also creates confusion with respect to the legal qualification and therefore to the body of rules applicable to the conflict. In the past decade, Nigeria has experienced an increased rate of sexual violence in armed conflict between the armed forces of the State and the dissident armed group, Boko Haram. During 2018, our teams in the field observed the harsh humanitarian consequences of the combination of violations of humanitarian norms and the absence of the State in many areas of Colombia that have been affected by the violence. []. It must be stressed that in such circumstances, it is generally not the rules that are at fault, but the will or sometimes the ability of the parties to an armed conflict and of the international community to enforce them, in particular through criminal law. The ICRCs Interpretive guidance on direct participation in hostilities 2010 https://www.jstor.org/stable/25622275. A fragmentary approach to IHL contradicts the essential IHL principle of humanity, which must apply equally to all victims of armed conflict if it is to retain its inherent meaning at all. [See also Fundamentals of IHL, B. Captured combatants may, however, be criminally prosecuted for war crimes or other criminal acts committed before or during internment.
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