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The Penal Responsibility And Sanctions For Violations Of International Humanitarian Law
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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 law. 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 victims. This is a good
illustration of the significant breakthrough 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 technology. 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 population.
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:
1. The right of the parties to the conflict to choose methods or means of warfare is not unlimited.
2. “It is prohibited to employ weapons and methods of warfare of a nature to cause superfluous injuryâ€
3. Civilians and civilian objects must not be the target of attack,
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.
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.
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 dead. 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.
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
conflict. 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
1996.
1.3 Research Questions
The study will seek to address the following questions:
1 What is IHL?
2 How is IHL implemented during times of peace?
3
Why does the lack of effective national legislation during times of
armed conflict have adverse consequences on the lives and dignity of the
participants and victims of an armed conflict, both during the
hostilities and once all hostilities have ceased?
4 What are States legally required to do under IHL to ensure the effective implementation of IHL?
5 Why is IHL one of the most important branches of Public International Law to implement on a national level
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