Tamils - a Trans State Nation..

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
Tamil Poem in Purananuru, circa 500 B.C 

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Tamil Armed Resistance & the Law
Child Soldiers and the Law
The Use Of Force In Relation To Self-Determination In International Law - Mustafa Sahin, 1999
The Status in International Law of National Liberation Movements and their Use of Armed Force - Edre U. Olalia, President
International Association of People�s Lawyers (IAPL), 26 November 2004
The international status of national liberation movements - Malcolm Shaw, 1983
Application of International Humanitarian Law to Wars of National Liberation - Noelle Higgins, April 2004
National Liberation Movements in Global Perspective - Dr. Jeff Sluka, 1996
Humanitarian Law & the Tamil National Struggle - Dr.Karen Parker, 1996
Crimes in Combat: Relationship between Crimes against Humanity and War Crimes by W J Fenrick, 2004 [Mr. Fenrick has been a Senior Legal Adviser in the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia since 1994. Until recently, he was the head of the Legal Advisory Section. He is now the Senior Adviser on Law of War Matters.]

 The Difference Uniforms Make: Understanding the Regulation of Collective Violence in Criminal Law and the Law of War,2004 - "Philosophy deals in abstract principles and politics in realities. Nevertheless, the two must continually meet: philosophy must address real problems and politics be guided, at least in part, by principle... Political violence poses a particular set of challenges to the application of moral principles..." Christopher Kutz University of California, Berkeley in

Child Soldiers and the Law
Study on Customary Humanitarian Law
Geneva Conventions 1949 and Additional Protocols 1977
States Party to Geneva Conventions and their Additional Protocols
Humanitarian Negotiations with Armed Groups

Law of Armed Conflict at the Operational & Tactical Level _ Canadian Joint Doctrine Manual, 2005

Collection of Documents on the Law of Armed Conflict - Edited by the
Directorate of Law Training, Canada, 2005

Law of Armed Conflict Manual - Canada
Law of Armed Conflict - Australia
Law of Armed Conflict - United Kingdom
The Law of Internal Armed Conflict - Lindsay Moir, 2002
Journal of Conflict & Security Law
International Justice Tribune
International Law Reports
Bibiliography - National Liberation Wars

 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)


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


"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?

up 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.

up 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.

up 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.

up 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)

up 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.)

up 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)


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