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Humanitarian Law
Alman-Najar Namla
The legal
framework of
humanitarian access
in armed conflict
Felix Schwendimann is Diplomatic
Ocer in the Section for
International Humanitarian Law,
Directorate of International Law,
Swiss Federal Department of
Foreign Aairs.
The main purpose of this article is to lay out the existing international legal
framework regulating humanitarian access in situations of armed conflict.
-Guiding Principles on
Humanitarian Assistance)
-Guiding Principles on
Humanitarian Assistance)
B. non-international armed
conflict, and
C. occupation.
Source: https://palestinediaries.wordpress.com/tag/separation-wall/
Consent and
Conditions during
Occupation
Under the law of occupation, there
is a clear obligation for the
Occupying Power to ensure that
the basic needs of the population
under its control are fulfilled.
Consent and
Conditions during
Occupation
However, if the Occupying Power is not in
a position to fulfil its duty to provide the
civilian population under its control with
essential supplies, it must agree to relief
schemes on behalf of this population.48
This obligation is unconditional.49 The
Occupying Power must either ensure that
the civilian population receives essential
supplies or agree to relief actions.
The Occupying Power has the obligation to facilitate relief actions by all the
means at its disposal.
Relief consignments must not be diverted from the purpose for which they
are intended.
Exceptions to this rule are allowed in cases of urgent necessity only and if
this is in the interest of the occupied population and with the consent of the
Protecting Power.
The rights and duties of relief personnel also apply in times of occupation.
War crimes
The denial of humanitarian assistance
and access to civilians may under
certain conditions constitute the war
crime of starvation. International
humanitarian law prohibits the
starvation of civilians as a method of
warfare in both international and noninternational armed conflict.
Ensuring respect for, and protection of, the wounded and sick and delivery of health care to them
were at the origin of the Red Cross and Red Crescent Movement, as well as the development of
international humanitarian law (IHL).
In todays armed conflicts and other emergencies, the problem is not the lack of existing
international rules but the implementation of relevant IHL and international human rights law
(IHRL) which form a complementary framework governing this issue.
Against the backdrop of the dierent manifestations of violence observed by the ICRC in the field
and expert consultations held in the framework of the Health Care in Danger Project,
this article identifies commonalities between the two legal regimes, including with respect to
obligations to provide and facilitate impartial health care; prohibitions of attacks against wounded
and sick and health-care providers;
The article concludes by indicating certain areas where implementation of existing IHL and IHRL
is needed, including in domestic normative frameworks, military doctrine and practice, as well as
training of health- care personnel on these international legal frameworks and medical ethics.
Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
Health-care personnel shall not be hindered
in the performance of their exclusive
medical tasks. They shall not be harassed
for the simple fact of assisting the wounded
and sick, and must not be compelled to
denounce wounded and sick in their care,
subject to exceptions expressly provided
under IHL, IHRL and national law
Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
Commonalities regarding
the protection of the
provision of health care
under IHL and IHRL
The red cross, red crescent and red crystal
emblems shall not be employed except to identify
protected health-care personnel, facilities, medical
transport, and associated medical equipment or
medical supplies authorised to use them in armed
conflicts or to indicate that persons or objects are
linked to the Red Cross and Red Crescent
Movement. All necessary measures shall be taken
to prevent and repress misuse of the emblems
ICRC, 2012
INTRODUCTION
DEFINITIONS
international armed conflict- may be said to exist when- ever
there is resort to armed force between two or more States;
non-international armed conflicts- are protracted armed
confrontations occurring between governmental armed
forces and the forces of one or more armed groups, or
between such groups arising on the territory of a State party
to the Geneva Conventions of 1949.
For example: You are a military doctor. Ten wounded soldiers are
brought to your mobile surgical hospital following intense fighting.
Two of the wounded are enemy soldiers; one has a serous abdominal
wound. A senior officer orders you not to treat the wounded enemy
soldiers until later.
RESPONSIBILITIES
treat the wounded and sick humanely;
RESPONSIBILITIES
the wounded and sick without their genuine and valid consent;
humanitarian law, human rights law and health-care ethics; give special consideration to the greater vulnerability
of women, children, the elderly and people with
of poor quality / counterfeit materials and medicines; encourage authorities to recognize their obligations under humanitarian law
and other pertinent bodies
of international law with respect to protecting health- care personnel and infrastructure in armed conflicts and other emergencies;
do everything within your power to prevent reprisals against the wounded and sick or against health-care workers and facilities;
refuse to obey orders that are unlawful or that compel you to act contrary to health-care ethics;
SOURCES OF RESPONSIBILITIES
SOURCES OF RESPONSIBILITIES
a body of international law that applies only in situations of armed conflict. It has
two major branches:
RIGHTS
and sick you are caring for; to demand that the authorities assist you in carrying out
your work; to demand that the authorities give you access to the
in accordance with accepted standards of health care; not to be compelled to act in a
manner contrary to the
law and/or health-care ethics; not to be compelled to give information about wounded
and sick people beyond what is required by domestic law
or in terms of notification of infectious diseases; if you are detained, to continue your
professional work whenever possible;24
not to be punished for disobeying an illegal or unethical order; to carry a light weapon to
defend yourself and the wounded and sick in your care.
ICRC, 2014
SAFEGUARDING THE
PROVISION OF HEALTH CARE.
OPERATIONAL PRACTICES AND
RELEVANT INTERNATIONAL
HUMANITARIAN LAW
CONCERNING ARMED GROUPS
(ICRC, 2015)
Concluding Remarks
This publication is the first step in a participative process, in which the ICRC
collected and recorded insights and practices discussed by armed groups.
The next, crucial step in this process is for armed groups to contextualize and
adopt the practical measures presented in this document in order to strengthen
their ability to respect and protect health care.
In non-international armed conflicts, armed groups do not operate in a vacuum.
Other actors, such as health-care personnel, impartial humanitarian
organizations and state authorities, also contribute to building an environment
conducive to the safe and impartial delivery of health care. Still, armed groups
have an essential role to play in promoting the principles of respect for and the
protection of health care, both within their own group and when interacting with
other armed groups.
DOMESTIC NORMATIVE
FRAMEWORKS FOR
THE PROTECTION OF
HEALTH CARE (ICRC
2015)
HUMANITY
IMPARTIALITY
NEUTRALITY
INDEPENDENCE
VOLUNTARY SERVICE
UNITY
UNIVERSALITY
Social consequences
Sexuality touches on a myriad of values and taboos
governing the behaviour of both individuals and society at
large. At individual level, most people are repelled by the
idea of engaging in sex outside a given context (e.g.
marriage or a loving relationship) being subjected to
forced sex is a distressing and humiliating ex- perience.
Impact on marriage
Rejection by husband and strain on marital relations
Sexual violence can result in a variety of difficulties between
husband and wife: it often has a dire effect on sexual
relations (loss of desire or disgust on the part of the victim
and/or her husband, pain during intercourse, etc.) and on
emotional bonds (trauma-induced suffering can lead to
personality disorders that affect in- terpersonal relations,
bringing about arguments or conflicts).
Psychological Consequences
Sexual violence can seriously affect the victims mental
health, with dire conse- quences in the short, medium, or
long term. In the hours and days following the event, the
victim may present a wide range of physical, emotional,
cognitive and behavioural symptoms. Although they may be
unsettling or appear strange, most of these symptoms are
considered to be normal or at least expected responses to
an extreme and terrifying event. They may nonetheless be
difficult for the victim and her family or friends to cope with.
OVERVIEW
This article presents an overview of the various mechanisms to improve the
situation of people affected by armed conflict.
Some are anchored in international humanitarian law, but numerous actors
are increasingly contributing to its implementation outside the original
framework established for that purpose.
Human rights monitoring bodies, the diverse organs and agencies of the
United Nations and regional organizations, and governmental and nongovernmental organizations are seeking to address situations of armed
conflict.
However, humanitarian action unattached to any political agenda and
combining protection and assistance is often the only remedy for the plight
of the victims of armed conflicts.
Enquiry procedure
Protecting Powers
Reparations
In Summary
There are obvious tensionsand even frictionsbetween protection of war victims in the midst of fighting and
judicial supervision, between consent and enforcement, between humanitarian action and denouncing
violations, and between an impartial humanitarian approach and a political approach. Improving the situation of
victims of armed conflicts means using an adequate combination of the various means, and building on their
comparative advantages.International humanitarian law and its mechanisms remain international laws modest
response during periods of armed conflict. Today, international enforcement of the law is still exceptional in the
absence of a central enforcement system. Willingness and ability to comply with the rules largely lie in the
hands of belligerents, and supervisory mechanisms are merely based on their consent and good faith.
Humanitarian law is best suited to supervision on the spot and endeavours to provide protection and
assistance directly to the victims of armed conflicts. The goal is to reach all persons affected by armed conflict,
unlike the restricted judicial approach which only takes victims of a violation of the law into account.
However, international humanitarian law needs political pressure to have a chance of succeeding.
Yet international humanitarian law would lose its raison detre if politics were to take precedence over
humanitarian considerations: the very essence of international humanitarian law is the divide it creates between
ius in bello and ius ad bellum, so that victims are protected and assisted whatever the reasons for the conflict.
Confidential Approach
The crucial struggle against impunity has been reinforced by the establishment
of bodies competent to prosecute crimes that are not subject to a statute of
limitations and of which the ICRC may have direct knowledge as a result of its field work.
In this context, the ICRCs position may be perceived as contra- dictory: on the one hand,
it supports and promotes such legal mechanisms as means not only of implementing
international humanitarian law, but also of preventing future violations;5 on the other, in
asserting its confidential approach, it refuses to participate in the establishment of
indictments/defence briefs by testifying or divulging information relating to its activities.
The victims demand that justice be done: the ICRCs confidential approach and
consequent refusal to testify can be perceived by the victims of violations as bolstering
the perpetrators impunity.
The demand for transparency and rapid results: the ICRC, like other players, is
increasingly subject to demands for transparency and rapid and measurable results. Its
strategy, which is predicated on the gradual establishment over time of a confidential
dialogue with the authorities, may appear not to meet expectations in this regard.
Confidential Approach
It can never serve to justify, by silence, an unsatisfactory and static situation that
is unlikely to change for the better in any significant way. This is why the ICRC
must be in a position deliberately to breach its undertaking of confidentiality in
exceptional cases in which the approach runs counter to the interests of the
victims, in accordance with the Policy on ICRC action in the event of violations.
Summary
Most contemporary armed conflicts are not of an international character. International
Humanitarian Law (IHL) applicable to these conflicts is equally binding on non-State armed
groups as it is on States.
The legal mechanisms for its implementation are, however, still mainly geared toward States.
The author considers that the perspective of such groups and the diculties for them in
applying IHL should be taken into account in order to make the law more realistic and more
often respected. It is submitted that the law is currently often developed and interpreted
without taking into account the realities of armed groups.
This contribution explores how armed groups could be involved in the development,
interpretation and operationalization of the law. It argues that armed groups should be allowed
to accept IHL formally, to create amongst other things a certain sense of ownership. T
Their respect of the law should also be rewarded. Possible methods to encourage, monitor
and control respect of IHL by armed groups are described.
The author suggests in particular that armed groups should be allowed and encouraged to
report on their implementation of IHL to an existing or newly created institution.
Finally, in case of violations, this contribution proposes ways to apply criminal, civil and
international responsibility, including sanctions, to non-State armed groups.
Summary
This analysis of the punishments applicable to
international crimes (war crimes, crimes against
humanity and genocide) covers 64 countries.
The sample is satisfactory in terms of geographical
distribution and covers countries with a RomanoGermanic (civil law) tradition and others with a common
law tradition.
The relevant legislation and case law of these States,
where such exists and is available, have been studied in
order to examine as accurately as possible the
punishments applied or applicable by the competent
courts.
A substantial number of the IHL rules are set out in the four 1949
Geneva Conventions and the 1977 Additional Protocols. States
are obliged to put an end to all the violations set out in these
texts. There are special obligations in respect of certain serious
violations referred to as grave breaches
States must perform these obligations in peacetime as well as in
time of armed conflict. To be eective, the measures set out
above must be adopted before the grave breaches have
occurred. Finally, it can be armed that, with the exception of
some minor dierences, the same obligations apply in respect of
genocide and crimes against humanity.
National legislation
National practice
SUMMARY
Universal Jurisdiction ensures that perpetrators of
serious internationals crimes do not go unpunished.
It is considered a fight against impunity and a matter
of global concern.
Having universal jurisdiction will deter such crimes if
an eective system of justice are in place.
TERRORISM AND
INTERNATIONAL LAW
Terrorism and International
Humanitarian Law (Ben Saul, 2014)
Terrorist Acts and Groups: A Role for
International Law (Jelena Pejic, 2004)
Judicial Creativity at the Special
Tribunal for Lebanon: Is There a Crime
of Terrorism under International
Law? (Kai Ambos, 2011)
Terrorism and Changes to the Laws
of War (John B. Bellinger III, 2010)
Defining the Battlefield in
Contemporary Conflict and
Counterterrorism: Understanding the
Parameters of the Zone of
Combat (Laurie R. Blank, 2010)
Terrorism and
International Humanitarian
Law (Ben Saul, 2014)
Introduction
Terrorism has long presented challenges for both states and humanitarian
protection in armed conflict.
Debates have taken place for over a century about irregular combatant status, the
legitimacy of non-state armed groups, violence motivated by politically just
causes, terrorist means and methods of warfare, and the regulatory challenges of
asymmetrical conflict.
Many of these issues resurfaced or assumed a new complexion after 9/11, with
stark challenges to international humanitarian law (IHL) presented by a particularly
powerful victim of terrorism, the United States.
Purported gaps or inadequacies in IHL have stimulated much discussion,
whether from the perspective of state militaries, terrorists, or civilians.
US Drone
In conclusion
Finally, this view does not mean that the clarification and
development of certain aspects of the international legal
framework are unnecessary. What is argued is that good
faith attempts to apply the current legal framework must be
made, and that deficiencies in practice must be
demonstrated before new law is made to replace the old.
It is also by no means certain that new legal rules would
garner broad acceptance or that they would necessarily be
better implemented than existing ones. That, however,
deserves to be the subject of another study.
Source: http://www.transatlanticinstitute.org/?p=32
Overview
On 21 January 2011, the pre-trial judge of the Special Tribunal for Lebanon (hereinafter STL) posed several questions
to the Appeals Chamber (Chamber) pursuant to Rule 68(G) of the Rules of Procedure and Evidence.
Three of these questions dealt with the crime of terrorism.3
(i) Should the Tribunal take into account international notions on terrorism even though Article 2 of the Statute only refers
to the Lebanese Criminal Code (LCC)? (ii) If so, is there an international definition of terrorism and how should it be
applied?
(iii) If not, how is the Lebanese definition of terrorism to be interpreted by the Chamber?
Both the prosecution and defence submitted extensive briefs dealing, inter alia, with these questions.4 Additionally, two
amicus curiae briefs weresubmitted.5 On16February2011,theChamber issue dits(interlocutory) decision pursuant o Rule
176 bis (A).6 The Chamber argues, in a nutshell, that terrorism has become a crime under international law and that the
respective international definition influences the (applicable) Lebanese law. In the first part of this paper, I will argue that
the Chambers considerations, albeit innovative and creative, are essentially obiter, since the applicable terrorism
definition can be found, without further ado, in the Lebanese law.
There is no need to internationalize or reinterpret this law; it should be applied before the STL as understood in
Lebanese practice. As to the Chambers affirmation that there is a crime of terrorism under international law, I will argue,
in the second part of the paper, that the available sources indicate, at best, that terrorism is a particularly serious
transnational, treaty-based crime that comes close to a true international crime but has not yet reached this status.
Notwithstanding, the general elements of this crime can be inferred from the relevant sources of international law.
Conclusion
In conclusion, the United States is regularly told that there are no problems
with the law or gaps in the law with respect to detention and tar- geting. The
problem is only a question of implementation, implying that if the United
States would just do a better job of applying the law, it would all be very
easy.
I think the answer is that this is not an easy area, that there are not clear
rules, and that it is quite difficult to accuse someone of violating the law with
respect to targeting and detention.
One can appropriately say that the United States has adopted a number of
bad policies, but we are go- ing to be debating for a very long time what the
applicable rules are or ought to be.
Counter-terrorists
Source: Wikipedia
First Factor
First, some terrorist attacks and activities fall closer to the
traditional conception of hostilities as understood within
LOAC.
Areas where these types of attacks occur naturally have a
stronger link to a battlefield. In addition, when such attacks
or activities occur regularly or over a defined time period, we
can more clearly define the temporal parameters of the zone
of combat as well.
Second Factor
Second, in declaring that it is "at war with terrorists," a state may
envision the whole world as a battlefield.
But the state's actual conduct in response to the threat posed offers a
more accurate lens through which to view the battlefield.
Areas where the state uses military force, particularly multiple facets of
military power, on a regular or recurring basis, should fall within the
zone of combat. In contrast, those areas where the state chooses
diplomatic or law enforcement measures, or relies on such efforts by
another state, do not demonstrate the characteristics of the battlefield.
Third Factor-Territory
The third factor-territory-requires the most creative
application.
Terrorist groups do not use or connect to territory in the
same manner as either states or non-state actors seeking
to gain power or independence.
In conclusion
Besides these factors drawn from the law of armed conflict,
we can look to judicial interpretations and policy
considerations as well. Taken as a whole, these analytical
tools form a first step in the critical task of identifying where
and when a state can conduct operations within an armed
conflict framework, a necessary companion to the ongoing
debate about whether a state can conduct operations
within such a framework.
Thank you!