IHL and International Criminal Law: Week 1

What is IHL? ------------ It's part of International Law - Set of rules which limit the conduct and effect of armed conflict - Protects persons who are not (any longer) participating - Applies to armed conflicts (both IAC and NIAC) Paradox of IHL -------------- Blatantly disregarded whil...

What is IHL? ------------ It's part of International Law - Set of rules which limit the conduct and effect of armed conflict - Protects persons who are not (any longer) participating - Applies to armed conflicts (both IAC and NIAC) Paradox of IHL -------------- Blatantly disregarded while it is the most accepted body of International Law Some history ------------ Battle of SolferinoCrucial role in the creation of the INTL Committee of the Red Cross (ICRC) and Geneva Convention (1864) Swiss businessman Henry Dunant witnessed the aftermath of the Battle of Solferino in northern Italy. Seeing thousands of soldiers wounded with inadequate medical care deeply affected him. He published "A memory of Solferino" (1862) detailing the experience and proposing two revolutionary ideas: 1. Establishment of neutral aid societies in each country to care for the wounded in wartime. 2. An INTL agreement to protect wounded soldiers and medical personnel on the battlefield. In the following years the ICRC was formed (1863) and the first Geneva Convention was adopted (1864) Law of the Hague (1899) vs Law of Geneva (1907) Jus ad bellum vs jus in bello Addresses the legality of war vs Conduct during the war WW1 -- Industrialization -- Chemical warfare - Geneva Protocol (1925)direct response to the use of chemical weapons in WW1 -- prohibits the use of chemical and biological weapons in warfare - The scale and intensity of wartime captivity during WW1 led to a conceptual shift in the perception of prisoners (POWs)creation of a POW convention in 1929 - Public outrage over the use of chemical weaponsChemical Weapons Convention (CWC) entered into force in 1997 - WW1 influenced expansion and revision of existing treaties WW2 -- breakthrough - GCs 1949 and Aps 1977 How is IHL enforced? -------------------- - Rules of war taught to armed forces and general public - Prevent violations and punish them - Enact laws to punish war crimes Rules of ICRC ------------- Founded in 1863 to examine the proposals made by Henry Dunant -- principal of humanity - Declare army medical services neutral and give them a distinctive emblem - Form voluntary relief societies to act as auxiliaries to army medical services ICRC=Neutral, impartial and independent humanitarian organization formally mandated by states party to the GCs to ensure, among other activities, assistance to and protection of victims of armed conflict or other situations of violence. ICRC is the guardian of IHL Art. 5 GCs="to undertake the tasks upon it under the GC, to work for the faithful application of IHL and to take cognizance of complaints based on alleged breaches of that law" + "to work for the understanding and dissemination of knowledge of IHL and to prepare any development thereof" What does the ICRC do? ---------------------- Monitoring function -- constantly adapts IHL where necessary to reflect the reality of conflict Catalyst function -- stimulate discussion of problems Promotion function -- advocacy in favor of IHL -- disseminate + teach Guardian angel function -- defending IHL against legal developments that may counter it Direct action function -- contributing to the application of IHL Watchdog function -- raising the alarm bell when serious violations occur The history of ICL ------------------ WW2Nuremberg and Tokyo Tribunals Reasons: - Tyranny and disregard for human dignity - Overwhelming horrors Criticisms: - Victors' justice - *Nullum crimen sine lege* -- no crime without law - *Nullum poene sine lege* -- no punishment without law - Violation of state sovereignty - Use of death penalty - Lack of fair trial rights - Proceedings in absentia The present of ICL ------------------ International Law Commission -- Road to the Rome Statute Addressing conflicts worldwide with national and international criminal tribunals and courts The Hague = city of peace and justice Nuremberg, Tokyo, The Hague, Rwanda, Sierra Leone, Phnom Penh and back to The Hague (etc.) What is ICL? ------------ ICL is a subset of international law - Places criminal responsibility on individuals and punishes acts that are defined as crimes by international law - Those responsible for the most serious crimes of international concern - Punishes war crimesconnection to IHL Various courts around the world administer ICL and develop it - National, hybrid, international Alternative accountability mechanisms - IIIM, IIMM, UNITAD The main court of ICL is now the ICC = only permanent court in this field IHL --- **Purpose:** Regulates conduct of the parties to an armed conflict and the protection of categories of persons/civilians and civilian objects **Main INTL instruments:** GC (1949) and Aps (1977) ICL --- **Purpose:** Provides for individual criminal responsibility for serious crimes of international concern **Main INTL instruments:** Statute of ad-hoc and hybrid tribunals (1998) and the Rome Statute (2002) Human Rights ------------ **Purpose:** Provides for certain rights which accrue to individuals and groups vis-à-vis their government **Main INTL instruments:** ICCPR, ICESCR, CERD, CAT, CEDAW, CRC, CMW, CEED, CRPD