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International Humanitarian Law as an Evolving Field of Law Libre

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  INTERNATIONAL HUMANITARIAN LAW AS AN EVOLVING FIELD OF LAW * DEFINITION AND BACKGROUNDInternational humanitarian law is a new field of law that governs the use of force,specifically the protection of persons from the effects of armed conflicts.This new field wasofficially acknowledged by the International Court of Justice in 1996 when it ruled that the Lawof the Hague dealing with the laws and customs of war, and the Law of Geneva dealing with the protection of civilians during armed conflict,have become as closely interrelated that they areconsidered to have gradually formed one single complex system, known today as internationalhumanitarian law. 1 The Court added that [t]he provisions of the Additional Protocols of 1977give expressionand attest to the unity and complexity of that law. 2 International humanitarian law developed from the middle of the nineteenth century, withthe following milestones:  1864 Geneva Convention for the Amelioration of the Condition of the Wounded inCrimes in the Field, later revised in 1906.  1868 Declaration of St. Petersburg prohibiting the use of small or incendiary projectiles.  1899 and 1907 Hague Conventions codifying the laws of men.  1949 Four Geneva Red Cross Conventions.  1977 Two AdditionalProtocols to the Geneva Conventions. The Four Geneva Conventions The Four Geneva Conventions consist of the following:1.The First Geneva Convention concerns the Wounded and Sick on Land.2.The Second Geneva Convention concerns the Condition of Wounded,Sick, andShipwrecked Members of Armed Forces at Sea.3.The Third Geneva Convention is concerned with prisoners of war, and requireshumane treatment in all circumstances. * 33 Integrated Bar of the Philippines Journal (2007).Keynote speech at the opening ceremonies of the 2007Conference on International Humanitarian Law to Mark the 30 th Anniversary of the 1977 Additional Protocols, heldat Manila on 29 August 2007. 1 Advisory Opinion on the  Legality of the Threat on Use of Nuclear Weapons , 1996 ICJ 256. 2  Id.  4.The Fourth Geneva Convention is concerned with the protection of civilians in timeof war. The Two Additional Protocols The Two Additional Protocols consist of the following:Protocol 1 defines combatants as members of the armed forces of a party to aninternational armed conflict. Such armed forces consist of all organized armedunits under aneffective command structure, which enforces compliance with the rules of international lawapplicable in armed conflict. Combatants are obliged to distinguish themselves from the civilian population, while they are engaged in an attack orin a military operation preparatory to anattack. 3 Protocol 1 defines a civilian or any person, not a combatant, and provides that in casesof doubt, a person is to be considered a civilian. 4 Protocol 2 also protects civilians, and establishes the International Fact-FindingCommission. Protocol 2 developed the common Article 3 of the Geneva Conventions. It applies by virtue of Article 1 to all non-international armed conflicts which take place in the territory of a state party between its armed forcesand dissident armed forces, which have to be under responsible command and exercise such control over a part of its territory as to enable them tocarry out sustained and concerted military operations, and actually implement Protocol 2. Two Cardinal Principles of Humanitarian Law Duly noting the subject matter of both the Hague and the Geneva Conventions, theInternational Court of Justice in the same case summarized the cardinal principles of humanitarian law, as follows: 5  The first principle is aimed at the protection of the civilian population and civilianobjects, and establishes the distinction between combatants and non-combatants.States must never make civilians the object of attack, and must consequently never use weapons that are incapableof distinguishing between civilian and military targets.  The second principle prohibits unnecessary suffering caused on combatants.Weapons that cause unnecessary harm to combatants, or uselessly aggravate their suffering, is prohibited. States do nothave unlimited freedom of choice of means inthe weapons they use.The Court called the principle of civilian protection and the principle of prohibiting of unnecessary suffering as intransgressible principles of international humanitarian law. 6 Assuch, these two principles are binding on all states, even including those states that have not 3 Article 43 and Article 44, specifically para. (3). 4 Article 50 para. (1). 5 1996 ICJ Rep 226, 257. 6  Id.  ratified the Hague and Geneva Conventions. These two principles are firmly rooted in theoverriding consideration of humanity. 7 Geneva Conventions Bind All States The 1949 Geneva Conventions bind all states. But the 1977 Additional Protocols do notyet have the same status, except if the provisions merely codify existing international customarylaw. Otherwise, the Protocols bind only the state parties. Certain major military powers, such asthe United States, are not party to the First Protocol. The Philippines in 1952 ratified all Four Geneva Conventions, and subsequently in 1986 ratified the 1977 Protocol 1. The Philippines in1977 signed Protocol 1,but has not yet ratified it, and consequently is not a state party.In the 1986  Nicaragua case, 8 the International Court of Justice affirmed the universally binding character of the four Geneva Conventions, which all contain common Article 3concerninggeneral principles of humanitarian law. The Court took the view that the GenevaConventions are in some respects a development, and in other respect no more than anexpression, of such principles: The Court explained:Article 3 which is common to all four Geneva Conventions of 12 August 1949defines certain rules to be applied in the armed conflicts of a non-internationalcharacter. There is no doubt that, in the event of international armed conflicts,these rules also constitute a minimum yardstick, in addition to the more elaboraterules which, in the Courts opinion, reflect what the Court in 1949 calledelementary considerations of humanity (Corfu Channel, Merits, ICJ Reports1949, p. 22; paragraph 215 above). The Court may therefore find them applicableto the present dispute, . . .Prof. Brownlie of Oxford 9 notes that on its own accord, the International Court of Justiceused the phrase general principles of humanitarian law six times.OVERLAP WITH INTERNATIONAL HUMAN RIGHTS LAWInsofar as it incorporates the law of war, international humanitarian law may overlap withinternational human rights law. Both fields of international law are rapidly evolving, and bothshare a common foundation in the principle of respect for human dignity. 10 This area of overlap between the two fields of law has been formally acknowledged in various ways.In 1970, the General Assembly passed a resolution which emphasized that fundamentalhuman rights continue to apply fully in situations of armed conflict. 11 In 1976, the EuropeanCommission on Human Rights ruled in one case that in belligerent operations a state is bound to 7  Id. , at 226, 257, and 262-3. 8  Nicaragua v. United States , 1986 ICJ Rep 113-14, para. 218. 9 Ian Brownlie,  Principles of Public International Law , 6 th ed. 538. Oxford University Press: New York, 2003 10 See  Furundzija case, 121 ILR 213, 271. 11 GA Res. 2675 (25)  respect not only the humanitarian law laid down in the Geneva Conventions, but alsofundamental human rights. 12 Subsequently, the Inter-American Commission on Human Rights declared that insituations of internal armed conflict, the two fields of international humanitarian law andinternational human rights law must converge and reinforce each other. It noted that theGeneva Conventions common Article 3, and the Inter-American Convention on Human RightsArticle 4, both protect the right to life, and prohibit arbitrary execution. When issues of the rightto life arise in combat situations, the issues should not be resolved by applying human rights lawalone. In addition, the Commission must necessarily look to and apply definitional standardsand relevant rules of humanitarian law as sources of authoritative guidance. 13 The same Commission in another case similarly declared thatthere is an integral linkage between the law of human rights and humanitarian law because they have a common nucleusof non-derogable rights and a common purpose of protecting human life and dignity.Accordingly, there may be a substantial overlap inthe application of these bodies of law. 14 Prof. Shaw of the University of Leicester describes this as the overlap between internal armedconflict principles and those of human rights law in situations where the level of domesticviolence has reached a degree of intensity and continuity. 15 The same Commission in 2002 issued precautionary measures, in effect upholding theAmerican Declaration of Human Rights with respect to the detention at Guantanamo Bay of  persons captured by the United States in Afghanistan. 16 Both the law of war and human rightslaws concurrently apply in cases concerning the treatment of prisoners, as well as thegovernment of occupied territory. Both fields of law apply, for example, to the situation thatensued after Iraqs illegal invasion of Kuwait. Consequently, in 1990-91, Kuwait and its allies,known as the coalition, resorted to force against Iraq. In international law, the coalitionsresort to force was lawful, but the coalition remained bound by the Third Geneva Convention, particularly the obligation not to target civilians, and to treat prisoners of war pursuant to therequirements of that Convention. 17 However, the two fields of international humanitarian law and international human rightslaw are distinguished from each other in the following ways: 18  The law of war is more specialized and more detailed. 12 Cyprus v. Turkey (First and Second Applications) , Report of the European Commission on Human Rights of 10 July 1976, paras. 509-10. 13 Report No. 55/97, Case 11.137 and OEA/Ser. L/V/II,98, paras. 153, 160-1. 14 Coard v USA , Case No. 10.951/123 ILR 156, 169. 15 Malcolm Shaw,  International Law 5 th ed. 1075. Cambridge University Press: Cambridge, UK, 2006. 16 41 ILM 532. The US response is found in 41 ILM 1015. 17 Christopher Greenwood, The Law of War (International Humanitarian Law) in M. Evans, ed.,  International  Law , 4d ed. Oxford University Press: New York, 2006. 18  Id. at 784.
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