During this century, millions of children, women and men have been victims of unimaginable atrocities in the threatre of wars that deeply shook the conscience of humanity. It is against this background that an analysis of the penal responsibility and sanctions for violations of International Humanitarian Law becomes necessary. The first chapter is a general introduction which highlighted all the core issues to be discussed and analysed in the course of this research work. The second chapter will examine the definition of crimes under international law, war crimes and the prosecution of war criminals which has become so vitally important to stem the impunity with which violations international humanitarian law go unpunished. The general scheme of repression codified in the four Geneva Conventions of August 12, 1949 and its Additional Protocols of 1977, International Criminal Tribunals for the former Yugoslavia and Rwanda and the Rome Statute of International Criminal Court will equally be examined. Chapter three espouses the theory of state and individual responsibility under international law. It takes into cognizance that international humanitarian law establishes not only basic rights of the individual, but also contains important machinery for guaranteeing observance of these rules, imposes obligation necessary to repress any act constituting a serious infringement on personal dignity or a grave threat to the security of the civilian population. Though the prosecution of war criminals after World War I was largely ineffectual, coupled with the different interpretations given to the November trial with regard to the position of individual under international law. Chapter four establishes that whatever the case may be regarding the position of the individual under international law after the Nuremberg trials through the creation of the two ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, the United Nations Security Council took a great leap forward and established, beyond doubt, that individuals may now, with respect to international humanitarian law, appear as subject bound by certain legal obligations directly under international law, and can be held individually responsible. The main thrust of chapter four is the examination of the elaborate penal regime and the concomitant sanctions in the Geneva Conventions and the Additional Protocols, the International Criminal Tribunals for Yugoslavia and Rwanda and finally the Statute of International Criminal Court. Chapter five will examine the fundamental issue of which court has jurisdiction to prosecute the breaches of international humanitarian law against the backdrop that despite all the indignation aroused by the crimes, the international criminal tribunals are called upon to prosecute, the accused must be accorded the right to a fair hearing or trial. It takes cognisance of the fact that the effective humanitarian law and respect for human rights are complementary and indispensable to each other. They both contribute in upholding the rule of law. It is our conviction that research on the penal responsibility and sanctions for breaches of international humanitarian law cannot be complete without according a pride place to international committee of the Red Cross that informed the elaborate discussion on the same in Chapter six before concluding the research work and proffering the way forward.
- HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW
“Humanitarian law is a branch of public 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”1
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 individuals2.
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 altogether3.
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 countries6.
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)7. 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 field8. 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 conflict10.
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 Conventions11.
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.
Prior to 1977, there existed only fragmentary provisions for the protection of civilians against the consequences of armed conflicts: The Hague convention regulating the conduct of hostilities was signed in 1907, at a time when military aircraft were unknown and artillery fire had a comparatively limited range while the fourth Geneva convention of 1949, aside from setting forth a few general rules contains only provisions for the protection of civilians against abuses of power by enemy or an Occupying Power.
A major breakthrough of protocol, it must be emphasized was the substantial progress achieved in the rules relating to the conduct of hostilities, the authorized methods and means of warfare and the protection of civilian population15. New types of conflicts have emerged in the interlude, wars of liberation and guerrilla tactics. The use of sophisticated and indiscriminate weapons, such as incendiary weapons and fragmentation projectiles have also emerged. The Civilian population often compelled to accept combatants in their midst, have thus become more vulnerable. It was therefore important to frame legal rules of protection in that field.
The three basic rules governing the conduct of hostilities were clearly expressed and incorporated in the text of law:
- The right of the parties to the conflict to choose methods or
means of warfare is not unlimited16.
- “It is prohibited to employ weapons ( . . . ) and methods of warfare of a nature to cause superfluous injury”17
- Civilians and civilian objects must not be the target of
These articles set out the principles of the distinction between civilians and combatants and between civilian objects and military objectives.
These articles protect both the civilian objects, which it defines by contradistinction with military objective. It specifies that attack against the civilian population or against civilian objects are prohibited. As well as attacks made against civilians by way of reprisals, and that attacks may be directed only against military objectives. Indiscriminate attacks i.e. those which are of a nature to strike military objective and civilian or civilian objects without distinction are prohibited.
Similarly, it is forbidden to attack non- defended localities or demilitarized zones18a. Precautionary measures must be taken by the armed forces in order to spare to the fullest possible extent the civilian population and civilian objectives.
Four articles deal with relief in favour of the civilian population. These articles specify that the parties to the conflict must provide the necessary relief to the civilian population or, if they are unable to supply the needs of that population, must allow unimpeded passage to all relief supplies essential for its survival. This rule applies in all circumstances even for the benefit of an enemy population of an occupied territory. Action in this respect must include facilities for relief organization and protection of specialized relief personnel.
These articles supplement other protocol provisions on civilian objects, which prohibit the starvation of civilians as a method of warfare. In addition objects indispensable to the survival of the population such as agricultural areas, livestock, drinking water installation and supplies, crops, irrigation works etc; are hence forth protected as are works and installations containing dangerous forces like nuclear electric generating stations, dams, dykes etc; cultural objects and places of worship. It is provided that military operations must be so conducted as to protect the natural environment against widespread, long term and severe damage 19a.
The protocol also changed the conditions conferring combatant status and consequently prisoner of war status in the event of capture. Fundamental guarantees of respect of the person have been introduced which include an enumeration of prohibited acts, such as murder, torture, corporate punishment, outrage upon human dignity, the taking of hostages, collective punishments and threat to commit any of the foregoing acts. Legal safeguards are provided, should a person be arrested for an offence related to the conflict; the accused has the right to be informed, in the language which he understands, of the acts of which he is arrested. If a sentence in passed, it must be pronounced by an impartial court applying a regular judicial procedure. Persons accused of war crimes must be handed over to the judicial authorities in accordance with the applicable rules of international law and they must benefit from the more favourable treatment under the Conventions or the Protocol. Special protection is specified for women and children and it is provided that parties to the conflict must avoid the pronouncement of the death penalty on them. If the sentence has already been pronounced, it must not be carried out upon a pregnant woman, upon a mother having dependent infants, or upon a person who has not attained the age of 18 years.
The protection afforded by the fourth Geneva Convention to civilians in the power of a party to the conflict has been extended by protocol 1, to contain categories which were not covered until then. Thus persons who were considered before the beginning of hostilities to be stateless or refugees shall be protected without any adverse distinction and in all circumstance. More so, the protocol, provides for the facilitation of the reuniting of dispersed families, and inquiring into the where about of missing persons19.
With the assistance of specialized humanitarian organizations
Protection is also accorded journalists engaged in dangerous missions, especially those who are not accredited as war correspondents. They can now obtain from their own authorities or from those of the territory on which they work a special identity card attesting that the bearer has the right to be treated as a civilian within the meaning of the Geneva conventions.
The Geneva convention of 1949, provides for the immunity of the military medical personnel and installations, and civilian hospitals which are recognized as such and are marked with the red cross or red crescent emblem. The military medical personal and the personnel of civilian hospitals must be protected and respected. Protocol I extends to civilian personnel and medical units, during the hostilities, protection similar to that which is already accorded to military medical personnel and units. In order to avoid abuses, it has however specified that this protection will be accorded to units recognized by the authorities of a party to the conflict, civilian religious personnel are protected by the protocol in the same manner as medical personnel.
In full grasp of the knowledge of the present day weaponry and means of warfare the Protocol juxtaposes the provisions on the protection of civilian population with regulations indicating the principles to be observed during combat. Thus protocol I prohibits the resort to perfidy i.e. feigning of surrender in order to attack the opponent, where as ruses of war like misinformation, camouflage are permitted. It is prohibited to order that there shall be no survivors in an attack. The improper use of recognized emblems like emblem of the red cross or red crescents, emblems of nationality United Nations flag etc is also prohibited.
The protocol reiterates the rule that parties to a conflict are prohibited from using weapons capable of causing superfluous sufferings to the victims 20 or which strike without discrimination. But the draft Protocol I submitted by the ICRC did not include any specific rules on the use of conventional weapons. The ICRC consequently organized two conferences of medical and military experts. These were held in 1974 at Luzern and in 1976 at Lugano, and they drew up a list of the weapons to be considered. Rules concerning specific weapons were, however, introduced into the Protocols and the Diplomatic Conference merely adopted a resolution referring the matter to the United Nations. Which in 1970 organized, the first session and a second session in 1980. A conference which concluded its proceedings, with the adoptions of a convention on protection or restriction on the use of the following weapons. (a) those the primary effect of which is to injure by fragments which escape detection in the human body, thus preventing treatment of the wounds caused, (b) mines, booby traps and other devices which have caused in the past numerous victims among civilian population, often long after the end of hostilities, (c) incendiary weapons which have caused great sufferings to human beings as well as enormous damage to the environment.
Protocol I gave prisoners of war a broader definition than that embodied in the third Geneva Convention of 1949 in that, prior to the protocol, the members of the regular armed forces and partisans belonging to a party to the conflicts and certain persons who accompany the armed forces without actually being members thereof viz; war correspondents, civilian members of military aircraft crews were considered as prisoners of war. Under the provisions of protocol 1, the definition of prisoners of war now includes all members of the armed forces of a party to the conflict and also all members of armed groups and units which are under command responsible to that party. Guerrilla without uniform which are not recognized by the adverse party, also benefit from these provisions.21 Nevertheless members of the armed forces are obliged to distinguish themselves from the civilian population at least by bearing arms openly during combat. The breach of this rule may entail deprivation of the status of prisoner of war.
The protocol provides for sanctions in the event of breaches. The repression of the breaches of the Geneva conventions and the protocol is the subject of a number of provisions22, which include a list of grave breaches which are regarded as war crimes, and of a few articles on the concept of responsibility Grave breaches of the protocol includes attacking the civilian population or gravely affecting it when attacking a military objective; launching a military operation against protected plants or non-defended localities the perfidious use of the emblems of the Red Cross; the transfer by an Occupying Power part of its own population into the territory it occupies, the deportation of an occupied population; and the sentencing of protected person without trial. Persons in command are held responsible for all breaches committed by their subordinates if they have not taken all necessary measures in order to prevent the commission of these acts, or in order to suppress them. The acts thus designated by the protocols, together with the serious breaches listed in the conventions, constitute an appropriate penal response to the most reprehensible acts committed in wartime.
Article 90 of protocol I brings a new control mechanism to international humanitarians law. The International Fact – Finding Commission. The 1949 conventions did include the idea of an inquiry but it was never put into effect. The Fact-finding commission constitutes an effort to remedy the short –comings of the convention system, making it mandatory in particular to accept an enquiry concerning any allegation of a serious violation of international humanitarian law. This is a new and powerful means of imposing respect for international humanitarian law. It still has two weaknesses, however first a state is not bound by simply acceding to the protocol, it has to make a declaration specifically accepting the commissions competence. By 31 October 1997 out of 148-state party to protocol 1, only 50 had made such a declaration. The other weakness concerns its material competence for the commission is empowered to enquire only into situation falling within the scope of protocol 1, that is international armed conflicts. Yet most of the tragedies of recent times have taken place in the course of civil wars or hybrid situation of violence.23 It therefore becomes imperative that the commission’s field of competence be extended.
By and large protocol 1, is an important milestone in the development of international humanitarian law and in the words of George H. Aldrich “. . . I remain unshaken in my belief that protocol I represents a significant and responsible progressive development of international humanitarian law. There are presently 148 state party to protocol 1, and I believe that it largely represents customary international law today” 24.
Protocol 11, relating to non-international armed conflicts equally has a far reaching impact on the development of international humanitarian law. Protocol 11, a brief document consisting of 28 articles was adopted by consensus at the end of the diplomatic conference. It substantially supplement, and develops articles 3 common to the four Geneva conventions of 1949, the only provision applicable to armed conflicts of a non-international character.
Protocol 11, is applicable in armed conflicts which takes place in the territory of a high contracting party between its armed forces and dissident armed forces or other organized armed groups which under responsible command, 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. 25
In spite of the restricted filed of application, since the situations covered are characterized by a comparatively high level of intensity of confrontation; the rules contained in Protocol 11, are very important for the protection of the victims.
The fundamental guarantees of respect for the human person have been strengthened and supplemented. The provisions relating to human treatment reiterate, on the whole those of protocol 1: respect of non-combatants; no adverse distinction between persons, prohibition to order that there shall be no survivors. Prohibition of acts of violence against the life, health, and physical or mental well being of persons; prohibition of torture, mutilation, taking of hostages, etc special protection for children, protection of persons whose freedom has been restricted and judicial safeguards for the wounded, sick, shipwrecked and dead26. Protocol II “does not include provisions on special categories of protected persons, such as prisoners of war, all persons, who do not or have ceased to take part in hostilities are entitled to the same guarantees.
Like in situation covered by protocol 1, medical and religious personnel, medical units and transports, and medical duties and such must be respected and protected.
Protocol II also set forth the general principle that the civilian population must be protected. Thus the protection of civilian objects is provided for in three specific cases: objects indispensable to the survival of the civilian population like prohibition of starvation of civilians as a method of combat, works or installations containing dangerous forces, cultural objects and places of worship27 and the prohibition of forced movement of civilian28.
Although, protocol 11, only covers situations of non-international armed conflict of a certain magnitude and duration, however, its provisions confirm the determination of the international community to limit the human sufferings caused by the most cruel of struggles i.e. the civil war. Concern to safeguard the states sovereignty, the fear of being hampered in fighting insurgent or dissident elements, meant that it was not possible to give protocol 11 a field of application comparable to that of Article 3 common to the four Geneva Conventions, although, from a humanitarian point of view, this would have been highly desirable. However, it set forth, for non-international armed conflicts standard recognized by the international community. In this regard, it is a step forward and its effect should be felt not only in situation where its applicability is formally acknowledged, but in all non-international armed conflicts.29 There are other recent efforts in the development of international humanitarian law. The 1993 Convention prohibits the development, production, stock pilling and use of chemical weapons and their destruction.
The Protocol relating to blinding laser weapons, adopted at the Vienna Diplomatic conference in October 1995, prohibit both the use and transfer of laser weapons, one of whose combat functions is to causes permanent blindness. The protocol also requires states to take all appropriate precautions including the training of armed forces, to avoid causing permanents blindness by the lawful use of other laser system.
In the case of mines, the field of application of protocol II to the 1980 convention was extended by the adoption, in Geneva on 3 May 1996, of an amended version of the Protocol on the prohibitions and restrictions of the use of mines bobby-traps, and other devices. Further more, the convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction, signed by 121 countries in Ottawa on 3-4 December 1997, entirely prohibits anti-personnel mines. This convention also provides for mine – clearance and assistance to victims of mines.
International humanitarian law treaties containing rules applicable to environmental protection include Article 55 of additional protocol 1 and the convention on the prohibition of military or any hostile use of environmental modification technique of 10 December 1976. However, the Gulf war of 1991, revealed that those rules were little known and sometimes imprecise. Therefore in 1994, encouraged by the UN General Assembly and with the help of experts in the matter, the ICRC drafted guidelines for military manuals and instructions on the protection of the environment in times of armed conflicts
Another recent development is the San Remo Manual on international law applicable to armed conflicts at sea. The importance of that undertaking, carried out by the international institute of Humanitarian law with the support of the ICRC, was recognized by governments in the resolution adopted at the 26th International Conference of the Red cross and Red crescent, held in Geneva in 1995.
Although the Geneva Convention and the protocols additional thereto do not expressly prohibit the use of nuclear weapons, the general principles of IHL do apply in such cases. Among other things, they require belligerents to distinguish at all times between combatants and non- combatants and prohibit the use of weapons likely to cause unnecessary suffering. The International Court of Justice in The Hague reaffirmed the application of those principles to nuclear weapons in 199630.
1.2 OBJECTIVES AND SCOPE OF THE RESEARCH
Taking into cognizance the fact that international humanitarian law does not claim that it can put an end to the scourge of war, but aims at attenuating the unnecessary harshness of armed conflicts, and that the reciprocal interest of the belligerents should compel them to observe certain “rules of the game” in the conduct of hostilities. It is therefore necessary to determine from the onset the objective of the research. The main thrust of the research is to undertake a discourse of the origin, nature and the scope of international humanitarian law albeit in brief with a view to determining whether the High Contracting Parties to the four Geneva Conventions and the two additional Protocols are keeping faith with their obligation, to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, or to have ordered to have committed, such grave breaches, and shall bring such persons, regardless of their nationality before its own courts.
Another important aim of the research, is to identify crimes breaches under international humanitarian law. The emotional and psychological trauma of displaced persons and refugees, the torture, cruel and inhuman treatment meted out to prisoners of war and other grave breaches of international humanitarian law necessitate that effective penal sanctions should be meted to those persons committing or ordering to be committed such grave breaches of international humanitarian law.
It is absolutely imperative to consider the enforcement machinery put in place both nationally and internationally under IHL to arraign, prosecute and punish those who violate the provisions of the Geneva Conventions and the Protocols.
Finally to determine the efficacy or otherwise of the sanctions and the enforcement machinery in bringing compliance with the rules of the game during armed conflicts.
1.3 RESEARCH METHODOLOGY
The principal source of materials for this research are textbooks, journals, law reports, pamphlets, conference proceedings (both national and international) humanitarian groups periodic publications most especially International Review of the Red Cross (IRRC). The central anchor of the entire discussion will be the four Geneva Conventions and the two additional Protocols. The analysis of the research will be based upon authoritative expositions, propositions of respected and universally acclaimed authors and jurists of contemporary humanitarian and legal philosophy especially in the area of humanitarian law and jurisprudence, judicial pronouncements of the international criminal tribunals and where necessary international institutions where they safeguard or enforce humanitarian principles.
1.4 ORGANIZATIONAL STRUCTURE
This research is essentially divided into six chapters with humanitarian principles as the common thread not only binding them but equally establishing the parameter of coordinating the entire discourse. The first chapter is a general introduction to the research work. It considers a general background information on the origin, nature and development of international humanitarian law. The chapter set the ball rolling by defining the objectives of the research sought to be achieved. It equally defines in precise and crystal terms the scope of the research. The chapter further considers the methodology the research will adopt and the materials to be employed. It finally considers the structure and order of presentation and of the research.
Chapter two deals with the issue of crimes/breaches under international humanitarian law, grave breaches of IHL applicable in international armed conflicts and other violations applicable in international armed conflict. Serious violations applicable in non-international armed conflicts will be analysed. The national and legal framework will form the epilogue of the chapter.
Chapter three will espouse the penal responsibility for grave breaches of international humanitarian law. International law and the theory of state responsibility, international text on penal responsibility will be discussed. Further, domestic legislation on penal responsibility is accorded a pride of place while individual penal responsibility in internal armed conflict will be treated towards the end of the chapter.
Chapter four undertakes an exposition of the penal sanctions for breaches of international humanitarian law. Nature and scope of the sanctions imposed will be analysed. Further, imposition of penalties for grave breaches by state is examined/trials of violators, extradition where necessary and reparation for states will conclude this chapter.
Chapter five generally treated the enforcement machinery of the sanctions of international humanitarian law. The establishments of national and international criminal jurisdictions to punish grave breaches, the competence and competent courts, procedural guarantees under IHL will be analysed. Further, competence/jurisdiction of International Criminal Tribunals, International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda will be examined. While the Permanent
International Criminal Court will conclude this chapter.
Chapter six, the final part of this research work will bring the discourse to its conclusion by making recommendations and finally the International Committee of the Red Cross role in developing, monitoring and implementation of international humanitarian law will conclude this research work.
CHAPTER ONE NOTES AND REFERENCES
- Quoted in: Bory, F. Origin and Development of International Humanitarian Law, ICRC, Geneva, 1982, P. 7
- Ladan, M. T. Introduction to International Human Rights and Humanitarian Law, Ahamdu Bello University Press, Zaria, Nigeria, 1999 P. 108
- Quincy, Wright; quoted in International Committee of the Red Cross, ICRC “Answers to your Questions” Published by
ICRC, P. 9
- See Code of Hamurabi, King of Babylon
- See Lieber, Francis (Professor at Columbia College, New York); at the request of Abraham Lincoln, draw up a series of instructions for union soldiers during the American Civil war.
- Dunant, Henry; “A memory of Solferino” published in November 1862, P. 7
- See ICRC, “International Humanitarian Law: Answers to your questions” published by the ICRC, P. 4
- Geneva Convention of 1864
- See Ladan M. T, Op. Cit. (note 2) p. 109
- Bory, F; (note 1 ) P. 11
- ICRC, “Answers to your questions “published by ICRC, P. 13
- Bory, F; Op. Cit. P. 16
- Refer to Rene K; “The 1977 Protocols :a landmark in the development of IHL” in International Review of the Red Cross, Geneva, Sept./Oct. 1997, No 320, PP 483 – 505.
13a See Article 8, 15 and 23 of protocol 1
- Rene, K; ibid; at 487
- See protocol 1, part iii, section 1 “methods and means of warfare (Articles 35-42); part iv “Civilian population” section 1, “Geneva protection against effect of hostilities” (Articles 48 – 60).
- Article 35, Para 1 of protocol I
- Article 35, para 2 of protocol I 18. Articles 48,50,62 of protocol I
18a Article 59 and 60 of protocol I
- See articles 33 and 74 of protocol I
19a See articles 54, 55 and 56 of protocol I
- See article 35 para 2 of protocol I
- Articles 43 and 44
- Articles 11 and 85
- Rene, K; (note 13) p. 492
- Aldrich, G. H. “Comments on the Geneva protocols” in international review of the Red Cross, Sept,/Oct. 1997. No
320; P. 507
- See Article 1 of protocol II
- Articles 4, 5 and 6
- Article 13, and 14
- Article 17
- Preux, Jean de; “The protocols additional to the Geneva Conventions” ICRC No. 258, May – June, 1997, P. 258.
- See ICRC “Answers to your questions” published by ICRC,
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