Effectiveness of International Humanitarian Law

Question 1

Critically assess the effectiveness of international humanitarian law in protecting the rights of the civilian population in a territory under belligerent occupation.

Introduction

Perhaps the most important aim of International humanitarian law is the protection of civilians in times of warfare and ensuring that the population in affected areas are adequately catered for. The need to protect the civilian population in times of war is itself not a new development. Exhortations for the protection of civilians and casualties of war can be found in the writings of early scholars such as Sun Tzu and Caliph Abu Bakr. To this end there are a number of provisions under international treaties as well as principles of international customary law to ensure that the rights of the civilian population are adequately protected and that they have something akin to a semblance of their normal lives in times of hostilities.

This paper seeks to analyse the relevant provisions relating to the protection of the civilian population in territories under Belligerent occupation and the effectiveness or otherwise of those provisions.

Who Is A Civilian?

Article 50 of Additional Protocol I negatively defines a civilian as

any person who does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol”

Those provisions relate to members of armed forces and militias forming part of those armed forces. Thus anyone falling outside the provisions of those Articles would be classified as a civilian. It therefore follows that they are the constituents of the civilian population. The presence of persons who do not fall within the definition of a civilian does not deprive a population of its civilian character

What Is Belligerent Occupation?

Article 42 of the Hague Regulations provides that “a territory is considered to be occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”

Belligerent occupation is a situation in which the government of the occupied territory in question is no longer in control and its attacker is in effect imposing its own authority over that territory. For a state of occupation to exist, there does not need to be an occupation of the whole country, neither does the ousted sovereign have to proclaim nor recognise a state of occupation. Also a defeat of the lawful sovereign’s forces does not amount to occupation.What is needed is there being an actual and effective control over that territory by the occupying power. In the Case Concerning Armed Activities on the Territory of the Congo, the ICJ held that although the Ugandan Military had forces stationed in certain Provinces in the Democratic Republic of Congo, they did not have sufficient control over those provinces. Whether there is an actual occupation or not is a question of fact.

A state of occupation does not imply that the occupying power is assuming sovereignty over the territory. Rather it is merely administering the territory to prevent chaos and a collapse of law and order. The pre-existing legal order should be preserved as much as possible although some laws may be modified to bring them in consonance with basic principles of human rights. For example like what Israel did in territories of Judea and Samaria under its control by conferring the right to vote in mayoral elections on women.

The Law Governing Belligerent Occupation

The Law of belligerent occupation seeks to regulate the conduct of occupying powers in times of conflict. It imposes an obligation on an occupying power to protect the life and property of the inhabitants of the occupied territory and also to respect the sovereign rights of the ousted power.

The rules for the protection of the civilian population under belligerent occupation can be found in the annexed regulations to The Hague Convention of 1907, the IV Geneva Convention and Additional Protocol I of 1977. There are also provisions contained in domestic laws, UN resolutions as well as principles of customary international law. This paper will however focus on the treaty law regime. These provisions aim to protect the rights of civilians both as to their person, property and means of survival.

The Hague regulations essentially contain provisions to ensure that the basic rights of the people are taken care of by providing for the respect of the right to life, religion and property.

The occupying power is under an obligation to ensure that public order and safety is maintained whilst respecting unless absolutely necessary the laws in force in the occupied territory. The regulations also safeguard the population from economic exploitation. It provides that where the occupying power imposes tax and dues, it must be done in accordance with the assessment and incidence in force. Also if it is going to impose additional levies, they must be for the running of the territory or the needs of the army.

The way of life of the people is also protected in that institutions dedicated to “religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings”.

While the Hague regulations provided the civilian population in territories who found themselves under enemy control some measure of protection, it did not afford them a more general protection in terms of the risks arising from warfare. The atrocities committed during the Second World War necessitated the passage of laws that would afford more protection to civilian populations who find themselves in enemy hands in times of hostilities.

Hence the 1949 IV Geneva Convention for the protection of civilian persons in times of war came into being. The convention seeks to protect civilians under the control of an enemy State against arbitrary action by that State.

It applies to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. It also applies to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.The convention applies from the outset of any of the situations mentioned above.

The Convention offers more protection than the Hague Regulation in the following areas.

Women are given special protection from attacks on their honour especially in form of rape, prostitution and all forms of indecent assault.

There are provisions to ensure that children are adequately taken care of and that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Also the death penalty cannot be applied to any person who was under the age of 18 as at time the offence was committed.All forms of discrimination in terms of race, religion or political opinion are prohibited.

Measures of such a character as to cause the physical suffering or extermination of protected persons is prohibited. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.

In terms of aid, the occupying power is obliged to allow free passage of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It should likewise permit the free passage of all consignments of essential foodstuffs and clothing intended for children under fifteen, expectant mothers and maternity cases. The occupying power has an obligation to maintain health care services. Humanitarian Agencies such as the Red Cross, Red Crescent and other recognised agencies are also to be permitted to carry out their activities.

The situation which occurred during the Second World War in which millions of Jews were forcibly deported from their homes necessitated the provisions in Article 49 which prohibit the individual or mass forcible transfers i.e deportation of people from occupied territories into the territory of the occupying power or some other territory. In the same vein, the transfer of part of the occupying powers’ population into occupied territory is prohibited.

There is however a caveat where imperative military reasons so demand. Such evacuations may not however involve the displacement of protected persons outside the bounds of the occupied territory unless where for material reasons it is impossible to avoid such displacement..

The Iraqis resorted to the practice of mass deportation as well is transferring its citizens into occupied territory during its war with Kuwait. Israel also deported some 400 Palestinians in 1992, while the Israeli territories in the West Bank are said to be a violation of the last paragraph of Article 46. The provisions of Article 49 are now part of International customary law.

Penal laws in force already in force are to remain so except where they constitute a threat to the occupying power or the application of the convention. Penal Laws made by the occupying power are not to be retroactive and are to be widely published before coming into force while persons cannot be punished under laws that were not in force when the offence was allegedly committed. There are also provisions in place to ensure fair trials of accused persons as well as protecting those in detention.

The High contracting parties may not by any special agreement derogate from the rights accorded to protected persons under the convention nor may the occupying power retract from such benefits by means of any change introduced as a result of occupation. Also civilians may not renounce any or all of their rights under the convention.

Additional Protocol I provides further protection to the civilian population. “The evolution that has taken place since the beginning of this century in military technique and, in particular, extraordinary developments in aerial warfare made it necessary to develop and make more specific the existing law of armed conflicts”.

Additional Protocol I which embodies rules of customary international Law enjoins belligerents to direct their activities at military objectives and to at all times distinguish between the civilian population and military objectives. The protocol also prohibits indiscriminate attacks. Precautions are to be taken for the safety of the civilian population both during attack and against the effects of attack. Under these provisions, a commander and those in charge of planning attacks are to ensure that they are directing their attacks against military objectives and also to take measures as to the means and method of attack so as not to cause excessive collateral damage when weighed against the military advantage to be gained from such attacks. They are not only to refrain from attacking civilians they also obliged to protect them from the effects of attack. This applies both to the party attacking and the party defending itself from attack.

Starvation as a means of warfare is expressly prohibited. It is also prohibited to destroy or render useless objects which are indispensable to the survival of the civilian population. The environment is also protected in that care is to be taken to prevent widespread, long-term and severe damage to the environment thereby prejudicing the health and survival of the population.

The protocol also provides for fundamental guarantees which apply to all persons who find themselves in the hands of hostile as well as occupying powers.

Problems With The Current Laws Regulating Belligerent Occupation

One of the main problems with the legal regime on belligerent occupation is the fact that it does not envisage long term occupation. When most of the laws came into being, occupation was seen as a temporary regime until the conclusion of a peace agreement between the warring parties.

How to reconcile the assumption underlying the law, that occupation is temporary, with the reality of long-term occupations for example the situation that occurred in Iraq and Afghanistan as well as the Israeli qualified territories is an issue that needs to be considered. In prolonged occupations, the law as it is now has the danger of leaving a society politically and economically underdeveloped. This is because prolonged occupations encounter practical problems that will not be solved by temporary solutions geared at maintaining the status quo.

Another problem is the failure of states to agree to the applicability of the Geneva IV to the situations they are involved in. Israel for example has always denied the applicability of Geneva IV to the occupied territories of the West Bank and the Gaza Strip.

According to them, since the territories have never been recognised as being under Jordanian sovereignty they have no obligation to apply Geneva IV. Article 2 of the IV Geneva Convention provides that the convention applies to the territory of a High contracting Party and since the West Bank was not recognised as forming part of Jordan (a High contracting Party) Geneva IV did not apply. They do however concede that the provisions of the Convention apply de facto to the occupier of the territory.

There is also the problem of lack of an independent mechanism for the enforcement of this body of law. Accountability for breach is therefore left to the occupying power with the result being discretionary justice.

Lastly there is the approach of states in dealing with offenders. Article 146 of Geneva IV provides that states should enact penal laws applicable to all offenders regardless of Nationality and the place where the offence was committed. There is however an absence or insufficiency of National Legislation in a considerable number of states to deal with offences. States are also sometimes reluctant to prosecute their citizens for breaches of the law of occupation. The “Article 98” agreements in which the US entered with several states to make sure that its citizens are not turned over to the International Criminal Court is an example of this.

Conclusion/Suggestions

There is a need for the amendment of the current body of laws to cater for prolonged occupation while at the same time being flexible enough to deal with changing circumstances during an occupation.

Also there is a need for a more independent and effective mechanism for dealing with violators of the law. Leaving the prosecution of offenders in the hands of the occupying power would inevitably lead to selective justice when dealing with its own people. Also measures should be put in place to ensure a greater compliance with their obligations under the treaties by occupying powers. For any system of law to be effective, there must be the ability to enforce it, and the willingness of its subjects to obey it.

Bibliography

• Michael Schmitt: The Law of Belligerent Occupation. Published in The Crimes of War Project April 15 2003.
• Leslie Green, The contemporary law of armed conflict 3rd Edition.
• E Benvenisti The Origins and Concept of Belligerent Occupation 26 Law & History. Rev 621-648.
• See B Clarke, Military Occupation and the Rule of Law: The Legal obligations of the occupying powers in Iraq. 10 (2006) International Trade and Business Law Review 133.
• J Henckaerts, Deportation and Transfer of Civilians in times of War.26 Vanderbilt Journal of Transnational Law 1993-1994 Pages 469-520.
• Theodor Meron; The Geneva Conventions as Customary law 81 American Journal of International Law 348-370 (1987).

• A Roberts, Prolonged Military Occupation, the Israeli occupied territory since 1967. 84 American Journal of International Law Volume 44-103 (1990)

• Susan Power, War, Invasion, Occupation: A Problem of States on the Gaza Strip. 12 Trinity College Law Review 2009 Page 25-39

• Thomas Fleiner- Geister and Michael Meyer: New Developments in Humanitarian Law. A Challenge to the Concept of Sovereignty. 34 International and Comparative Law Quarterly Page 267-283.

• K Dormann and R Geip: The Implementation of Grave Breaches into Domestic Legal Orders.s Journal of International Criminal Justice 2009 7(4).

• See D Goodman, The Need for Fundamental Change in The Law of Belligerent Occupation. 37 Stanford Law Review 1573.

• Current challenges to the Law of Occupation. Speech delivered by Professor Daniel Thürer, Member, International Committee of the Red Cross, 6th Bruges Colloquium, 20-21 October 2005 Available at http://icrc.org/web/eng/siteeng0.nsf/htmlall/occupation-statement-211105?opendocument visited n 19/12/2009.

• Protection of Civilian Persons and Populations in times of war. Extract from the Basic rules of the Geneva Conventions and their Additional Protocols. International Committee of the Red Cross available at http://icrc.org/web/eng/siteeng0.nsf/htmlall/57jmjv?opendocument visited on 19/12/2009.

• Israel Municipalities Law No 29 of 1955 (Amendment No 9) (Judea and Samaria) No 627 (1975)

• Additional Protocol I 1977.

• IV Geneva Convention.

• Hague Regulations 1907.

• Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) International Court of Justice 19 December 2009.

Question 2

You are a military legal adviser attached to the staff of General Zog, Commander of the Arcardian Forces in operations against the armed forces of Scrubistan, a neighbouring country that is believed to be harbouring ‘terrorists’ who have been striking at civilian buildings and public transport in the Arcardian capital, Zanu. At a planning conference for a ground offensive and supporting air strikes, General Zog seeks your advice on the legality of each of the following proposed actions:

1. targeted air strikes against main roads, bridges and railways throughout Scrubistan, in order to impede movement of enemy personnel and supplies
2. targeted air strikes against the offices of Scrubistan National Radio and Television (SNRTV), on the grounds that they are broadcasting anti-Arcardian propaganda urging, inter alia, that Scrubistan troops should ‘take no prisoners’
3. use of white phosphorus munitions by Arcardian ground forces in the house-to-house fighting expected in Attakabad, Scrubistan’s capital, to assist in lighting the interiors of buildings where enemy troops need to be flushed out
4. those Scrubistan troops taken prisoner will not be given prisoner of war status unless they can prove that they are not terrorists
5. any suspected Scrubistan terrorists taken prisoner will be moved to an undisclosed internment camp in the Arcardian Republic for ‘interrogation in depth’

Advise General Zog of the legality of his proposed actions on the basis that both the Arcardian Republic and Scrubistan are parties to all relevant international humanitarian law and human rights law treaties.

1. On the issue whether air strikes against main roads, bridges and railways throughout Scrubistan, in order to impede movement of enemy personnel and supplies can be justified.

Under Additional Protocol 1, attacks are to be directed only against military objectives. It provides that military objectives are objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Civilian objects are those objects which are not military objectives.

There are some objects which are considered as dual use objects. i.e. they serve both military and civilian purposes. Roads, bridges, rail lines and electrical installations fall into this category.

Thus roads, bridges and railways can be considered as legitimate targets if they satisfy the following

1. They are by their location purpose or use making an effective contribution to military action;

2. Their neutralization or destruction in the light of prevailing circumstances at the time offers a definite military advantage.

Whenever the above elements are present, the object becomes a military objective in the sense of the Protocol. The military advantage to be gained here has to be definite and not merely theoretical.

It is only those main roads, bridges and railway lines in Scrubistan that fulfil these conditions that can be can be lawfully attacked. However even if all the main roads, bridges and railway lines in Scrubistan which fulfil these conditions, they cannot all be destroyed in my view as to do so would cause unnecessary hardship to the civilian population.

To destroy all of them would impede the movement of such items as food and medical supplies necessary for the survival of the civilian population. The military advantage to be gained should be weighed against the suffering that such an action would cause to the civilian population.

Thus in my view the objectives should be looked at one by one and it is only those bridges, rail lines and roads that offer a definite and concrete military advantage which far outweigh the suffering that such action would cause the civilian population that should be destroyed.

2. On the implications of air strikes against the offices of Scrubistan National Radio and Television (SNRTV), on the grounds that they are broadcasting anti-Arcardian propaganda urging, inter alia, that Scrubistan troops should ‘take no prisoners’

Generally speaking media houses such as Radio and Television stations are civilian objects. Article 52 of Additional Protocol I states that a civilian objective is any objective which does not fall within the provisions of paragraph (ii) of that Article the provisions of Paragraph (ii) have already been stated above.

However in the light of modern day technology and their very nature, Radio and Television Stations are also dual use objects in that they can be used for both civilian as well as military purposes. It is possible for the military to use their equipment for intelligence communication purposes.

In this case they then become legitimate military targets by their use if the fulfil the other conditions in Article 52(ii) of Additional Protocol I.

During the Yugoslavia conflict NATO representatives justified the RTS bombing on the grounds that the facilities were being used for dual purposes i.e not only were they being employed for civilian purposes, they were also part of the Serbian Army Command, Control and Communications network.

Apart from the use of media equipment for intelligence transmission purposes, they are also used for propaganda purposes and generally to boost the morale of the population. According to the ICTY, although spreading propaganda amounts to contributing to the overall war effort, the mere spreading of propaganda does not make a media house lose its civilian protection.

There is however a difference between merely spreading propaganda in order to help the cause of one party one hand and inciting people to commit war crimes. The former is allowed while the latter is prohibited.

During the conflict in Rwanda, Media Houses, notably the Kangura Newspaper and the Radio-télévision libre des mille collines incited people to kill, rape and injure the Tutsis and moderate Hutus. In other words they incited them to commit war crimes.

According to the ICTY this could lead to a media house becoming the object of a legitimate attack. This is obviously because what is being done has crossed the line from being mere propaganda into an act which can be said to constitute a direct participation in hostilities.

In our present situation the SRTV is urging its troops to take no prisoners. Article 40 of Additional Protocol I provides that it is prohibited order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis. The Trial of Meyer, (Abbaye Ardenne Case) is judicial authority in respect of the fact that it is a war crime to incite troops to take no prisoners.

In the light of the foregoing, I conclude that the broadcasts by the SRTV amount to a direct participation in hostilities and subsequently it has lost its civilian status and can therefore be the object of a legitimate attack.

3. On the propriety of the use of white phosphorus munitions as lighting by Arcardian ground forces in the house-to-house fighting expected in Scrubistan’s capital.

White Phosphorus is used by militaries to obscure their operations on the ground by creating thick smoke. It also has incendiary effects.

Protocol III of the Conventional Weapons Convention provides that incendiary weapon means any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.

From the definition of incendiary weapon, the use of White Phosphorus as an obscurant or for lighting purposes does not fall within the provisions of the Protocol because it is not primarily designed to set fire to objects or to cause burn or injury. There is also no treaty that expressly bans the use of White Phosphorus. Arguably the Chemical Weapons Convention also does not classify it as a chemical weapon. However the legality of its use varies according to the circumstances in which it is used. It is wrong to use it as an anti-personnel weapon.

In our present scenario, the issue is whether it can be used for lighting munitions in house to house fighting in the city capital. My answer is no for the following reasons.

Firstly the nature of white phosphorus makes it an indiscriminate weapon. “White phosphorous weapons spread burning phosphorous, which burns at over 800 degrees centigrade (about 1,500 degrees Fahrenheit), over a wide area, up to several hundred square metres. The burning will continue until the phosphorous has been completely depleted or until it no longer is exposed to oxygen”.

Article 51 of Additional Protocol I provides that indiscriminate attacks include those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Also Article 57(2)(a)(ii) of Additional I provides that that those directing attacks shall take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects

Also Article 35 provides that is prohibited to employ weapons, projectiles, material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

White Phosphorus is spontaneously flammable; it ignites when exposed to air and continues to burn until it is deprived of oxygen. When it comes in contact with exposed skin, it results in severe and horrific burns. Sometimes burning right to the bone. It also has the tendency to re-ignite when the wound is exposed to oxygen.

In view of all the above, I would advise against using White Phosphorus as lighting munition.

4. On the issue that those Scrubistan troops taken prisoner will not be given prisoner of war status unless they can prove that they are not terrorists.

Members of a state’s armed forces are lawful combatants under the laws of war and the therefore are entitled to Prisoner of War status upon their capture. Article 4 of Geneva Convention III of 1949 states inter alia that members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces are classified as Prisoners of War.

Article 43 of Additional Protocol I provides as follows

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party.
2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

Article 44 provides that “any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.”

No special agreement shall adversely affect the situation of prisoners of war nor restrict the rights which it confers upon them. Also they cannot renounce part or all of their rights.

Where there is doubt as to whether or not a person qualifies for Prisoner of War status, the doubt is to be resolved in favour of presumption of Prisoner of War status until that person’s status has been resolved by a competent tribunal.

In the light of the foregoing, it is conclusive that members of Scrubistan’s Armed forces qualify for Prisoner of War status upon capture and it is not within our right to take it away from them.

5. On whether any suspected Scrubistan terrorists taken prisoner can be moved to an undisclosed internment camp in the Arcardian Republic for ‘interrogation in depth’

Under the Laws of War, terrorists can be described as unlawful combatants and therefore do not enjoy the legal protection granted to lawful combatants such as Prisoner of War status under Geneva III.

By the very nature of the way they conduct their activities, members terrorist organisations do not qualify for protection under the provisions of Article 4(2) of the Geneva Convention III of 1949 i.e they do not satisfy the requirement of

(a) being commanded by a person responsible for his subordinates;

(b) having a fixed distinctive sign recognizable at a distance;

(c) carrying arms openly;

(d) conducting their operations in accordance with the laws and customs of war.

This does not however mean that they are without protection under International Humanitarian Law. There is the argument that terrorist organisations cannot be a