“THE PENAL RESPONSIBILITY AND SANCTIONS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW”
CHAPTER ONE
INTRODUCTION
- HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW
“Humanitarian law is a branch of public the penal responsibility and sanctions for violations of international humanitarian law international law which owes its inspiration to a feeling for humanity and which is centred on the protection of the individual”
This quotation from a work by Mr. Jean Pictet defines the scope of this law, the purpose of which is to “alleviate the sufferings, of all the victims of armed conflicts who are in the power of their enemy whether wounded, sick or shipwrecked prisoners of war or civilian”
Prior to the middle of the 19th Century, agreements to protect victims of wars were of mere transient character, binding only upon the contracting parties thereto, and based upon strict reciprocity.
In reality, they constituted purely military agreements usually effective only for the duration of a particular period of hostility. This state of affairs was changed by the birth of modern humanitarian law which is associated with the emergence of the Red cross movement. This development makes states bound by universal treaty applicable at all times and in all circumstances.
The history of mankind is the story of power struggles, confrontations and armed conflicts between nations, people and individuals.
From earliest times, men have been preoccupied with the problem of how to control the effect of violence and its attendant human sufferings with varying degrees of success.
It would therefore be misleading to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the beginning of international humanitarian law as we know it today. Just as there is no society of any sort that does not have its own set of rules, there has never been a war that did not have some vague or precise rules covering the outbreak, end of hostilities, and how they are conducted. As Quincy Wright rightly observed that “Taken as a whole, the war practices of primitive people illustrate various types of international rules of war known at the present time; rules determining the circumstance formalities and authority for beginning and ending war; rules describing limitation of persons, time, place and methods of it conducts, and even rules outlawing war altogether.
The first laws of wars were proclaimed by major civilization several millennia before our era: “I establish these law to prevent the strong from oppressing the weak”4.
Many ancient texts such as Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the viqayet, a text written toward the end of the 13th century at the height of the period in which the Arabs ruled Spain, contains a veritable code for warfare. The 1864 convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered law and customs of war protecting the wounded and those caring for them. In the 17th century, the Dutch legal scholar and diplomat, Grotius wrote his De Jure Belli, Ac
pacis, in which he listed rules that are among the firmest
foundation of the law of war.
In the 18th century, Jean – Jacques Rousseau made a major contribution in formulating the following principle about the development of war between States: “War is in no way a relationship of man with man but a relationship between state, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers . . . since the object of war is to destroy the enemy state, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men and it is no longer legitimate to take their lives”.
From the beginning of warfare to the advent of contemporary humanitarian law, over 500 cartels, codes of conduct, covenants and other texts designed to regulate hostilities have been recorded. They include the Lieber Code, which came into force in April 1863 and it is important in that it marked the first attempt to codify the existing laws and customs of war.
Unlike the first Geneva Convention adopted a year later the lieber code however did not have the status of a treaty as it was intended solely for union soldiers fighting in the American civil war5.
Modern international humanitarian law can be associated with sophistication of weapons of mass destruction employed in modern warfare by large national armies and the resultant suffering of the wounded soldiers lying helpless in the battle field, the wanton destruction of properties and the ecological effect on the environment. These coupled with the increasing interest of state in the common principles of respect for the human being informed the development of the modern law of armed conflicts which is based on multilateral conventions.
On 24 June 1859, the Austrian and French armies clashed at Solferino, a town in modern Italy. After 16 hours of fighting the battle field was strewn with 40,000 dead and wounded men. The same evening Henry Dunant, a Swiss citizen, arrived at the area on business. He was horrified by what he saw: for want of adequate medical services in both armies, thousands of wounded soldiers were left to suffer unattended and abandoned to their fate. Dunant immediately set about organizing care for them without discrimination, helped by civilians from neighbouring villages. On return to Switzerland, Dunant was unable to forget the terrible scene he had witnessed.
He decided to write “A memory of Solferino” which he published at his own expense in November 1862, and circulated to friends, philanthropist, military officers, politicians and certain reigning families. The book was an immediate success and its appeal to human conscience was eloquent, as he stated. “On certain special occasions, as, for example, when princes of the military art belonging to different nationalities meet. . . would it not be desirable that they should take advantage of this sort of congress to formulate some international principle sanctioned by a convention and inviolate in character, which once agreed upon, and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries.
On 9th February 1863, the Geneva society for public welfare, a charitable association based in the Swiss city of Geneva, decided to set up a five-member commission to consider how Dunant’s ideas might be implemented.
This commission made up of Gustave Moynier, Guillaume-Henry Dufour, Louis Appia, Theodore Mounior and Dunant himself met on 17 February and founded the International Committee for Relief to the wounded in time of war, which later became the International Committee of the Red Cross (ICRC). By Dint of enthusiasm and perseverance, they succeeded in 1864 in persuading the Swiss government to convene an international conference in which the representative of twelve states participated and the tangible result of which was the signing in 1864 the Geneva Convention for the Amelioration of the conditions of the wounded in the Armies in the field. This expressed with clarity, the idea of a generally applicable humanitarian principle, by requiring the High contracting parties to treat their own wounded and those of the enemy with equal care9. Medical personnel, equipment and installation were to be protected.
They were to be identified by a distinctive emblem, a red cross on a white background. This first Geneva Convention signed in 1864, marked, the beginning of modern international humanitarian law. In 1899, the Hague Convention respecting the laws and customs of war on land and the adaptation to maritime warfare of the principles of the 1864 Geneva Convention. In 1906, the provisions of the 1864 Geneva Convention was improved and supplemented. In 1907, the Hague Convention of 1899 was reviewed and a new Convention which defined the categories of combatants entitled to prisoner of war when captured and to a specified treatment during the whole period of their captivity. In 1925, the Geneva Protocol for the prohibition of the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare was adopted. These Conventions which are at present in force were adopted.
The Diplomatic conference of 1949 not only adopted the ‘Geneva Convention relative to the protection of Civilian Persons in time of war”, but also carried out a revision of the three earlier conventions, the text of which were brought into harmony. The four Geneva conventions, containing some 400 articles, constitute a legal achievement of historic importance which for more than fifty years has afforded protection for the countless victims of armed conflict.
The international committee of the Red Cross, the initiator of international humanitarian law, in its quest to develop the law so that it may keep pace with the changing pattern of conflicts, undertakes revision of existing instruments as and when it appears to it to be necessary and feasible
Although the 1949 Geneva conventions marked a major advance in the development of humanitarian law. In 1965, the ICRC felt the time was ripe for such an undertaking. After de-colonization, however, the new states found it difficult to be bound by a set of rules which they themselves had not helped to prepare. What is more, the treaty rules on the conduct of hostilities had not evolved since the Hague Treaties of 1907. Since revising the Geneva Conventions might have jeopardized some of the advances made in 1949, it was decided to strengthen protection for the victims of armed conflict by adopting new texts in the form of protocols additional to the Geneva Conventions.
On the basis of the draft rules prepared in 1956, then on resolutions adopted in the 1960’s by two International Conference of the Red Cross and by the International Human Rights conference held in Tehran in 1968, the ICRC studied the possibility of supplementing the conventions adopted in 1949. In 1969, the ICRC submitted the idea to the 21st International Conference of the Red Cross, in Istanbul; the participants including the states party to the Geneva Conventions mandated it accordingly and the ICRC’s own lawyers embarked on the preparatory work. Between 1971 and 1974, the ICRC organized several consultations with government and the movement, the United Nations being kept constantly informed of the progress of the work.
In 1973, the 22nd International Conference of the Red Cross, in Tehran, considered the draft texts and fully supported the work done. In February 1974 the Swiss Government, as depository of the 1949 Geneva Conventions, Convened the Diplomatic Conference on the re-affirmation and development of international humanitarian law applicable in armed conflicts, in Geneva, it comprises four sessions and ended in June 1977.
The law of Geneva, or humanitarian law proper, is designed to safeguard military personnel who are not or no longer taking part in the fighting and persons, particularly civilians not actively involved in hostilities, while the law of the Hague, or the law of war, which establishes the rights and obligations of belligerents in the conduct of military operations and limits the means of harming the enemy.
These two branches of IHL are not completely separate. However, the effect of some rules of law of the Hague is to protect victims of conflicts, while the effect of some rules of the law of Geneva is to limit the action that the belligerent can take during hostilities. With the adoption of the Additional Protocols of 1977, which combined both branches, of IHL, that distinction is now merely of historical and didactic value.
At the end of the fourth and last session of the Diplomatic Conferences, the plenipotentiaries of the 102 states present adopted the 102 articles of Protocol 1 relating to the victims of international armed conflicts and the 28 articles of Protocol 11 relating to the protection of victims of Non- international conflicts12.
By adopting on June 8, 1977 the two Protocols Addition brought to a successful conclusion four years of arduous negotiation. It is indeed a landmark in the development of international humanitarian law13.
To make state party bound by the protocols additional to the Geneva conventions, they have to sign and ratify or accede to them hence the solemn ceremony of signature of June 10, 1977. These texts became effective as from that date as common property and have been invoked in appropriate circumstances. Protocol I, relating to international armed conflict introduced innovatory features.
Special protection was extended to cover civilian medical personnel, transport and units, which represents a considerable improvement in medical assistance to victims13. This is a good illustration of the significant break through made by the protocol, since it broadens the generic category of objects and persons protected by the 1864 Geneva Convention. In addition the means of identification of medical transports (radio signal, radar, acoustic, etc) were adopted to modern technology14. These rules therein set forth should spare civilian populations such sufferings and tragedy of the kind experienced during the second World War.
