|
Armed
Conflict & the Law
"... As it is we have played at war . . . we
play at magnanimity and all that stuff. Such magnanimity and sensibility are
like the magnanimity and sensibilities of a lady who faints when she sees a
calf being killed; she is so kind-hearted that she can't look at blood, but
enjoys eating the calf served up with sauce. They talk to us of the rules of
war, of chivalry, of flags of truce, of mercy to the unfortunate and so on.
It's all rubbish. I saw chivalry and flags of truce in 1805. They humbugged
us and we humbugged them. They plunder other peoples' houses, issue false
paper money, and worst of all they kill my children and my father, and then
talk of rules of war and magnanimity to foes ! Take no prisoners but kill
and be killed ! . . . If there was none of this magnanimity in war, we
should go to war only when it was worth while going to certain death, as
now.... war is not courtesy but the most horrible thing in life; and
we ought to understand that, and not play at war.... The air of war
is murder; the methods of war are spying, treachery, and their
encouragement, the ruin of a country's inhabitants, robbing them or stealing
to provision the army, and fraud and falsehood termed military craft.... "
(The fictional Prince Andrew Bolkhonsky in
Tolstoy's War & Peace , Book 10, Chapter
25, pp 486-7)
Theory...
What is
International Humanitarian Law? - Advisory Service, ICRC
What is the difference
between humanitarian law and human rights law? - ICRC
The relevance of IHL in the context of terrorism - ICRC
Practice...
"American
forces that tried to comply with the spirit of the standards of the law of
land warfare found that they could not physically survive..." (US
General Donald Blackburn, 1976)
"It must not be forgotten that the object of war is to obtain peace as
speedily as possible on one's own terms, and not the least efficacious means
of producing this result is the infliction of loss and injury upon 'enemy'
non-combatants..." (British Admiralty Note, 1906)
"Guerrilla
warfare continues to expose the lacunas in the international humanitarian
law of armed conflicts..." (Dr.Keith Suter, 1984)
Hiroshima & Nagasaki -
Military Necessity & Humanitarian Laws of Armed Conflict?
What is
International Humanitarian Law?
- Advisory Service, ICRC, July 2004 [also
in PDF] International humanitarian law is a set of rules which seek,
for humanitarian reasons, to limit the effects of armed conflict. It protects
persons who are not or are no longer participating in the hostilities and
restricts the means and methods of warfare. International humanitarian law is
also known as the law of war or the law of armed conflict.
International humanitarian law is part of international law, which is the body
of rules governing relations between States. International law is contained in
agreements between States treaties or conventions , in customary rules, which
consist of State practise considered by them as legally binding, and in general
principles. International humanitarian law applies to armed conflicts.
It does not regulate whether a State may actually use force; this is governed by
an important, but distinct, part of international law set out in the United
Nations Charter. Where did international humanitarian law originate?
International humanitarian law is rooted in the rules of ancient civilizations
and religions warfare has always been subject to certain principles and
customs. Universal codification of international humanitarian law began
in the nineteenth century. Since then, States have agreed to a series of
practical rules, based on the bitter experience of modern warfare. These rules
strike a careful balance between humanitarian concerns and the military
requirements of States. As the international community has grown, an
increasing number of States have contributed to the development of those rules.
International humanitarian law forms today a universal body of law.
Where is international humanitarian law to be found? A major part of
international humanitarian law is contained in the four Geneva Conventions of
1949. Nearly every State in the world has agreed to be bound by them. The
Conventions have been developed and supplemented by two further agreements: the
Additional Protocols of 1977 relating to the protection of victims of armed
conflicts. Other agreements prohibit the use of certain weapons and
military tactics and protect certain categories of people and goods. These
agreements include: the 1954 Convention for the Protection of Cultural
Property in the Event of Armed Conflict, plus its two protocols; the
1972 Biological Weapons Convention; the 1980 Conventional Weapons
Convention and its five protocols; the 1993 Chemical Weapons
Convention; the 1997 Ottawa Convention on anti-personnel mines;
the 2000 Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict. Many provisions of
international humanitarian law are now accepted as customary law that is, as
general rules by which all States are bound. When does international
humanitarian law apply? International humanitarian law applies only to
armed conflict; it does not cover internal tensions or disturbances such as
isolated acts of violence. The law applies only once a conflict has begun, and
then equally to all sides regardless of who started the fighting.
International humanitarian law distinguishes between international and
non-international armed conflict. International armed conflicts are those in
which at least two States are involved. They are subject to a wide range of
rules, including those set out in the four Geneva Conventions and
Additional Protocol I. Non-international armed conflicts are those
restricted to the territory of a single State, involving either regular armed
forces fighting groups of armed dissidents, or armed groups fighting each other.
A more limited range of rules apply to internal armed conflicts and are laid
down in Article 3 common to the four Geneva Conventions as well as in Additional
Protocol II. It is important to differentiate between international
humanitarian law and human rights law. While some of their rules are similar,
these two bodies of law have developed separately and are contained in different
treaties. In particular, human rights law unlike international humanitarian
law applies in peacetime, and many of its provisions may be suspended during an
armed conflict. What does international humanitarian law cover?
International humanitarian law covers two areas: the protection of
those who are not, or no longer, taking part in fighting;
restrictions on the means of warfare in particular weapons and the methods
of warfare, such as military tactics. What is "protection"?
International humanitarian law protects those who do not take part in the
fighting, such as civilians and medical and religious military personnel. It
also protects those who have ceased to take part, such as wounded, shipwrecked
and sick combatants, and prisoners of war. These categories of person
are entitled to respect for their lives and for their physical and mental
integrity. They also enjoy legal guarantees. They must be protected and treated
humanely in all circumstances, with no adverse distinction. More
specifically: it is forbidden to kill or wound an enemy who surrenders or is
unable to fight; the sick and wounded must be collected and cared for by the
party in whose power they find themselves. Medical personnel, supplies,
hospitals and ambulances must all be protected. There are also detailed
rules governing the conditions of detention for prisoners of war and the way in
which civilians are to be treated when under the authority of an enemy power.
This includes the provision of food, shelter and medical care, and the right to
exchange messages with their families. The law sets out a number of
clearly recognizable symbols which can be used to identify protected people,
places and objects. The main emblems are the red cross, the red crescent and the
symbols identifying cultural property and civil defence facilities. What
restrictions are there on weapons and tactics? International
humanitarian law prohibits all means and methods of warfare which:
fail to discriminate between those taking part in the fighting and those, such
as civilians, who are not, the purpose being to protect the civilian population,
individual civilians and civilian property; cause superfluous injury
or unnecessary suffering; cause severe or long-term damage to the
environment. Humanitarian law has therefore banned the use of many
weapons, including exploding bullets, chemical and biological weapons, blinding
laser weapons and anti-personnel mines. Is international humanitarian
law actually complied with? Sadly, there are countless examples of
violation of international humanitarian law. Increasingly, the victims of war
are civilians. However, there are important cases where international
humanitarian law has made a difference in protecting civilians, prisoners, the
sick and the wounded, and in restricting the use of barbaric weapons.
Given that this body of law applies during times of extreme violence,
implementing the law will always be a matter of great difficulty. That said,
striving for effective compliance remains as urgent as ever. What should
be done to implement the law? Measures must be taken to ensure respect
for international humanitarian law. States have an obligation to teach its rules
to their armed forces and the general public. They must prevent violations or
punish them if these nevertheless Occur. In particular, they must enact
laws to punish the most serious violations of the Geneva Conventions and
Additional Protocols, which are regarded as war crimes. The States must also
pass laws protecting the red cross and red crescent emblems. Measures
have also been taken at an international level: tribunals have been created to
punish acts committed in two recent conflicts (the former Yugoslavia and
Rwanda). An international criminal court, with the responsibility of repressing
inter alia war crimes, was created by the 1998 Rome Statute. Whether as
individuals or through governments and various organizations, we can all make an
important contribution to compliance with international humanitarian law.
What is the difference
between humanitarian law and human rights law?
- ICRC, 31 October 2002
International humanitarian law and international human rights
law (hereafter referred to as human rights) are complementary. Both strive to
protect the lives, health and dignity of individuals, albeit from a different
angle.
Humanitarian law applies in situations of armed conflict whereas human rights,
or at least some of them, protect the individual at all times, in war and peace
alike. However, some human rights treaties permit governments to derogate from
certain rights in situations of public emergency. No derogations are permitted
under IHL because it was conceived for emergency situations, namely armed
conflict.
Humanitarian law aims to protect people who do not or are no longer taking part
in hostilities. The rules embodied in IHL impose duties on all parties to a
conflict. Human rights, being tailored primarily for peacetime, apply to
everyone. Their principal goal is to protect individuals from arbitrary
behaviour by their own governments. Human rights law does not deal with the
conduct of hostilities.
The duty to implement IHL and human rights lies first and foremost with States.
Humanitarian law obliges States to take practical and legal measures, such as
enacting penal legislation and disseminating IHL. Similarly, States are bound by
human rights law to accord national law with international obligations.
IHL provides for several specific mechanisms that help its
implementation. Notably, States are required to ensure respect also by other
States. Provision is also made for an enquiry procedure, a Protecting Power
mechanism, and the International Fact-Finding Commission. In addition, the ICRC
is given a key role in ensuring respect for the humanitarian rules.
Human rights implementing mechanisms are complex and, contrary to IHL, include
regional systems. Supervisory bodies, such as the UN Commission on Human Rights,
are either based on the UN Charter or provided for in specific treaties (for
example the Human Rights Committee, which is rooted in the International
Covenant on Civil and Political Rights of 1966).
The Human Rights Commission and its Subcommissions have
developed a mechanism of special rapporteurs and working groups, whose task is
to monitor and report on human rights situations either by country or by topic.
Six of the main human rights treaties also provide for the establishment of
committees (e.g. the Human Rights Committee) of independent experts charged with
monitoring their implementation.
Certain regional treaties (European and American) also establish
human rights courts. The Office of the UN High Commissioner for Human Rights
(UNHCHR) plays a key part in the overall protection and promotion of human
rights. Its role is to enhance the effectiveness of the UN human rights
machinery and to build up national, regional and international capacity to
promote and protect human rights and to disseminate human rights texts and
information.
The relevance of IHL in the context of terrorism
Official Statement by ICRC, 21 July 2005
Events in recent years have increased interest in the issue of how international
humanitarian law is applied in today's context of violent confrontation. In a
new paper, the ICRC provides answers to some of the most frequently asked
questions about international humanitarian law and terrorism.
1. Is there legal significance to the term "global war on terror?"
International humanitarian law (the law of armed conflict) recognizes two
categories of armed conflict: international and non-international. International
armed conflict involves the use of armed force by one State against another.
Non-international armed conflict involves hostilities between government armed
forces and organized armed groups or between such groups within a state. When
and where the "global war on terror" manifests itself in either of these forms
of armed conflict, international humanitarian law applies, as do aspects of
international human rights and domestic law. For example, the armed hostilities
that started in Afghanistan in October 2001 or in Iraq in March 2003 are armed
conflicts.
When armed violence is used outside the context of an armed conflict in the
legal sense or when a person suspected of
terrorist activities is not detained in connection with any armed conflict,
humanitarian law does not apply. Instead, domestic laws, as well as
international criminal law and human rights govern.
Whether or not an international or non-international armed conflict is part of
the "global war on terror" is not a legal, but a political question. The
designation "global war on terror" does not extend the applicability of
humanitarian law to all events included in this notion, but only to those which
involve armed conflict.
2. Who is a combatant?
International humanitarian law permits members of the armed forces of a State
party to an international armed conflict and associated militias who fulfil the
requisite criteria to directly engage in hostilities. They are generally
considered lawful, or privileged, combatants who may not be prosecuted for the
taking part in hostilities as long as they respect international humanitarian
law. Upon capture they are entitled to prisoner of war status.
If civilians directly engage in hostilities, they are considered "unlawful" or
"unprivileged" combatants or belligerents (the treaties of humanitarian law do
not expressly contain these terms). They may be prosecuted under the domestic
law of the detaining state for such action.
Both lawful and unlawful combatants may be interned in wartime, may be
interrogated and may be prosecuted for war crimes. Both are entitled to humane
treatment in the hands of the enemy.
3. Who is an "enemy combatant?"
In its generic sense, an "enemy combatant" is a person who, either lawfully or
unlawfully, engages in hostilities for the opposing side in an international
armed conflict.
The term is currently used - by those who view the "global war against terror"
as an armed conflict in the legal sense - to denote persons believed to belong
to, or believed to be associated with terrorist groups, regardless of the
circumstances of their capture.
As mentioned above, a member of the armed forces of a State engaged in an
international armed conflict or of an associated militia that fulfils the
requisite criteria is a combatant, and, as such, entitled to POW status upon
capture by the enemy.
In non-international armed conflict, combatant and prisoner of war status are
not provided for, because States are not willing to grant members of armed
opposition groups immunity from prosecution under domestic law for taking up
arms.
From an IHL perspective, the term "combatant" or "enemy combatant" has no
legal meaning outside of armed conflict.
To the extent that persons designated "enemy combatants" have been captured in
international or non-international armed conflict, the provisions and
protections of international humanitarian law remain applicable regardless of
how such persons are called. Similarly, when individuals are captured outside of
armed conflict their actions and protection are governed by domestic law and
human rights law, regardless of how they are called.
4. Who is entitled to "prisoner of war" status? What is the consequence of
failure to qualify for prisoner of war status?
a. In international armed conflict
As previously mentioned, in international armed conflict, members of the armed
forces of the States involved (and associated militias) are lawful combatants.
It should be borne in mind that in this type of conflict, there are lawful
combatants on two (or more) sides: the armed forces of one State fighting the
armed forces of another State.
The four Geneva
Conventions apply to situations of international armed conflict. It is the
Third Geneva
Convention which regulates the protection of lawful combatants upon capture
by the enemy. Its procedures for determination of entitlement to prisoner of war
status by a "competent tribunal" in case of doubt are mandatory.
Unlawful combatants do not qualify for prisoner of war status. Their situation
upon capture by the enemy is covered by the
Fourth (Civilian)
Geneva Convention
if they fulfil the nationality criteria and by the relevant provisions of the
Additional Protocol I, if ratified by the detaining power.
This protection is not the same as that afforded to lawful combatants. To the
contrary, persons protected by the
Fourth Convention and the relevant provisions of
Protocol I
may be prosecuted under domestic law for directly participating in hostilities.
They may be interned for as long as they pose a serious security threat, and,
while in detention, may under specific conditions be denied certain privileges
under the Fourth Geneva Convention. They may also be prosecuted for war crimes
and other crimes and sentenced to terms exceeding the length of the conflict,
including the range of penalties provided for under domestic law.
Persons not covered by either the Third or the Fourth Geneva Convention in
international armed conflict are entitled to the fundamental guarantees provided
for by customary international law (as reflected in
Article
75 of Additional Protocol I), as well as by applicable domestic and human
rights law. All these legal sources provide for rights of detainees in relation
to treatment, conditions and due process of law.
Therefore, contrary to some assertions, the ICRC has never stated that all
persons who have taken part in hostilities in an international armed conflict
are entitled to prisoner of war status.
b. In non-international armed conflict
In non-international armed conflict combatant status does not exist. Prisoner of
war or civilian protected status under the
Third and
Fourth Geneva
Conventions, respectively, do not apply. Members of organized armed groups are
entitled to no special status under the laws of non-international armed conflict
and may be prosecuted under domestic criminal law if they have taken part in
hostilities. However, the international humanitarian law of non-international
armed conflict - as reflected in
Common Article 3 of the Geneva Conventions,
Additional
Protocol II to the Geneva Conventions where applicable, and customary
international humanitarian law as well as applicable domestic and
international human rights law all provide for rights of detainees in relation
to treatment, conditions and due process of law.
5. What are the ICRC's role and activities in relation to international
humanitarian law?
The international community has long recognized the ICRC's role in working for
the understanding and dissemination of international humanitarian law. The
institution also works towards its faithful application by, among other things,
reminding parties to armed conflict of their legal obligations as reflected in
treaties to which they are party, such as the Geneva Conventions, and under
customary international law. Two further treaties relating to armed conflict are
Protocol I
Additional to the Geneva Conventions of 1949 and
Protocol II Additional to the Geneva Conventions of 1949 that were
negotiated by States from 1974-1977 at an International Diplomatic Conference.
Protocols I and II are international treaties to which the great majority of
States are party (164 to Additional Protocol I and 160 to Additional Protocol
II). The ICRC does not claim and has never claimed that any State that is not a
party to these treaties is bound by them. However, significant portions of these
Protocols are considered by States to reflect customary international law, which
is binding on States regardless of whether or not it is contained in any treaty
to which the State is party.
The ICRC itself cannot ensure the application of international humanitarian law,
but rather urges States and parties to an armed conflict to respect and ensure
respect for it.
6. Does Protocol
I Additional to the Geneva Conventions treat "terrorists" the same as it
does soldiers?
One of main achievements of Additional Protocol I concerns limitations on the
methods and means of warfare introduced in order to better protect civilians.
For example, it unequivocally prohibits acts of terrorism, such as attacks
against civilians or civilian objects. The treaty also explicitly prohibits acts
or threats of violence the primary purpose of which is to spread terror among
the civilian population. Needless to say, persons suspected of such acts are
liable for criminal prosecution.
Additional Protocol I does not grant prisoner of war status to persons who
unlawfully participate in hostilities. It reserves this status to members of the
armed forces of a party to an international armed conflict in the sense of the
Protocol. Such armed forces must be organized, be under a command responsible to
that party and be subject to an internal disciplinary system that enforces
compliance with humanitarian law. Moreover, members of armed forces must
distinguish themselves from the civilian population in order to be entitled to
prisoner of war status upon capture.
While traditionally the wearing of a uniform or of a distinctive
sign and the carrying of arms openly was required, States parties to the
Protocol agreed that in very exceptional circumstances, such as wars of national
liberation, this requirement could be less stringent. The carrying of arms
openly would be sufficient as a means of distinction.
The Protocol thus provides recognition and protection only to organizations and
individuals who act on behalf of a State or an entity that is a subject of
international law. It excludes "private wars", whether conducted by individuals
or groups, in the same way that the 1949 Geneva Conventions and the 1907 Hague
Regulations concerning the laws and customs of war on land had done. Therefore,
"terrorist" groups acting on their own behalf and without the requisite link to
a State or similar entity are excluded from prisoner of war protections.
1. American
forces that tried to comply with the spirit of the standards
of the law of land warfare found that they could not physically
survive...
"...American forces that tried to comply with the spirit
of the standards of the law of land warfare found that they
could not physically survive. For example, one officer who
could not feed captured Japanese prisoners returned them to
the Japanese through a priest. The Japanese promptly
returned and executed him. To avoid extinction and to
survive, the American-led guerrilla forces decided to take
stringent measures.
Through official orders it
was announced that spies and informers, considered to be the
main problem, would be controlled or eliminated....
Giving these individuals legal or procedural rights that
they might have been entitled to, was conditioned primarily
by reality and was deemed secondary to the primary goal of
simply staying alive.
The action of the
guerrilla forces was consistently conditioned by the fact
that compliance with certain legal rules that might have
been considered applicable would have resulted, from their
point of view, in imminent death. The price of
success for guerrilla operations was, simply stated, to
destroy spies and informers..."
(US General Donald Blackburn, who commanded
guerrillas against the Japanese in the Philippines during
World War II in proceedings before the American
Society of International Lawyers, thirty years later, 70th
Meeting, Washington, 1976 p.155)
2.
The object
of war
is to obtain peace as speedily as possible on one's own
terms
It must not be forgotten
that the object of war is to obtain peace as speedily as possible on
one's own terms, and not the least efficacious means of
producing this result is the infliction of loss and injury
upon 'enemy' non-combatants...... The object of the
bombardment of [commercial] towns might be the destruction
of life and property, the enforcing of ransom, the creation
of panic, and the hope of embarrassing the government of the
enemy's country and exciting the population to bring
pressure to bear upon their rulers to bring the war to a
close....
Lastly, we
have the case of bombardments intended to cover, or divert
attention from, a landing. It is easy to conceive
that a bombardment of this nature might involve undefended
towns and villages, and it presents perhaps the most
difficult case of all from a humanitarian point of view. At
the same time, no Power could be expected to abstain from
such an act of war, if it fell within their strategic
plan.... It must come under the category of inevitable acts
of war necessitated by overwhelming military considerations.
We could not give up the right so to act, and we could not
expect other nations to do so.'. . . "
(British Admiralty note on 'Naval
Bombardment of Coast Towns' printed for the Committee of
Imperial Defence in mid 1906, during the preparations for
the following year's Hague Conference: continuation of CID
paper 75B, in PRO, FO 88I/9328* II.)
3.
Guerrilla warfare
continues to expose the lacunas in the international
humanitarian law of armed conflicts...
"This is the era of guerrilla warfare. Despite the
continued existence of large conventional forces, most
post-1945 armed conflicts have been fought along very
different lines from those which characterised World War II.
In many respects, guerrilla warfare has challenged
well-established military thinking. The United States in
Vietnam and the Soviet Union in Afghanistan are examples of
how even wealthy, technologically advanced nations cannot
defeat well organised, highly motivated guerrilla groups
operating in a territory they know well. These are not new
developments. Over the centuries, conventional forces have
often had difficulty in defeating guerrilla groups. But what
is now so important is the significance accorded to
guerrilla warfare....Guerrilla warfare continues to
expose the lacunas in the international humanitarian law of
armed conflicts. The following request was written
on 5 August 1862 to an international lawyer, Francis Lieber,
by General Henry W. Halleck, then commander of the Union
forces in the west during the American Civil War:
'The rebel authorities claim the right to send men,
in the garb of peaceful citizens, to waylay and attack
our troops, to burn bridges and houses, and to destroy
property and persons within our lines. They demand that
such persons be treated as ordinary belligerents, and
that when captured they have extended to them the same
rights as other prisoners of war; they also threaten
that if such persons be punished as marauders and spies,
they will retaliate by executing our prisoners of war in
their possession. I particularly request your views on
these questions.'
This could easily have been written by an American troop
commander in Vietnam a century later. Such had been the lack
of progress in drafting rules for the regulation of
guerrilla warfare...
This was one of the most important problems to be solved
by the 1949 Diplomatic Conference, which revised the Geneva
Conventions. The longest and most impassioned debates at the
conference were concentrated on it. The idea was put forward
that a provision be introduced into positive law, attempting
nothing less than to subject a national phenomenon to
international law. The resulting solution was new, daring
and paradoxical; it marks a decisive step in the evolution
of modern law, which tends to restrict the sovereignty of
the state in the interests of the individual.
All four Geneva Conventions
contain a common Article, 3, which regulated he conduct of
non-international armed conflicts:
'In the case of armed conflict not of an
international character occurring in the territory of
one of the high contracting parties, each party to the
conflict shall be bound to apply, as a minimum, the
following provisions
(1) Persons taking no active part in the
hostilities, including members of armed forces
who have laid down their arms and those placed hors de
combat by sickness, wounds, detention, or any other
cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other
similar criteria.
To this end, the following acts are and shall remain
prohibited at any time and in any place whatsoever with
respect to the above mentioned persons
(a) violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular,
humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgement pronounced by a
regularly constituted court affording all the judicial
guarantees which are recognised as indispensable by
civilised peoples.
(2) The wounded and sick shall be collected and cared
for.
An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the
parties to the conflict.
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.
The application of the preceding provisions shall not
affect the legal status of the parties to the conflict.'
G.I.A.D. Draper described Article 3 as follows:
'In the negotiations preceding the conclusion of the four
Geneva Conventions of 1949, the common Article 3, dealing
with internal conflicts, proved the most controversial. No
less than 25 meetings of the committee charged with its
formulation were necessary before agreement was reached. At
one time it looked as if agreement would not be attained. A
succession of drafts was introduced, only to be abandoned
for lack of support.
The limitations and defects of the final Article 3
must be seen in the light of this drafting history.
Its conclusion was an achievement and its defects are the
price.
The anxieties and the caution of states in negotiating
this article have been more than borne out by the events
which have occurred since the conventions were established.
It is probably true to say that Article 3 has been the
object of more attention and dispute than any other
provision in the conventions. Apart from the intrinsic
sensitivity of the subject matter, the political events of
the post1949 period have more often than not manifested
themselves in some form of internal armed conflict within a
state. One has only to think of the long series of struggles
in Malaya, Kenya, Cyprus, Algeria, Tibet, the Congo, Angola
and the Yemen, to realise that the implications of Article 3
have been the main testing ground of the Geneva Conventions
to date.'
....the failure of the 1949 Diplomatic Conference to define
adequately the scope of a conflict covered by Article 3, other
than the not very helpful statement that it applies to
'non-international' conflicts, means that there is now an
additional blurring of interfaces between conflicts; the
interface international/non-international has been joined by
non international/civil disturbance.
Indeed, there is the ironic situation where the interests of
the potential victims of a conflict and the guerrilla do not
exactly coincide. The guerrilla, by rebelling against
his government, commits probably the most serious crime possible
in national law, treason. There is little hope for him
if he is captured and found guilty; he probably will not get the
coveted POW status. Since he faces death (or life in prison),
his main aim is that of impressing on the civilian population
that he and his comrades are not just a group of bandits (which
is probably how the government propaganda will describe them)
but a threat to the very survival of the government. The most
effective way of manifesting that threat is violence;
the guerrilla needs to force up the level of violence from a
situation of civil disturbance to a clear Article 3 situation.
In so doing, some of the undecided civilians may well change
their policy and side with the guerrillas..." (
Dr.Keith Suter in*
An International Law of Guerrilla Warfare : The Global Politics
of Law-Making,1984)
|
