International Humanitarian Law and the Protection of Victims of War

International Humanitarian Law and the Protection of Victims of War

TABLE OF CONTENT

Title Page i
Certification ii
Dedication iii
Acknowledgment iv
Table of Contents v
Table of Cases vii
Table of Statues viii
List of Abbreviation xi
Abstract xii

CHAPTER ONE: GENERAL INTRODUCTION

1.1 Background of the study 1
1.2 Statement of the Problem 3
1.3 Objective of the Study 3
1.4 Research Questions 4
1.5 Research Methodology 4
1.6 Significance of the Research 4
1.7 Scope of the Research 5
1.8 literature Review 5

CHAPTER TWO: INTERNATIONAL HUMANITARIAN LAW IN CONTEXT

2.1 The Evolution of International Humanitarian Law 11
2.2 Sources of International Humanitarian Law 20
2.3 Principles of International Humanitarian Law 23
2.4 Scope and Applicability of International Humanitarian Law 27

CHAPTER THREE: LEGAL PROTECTION OF VICTIMS OF WAR

3.1 Combatants 31
3.2 Prisoner of War 35
3.3 Civilians 38
3.4 Refugees and Displaced Persons. 43
3.5 The Wounded, the Sick, and the Shipwrecked 48
3.6 Liability for Infractions of International Humanitarian Law 49

CHAPTER FOUR: IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW

4.1 Respect by the Parties to a Conflict 55
4.2 Responsibility of the State 58
4.3 The Role of United Nations Organisations 61
4.4 The African Perspective 66

CHAPTER FIVE: SUMMARY, RECOMMENDATION AND CONCLUSION

5.1 Summary of Findings 82
5.2 Recommendations 84
5.3 Conclusion 86
Bibliography

TABLE OF CASES

Delalic et al. (celebici)Trail Judgement ICRC 7
Leo Handel et al Andrija Artukwl and Hamdi v Rumsfeld, (1985) US 601 f. Supp. 1421 Judgement of 31 January 7.
The Prosecutor v Jean-Paul Akayesu (2001), Case No ICTR 96-41 Indictment 1996 42.
The Prosecutor v Halilovic (2005) Case No IT-01-48 T, ICTY 58.
The Prosecutor v Krnojelac Appeal Judgement 58.

LIST OF STATUTES

Convention on Civil and Political Rights 28.

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Force in the Field. Geneva,12 August 1949.

Article 1 29.
Article 22 54.
Article 28 54.
Article 35 56.
Article 47 29.
Article 49 30.
Article 50 30.
Article 50 30.

Convention (II) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Armed Forces Members at Sea. Geneva, 12

August 1949
Article 22 54.
Article 25 54.
Article 30 54.
Article 35 54.
Article 45 30.
Article 48 29.
Article 50 30.
Article 51 30.

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949

Article 4 35, 36.
Article 13 35.
Article 52 37.
Article 82 … 35.
Article 85 34.
Article 112 37.
Article 118 37, 38.
Article 127 29.
Article 129 30.
Article 130 30.

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva,

12 August 1949.
Article 144 29.
Article 146 30.
Article 147 30.

First Additional Protocol to the Geneva Convention 1977 28, 39.

Article 1 28.
Article 4 32, 33.
Article 8 53, 56.
Article 10 53.
Article 13 54.
Article 16 55.
Article 17 55.
Article 32 55.
Article 43 32.
Article 44 33, 34.
Article 48 21,34,39.
Article 49 33.
Article 51 21,39,40.
Article 52 21, 23.
Article 57 40.
Article 58 33.
Article 75 26.
Article 83 29
Article 85 30
Article 86 57,60.
Article 87 57.
Article 91 43.
The Geneva Conventions of 1929 and 1949 18,19,25,26, 57.
The Hague Conventions, 1899 and 1907 18, 25, 31, 32, 57.
Rome Statute Article 28 57, 58, 60.
Second Additional Protocol 1977 29, 39.
Article 1 29.
Article 4 48.
Article 13 41,49.
Article 14 … 49.
Article 17 49.
Article 19 29.

LIST OF ABBREVIATIONS
AP 1 – Additional Protocol 1
AP11 – Additional Protocol 11
AP111 – Additional Protocol 111
CUIL – Customary International Law
GC1 – First Geneva Convention
GC11 – Second Geneva Convention
GC111 – Third Geneva Convention
GC1V – Fourth Geneva Convention
ICC – International Criminal Court
ICJ – International Court of Justice
ICRC – International Committee of Red Cross
ICTY – international criminal tribunal for the former Yugoslavia
IHL – International Humanitarian Law
IRC – International Red Cross
IRCA – International Red Cross Agency
NIAC – Non-International Armed Conflicts
POW – Prisoners of War
UN – United Nations
UNHCR – United Nations High Commissioner for Refugees
WW1 – World War 1
WW11 – World War 2

ABSTRACT

The evolving nature of IHL has seen the rules and principles blossom over time. It was not until the second half of the nineteenth century that nations agreed on International rules to avoid needless suffering in war. International Humanitarian Law (IHL), also known as the Law of Armed Conflict or the Law of War, is the body of rules that, in wartime, protects persons who are not or are no longer participating in the hostilities and seeks to limit the methods and means of warfare while preventing human suffering in times of armed conflict. The principal instruments of IHL are the four universally ratified Geneva Conventions of 1949 and the three Additional Protocols of 1977 and 2005, as they stipulate that civilians and wounded or captured combatants must be treated humanely. With the Raging forms of International conflicts around the World, which are eclipsed by extreme violence against Men, Women, and Children, ensuring accountability for violations of International Humanitarian Law for individual perpetrators and for parties to the conflict is one of the challenges to achieving more effective protection of victims in armed conflict. Many conflicts, to a large degree, have the absence of accountability and, worse still, the lack in many instances of any expectation thereof, allowing violations to thrive. The major objective of this research shall be to examine the purpose, substance, and scope of International Humanitarian Law and the potential of International Humanitarian Law as a tool to achieve and maintain peace and protect the rights of persons. The objectives include properly defining the practice of International Humanitarian Law, identifying who the victims of war are, examining the privileges, obligations, and protections guaranteed by International Humanitarian Law, and finally analyzing how International Humanitarian Law provisions are implemented in the protection of victims of war. The methodology chosen is more of a doctrinal approach, which is qualitative to understand the current position of International Humanitarian Law and, most especially, the victims of war. The primary sources of materials for this research work are the Treaty Laws, textbooks, law reports, and journals on international humanitarian law.

CHAPTER ONE

INTRODUCTION

1.1 Background to the Study

An individual is entitled to certain basic minimum rights, whether in times of peace or in periods of war. Unfortunately, although the ideal situation is for people, nations, or states to be at peace with one another, the reality is that armed conflicts continue to be waged around the world and claim an increasing number of victims, in particular, those who should remain immune under the law: the civilian population.1 War involves armed conflict consequent upon hostile relations with the objective of producing the winner and the vanquished in pursuing an objective or objectives for which the war is fought.

As a result of international cooperation, international law, relying on the political will of states, created the Laws of War to prescribe laws governing resort to force (jus ad bellum) and regulate the conduct of hostilities by limiting the force required to overpower the enemy (jus in bello); and to, enunciate the principles governing the treatment of individuals in the course of war.

Jus ad bellum, as a branch of the laws of war, prohibits armed conflicts, and the sole fact of using force in international relations is a serious violation regulated by the United Nations Charter2 and customary international law. However, although armed conflicts are prohibited, they are realities of international life, and it is necessary to combat the phenomenon of armed conflicts and regulate and ensure a minimum of humanity in this inhumane and illegal situation.

Therefore, international humanitarian law (IHL) is part of the laws of war, which seeks to limit the effects of armed conflicts. The essential purpose of these rules is to reduce or limit the suffering of individuals and circumscribe the area of the permissible savagery of armed conflict.3 Once there is an armed conflict, IHL applies to all the parties; therefore, where an aggressor state wages an unlawful conflict, these rules nevertheless bind the state attacked, including its armed forces.

International Humanitarian Law means international rules established by treaty or custom, specifically intended to solve humanitarian problems that arise directly from international or non-international armed conflicts. For humanitarian reasons, these rules protect persons and property that are or may be, affected by conflict and limit conflicting parties’ rights to choose their methods and means of warfare. It defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare in relation to each other and to protected persons, usually non-combatants. It is designed to balance humanitarian concerns and military necessity and subject warfare to the rule of law by limiting its destructive effect and mitigating human suffering.

References

B. Nwanolue and V. C. Iwuoha “Legal Protection Of War Victims In International And Non-International Armed Hostilities: A Scholarly Exposition Into The Four Geneva Conventions of 1949 And Two Additional Protocols Of 1977” Journal of Law, Policy and Globalization, Vol. 3, 2012

D. Schindler “The Different Types of Armed Conflicts According to the Conventions and Protocols” RCADI, Vol. 163, 1979-II

Dr B. I. Olutoyin “Treaty Making and Its Application under Nigerian Law: The Journey So Far” International Journal of Business and Management Invention Volume 3 Issue 3
March 2014

J. James-Eluyode “Enforcement of International Humanitarian Law in Nigeria” African Human Rights Law Journal Volume 3 No 2 2003

J. Pejic “The Protective Scope of Common Article 3: More Than Meets the Eye” International Review of the Red Cross Volume 93 Number 881 March 2011

M. Cherif BASSIOUNI “Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights” Post Conflict Justice 6 2002