ARM CONFLICT IN 21ST CENTURY : THE RIGHTS OF VICTIMS AND LEVELS OF RESPONSIBILITY

In International Human Rights Law(IHRL), victims have been defined as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

Offences in contravention of the laws of war are considered criminal offences and therefore, those who have suffered as a result of any offences conducted in the course of an armed conflict as a direct result of or due to a tangential link with that armed conflict are to be considered as victims.

While this definition of victims adequately addresses the rights of civilians who have been unlawfully targeted, it doesn’t necessarily apply to many of the rights available to individuals hors de combat as they may or may not have been targeted unlawfully. It is perfectly possible for a soldier to be hit during the course of fighting, and be wounded legitimately, and he too is a victim of armed conflict.

This wider ambit and scope given to the term victim in International Humanitarian Law(IHL) is evinced by the spirit of the work of the Henry Dunant, who primarily worked towards serving those who have been rendered hors de combat by virtue of wounds sustained in conventional armed combat, without presupposing the violation of any laws as the cause of the infliction such injury upon them.

Thus, the term victim in the context of armed conflict includes both those who have been victimised unlawfully and those who have been rendered hors de combat.

The foundation stone and lynchpin of the law guaranteeing the rights of victims of armed conflict are the four Geneva Conventions of 1949. These were evolved and developed over the course of many years since the first Geneva Convention in 1864. The conventions are, in entirety are applicable to international-armed conflicts, while Article 3, which is common to all four, deals specifically with non- international armed conflicts.

When parties enter into hostilities, it is an invariable fact of conflict that certain members of the armed forces rendered hors de combat, or civilians, will fall into the hands of the opposite parties the law laid down under the Geneva convention is meant to provide adequate guarantees as to the protection of such individuals. The protection envisaged is, hence, is against the arbitrary usage of the absolute power that one party to the hostilities acquires by sheer force of arms and ammunition. It is not protection from the inherent violence of war itself.

Protection of this type was granted, for the first time in 1864, to ‘the wounded in armies in the field’. Since 1949 it extends to all categories of persons mentioned in the four Geneva Conventions of that year:-

a. The Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (the First or Red Cross Convention);

b. The Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (the Second or Sea Red Cross Convention);

c. The Convention (III) Relative to the Treatment of Prisoners of War (the Third or Prisoners of War Convention); and

d. The Convention (IV) Relative to the Protection of Civilian Persons in Time of War (the Fourth or Civilians Convention).

The First Three Geneva Conventions provide protection to both combatants and non-combatant civilians (in cases where they are recognised as prisoners of war). The classes of persons protected under these three conventions are the following:

a. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. b. ii. Members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organised resistance movements, fulfil the following conditions:

i. that of being commanded by a person responsible for his subordinates;

ii. that of having affixed distinctive sign recognised at a distance;

iii. that of carrying arms openly;

iv. that of conducting their operations in accordance with the laws and customs of war.

c. Members of regular armed forces who profess allegiance to a government or an authority not recognised by the Detaining Power.

d. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorisation from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

e. Members of crews, including masters, pilots and apprentices of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

f. Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

g. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies.

Some categories in the above mentioned list of protected persons are combatants and are therefore, doubtlessly extended all relevant protections of the Geneva Conventions. However, the list also includes such civilians, who have collaborated with the other armed force but did not take part in hostilities directly. When such civilians are held as prisoners, they receive the same rights as that of regular prisoners of war who are combatants.

Article 483 of the Fourth Convention is slightly different from the Article 4 found in the Third Convention, in the sense that it protects only categories of civilians and not combatants. Article 4 defines the protected persons as such individuals who are in the hands of a foreign state or any other hostile power, of which they are not citizens of members of, during the course of an armed conflict or as a result of it, at any given instance in time. The exceptions to this general principle are nationals of a neutral State on the territory of a party to the conflict and nationals of a co-belligerent, as long as they are nationals of a nation state which has some form of regular diplomatic presence in the belligerent country in whose hands such nationals of the said neutral country are in; and, all those who are protected by Conventions I-III.

Conspicuous by their absence in any of these provisions are combatants of rebel groups and non-state entities. Such a lacuna is vulnerable to being exploited by states against such individuals, however it is in situations such as these that International Human Rights Law(IHRL) comes into play and is applied. The fundamental principle on which lays the system of protection laid down by the Geneva Conventions is that persons who have been accorded protection under the Conventions shall be, in all possible circumstances, treated with respect and with humanity. No discrimination of an adverse nature impairing the rights of such persons should be made merely on the grounds of their religion, nationality, gender, political inclination, race, and so on. They must be respected at all time, that is to say that there is an obligation not to harm and not to expose the said individuals to any kind of suffering, not in the least murder or mutilation.

Furthermore, such individuals are to be protected. There is an active element inherent in this term and it involves a duty to ward off dangers and prevent any harm from being done. Most important is the element of humane treatment. All these persons must be dealt with under the overarching umbrella of a humane spirit. Hate and a vindictive attitude would be in contravention of the spirit of the laws of armed conflict in general and the Geneva Conventions in particular.

The provisions of Part II of the Fourth Geneva Convention cover “the whole of the populations of the countries in conflict’ without discrimination, and ‘are intended to alleviate the sufferings caused by war”. These provisions give specific protection and assistance to civilians and these extend generally.

Provision is made, first, for the establishment of two types of protective zone: ‘hospital and safety zones and localities’ and ‘neutralised zones’. Hospital and safety zones and localities are supposed extend protection to pregnant women, children under fifteen years and mothers of children aged under seven years of age, old, sick and infirm people along with the wounded so that they are insulated to some degree from the harmful effects and inherent dangers of war. The people covered here are categories of persons who are not expected to make a material contribution to the war effort. However, the establishment of such zones is qualified by the recognition given by the opposite party to the armed conflict. An express agreement must exist between the two sides with regard to this.

When the Fourth Convention was being drafted, it has been envisioned that these zones would be far away from the frontline and would be substantially large in area. However, there have been no practical instances of such zones having been established during the course of an armed conflict. When wars these days are increasingly being fought in built-up urban and semi-urban areas, it seems unlikely that the spirit of this provision can materialise to the fullest extent in the foreseeable future.

The neutralised zones of Article 15 are to be established in the areas of fighting or in the vicinity thereof and are designed to protect on the basis of a principle of non-discrimination; victims such as civilians who aren’t participants in hostilities and wounded and sick combatants hors de combatant. Here also, an agreement between the belligerents is required and the Article specifies that such agreements must be concluded in writing.

What follows is a broad appraisal of the rights vested in the various victims of armed conflict through the provisions of the Geneva Conventions.

The Geneva Convention for the Amelioration of the Condition of the Sounded and Sick in Armed Forces in the Field, adopted on August 12 1949, protects combatants who have been rendered hors de combat, or out of the battle. There were a total of 10 articles in the original 1864 version of this convention, but in the 1949 version, these have been expanded to include 64 articles that provide protection to the victims of armed conflict who were at some point active participants in the conflict. Additionally, the convention also protects those who are to care for the wounded and sick. That is to say:

a. Medical personnel,

b. Medical facilities,

c. Medical equipment.

In certain cases, civilian personnel also accompany armed forces to the combat zone. These civilians, in case they are wounded, are also provided adequate protection. Also covered are civilians who spontaneously take charge to repel an armed invasion and military chaplains. The convention recognises the International Committee Of The Red Cross’s(ICRC) role in assisting the wounded and sick. The Red Cross societies so registered in respective countries are authorised to provide relief of an impartial nature, the same power has also been given to other non-governmental organisations and neutral governments.

Thus there shall be no partiality in treating the wounded and sick and everybody shall be respected and protected irrespective of their race, gender, religion, and so on. They shall not be murdered, tortured or be subjected to biological experiments. All those who have been wounded or sick shall receive adequate care and shall be protected against pillage and ill-treatment, it is the duty of all state parties to search for and collect the wounded and sick after a battle to provide the necessary information about them to the Central Tracing and Protection agency of the International Committee Of The Red Cross (ICRC).

The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949. This convention adapts the protections of the earlier convention and applies it to naval combat and personnel. Its application extends to members of the armed forces who have been wounded, sick or are shipwrecked along with hospital ships and medical personnel onboard. Civilians who accompany members of the armed forces are also given protection under this convention.

This convention provides for parties in battle to take all necessary and possible measures to search for and collect and care for the wounded, sick and shipwrecked. Of particular interest is the provision for the medical staff of a hospital ship. A warship cannot capture the medical staff of such hospital ship but it can hold the wounded, sick and shipwrecked as Prisoners of War(POW) provided that they can be safely moved and that the warship has adequate facilities to care for the same.

Hospital ships cannot be used for any military purpose whatsoever. They have to remain immune from attack or capture and the names and descriptions of such ships must be conveyed to all parties in the conflict. An appeal can be made to neutral vessels such as merchant ships to help collect and care for the wounded, sick and shipwrecked. Those who agree to help cannot be captured so long as they remain neutral. All religious, medical and hospital personnel who are serving onboard combat ships are to be respected and protected. They are to be sent back if captured whenever such repatriation becomes possible.

Third Geneva convention has a total of 143 articles and requires Prisoners of War (POW) to be treated humanely and for them to receive adequate care in the form of food, medicine, clothing and hosing. The provisions also establish stringent guidelines for the conditions of labour, discipline, recreation and criminal trial. The most fundamental principle laid down by this convention is that under no circumstances must prisoners of war be subjected to torture, medical experimentation and must be protected against acts of violence, insults and public curiosity.

Upon capture, prisoners are required to only provide their name, rank and date of birth along with their military service number and no information can be involuntarily acquired from them. Special provisions have been made for female Prisoners of War(POW), as they are to be treated with due regard to their sex and without any adverse discrimination.

The convention goes on to add that all prisoners must be housed in clean and adequate shelter and should receive adequate food, clothing, medicine so that they can maintain good health. Further, they mustn’t be held captive in areas where hostilities are taking place and should not be used as human shields; they must not be exposed to fire as much as possible. If they are to do non-military jobs, these should be under reasonable working conditions and they should be paid adequately at a reasonable rate.

Rules regarding tracing are also considerably strong, with the convention requiring the names of prisoners to be sent immediately to the Central Tracing Agency of the ICRC and Prisoners of War(POW) being allowed to correspond with their families and receive any packages in the form of relief aid. However, should prisoners violate any laws. They are to be made subject to the laws of the captors and can be tried in a fair and impartial procedure where they are allowed to have an advocate.

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War has a total of 159 articles. It protects civilians in an occupied territory and in areas of armed conflict from murder, torture, brutality and from discrimination on the basis of race, nationality, religion, etc. All Civilian hospitals and civilian hospital staff are also included within the protective umbrella. The convention provides for specific care to children who have been orphaned or separated from their parents. The ICRC’s Tracing Agency is authorised to assist in family reunification with the assistance of national Red Cross Societies. Special protection is extended to the safety, honour, family tights and religious practices and customs of the civilian population. Acts such as wanton destruction of civilian property, taking civilian hostages, pillage, and reprisal violence are absolutely prohibited under the convention. Moreover, civilians cannot be collectively deported or punished. Furthermore, the civilians cannot be forced into doing any kind of military assisting labour designed to aid the war effort against their will.

The Fourth Geneva Convention has specific provisions for occupied territories and the rights of civilians in these areas, along with the corresponding obligations of the occupying forces. When the civilians are made to work, they are to be paid on a fair basis for whatever work has been assigned to them. The occupying power must also ensure that food and medical supplies are provided to civilians along with public health facilities. In case of a blockade, or a situation where a pocket of resistance is surrounded, the medical supplies and objects for religious worship should be allowed to pass through any cordon drawn around the area in question. However, in the event that this is not possible, the occupying power is to facilitate the relief shipments made by international and national humanitarian aid organisations when these are authorised by the parties to the conflict and are allowed to continue their relief activities.

Insofar as the administrative structure of the occupied territories is concerned, it is to be allowed to function unmolested. The public officials will be permitted to carry out their duties and the laws of the occupied territory will continue to be in force unless and until they pose a security threat to the occupying power or its forces on the ground. The only time civilians may be deported is when there is an imminent security threat or danger, otherwise they are generally not to be detailed or deported or sent to internment camps. In case they have been sent to an internment camp, the internees are to receive adequate food, clothing and medicines and are also to be located away from the war zone. They also have

the right to send and receive mail along with the receipt of relief shipments.

Most importantly, the rights of children and pregnant women are of paramount importance and take precedence when it comes to release from internment. Particular focus is given to mothers with infants and young children, along with the wounded and sick and those who have been interned for a long time.

As is the case in any system of laws conferring rights and obligations, the responsibility for breaches or violations has to be established. International law with regard to armed conflict has a layered the levels of responsibility when it comes to violations of the rights of victims of armed conflict. These layers or levels of responsibility can be classified under the following two heads:

a.    Collective or State Responsibility.

b.    Individual Responsibility.

Collective or State Responsibility

The acts of any armed force in the field, be it in a conventional or non- conventional conflict, are at the behest of a chain of command at the apex of which is political authority. The State constitutes the structure under which the chain of command is contained and political authority vests. The Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001 by the International Labour Law(ILC) shed some light on this. This codification of the rules of international law applies to all, except in matters where the conditions pertaining to the existence of an act that is internationally wrong and to such extent that it is wrong or the implementation of an international responsibility incumbent upon a State are governed by certain special rules under international law.

Beyond treaty obligations, the International Labour Law(ILC) Draft Articles state that any international wrongful act is constituted by the general breach of a state’s international obligations and that this entails the international responsibility of that state. A State is responsible for violations of the rights of the victims of armed conflict under international law when these violations are attributable to it such as in the following cases:-

a. When they are committed by such persons who have been delegated lawfully the authority to exercise the power of the apparatus of the State.

b. When committed by organs of the state, such as the armed forces.

c. When individuals or groups, upon being directed by another individual or institutions part of the state, act upon such instructions.

d. When perpetrated by state-acknowledged and state-authorised private individuals or groups and the state assumes responsibility of their conduct, as if it were its own conduct.

However, the question often posed is, would such responsibility also apply to the leadership of an organisation claiming to fight for national liberation? The answer is that it would be, hence the qualifier ‘collective’ instead of just using ‘state responsibility’.

Article 1(4) of Additional Protocol I123 recognises “wars of national liberation” as international armed conflicts, and Article 96(3)124 creates the possibility for the authority representing the people fighting such a war to address to the depositary a declaration holding the undertaking to apply the Conventions and the Protocol. This brings the Conventions and the Protocol into force for that party to the conflict “with immediate effect”, and renders these instruments “equally binding upon all Parties to the conflict”. As a result, the commencement of hostilities and the deposit of such declaration announcing the commencement of hostile activities of the nature of an armed conflict automatically and immediately bind the leadership of the people fighting a liberation war to become fully responsible for any violations of International Humanitarian Law(IHL).

All states and collective bodies and organisations are composed of individuals. Thus, the individual nature of the acts cannot be ignored at any cost. Many violations of International Human Rights Law(IHRL) and International Humanitarian Law (IHL) are considered criminal offences under the domestic laws of several nations. However, when additional conditions are met, these are also classified as crimes under international law and the individuals responsible are also brought under criminal liability. Such crimes may be prosecuted not only domestically but also internationally. International Tribunals may be established to try genocide, crimes against humanity, etc.

The International Criminal Court’s (ICC) 1998 Rome Statute under Article 25 provides that a crime committed within the jurisdiction of the court would, in accordance with the provision of the statute, be criminally liable for prosecution and punishment and then lists a series of criminal behaviour, such as committing the crime, ordering or instigating it. Furthermore, Article 25.3 (f) of the Statute provides that once an individual has ceased the attempt to perpetrate a crime and additionally or alternatively prevents the criminal act from being completed, then he will not be liable to be punished for the attempt to commit such crime, but this provision is only applicable when it has been established that there was a complete and voluntary act on part of such person to withdraw from the criminal intention behind the attempt. This helps the use of the threat of possible international prosecution to influence ongoing events.

Here are some of the most important principles in individual criminal responsibility:

a. Individuals are criminally responsible for the international crimes that they commit.

b. Individuals are criminally responsible and liable for punishment for an international crime if the material elements of the crime are committed with intent and knowledge.

c. Commanders and other superior officers are criminally responsible for international crimes committed pursuant to their direct orders under the principle of command responsibility.

d. Combatants have a duty to disobey an unlawful order.

International Law relating to armed conflict is frequently criticised, especially in the media, for being too routinely flouted in practical situations. This criticism might not be entirely unfair as Cicero had once famous remarked, “ilent enim leges inter arma,” (when arms speak, the laws are silent). However, there is a need to appreciate the nature of the rules before passing any premature judgment on this aspect.

The parties to the Geneva Conventions disallow themselves the liberty to alter their duties by common covenant in so far as any agreement would adversely affect the rights of those protected by the Conventions. The rules are therefore, of a stable and un-alterable nature. The stability of the rules in this context is at variance with the general ability of parties to vary their obligations under international law by mutual agreement. While the 1949 Geneva Conventions do reserve to parties the power to withdraw from them, that power is qualified by two limiting factors:-

a. If an armed conflict exists, the withdrawal from the conventions can not take place till a peace has been concluded. Furthermore, operations relating to the protected persons have to be completed.

b. The withdrawal has effect only in respect to the withdrawing state, and even in that case, the obligations imposed upon parties to the armed conflict by international law insofar as the general conduct of warfare in a manner that shuns the use of brutal and disproportionate force is concerned continue to remain obligations because they are the product of customary law as evolved through the course of many years by universally followed state practice and are in consonance with the public morality, conscience and the fundamental law of humanity.130

Under common Article I, the 188 parties131 undertake not only that they will respect the obligations themselves, but also that they will “ensure respect” for the obligations. These words are of considerable and undeniable significance.

In the event of a Power failing to fulfil its obligations, each of the other Contracting Parties (neutral, allied or enemy) should endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the States which are parties to it should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that it is respected universally.

The law applicable during a battle is independent and distinct from any rights or obligations that may arise in the act resorting to the use of force, so the justness or the legitimacy of the casus belli has no bearing on the rights and obligations imposed by the law of armed conflict. Accordingly, one party to a conflict cannot claim to be excused from the obligations imposed by this law on the basis that the other party is the aggressor or in some other respect has breached the prohibitions on the use of armed force that are found in the Charter of the United Nations. The rules are therefore autonomous and independent of the political justifications of the conflict, and applies regardless of which party claims moral ascendency.

Our Visitor

2048565

Related posts

Leave a Comment