User:Joel Mc/sandbox/IHL

International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus "comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians.

The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.

Historical Convergence between IHL and the Laws of War
For most of the 20th century, IHL or the "Law of Geneva" was distinguished from the "Law of The Hague" or the Laws of War proper. The Law of The Hague "determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm." In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives.

At the same time, the Law of Geneva, which focuses mainly on human beings as victims of war is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the International Committee of the Red Cross. This focus can be found in the Geneva Conventions.

With the adoption of the 1977 Protocols to the Geneva Conventions, the two strains of law began to converge. Already before, articles focusing on humanity could be found in the Law of The Hague (i.e. the protection of certain prisoners of war and civilians in occupied territories) articles which were later incorporated into the Law of Geneva in 1929 and 1949). However the Protocols of 1977 relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights aspects.

Basic rules of IHL

 * 1) Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely.
 * 2) It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
 * 3) The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the red cross or the red crescent must be respected as the sign of protection.
 * 4) Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
 * 5) No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
 * 6) Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
 * 7) Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.

Historical Background of IHL
In the middle of the 19th century, the conditions of wounded soldiers on the battle field were appalling. Witnessing the carnage of a battle between the French and Austrians in 1859 in Solferino, Italy, a Genevese businessman, Henry Dunant published a book in 1862 which was entitled, A Memory of Solferino, which called for 1) the establishment of private national relief societies to minister to the sick and wounded on the battlefield, and 2) the countries to meet to "formulate some international principle, sanctioned by a Convention inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries" Already in 1864, the Swiss government convened a diplomatic conference where ‘Convention for the Amelioration of the Condition of the Wounded in Armies in the Field’. was drawn up and adopted. Important feature of the convention included Further developments in the Law of Geneva included a treaty in 1899 which expanded the application of the principles in the treaty of 1864 to those wounded, sick or shipwrecked at sea. The 1864 treaty was revised in 1906, while the 1899 treaty was revised in 1907.
 * 1) ambulances and military hospitals were to be regarded as neutral and protected
 * 2) hospital and ambulance personnel were also to be regarded as neutral
 * 3) wounded and sick combatants were to collected and cared for no matter what country they came from
 * 4) hospitals and ambulances would be distinguished by a red cross placed on a white background

World War I high-lighted the need for changes to IHL and in 1929, the Swiss convened in Geneva a diplomatic conference which adopted an improved treaty on the treatment of the wounded and sick as well as a second treaty on the treatment of prisoners of war.

Experience from yet another war pointed to the need to revise IHL and the Swiss government convened yet another diplomatic conference in Geneva in 1949. The conventions of 1907, and 1929 were replaced by three new Geneva conventions. One new addition was the recognition of some members of organized resistance groups as prisoners of war.

An major development was the drawing up of a fourth convention which provided for the protection of civilians during an armed conflict, both those who found themselve in the territory of a belligerent party, and those who found themselves in occupied territory.

Finally, whereas the previous Geneva conventions had applied only to parties to an international conflict, a common article was placed each of the four conventions which extended application to internal conflicts taking place within the territory of on of the contracting parties.

Examples
Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a Red Cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or white flag are expected to maintain neutrality, and may not engage in warlike acts; in fact, engaging in war activities under a white flag or red cross is itself a violation of the laws of war.

These examples of the laws of war address declaration of war, (the UN charter (1945) Art 2, and some other Arts in the charter, curtails the right of member states to declare war; as does the older and toothless Kellogg-Briand Pact of 1928 for those nations who ratified it but used against Germany in the Nuremberg War Trials), acceptance of surrender and the treatment of prisoners of war; the avoidance of atrocities; the prohibition on deliberately attacking civilians; and the prohibition of certain inhumane weapons. It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform and fighting in that uniform, is forbidden, as is the taking of hostages.

Violations and punishment
During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.

Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5.

Spies and "terrorists" are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.

After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.

Jus in bello
The agreements regarding acceptable practices while engaged in war are referred to as the jus in bello. Thus the Geneva Conventions are a set of jus in bello. Any international agreements about the justifiable reasons for a country to declare war against another can be referred to as jus ad bellum.

Non-uniformed guerrillas and Protocol 1
Under the Third Geneva Convention a fighter or belligerent in an international armed conflict who wanted lawful combatant status (and therefore prisoner of war status if captured), would have to meet certain criteria including:


 * (a) That of being commanded by a person responsible for his subordinates;
 * (b) That of having a fixed distinctive sign recognizable at a distance;
 * (c) That of carrying arms openly;
 * (d) That of conducting their operations in accordance with the laws and customs of war." (From Article 4)

Lawful combatants are accorded "combatant's privilege," whereby they are exempted from the ordinary criminal law of the place they are fighting in. This means that they cannot be tried for murder, for example, for killing soldiers of the opposing side. Prisoners of war are accorded this privilege in the event they are charged with crimes after capture. They may be tried for war crimes, such as murdering civilians or torture, but not acts of violence in accordance with the laws and customs of war such as killing or capturing enemy soldiers or damaging military property.

The First Protocol Additional to the Geneva Conventions (adopted 1977; in force 1979)(Protocol 1) seeks, among other things, to effectively bring legal combatant status to forces not adhering to the uniform and certain other regulations of the Hague and Geneva Conventions, which arguably can include those some may consider terrorists.

The definition of an "international armed conflict" would include "armed conflicts in which peoples are fighting against colonial domination and alien [foreign] occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations." (From article 1[4])

The Protocol may, unlike the 1949 Conventions that require combatants to wear uniforms, also give lawful combatant status to non-uniformed guerrilla in international armed conflicts as long as they bear their arms openly during military operations.

Article 44(3) states:


 * "In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly."

Article 44(7) then states:


 * "This Article is not intended to change the generally accepted practice of States with respect to the wearing of the uniform by combatants assigned to the regular, uniformed armed units of a Party to the conflict."

Protocol 1 provisions are effectively blocked from coming into meaningful force due to the fact that most nations likely to be directly involved in conflict, especially with guerrillas, have refused to ratify it, including the United States of America and Israel, India, Indonesia, Iran and Iraq, or have ratified or acceded to it only with unilateral declarations limiting their acceptance, including Australia, China, France, Germany, Russia, Spain and the United Kingdom.

It is unclear whether the British government considers or considered Protocol 1 to be applicable to guerrillas (or "insurgents" or "terrorists") fighting foreign troops in Iraq or Afghanistan.

It is likely they do not consider it applicable in Iraq, especially since the official position of the British government is that the alien occupation of Iraq ended with the official handover of power to the US-backed (and internationally-recognised) Iraqi government--therefore there is officially no alien occupation to resist. Likewise, NATO forces are in Afghanistan with the permission of US-backed (and internationally recognised) president Hamid Karzai.

This would be disputed by some who do no support the presence of Anglo-American forces in Iraq, who would consider their presence still an occupation--just as the US government considered Soviet forces to be in occupation of Afghanistan in 1980s. Officially, Soviet troops were in Afghanistan with the permission of the Soviet-backed government, in order to aid the Afghan Army's counter-insurgency war against "Muslim terrorists" (the US-backed mujahadeen guerrillas).