DOCSLIB.ORG

Additional Protocols to the Geneva Conventions of 1949

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Additional Protocols to the Geneva Conventions of 1949 ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW ____________________________________ Additional Protocols to the Geneva Conventions of 1949 International humanitarian law is the set of rules which, in time of war, protect those who are not, or no longer, taking an active part in hostilities, and limit the choice of methods and means of warfare. It applies both in situations of international and non- international armed conflict. The main instruments of international humanitarian law are the Geneva Conventions of 12 August 1949 for the protection of war victims. These treaties, which are universally accepted, protect the wounded, the sick, the shipwrecked, prisoners of war and civilians who find themselves in enemy hands. They also protect medical duties, medical personnel, medical units and facilities, and the means of medical transport. However, the Conventions leave gaps in important areas, such as the conduct of combatants and protection of civilians from the effects of hostilities. To remedy these shortcomings, two Protocols were adopted in 1977 and, an additional one in 2005. They supplement, but do not replace, the Geneva Conventions of 1949. They are: · Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 1977 (Protocol I); · Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts of 1977(Protocol II); · Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem of 2005 (Protocol III), enshrining the red crystal emblem What is the purpose of projectiles, material or tactics of a Ÿ objects indispensable to the Protocol I? nature to cause superfluous injury or survival of the civilian unnecessary suffering (Art. 35). population (Art. 54); Protocol I applies to international armed conflicts, imposing constraints What new provisions does Ÿ cultural objects and places of on the way in which military Protocol I contain? worship (Art. 53); operations may be conducted. The obligations laid down in this Protocol I extends the Geneva Ÿ works and installations instrument do not impose an Conventions' definition of international containing dangerous forces intolerable burden on those in charge armed conflict to include wars of (Art. 56); of military operations since they do national liberation (Art. 1) and not affect the right of each State to specifies what constitutes a legitimate Ÿ the natural environment defend itself by any legitimate means. target of military attack. Specifically, (Art. 55); Protocol I: This treaty came into being because b) extends the protection accorded new methods of combat had been a) prohibits indiscriminate attacks under the Geneva Conventions developed and the rules applicable to and attacks or reprisals directed to all medical personnel, units the conduct of hostilities had become against: and means of transport, both outdated. Civilians are now entitled to civilian and military (Art. 8-31); protection from the effects of war. Ÿ the civilian population and individual civilians (Art. 48 c) lays down an obligation to Protocol I provides a reminder that the and 51); search for missing persons right of the parties to conflict to (Art. 33); choose methods and means of Ÿ civilian objects (Art. 48 and warfare is not unlimited and that it is 52); prohibited to employ weapons, d) strengthens the provisions e) protects the activities of civil concerning relief for the civilian defence organizations (Art. 61- population (Art. 68-71); 67); The situations covered by Protocol II certain contexts as having a religious f) specifies measures that must be are non-international conflicts that or political connotation, this new taken by the States to facilitate take place on the territory of a State emblem responds to the need for an the implementation of between the armed forces of that additional option deprived of any humanitarian law (Art 80-91). State and rebel armed forces that are type of connotation and usable under responsible command and everywhere in the world. The Most attacks or other acts carried out control part of the national territory. authorized users of the red crystal in violation of point a) above are, are the same persons and entities subject to certain provisos, Common Article 3 planted the seed of allowed to use the emblems of the considered grave breaches of humanitarian considerations in law Geneva Conventions of 1949. These humanitarian law and classified as relating to civil war. Protocol II takes are the medical services of State war crimes. this modest beginning much further. armed forces, authorized civil Specifically, Protocol II: hospitals as well as the different Article 90 of Protocol I provides for the components of the International Red establishment of an International a) strengthens the fundamental Cross and Red Crescent movement Fact-Finding Commission to guarantees enjoyed by all – namely, the International investigate alleged grave breaches or persons not, or no longer, taking Committee of the Red Cross (ICRC), other serious violations of the part in the hostilities (Art. 4); the national societies and their Conventions and of Protocol I. All International Federation. States Parties to Protocol I may b) lays down rights for persons accept the competence of this deprived of their freedom and Why adhere to the Additional Commission. provides judicial guarantees for Protocols? those prosecuted in connection What is the purpose of with an armed conflict (Art. 5-6); Additional Protocols I and II of 1977 Protocol II? are binding on a large number of c) prohibits attacks on: States, but not all. Participation in Most conflicts since the Second World Additional Protocol III of 2005 is still War have been non-international. The Ÿ the civilian population and limited. It is essential that these only provision in the Geneva individual civilians (Art. 13); instruments attain universal Conventions of 1949 which is recognition, as this is a vital step applicable in this type of conflict is Ÿ objects indispensable to the toward fulfilment by all parties to Article 3 common to all four survival of the civilian conflict of the obligations laid down in Conventions. Although it sets out population (Art. 14); the Protocols. basic principles for protecting people in wartime, Article 3 is not enough to Ÿ works and installations Only when all States have pledged solve the serious problems of containing dangerous forces compliance with all the instruments humanitarian concern that arise in (Art. 15); that make up international internal conflicts. humanitarian law will it be possible to Ÿ cultural objects and places of ensure equal protection for all victims The purpose of Protocol II is hence to worship (Art. 16); of armed conflict. ensure the application to internal conflicts of the main rules of the law of d) regulates the forced movement Through its Advisory Service on war. It nevertheless in no way restricts of civilians (Art. 17); international humanitarian law, the the rights of the States or the means ICRC stands ready to provide States available to them to maintain or e) protects the wounded, sick and interested in ratifying the Additional restore law and order; nor can it be shipwrecked (Art. 7); Protocols with any assistance and used to justify foreign intervention information. In particular, the Advisory (Art. 3 of Protocol II). f) protects religious personnel and Service can supply a Protocol all medical personnel, units and Ratification Kit to facilitate the Compliance with the provisions of means of transport (Art. 9-11); process. Protocol II does not, therefore, imply recognition of any particular status for g) limits the use of the red cross armed rebels. and red crescent emblems to those persons and objects duly What new provisions does authorized to display it. Protocol II contain? Additional Protocol III relating to Unlike Article 3 common to the four the adoption of the red crystal Conventions, which fails to set criteria for the definition of internal conflict to Protocol III, adopted in 2005, which it applies, Protocol II describes enshrines an additional emblem – its own field of application in composed of a red frame in the form considerable detail, excluding such of a square standing on the peak – low-intensity conflicts as internal commonly known as the red crystal. tensions and rioting. Since the red cross and the red crescent are sometimes perceived in 12/2013.
Load more

Recommended publications
  • Tables for UN Compilation on Pakistan I. Scope of International
    Tables for UN Compilation on Pakistan I. Scope of international obligations1 A. International human rights treaties2 Status during previous cycle Action after review Not ratified/not accepted Ratification, accession or ICERD (1966) OP -CRC-AC (2016) ICRMW succession ICESCR (2008) ICPPED ICCPR (2010) ICCPR-OP 2 CEDAW (1996) OP-CAT CAT (2010) CRC (1990) OP-CRC-SC (2011) CRPD (2011) Complaints procedures, – – ICERD, art. 14 inquiries and ICCPR, art. 41 urgent action3 ICCPR-OP 1 OP-ICESCR OP-CEDAW CAT, arts. 20-22 OP-CRC-IC OP-CRPD ICRMW ICPPED Reservations and / or declarations Status during previous cycle Action after review Current Status ICESCR (General OP -CRC-AC – declaration, 2008) (Declaration, art. 3 para. 2, CEDAW (General minimum age of recruitment declaration and reservation 16 years, (2016) art. 29, para. 1, 1996) CAT (Reservation, arts. 8 para. 2, 28 para. 1 and 30 para. 1. 2010) ICCPR (General reservation, 2008) B. Other main relevant international instruments Status during previous cycle Action after review Not ratified Ratification, accession or Convention on the – Rome Statute of the succession Prevention and Punishment International Criminal Court of the Crime of Genocide Geneva Conventions of 12 Palermo Protocol5 August 19494 Additional Protocols I, II and III to the 1949 Geneva Conventions6 ILO fundamental – Conventions on refugees conventions7 and stateless persons8 – – Convention against Discrimination in Education – – ILO Conventions Nos. 169 and 1899 II. Cooperation with human rights mechanisms and bodies A. Cooperation
    [Show full text]
  • Law of War Handbook 2005
    LAW OF WAR HANDBOOK (2005) MAJ Keith E. Puls Editor 'Contributing Authors Maj Derek Grimes, USAF Lt Col Thomas Hamilton, USMC MAJ Eric Jensen LCDR William O'Brien, USN MAJ Keith Puls NIAJ Randolph Swansiger LTC Daria Wollschlaeger All of the faculty who have served before us and contributed to the literature in the field of operational law. Technical Support CDR Brian J. Bill, USN Ms. Janice D. Prince, Secretary JA 423 International and Operational Law Department The Judge Advocate General's Legal Center and School Charlottesville, Virginia 22903 PREFACE The Law of War Handbook should be a start point for Judge Advocates looking for information on the Law of War. It is the second volume of a three volume set and is to be used in conjunction with the Operational Law Handbook (JA422) and the Documentary Supplement (JA424). The Operational Law Handbook covers the myriad of non-Law of War issues a deployed Judge Advocate may face and the Documentary Supplement reproduces many of the primary source documents referred to in either of the other two volumes. The Law of War Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide "the school solution" to a particular problem, but to help Judge Advocates recognize, analyze, and resolve the problems they will encounter when dealing with the Law of War. The Handbook was designed and written for the Judge Advocates practicing the Law of War. This body of law is known by several names including the Law of War, the Law of Armed Conflict and International Humanitarian Law.
    [Show full text]
  • Corporate Actors: the Legal Status of Mercenaries in Armed Conflict Katherine Fallah Katherine Fallah Is Ph.D
    Volume 88 Number 863 September 2006 Corporate actors: the legal status of mercenaries in armed conflict Katherine Fallah Katherine Fallah is Ph.D. candidate at the University of Sydney, presently working as a Research Associate to the Judges of the Federal Court of Australia. Abstract Corporate actors are taking on an increasingly significant role in the prosecution of modern warfare. Traditionally, an analysis of the law applicable to corporate actors in armed conflict commences with inquiry into the law as it applies to mercenaries. As such, the rise of the private military industry invites a reconsideration of the conventional approach to mercenaries under international law. This article critically surveys the conventional law as it applies to mercenaries, and considers the extent to which corporate actors might meet the legal definitions of a ‘‘mercenary’’. It demonstrates that even mercenaries receive protection under international humani- tarian law. The debate about the definition and status of mercenaries is not new. It is one which has provoked a polarized response from different groups of nations, with some arguing that mercenary activity should be prohibited outright, and others contending that mercenaries should not receive any differential treatment under international law. In the second half of the twentieth century, objectionsto mercenary activity were grounded in concerns about preserving the right of post-colonial states to self-determination. This approach is reflected in the language adopted by the United Nations in its persistent consideration of the use of mercenaries ‘‘as a means of violating human rights and impeding the exercise 599 K. Fallah – Corporate actors: the legal status of mercenaries in armed conflict of the right of peoples to self-determination’’.1 Until recently, legal consideration of corporate actors in armed conflict was limited to the question of mercenaries.
    [Show full text]
  • Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) Adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts Entry into force: 7 December 1978, in accordance with Article 23 Preamble The High Contracting Parties , Recalling that the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August 1949 constitute the foundation of respect for the human person in cases of armed conflict not of an international character, Recalling furthermore that international instruments relating to human rights offer a basic protection to the human person, Emphasizing the need to ensure a better protection for the victims of those armed conflicts, Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience, Have agreed on the following: Part I SCOPE OF THIS PROTOCOL Article 1.-Material field of application 1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
    [Show full text]
  • Additional Protocol I to the Geneva Conventions
    0031-0330 irl.qxd 2.3.2009 14:21 Page 233 V PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL I), OF 8 JUNE 1977 Preamble .................................................................................................... 239 PART I General provisions Article 1 General principles and scope of application............................. 240 Article 2 Definitions ................................................................................. 240 Article 3 Beginning and end of application ............................................. 241 Article 4 Legal status of the Parties to the conflict................................... 241 Article 5 Appointment of Protecting Powers and of their substitute ...... 241 Article 6 Qualified persons....................................................................... 242 Article 7 Meetings..................................................................................... 243 PART II Wounded, sick and shipwrecked SECTION I – General protection Article 8 Terminology............................................................................... 243 Article 9 Field of application .................................................................... 245 Article 10 Protection and care.................................................................... 245 Article 11 Protection of persons................................................................. 245 Article 12 Protection of medical units ......................................................
    [Show full text]
  • Summary of the Geneva Conventions of 1949 and Their Additional Protocols International Humanitarian Law April 2011
    Summary of the Geneva Conventions of 1949 and Their Additional Protocols International Humanitarian Law April 2011 Overview: Protecting the Byzantine Empire and the Lieber Code The Red Cross Vulnerable in War used during the United States Civil War. and International International humanitarian law (IHL) is The development of modern Humanitarian Law a set of rules that seek for humanitarian international humanitarian law is The Red Cross and the Geneva reasons to limit the effects of armed credited to the efforts of 19th century Conventions were born when Henry conflict. IHL protects persons who are Swiss businessman Henry Dunant. In Dunant witnessed the devastating not or who are no longer participating in 1859, Dunant witnessed the aftermath consequences of war at a battlefield hostilities and it restricts the means and in Italy. In the aftermath of that battle, of a bloody battle between French methods of warfare. IHL is also known Dunant argued successfully for the and Austrian armies in Solferino, Italy. as the law of war and the law of armed creation of a civilian relief corps to The departing armies left a battlefield respond to human suffering during conflict. littered with wounded and dying men. conflict, and for rules to set limits on A major part of international Despite Dunant’s valiant efforts to how war is waged. humanitarian law is contained in the mobilize aid for the soldiers, thousands Inspired in part by her work in the four Geneva Conventions of 1949 that died. Civil War, Clara Barton would later have been adopted by all nations in found the American Red Cross and In “A Memory of Solferino,” his book also advocate for the U.S.
    [Show full text]
  • Istanbul Protocol
    OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS Geneva PROFESSIONAL TRAINING SERIES No. 8/Rev.1 Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UNITED NATIONS New York and Geneva, 2004 NOTE The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. * * * Material contained in this publication may be freely quoted or reprinted, pro- vided credit is given and a copy of the publication containing the reprinted material is sent to the Office of the High Commissioner for Human Rights, United Nations, 1211 Geneva 10, Switzerland. HR/P/PT/8/Rev.1 UNITED NATIONS PUBLICATION Sales No. E.04.XIV.3 ISBN 92-1-154156-5 ISBN 92-1-116726-4 ISSN 1020-1688 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Istanbul Protocol Submitted to the United Nations High Commissioner for Human Rights 9 August 1999 PARTICIPATING ORGANIZATIONS Action for Torture Survivors (HRFT), Geneva Amnesty International, London Association for the Prevention of Torture, Geneva Behandlungszentrum für Folteropfer, Berlin British Medical Association (BMA), London Center for Research and Application of Philosophy
    [Show full text]
  • Additional Protocol I to the Geneva Conventions
    0031-0330 irl.qxd 2.3.2009 14:21 Page 233 V PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL I), OF 8 JUNE 1977 Preamble .................................................................................................... 239 PART I General provisions Article 1 General principles and scope of application............................. 240 Article 2 Definitions ................................................................................. 240 Article 3 Beginning and end of application ............................................. 241 Article 4 Legal status of the Parties to the conflict................................... 241 Article 5 Appointment of Protecting Powers and of their substitute ...... 241 Article 6 Qualified persons....................................................................... 242 Article 7 Meetings..................................................................................... 243 PART II Wounded, sick and shipwrecked SECTION I – General protection Article 8 Terminology............................................................................... 243 Article 9 Field of application .................................................................... 245 Article 10 Protection and care.................................................................... 245 Article 11 Protection of persons................................................................. 245 Article 12 Protection of medical units ......................................................
    [Show full text]
  • Private Military Companies Under International Humanitarian Law
    Chapter 7 — Private military companies under international humanitarian law Louise Doswald-Beck Private military companies (PMCs) frequently operate in situations of armed conflict, whether international or non-international. They are sometimes hired by a state party to a conflict, less often by a non-state party to an internal armed conflict or by a company seeking to protect its operations in a country where a conflict is taking place. Although PMCs are a relatively new phenomenon, the participation in armed conflicts of persons that are not officially members of the regular armed forces is far from new. International humanitarian law (also known as the “law of war” or the “law of armed conflict”) has extensive rules relating to such persons, whether it be their status and treatment upon capture, the use of force by or against them as well as state or individual responsibility for their actions. Though there is specific reference to mercenaries in international humanitarian law (IHL), there is no such reference to PMCs either in IHL treaties nor are they specifically regulated in customary international law. It is true, then, to say that there is no discrete regulation of PMCs as such, but not accurate to say that there is no law applicable to them at all. Depending on the circumstances, specific aspects of established law will apply. Some issues, however, remain unclear in the law, which future state practice may resolve. This chapter will examine existing law and its application to PMCs. Certain issues commonly raised when considering regulation are not actually relevant to IHL. These are, in particular, the name of the company — in particular whether it calls itself a private military or a security company — and whether such companies are involved in so-called “offensive” or “defensive” operations.1 Any attempt at differentiating between companies on this basis would be counter-productive for IHL.
    [Show full text]
  • Distinction and Loss of Civilian Protection in International Armed Conflicts
    IX Distinction and Loss of Civilian Protection in International Armed Conflicts Yoram Dinstein* A. The Principle ofDi stinction here are several cardinal principles lying at the root of the law of interna­ Ttional armed conflict. Upon examination, none is more critical than the "principle of distinction. "I Undeniably, this overarching precept constitutes an in­ tegral part of modern customary intem ational 1aw.2 lt is also reflected in Article 48 of the 1977 Protocol I Additional to the Geneva Conventions ofl949. entitled "Ba­ sk rule," which provides that "the Parties to the conflict shall at all times distin­ guish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. "3 As is dear from the text, the pivotal bifurcation is between civilians and combat­ ants (and, as a corollary, between military objectives and civilian objects). It is wrong to present the dichotomy, as the International Committee of the Red Cross (ICRC) sometimes does,4 in the form of civilians versus members of the armed forces. $ Apart from the fact that not every member of the anned forces is a combat­ ant (medical and religious personnel are excluded),6 civilians who directly partici­ pate in hostilities lose their civilian status fo r such time as they are acting in this fashion although they are not members of any anned forces (see infra Section B) . • Professor Emeritus, Tel Aviv University, Israel. Distinction and Loss of Civilian Protection in International A rmed Conflicts It is almost axiomatic that, as a rule, all enemy combatants can be lawfully at­ tacked directly-at all times--during an international armed conflict.
    [Show full text]
  • Noncombatant Persons
    CHAPTERll Noncombatant Persons 11.1 INTRODUCTION s discussed in Chapter 5, the law of anned conflict is premised largely on A the distinction to be made between combatants and noncombatants.1 Noncombatants are those individuals who do not fonn a part ofthe anned forces and who otherwise refrain from the commission ofhostile acts.2 Noncombatants also include those members of the anned forces who enjoy special protected status, such as medical personnel and chaplains, or who have been rendered incapable of combat by wounds, sickness, shipwreck, or capture. This chapter reviews the categories ofnoncombatants and outlines the general rules ofthe law of anned conflict designed to protect them from direct attack.3 11.2 PROTECTED STATUS The law ofanned conflict prohibits making noncombatant persons the object of intentional attack4 and requires that they be safeguarded against in!ury not incidental to military operations directed against military objectives. When 1. See paragraph 5.3 and note 11 (p. 296). See also Ipsen, Combatants and Non-Combatants, in Fleck at 65-104. 2. In this context, "hostile acts" include those actions described in the second subparagraph of paragraph 11.3 (p. 484). (Fornations bound thereby, GP I, art. 51(3), addresses this rule by granting protection to civilians "unless and for such time as they take a direct part in hostilities" without further definition. The United States supports this principle. The Sixth Annual American Red Cross-Washington College ofLaw Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am.
    [Show full text]
  • CJI/Doc.328/09 Rev.1 WAR CRIMES in INTERNATIONAL HUMANITARIAN
    CJI/doc.328/09 rev.1 WAR CRIMES IN INTERNATIONAL HUMANITARIAN LAW (presented by Dr. Jorge Palacios Treviño) International Humanitarian Law (IHL) is mainly composed of international consuetudinary law and the following international treaties: VIII. The Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field; IX. The Geneva Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of armed forces at sea; X. The Geneva Convention relative to the treatment of prisoners of war; XI. The Geneva Convention relative to the protection of civilian persons in time of war, all of them dated August 12, 1949; XII. The Additional Protocol I to the Geneva Conventions, relating to the protection of victims of international armed conflicts; XIII. The Additional Protocol II to such Conventions relating to the protection of victims of non-international armed conflicts, both of June 8, 1977; XIV. The Rome Statute, of July 17, 1998, which established the International Criminal Court (ICC) that “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern” and is therefore empowered to exercise complementary jurisdiction to national criminal jurisdictions over persons and, finally, the Hague Convention for the Protection of Cultural Property in the event of Armed Conflict of 1954, and the 1954 and 1999 Protocols. VIII. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, dated 1954, and its Protocols dated 1954 and 1999. 120 The main purpose of IHL is to protect civilians in the event of armed conflict, that is to say, provide protection to individuals not involved in hostilities, as well as those who are no longer involved, for example, wounded combatants and war prisoners, for whom the IHL claims humanitarian treatment.
    [Show full text]