BACKGROUND GUIDE. International Committee of the Red Cross. Time to Act, Time to Change

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1 BACKGROUND GUIDE International Committee of the Red Cross Time to Act, Time to Change July 2018

2 Table of Contents Message from the Executive Board 1 Introduction 2 History of Non International Armed Conflict Before s s Protocols I & II Additional to The Geneva Conventions 12 Common Article 3 of The Geneva Convention 15 Problems With The Common Article And The Additional Protocols 16 War Crimes And The ICC 19 Questions To Be Considered 21 More Readings 21

3 Message from the Executive Board Dear Delegates, It gives us great pleasure to welcome you to this simulation of International Committee of the Red Cross (ICRC), at the GD Goenka International Model United Nations Conference We hope to dazzle you with our charm, knowledge, chemistry and plenty more. But more than that, we look forward to being pleasantly surprised with some good quality debate. At the very outset, we would like to make it clear that this study guide is fairly generic, and meant to point you in the direction of actual research, and not to be used as the sole source of your preparation. Additionally, be warned that any reference to this particular document over the three days of the simulation will be met with a shrug, and a statement similar to We are unaware of any study guides that the UN, ICRC hands out, delegate. Thus, do come prepared with legitimate documents and research of your own, the links to some of which have been provided in this document itself. We also, being good friends outside of committee, look forward to providing you a fun conference, and request that you feel comfortable in expressing yourselves. As far as it is not impracticality or an abomination on the name of MUNs, we shall try to accommodate any requests that you may have. Additionally, we assure you, particularly those who are new to this form of debate, that we are among the nicest, kindest, most encouraging, and understanding members you will find on the executive board, and ask you to not be scared of speaking up, if you desire to make a point in committee. We wish you the very best, and reiterate our hope for fruitful debate. Regards, The Executive Board!1

4 AGENDA: Protection of victims in Non-International Armed Conflicts Introduction Prior to the 1860s, rules of warfare were either decreed by rulers and commanders or agreed on between belligerents in order to satisfy contemporary needs and convenience. While in some cases they aimed to protect vital resources such as wells, or persons such as soldiers and defenceless non-combatants, they did not usually prohibit practises that modern society would find unacceptable. The first attempt to bring together existing laws and customs of war in a document, and to impose them on an army in battle, was the "Lieber Code" (1863). This was intended solely for Union soldiers fighting in the American Civil War, and as such did not have the status of a treaty. The following year, at the urging of the ICRC (founded in 1863), States agreed on the Geneva Convention, a set of ten articles that laid down rules designed to ensure that all soldiers wounded on the battlefield whatever side they were on were taken care of without distinction. The Convention also established the neutrality of medical personnel and adopted a single, neutral emblem to protect them and the medical facilities treating the wounded: the red cross on a white ground. (The red crescent emblem was introduced in the 1870s.) 1 Most armed conflicts today are non-international in nature. They take place within the borders of States, and are waged between a State and organized non-state armed group(s) or among such groups themselves. The daily life of many civilians caught up in these situations is ruled by fear or the threat of destruction and extreme suffering. The deliberate targeting of civilians, the destruction of civilian property and looting, the forced displacement of populations, the use of civilians as human shields, the destruction of infrastructure vital to civilian populations, rape and other 1 h#ps:// interna=onal-humanitarian-law.htm!2

5 forms of sexual violence, torture, indiscriminate attacks: these and other acts of violence are unfortunately all too common in non-international armed conflicts throughout the world. International humanitarian law (IHL) is a body of law that provides essential protection for those directly affected by an armed conflict, if it is respected by the parties to that conflict. Where IHL is not respected, human suffering increases and the consequences of the conflict become more difficult to repair.2 History of Non International Armed Conflict Before the formulation of the 1949 Geneva Conventions, the law of war applied only between states. States considered internal armed conflicts to be internal affairs, which should be regulated under municipal law.much has changed throughout the last few centuries: empires have risen and collapsed, religious wars have been vigorously conducted, and the modern state has developed. Nevertheless, one point has not changed: states and rulers have always acted on the basis that there is a difference between internal armed conflicts and international wars a difference that justifies the application of different rules Before 1648 Before the development of modern international law, the law of the right to go to war (jus ad bellum) and the law of conduct of hostilities (jus in bello) were influenced by the religious affiliations of the belligerent sides. In the first centuries CE, some Christian leaders tried to stop Christians from becoming soldiers. However, with the commencement of the Crusades at the beginning of the eleventh century, the Church acknowledged that it could use warfare for its own purposes. Accordingly, the Church aimed to regulate both jus ad bellum and jus in bello between different Christian groups (i.e. states versus states or kings versus kings) and between Christian groups and nonchristian groups ( heathens ). The basic theological principle was that Christians deserve better treatment than heathens. The most notable example of this principle was the decision of the Church in 1139 to ban the use of the crossbow against Christians but to allow 2 h#ps:// interna=onal-armed-conflicts!3

6 its use against heathens. As time progressed, more rules such as proportionality and distinction have been developed, and adherence to these rules was considered a condition for waging a just war. The Christian understanding of internal wars was based on the theological principle that the authority of Christian rulers is derived directly from God. This principle was based on a passage from Romans, where Paul pronounced the divine right of the authorities, and was developed throughout the years by Christian scholars.based on this principle, a rebellion against a ruler could almost never be classified as a just war. Since rebels did not have authority to use force against legal rulers, they could not fulfil the basic conditions of the just war doctrine, such as just cause and just intention. Accordingly, the Church dictated that rebels should be treated as heathens. In the rare cases that rebellion could be justified, limitations on the conduct of hostilities were placed only on the rebels as they had to avoid causing greater harm than the harm inflicted by the rulers. The evolution of Protestantism did not, initially, change the attitude towards internal wars. Luther s hostility towards rebellions was based on the biblical interpretation that the authority of the ruler is derived from God. He refused to consider the establishment of any rules to judge rebels and allowed the use of unlimited force against them. However, in the sixteenth century, in the midst of the struggle between Catholics and Protestants, Christian perspectives with regard to internal wars began to shift. It was then crucial, for Catholics and Protestants alike, to find a theological justification for rebellion against a prince with the opposite faith. Accordingly, the Catholic Church claimed that rebelling against a Protestant prince is justified since it entails obedience to a higher law and the punishment of the rebel prince. On the Protestant side, Calvin and later Knox also developed a theory that justified rebellions as an extreme measure. However, according to Knox, even justified rebellions were not placed under any limitations with regard to the conduct of hostilities. Though it should be noted that there could be a distinction between Christian theology that was used for political motives in order to justify the rulers authority and other Christian approaches that were willing to acknowledge the just cause of rebellion in certain circumstances, the trend was clear: international wars were appreciated as distinct from internal wars and the Church, in general, allowed rulers to use unlimited power in internal!4

7 wars in comparison to international wars. The main reason behind the distinction between internal and international wars was based on the religious view that rulers had a divine right to rule and therefore rebels did not have the right to use force; they were to be considered heathens or simple criminals s The Westphalia Peace Agreement of 1648 is considered the cornerstone of the creation of modern sovereign states and international law. Religious regulation of the law of war had begun to move aside in favour of modern international law that aimed to regulate both jus ad bellum and jus in bello. Nevertheless, the idea that only states had a right to use force internally as well as externally continued to be dominant under international law. However, in contrast to the period before 1648, the idea that humanitarian norms should protect victims of internal wars had begun to grow. Indeed, as we shall see below, these two sides of the same coin the application of humanitarian norms without acknowledging the non-state groups belligerency rights will remain the main reason behind the creation and expansion of applicable law to internal wars on the one hand, and the continuation of the distinction between NIAC and IAC on the other hand. The secular idea that only states have a right to use force on the one hand, and that some humanitarian norms should apply even in NIAC on the other hand, has roots in different theories of the social contract of that time. Although these theories vary considerably, they have two aspects in common. First, states derive their authority from the consent of their subjects. This consent entails the waiver of individuals rights to use force and the legitimisation of the state s exclusive right to use force. Second, all individuals have rights that the sovereign must respect. Translating these ideas to the context of armed conflict means that only the sovereign has a right to use force and that the use of force by non-state groups is considered a criminal offence. However, when the sovereign ceases to protect and maintain his subjects rights, the subjects have legitimate grounds to raise arms against their sovereign. Hand in hand with development of social contract theories, the notion of sovereignty also started to develop (in the aftermath of the formation and consolidation of a system of!5

8 territorial states). According to the doctrine of state sovereignty, the authority to regulate all aspects in the territorial state is vested in the sovereign. The sovereign has sole legitimacy to use internal and external force. Since all sovereigns were considered equal, rules regarding jus ad bellum and jus in bello had to be developed in order to regulate the relationship between these equal sovereigns. Rebels, on the other hand, did not have any legitimate right to use force. Since rebellions against the sovereign were considered internal matters and as hampering the security and order of society, the sovereign was free from constraints in suppressing rebellion. The attitude towards rebellions was a logical expression of the basic idea of the sovereign state, exercising exclusive control over territory. Nevertheless, as expressed in Emmerich de Vattel s writing, the idea that some forms of internal wars should be regulated under international law had started to develop Emmerich de Vattel s writing in the eighteenth century combined respect for sovereignty on the one hand, and humanitarian considerations derived from natural law on the other. Vattel, much like the international jurists who preceded him, argued that the law of war applies only between states. However, Vattel argued that the law of war should apply to internal wars in the form of civil wars that resemble international wars (for example where the state is divided into two parties without any legitimate sovereign). Other forms of internal war, such as rebellions, were not regulated under law as they were considered crimes against the state. Nevertheless, even in rebellions, sparks of humanitarian considerations can be identified in his work in the shape of advice to refrain from excessive and cruel punishment. Vattel s willingness to apply the law of war to civil wars marks a notable development in thinking with regard to NIAC: from the complete exclusion of law to the recognition that at least some forms of internal wars should be governed by law. This development, as we shall see below, became part of international law from the nineteenth century through the adoption of CA3 of the 1949 Geneva Conventions s 1949 The clear distinction between international wars and internal conflicts continued to be applied during the period from the 1800s to International wars were regulated under international law and internal wars, in general, were not. The application of international law!6

9 to internal wars, in practice, only happened in those limited situations where states recognised the rebels as belligerents (the so-called doctrine of belligerency). The legal justification for the distinction between international wars and internal wars was based on the principle of sovereignty. Behind the legal justification, however, stood a practical (and indeed much simpler) reason: states did not want to recognise non-state groups as equal to them and thus grant those groups belligerency rights. Nevertheless, the idea that states need to apply humanitarian norms to internal wars, without recognising the status of the non-state group, had continued to develop. Until the adoption of the 1949 Geneva Conventions, then, internal wars were classified into three groups: (a) rebellion; (b) insurgency; (c) belligerency. The first two groups were not considered to be regulated under international law. Group (c), however, was considered to be regulated under the same law that applied between states. Put simply, rebellion was defined as a short or sporadic insurrection against the authority of the state. The rules of international law did not regulate the conduct of hostilities in rebellion. As the International Criminal Tribunal for the former Yugoslavia (ICTY) elaborated, states considered rebellions as an internal matter coming within the purview of national criminal law. It was prohibited for third states to provide assistance to the rebels. Such assistance could be considered a violation of the principle of non-interference in internal matters of the state. In contrast to rebellion, insurgency was defined by the presence of continuing insurrections and extended violence in which the outcome of the conflict was in doubt. Insurgency was recognition of a factual situation and did not entail any automatic application of rights under international law, but rather such application only to the extent conceded by the de jure authority. As explained below, both territorial states and third states could recognise specific hostilities as insurgency. The common denominator of rebellion and insurgency was that they were both considered internal threats to states sovereignty that the de jure government of the territorial state had authority to quell. The main rationale behind differentiating between rebellion and insurgency was based both on practical self-interest of states and on humanitarian interest. Lauterpacht states that the reasons of recognition were convenience, of humanity, or of economic interest. In recognising a state of insurgency, states maintained their control with regard to!7

10 which norms would apply. As states were reluctant to grant any rights or legitimacy to nonstate groups, recognition of insurgency allowed states to apply humanitarian norms without granting belligerency rights to the non-state group members. Third states were also entitled to recognise situations of insurgency. Such recognition allowed third states to formulate relations with the insurgents, without violating the existing prohibitions on assisting rebels on the one hand, and, on the other hand, without invoking the relevant rules of belligerency, which would have required them either to maintain neutrality or to formally support the non-state group and thus involve declaring war on the territorial state. As was stated by Falk: [i]n general, the status of insurgency is a flexible instrument for the formulation of claims and tolerances by third states. If it is used to protect economic and private interests of nationals and to acknowledge political facts arising from partial successes by insurgents in an internal war, then it can adjust relative rights and duties without amounting to a mode of illegal intervention in internal affairs. In the case of belligerency, the conflict between the territorial state and the non-state group was equivalent to a war between states, in which both sides to the conflict would be bound to comply with humanitarian norms. In such cases (very much the minority of all civil wars), the distinction between internal wars and international wars would be supplanted and the internal war would be regulated according to the law that applies between states. Recognition of belligerency by the territorial state could be either de jure or de facto by treating the insurgents as belligerents (e.g. by granting them belligerency rights or prisoner-of-war (POW) status). A third state could recognise belligerency by a formal announcement of some kind, or implicitly by way of a series of acts which leaves no doubt as to [the] intention of the recognising state. Recognition of belligerency by a third state entailed the application of customary rules of neutrality between the third state and the parties to the conflict. Although recognition by the third state did not change the legal rights between the territorial state and the non-state group, widespread recognition of third states could induce the territorial state to grant recognition. On the basis of traditional statements from this period, such as an 1867 opinion of the British Law Officers,as well as the writings of Oppenheim and Lauterpacht, Sivakumaran has!8

11 summarised neatly the following criteria arguably required for the recognition of belligerency: (1) a civil war accompanied by a state of general hostilities ; (2) occupation and a measure of orderly administration of a substantial party of national territory by the insurgents ; (3) observance of the laws and customs of war by the purported belligerent group acting under a responsible authority and, rather more controversially, (4) the practical necessity for third States to define their attitude to the civil war. The question whether the recognition of the non-state group as belligerents was mandatory and if so under what conditions, remained controversial. In practice, belligerency was only recognised twice by territorial states: in the American Civil War and the Boer War.Bearing in mind this limited state practice, which mainly highlights the selectivity of the application of belligerency, and that the act of recognition was mainly a political one, the argument that belligerency was mandatory (under specific conditions) is not convincing. Belligerency, then, unlike insurgency, entailed the full application of international law. The rationale behind the full application of law can be examined from two perspectives: that of the territorial states and that of the third states. From the territorial states point of view, the full application of law was needed in order to apply humanitarian norms. This was explained by the US Supreme Court when it stated that recognition of belligerency was made in the interests of humanity, to prevent the cruelties which would inevitably follow mutual reprisals and retaliations. The same line of reasoning can be found in the Lieber Code,which stated that humanity was the reason for applying the law to civil wars.once again, we can see that the willingness to apply humanitarian norms was the leading incentive behind the doctrine of belligerency and behind the extension of legal norms to NIAC.Nevertheless, since recognition of belligerency was often considered a sign of weakness and likely to enhance the prestige of the armed group,it was often granted when the territorial state had also other interests and motives such as the need to protect its interests in territory under the control of the non-state group or to protect its maritime activities.!9

12 With regard to third states interests in the recognition of belligerency, the US Supreme Court has phrased it forthrightly: Belligerency is recognized when a political struggle has attained a certain magnitude, and affects the interests of the recognizing power it belongs to the political department to determine when belligerency shall be recognized. Therefore, as explained by Cullen, decisions to recognise belligerency by a third state had two elements: first, a factual appraisal of whether the conflict had reached an intensity which resembles an armed conflict between two states; second, an inherently political judgement, which was contingent on the interests of the third state.these interests varied from holding the non-state group directly accountable for its conduct, to the desire to impose a legal blockade or declare neutrality. Other interests could be the desire to trade with both the belligerents and the state and to exempt the recognising state from paying custom duties to the state if the duties had already been paid to the belligerents. Indeed, the need to regulate the relations between the belligerents and the neutral sides had an important role in the development of the doctrine of belligerency.on some occasions, albeit rarer, humanitarian concerns motivated the recognition of belligerency by third states. In the Tadić Jurisdiction Decision, the Tribunal referred to the distinction between insurgency (which entailed only partial application of the law) and belligerency (which entailed full application of the law): [the] dichotomy was clearly sovereignty-oriented and reflected the traditional configuration of the international community, based on the coexistence of sovereign States more inclined to look after their own interests than community concerns or humanitarian demands. This interpretation, while common, does not give an entirely fair account of the whole picture. While it is undisputed that sovereignty-oriented perceptions were a dominant factor behind the distinction between insurgency and belligerency, it is important to understand that the existing law gave limited tools to territorial states that actually wanted to extend humanitarian protection. In this period, states had to choose between full application of the law in the form of belligerency, which would have invoked humanitarian protection but also belligerency rights to the members of the non-state groups, and flexible application of humanitarian norms through recognition of insurgency, which did not include belligerency rights. Considering that even today states are usually not willing to pay the price of granting POW status to non-state group members, it is understandable that states preferred to abstain from the recognition of belligerency.!10

13 Moreover, recognition of belligerency entailed the legal right of non-state groups to obtain credit abroad. Today, on the other hand, even with the extensive application of IHL in NIAC, obtaining credit abroad could invoke state responsibility for the supplying state for unlawful intervention in the territorial state s sovereignty. Thus, when comparing the price of recognition of belligerency that territorial states had to bear in light of the price that states are willing to pay today for the application of humanitarian law, it is clear that the cost of recognition of belligerency was often too high, as it may be today. Indeed, the high price of recognition may explain the fact that recognition of belligerency by territorial states has become so rare. This scarcity of practice has led various scholars to conclude that the doctrine of belligerency had fallen into desuetude. However, besides the fact that recognition of belligerency by third states still occasionally occurs, a territorial state can still decide to treat an internal conflict as if it were an IAC in which all the norms of that legal regime apply. The imperfections of the doctrine of belligerency explain the creation of the law of NIAC, which is not dependent on recognition and is clearer in terms of its scope of application. We can thus understand the creation of the law of NIAC in the context of the ongoing willingness of states to extend humanitarian protection on the one hand, and to deny POW status to nonstate group members and prohibit foreign involvement on the other hand. In the next chapter, this understanding will show us that the extension of humanitarian norms via treaty law and customary law to NIAC is compatible with states opinions from the nineteenth century. As we shall see below, as much as the law has developed, states still, in general, regard non-state group members as criminals and still justify this approach under arguments of state sovereignty and national security.3 3 h#ps://

14 Protocols I & II Additional to The Geneva Conventions 1. What are the Additional Protocols? In today's wars, civilians suffer the most. Understanding this, governments from around the world adopted new rules of international law in 1977 to improve the protection that civilians are entitled to in wartime. Known as Protocols I and II additional to the Geneva Conventions (GC), these rules placed limits on the way wars may be fought. They were especially created to deal with the changing nature of armed conflict and advances in weapons technology. 2. When are the Additional Protocols applied? The Additional Protocols are relevant for all current armed conflicts. Additional Protocol I concerns international armed conflicts, that is, those involving at least two countries. Additional Protocol II is the first international treaty that applies solely to civil wars and sets restrictions on the use of force in those conflicts. 3. Who is protected by them? Those who are not, or no longer, taking part in an armed conflict must be protected, respected and treated humanely. The Additional Protocols say that: a. All wounded and sick people, both civilian and military, must be collected and cared for, without discrimination. b. Women and children must be respected and protected from any form of indecent assault. c. Children and adolescents must be protected from the effects of war. They must not be allowed to take part in hostilities. d. Members of families separated by conflict should be reunited and they should be able to exchange personal messages. They also have the right to be informed of what has happened to missing relatives. 4. Why are they important? In wartime, civilians suffer the most. Families are separated. Homes are destroyed. Food and water is scarce. Schools close. People are wounded or killed. Lives are shattered. Additional Protocols I and II say that civilians must be spared the worst effects of conflict. They represent a milestone in the long history of efforts by the ICRC and the!12

15 international community to secure greater protection. Additional Protocol I lays down rules on the how wars may be fought. Combatants must take all feasible precautions in choosing weapons and methods of warfare in order to avoid incidental loss of life, injury to civilians and damage to civilian objects. Additional Protocol II was the first-ever international treaty devoted exclusively to protecting people affected by non-international armed conflicts, or civil wars. The Additional Protocols also: a. Grant protection to all medical personnel, units and means of transport so that civilians can receive medical care during wartime; b. Require the warring parties to search for missing persons from the opposing side strengthen the obligation to provide civilians with food, water and other essentials. 5. How do they protect people? The Additional Protocols include rules especially designed to protect both civilians and combatants. They stipulate that: a. Combatants must not pose as civilians; b. Indiscriminate attacks are not allowed; c. Acts of violence - or threats to commit them - whose primary purpose is to spread terror are prohibited; d. Objects indispensable to the survival of communities must not be destroyed. 6. Are combatants protected too? Combatants also are entitled to protection. The Additional Protocols say that: a. Suffering inflicted on an opponent must not go beyond what is necessary to achieve a legitimate military objective. b. Combatants no longer capable of fighting may not be attacked. c. In an international conflict, captured combatants must be presumed to be prisoners of war, and are therefore entitled to protection under the Geneva Conventions. d. Prisoners of war who cannot be cared for must be set free. Keeping in mind the motive behind the conception of the Additional Protocol to the Geneva Conventions, i.e, the protection of civilians in cognizance with!13

16 the evolution of warfare; as representatives in the ICRC, feel free to discuss to semantics of these instruments as you wish to. As a committee that can directly influence the outreach of these legal instruments, you are allowed to discuss the possibility of altering these instruments that better facilitate the cause of the committee. You may also refer to contemporary case studies in order to enhance your arguments and build a strong case for why you propose the policy change. Note: Use the following links to obtain more information about the Additional Protocols:

17 Common Article 3 of The Geneva Convention Among the many important advances in international humanitarian law wrought by the adoption of the 1949 Geneva Conventions, Article 3 stands out in particular. With its inclusion, States agreed for the first time on regulating, in an international treaty framework, what they described as armed conflict not of an international character. Common Article 3 represented one of the first provisions of international law that dealt with what was at the time considered by States as being exclusively their domestic affair. The provision is common to the four Geneva Conventions. Common Article 3 does not provide a detailed definition of its scope of application, nor does it contain a list of criteria for identifying the situations in which it is meant to apply. It merely stipulates that [i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, certain provisions must be respected by the Parties to the conflict. The wording agreed upon does not resolve the persistent question of the scope of application of common Article 3. The intentional lack of detail on this point may have facilitated States adoption of common Article 3. However, clarity as to its scope of application is important, as whether or not a given situation is an armed conflict not of an international character entails significant consequences. In this respect, it is useful to note that the qualification of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature in Article 1 of Additional Protocol II as not being armed conflicts is also considered accurate for common Article 3.!15

18 Problems With The Common Article And The Additional Protocols COMMON ARTICLE 3 4The problem with this article is that it is applicable only to a situation, which is an armed conflict. However, the term armed conflict has not been defined in the Convention. In the absence of the definition of armed conflict, it is left to the state to determine whether an armed conflict exists or not. In practice, low intensity conflicts are not considered as armed conflict. Civil conflict and rebellion can thus be treated as an non-international armed conflict when the state party wishes to treat this as an non-international armed conflict[8]. Nonetheless, states can deny the applicability of common article 3 to a situation of armed conflict. In times of disagreement with regard to the application of common article 3, the only applicable criteria is the intensity of violence. However, the state party accepting the offer, carefully defines the limits of service in such a way that it depicts the appearance of compliance while ongoing violence and chaos ensues in the nation. In cases where an offer by ICRC is rejected the state, the state argues that the particular matter is only an internal disturbance and falling under their domestic jurisdiction. This normally occurs in a situation of sporadic violence or rebellion against the government by its own population. Although article 3 says that the applicability of that provision shall not affect the legal status of the parties to the conflict, any declaration accepting the application of article 3 by the state in the case of armed rebellion targeted against Government would tantamount to recognizing the armed rebellion or conferring belligerent status which entails the application of law of armed conflict to that situation. Decision of a state in such a situation is based less on the reasons of humanitarian consideration rather than on political concern. The situation here would be very sensitive as the party involved in armed rebellion still may like to do whatever possible to colour the localized rebellion as an armed conflict either by spreading it to other neighbouring states or by appealing for mediation from other state, so that the local conflict is converted into international armed conflict. The common article 3 is applicable to civil wars and at the same time, not applicable to either civil commotion or low intensity armed rebellion. It does not also apply to the guerrilla 4 h#p:// ---> Common Article 3 Of Geneva Conventions, 1949 In The Era Of International Criminal Tribunals, M.Gandhi!16

19 warfare tactics of terrorist groups. In fact, the common article 3 does not deny state s right to take action against armed rebellion. The following acts may be interpreted as not amounting to violation of article 3: (i) Although torture is prohibited nothing in article 3 prevents the rebellions being hung for treason. (ii) Civilians who inhabit areas where insurgents are active are also subject to forms of detention normally garbed in euphemistic vestments, such as relocation centers or fortified hamlets, with respect to which article 3 contains no specific safeguards. (iii) Civilians may also be compelled by the rebellions to serve in effect as slave labourers and subjected to the process of conflict. (iv) There is no reference in the Convention prohibiting the requisition / destruction of food and other essential goods with a view to prevent them from falling into the hands of other party. Additional Protocol 2 5According to Article 1, Additional Protocol II is only applicable when a conflict between an incumbent government and internal belligerent forces arises, not when the state is shaken by conflicts among different armed groups, in which case only Common Article 3 is applicable. This shift to more demanding criteria was a compromise to allow some states to obtain a treaty that contains more specific rules in relation to non-international armed conflicts and other states to deny its applicability due to the high criteria s. Additional Protocol II is to be applied when the stringent requirements of Article 1 are met. This provision stipulates that dissenting forces must be under responsible command and exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. This happened despite the fact that the ICRC persistently tried to avoid writing into Article 1 relating to: 1. the degree of organization necessary for armed forces or other armed groups, 5 Chapter 2 Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armed Conflict - Noëlle Quénivet!17

20 2. the duration of the conflict; the amount of territory to be controlled by a nongovernmental party, and the 3. other factors that would reduce the scope of the Protocol by establishing conditions that had to be fulfilled before the instrument came into force. Since this protocol was finally adopted, it meant its applicability was restricted for merely conflicts of a certain intensity. This very high threshold set by Additional Protocol II means that in reality, the protocol applies to situations at or near the level of a full-scale civil war or belligerency. In addition, the problem remains as to the exact time when a situation develops into an armed conflict within the terms of Additional Protocol II. Further at first sight Article 1 Additional Protocol II lowers the bar of the applicability of the treaty since it excludes internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. In addition to this, the distinction between internal and international armed conflict is artificial from the point of view of a victim. Humanitarian principles should apply regardless of the identity of the combatants. However, when viewed from the point of view of a State, it can be considered that international law does not apply to non-international situations. A nation has sovereignty within its borders, and must not accept judgments by and orders from other countries. This may also mean that some countries would not appreciate external intervention and aid, meaning that additional protocol II will not be warmly accepted by them.!18

21 War Crimes And The ICC The Rome Statute, beyond placing War Crimes under its jurisdiction under article 8, distinguishes four categories of War Crimes. - First, it mentions the grave breaches under the four Geneva Conventions. (Art 50 GC I, 51 GC II, 130 GC III, 147 GC IV). Grave breaches are prohibited acts, specifically listed in the Geneva Conventions and include conduct such as wilful killing, torture, inhumane treatment, hostage taking or extensive destruction and appropriation of property. Grave Breaches are committed in context of non international armed conflicts and therefore shall not be dealt with extensively in this guide. - The second category of war crimes covers other serious violations go the laws and customs applicable in international armed conflicts. These Crimes are derived from various sources such as the Hague Convention respecting the Laws and Customs of War on Land, Additional Protocol I, etc. The third category introduces serious violations of article 3 common to the Geneva Conventions which applies to non- international armed conflicts. Common article 3 includes a prohibition of acts such as violence to life and person, in particular murders of all kinds, mutilation, cruel treatment and torture. The last category covers other serious violations of the laws and customs applicable in armed conflicts not of an international character. These crimes are derived from various sources, including the 1907 Hague Regulations and Additional Protocol II to the Geneva Conventions. Most of these crimes applicable are qualified as other serious violations The selection of war crimes is based on two different but closely linked considerations; - the norm should be a part of customary international law, given that not all treaties of international humanitarian law defining war crimes are universally accepted and, - the violation of the norm would give rise to individual criminal responsibility under customary international law. The above mentioned violations are subjected to accountability under the premise of the Rome Statute. However, there still remains a stark difference between the provisions mentioned on war crimes in International and Non International Armed Conflicts, with the latter not being elucidated upon in the same capacity. Your aim as the representatives of the ICRC goes beyond the role of determining the effectiveness of the already existing provisions!19

22 and instruments for protection of civilians; to also consider ideas and perspectives that still have not been included into the provisions of war crimes. Perspectives that could be included as war crimes in the future are welcomed to be presented in the committee discussions by the Executive Board. Note: We recommend you to read through the following document to gain a better insight into how war crimes are entailed under the jurisdiction of the International Criminal Court

23 Questions To Be Considered 1. To what extent is it feasible to allow such articles and protocols to exist? Would they not be considered as an infringement upon the sovereignty of a nation? 2. Is it right to consider a conflict an actual pressing issue only when the government deems it to be so? 3. How does one make the difference between a soldier and a civilian in a war-zone? 4. Is there an actual difference between international and non international conflicts for a victim? More Readings 1. Chapter 2 Applicability Test of Additional Protocol II and Common Article 3 for Crimes in Internal Armed Conflict - Noëlle Quénivet 2. International humanitarian law and the challenges of contemporary armed conflicts- 3. Protocols I and II additional to the Geneva Convention-- resources/documents/misc/additional-protocols-1977.htm 4. Analysis for the use of National Red Cross Societies-- Military_Law/pdf/RC_analysis-Vol-1.pdf 5. Access the commentaries and the mentioned links on the Common Articles of the Geneva Conventions to obtain a better understanding of the common articles: action=opendocument&documentid=59f6cdfa490736c1c1257f7d004ba0ec 6. The protective scope of Common Article 3: more than meets the eye-- Jelena Pejic- pp