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INTERNATIONAL HUMANITARIAN LAW ITS AUTHORITATIVENESS AND DEVELOPMENT Introduction: International humanitarian law is a new branch of international law which governs relations between members of the international community, namely states. In the early 1950s the International Committee of Red Cross (ICRC) first used the term to denote the law of Geneva Convention which previously had been considered simply a part of the law of war.1 The term Humanitarian Law was first proposed by Jean Pictet who is recognized as the father of the modern International Humanitarian Law. According to him, “Humanitarian is that considerable portion of international law which is inspired by a feeling for humanity and is centred on the protection of the individual in time of war”2. According to him, the term Humanitarian Law appears to combine two ideas of different character, the one legal, the other moral. International Humanitarian Law also called the law of armed conflict and previously known as the law of work – is a special branch of law governing situations of armed conflict – in a word, war. International Humanitarian Law seeks to mitigate the effects of war, first in that in limits the choice of means and methods of conducting military operations, and secondly in that it obliges the belligerents to spare persons who do not or not longer participate in hostile actions.3 Humanitarian intervention promotes respect for human rights in two ways. first, instances of conflict, it provides on enforcement mechanism for rights that are common to human richest law and humanitarian law second, humanitarian intervention is an expression of international sentiment adjacent the action of given regime. Humanitarian Law instruments are specially designed for armed conflict situations. Their aim is• To secure the rights of personal liberty • To prevent inhumane treatment of civilians, injured soldiers and prisoners of war. Prisoners of war are better protected under humanitarian law because humanitarian law is directly binding on the actors in conflict. The Charter of the United Nations prohibits war; it even prohibits the threat to use force against the territorial integrity of political independence of any State 4. States are to settle their differences in all circumstances by peaceful means. A State which attempts to use force against another State to achieve its ends contravenes international law and commits an aggressive act, even when it is apparently in the right. The UN Charter does not, however, impair the right of a State to resort to force in the exercise of its right to self-defiance. 5 The same holds true for third- party States who come to the aid of the State being attacked (right of collective self-defense). Finally, the United Nations may order military or non-military action to restore peace. 6 1

2

Principles of International Humanitarian Law An Oriental Perspective, A.B.M. Mafizul Islam Patwari.

Jean Pictat, Development and Principle of International Humanitarial Law (Dordrecht: Martinus Nijoff publishers, 1985),1 3 Hans-Peter Gasser- Doctor of Laws. Legal Adviser, ICRC. 4 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any state, or ain any other manner inconsistent with the Purposes of the United Nations. Charter of the United Nations, Article 2, para. 4. 5 Charter, Article 51. 6 Charter, Chapter Vill, in paricular Articles 41 and 42.


History of Humanitarian Law: From the very beginning of life human beings opposed each other ‘War is as old as life on the earth War is a rot to humanity and involves most brutal and arbitrary violence. In all ages, men have suffered under the sword and the yoke. Even so, some norms of rules were developed in the hoary past for the purpose of limiting the consequences of war. It is hardly possible to find documentary evidence of when and where the first legal rules of a humanitarian nature emerged and it would be even more difficult to name the “ creator” of international humanitarian law. For everywhere that confrontation between tribes, clans, the followers of a leader of other forerunners of the State did not result in a fight to the finish, rules arose (often quite unawares) for the purpose of limiting the effects of the violence. Such rules, the precursors of present –day international humanitarian law, are to be found in all cultures In short, powerful lords and religious figures, wise men and warlords from all continents have since time immemorial attempted to limit the consequences of war by means of generally binding rules. The achievements of 19th century Europe must be viewed against this rich historical background. Today’s universal and for the most part written international humanitarian law can be traced directly back to two persons. both of whom were marked by a traumatic experience of war. Henry Dunant and Francis Lieber. Dunant and Lieber both built on an idea put forward by Jean-Jacques Rousseau in The Social Contract, which appeared in 1762: “War is in no was a relationship of man with man but a relationship between States, in which individuals are only enemies by accident, not as men, but as soldiers ....” Rousseau continued, logically, that soldiers may only be fought as long as they themselves are fighting. Once they lay down their weapons “they again become mere men”. Their lives must be spared.7 The intellectual foundation for the rebirth of international humanitarian law in the 19 th century was therefore laid. Henry Dunant could build on it. In his book, A Memory of Solferino, he did not dwell so much on the fact that wounded soldiers were mistreated or defenseless people killed. He was deeply shocked by the absence of any form of help for the wounded and dying. He therefore proposed two practical measures calling for direct action: an international agreement on the neutralization of medical personnel in the field , and the creation of a permanent organization for practical assistance to the war wounded. The first led to the adoption in 1864 of the initial Geneva Convention; the second saw the founding of the Red Cross. 8 Only the first is on interest to us in the present context. Customary Laws and International Humanitarian Law: In course of time, the practices to spare the lives of captured enemies, treat them well, spare the enemy civilian population, protect the prisoners of war and exchange them without ransom, and treat the sick and wounded soldiers gradually developed into a body of customary rules relating to the conduct of war which may be summed up as follows: 1. Hospitals shall be immunized and be marked by special flags, with identifying colours for each army. 7

Jean-Jacuees Rousseau, A Treatise on the Social Contract, Book, 1, Chap. IV. On the history of humanitarian law see Best and Pictet (footnote 2); Picrre Boissier, History of the International Committee of the Red Cross: from solfenno to Tsushimo, Geneva, 1985; Andre Durand, History of the international committee of the Red Cross: from Sarajevo to Hiroshima, Geneva, 1984. 8


2. 3. 4. 5.

The wounded and sick shall not be regarded as prisoners of war, they shall be cared for like the soldiers of the army which captured them and sent home after they are cured. Doctors and their assistants and chaplains shall not be taken as captives and shall be returned to their own side. The lives of prisoners of war shall be protected and they shall be exchanged without ransom. The peaceful civilian population shall not be molested.

The customary law of war was reflected in the work of Professor Francis Lieber, an international layer of German origin, who had migrated to America. In April 1863, the prepared Instructions for the Government of Armies in the Field, popularly known as the Lieber Code, to be followed by the American Army during the civil War (1861-1865). The Lieber Code contains detailed rules relating to the conduct of war proper, protection of the civilian population, decent treatment of specified categories of persons such as the prisoners of war, wounded, doctors, nurses, and chaplains and protection of hospitals. Based on the Lieber Code,, President Licoin promulgated “Army Order No. 100” entitled “Instructions for the Armies of the United States in the Field.” Although Lieber Code was a national document prepared keeping in mind the American Civil War, it was used as the basis for the first attempted codification of the customary law of warfare at the Brussels Conference of 1874. The Conference failed to adopt a treaty in this regard, but it adopted a declaration which is very similar to The hague Conventions of 1899 and 1907. In fact, the Lieber Code served as the principal basis for the codification of the laws and customs of war. and provided for the basis of the development of the Hague Conventions of 1899 and 1907 which in turn exerted tremendous influence of subsequent developments. Thus Professor Francis Laeber made significant contributions to the concept and contents of contemporary international humanitarian law Development of Geneva Convention: The development of Generva Convention can be divided into four phases:9 # The first phase being the period between the battle of solfarino and the adoption of 1864 convention (1859-1864). # The record covering the development prior to the terst World war (1865-1914) # While the third concerning the period of Fist World War and post first world war (1915 – 1938) # And finally the fourth phase dealing with development during and after the second world war (1939 – 1977) The First Phase: In June 1849, Henry Dunant, a swiss national, visited the plain of solferino, in Lombardy, where the French and the Sardinean troops had just a victory over the Austrians. Dunnant was so horrified by the sight of the uncountable wounded soldiers abandoned on the battle field that he was moved to develop the better part of his life. His book “Amemory of solferino” Which was published in 1862 profoundly touched the public opinion of Switzerland and in many countries. Following the publication of Dunani’s book. Gustave Moynier, President of the Geneva welfare society, set up a body of five people including him. The other members were – 1) Generall Dufour. 9

Articles Written by Dr. Borhan Uddin Khan.


2) 3) 4)

Dr. Maunoir Dr. Appia and Henry Dunant. At it’s first meeting on 17 February 1863, the five member body decided to continue it’s work as a permanent international committee under the name of “International Committee to bring Relief to the Wounded”. The First Geneva convention was signed on 22 August, 1864 by the representatives of 12 states. The objects of the Geneva conference of 1863 were satisfied almost on every point as the 1864 convention was adopted in the line of the conference theme. The 1864 convention contained only 10 articles but they constituted a foundation which has never been shaken. These articles covered the essential elements: military ambulances and hospitals were recognized as neutral and had to be protected. Thus two years after the publication of ‘A memory of solferino’ the international institution was set up to help the wounded . The measures adopted, taken with the most commendable resolution. Were to serve as a mater for later red cross achievements The Second Phase: The international committee’s aim, after the success of the diplomatic conference of 1864, was not only to urge the creation of Relief societies. but to promote kinship aid solidarity among them. A diplomatic conference met in 1868 for the revision of the convention and produced additional articles which were never ratified. The first revision of the 1864 Geneva convention was made in 1906, when the member of articles was increased to 33 their contents being of 1864 was, in truth only meant to protect wounded soldiers during the war on land. International humanitarian law was evolving rapidly in Europe In 1899 and later in 1907, at the Hague the powers elaborated in a series of conventions the regulations concerning the laws and customs of war. The Third Phase : The first world war began fifty years later after the adoption of the 1864 Geneva convention Thus, the real test of the ICRC came with the outbreak of the First world war. At that time, the treatment of prisoners of war was governed not by the Geneva convention but by the regulations annexed to the Hague convention of 1907. In 1929, a new convention was added to the law of Geneva. The title of 1929 convention was not an exact reproduction either of the original convention of 1864 or of the 1906 convention of whi8ch it purported to be a revision. The Fourth Phase: Before the Second World war, the protection afforded by the Geneva convention was only to the wounded and sick in armed forces on land and to the prisoners of war Historically. the 1949 Geneva conventions steam directly from the first Geneva convention of 1864. The earlier conventions which were adopted at different times were brought up to date and harmonized by the 1949 conventions. Sources of International Humanitarian Law:


The four Geneva Conventions of 12 August 1949 for the protection of the victims of war are the main sources of international humanitarian law :  Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Conventions);  Convention for the Amelioration of the condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention);  Convention relative to the Treatment of Prisoners of War (Third Geneva Convention); The Geneva Conventions have been supplemented with the two Additional Protocols of 8 June 1977:  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I);  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (protocol II). The rules of international customary law also play an important role. Some of them set forth absolute obligations which are binding on all States (jus cogens). Although the 1977 Protocols have not yet been universally adopted, we consider them as part of international humanitarian law for the purposes of our presentation. Who is bound by the Geneva Conventions? Only States may become party to international treaties, and thus to the Geneva Conventions and their Additional Protocols. However, all parties to an armed conflict whether States or non-State actors are bound by international humanitarian law. At the end of 2003, almost all the world’s States-191. to the precise- were party to the Geneva Conventions. The fact that the treaties are among those accepted by the greatest number of countries testifies to their universality. In the case of the Additional Protocols, 161 States were party to Protocol I and 156 to Protocol II by the same date. Multilateral treaties between States, such as the Geneva Conventions and their Additional Protocols require two separate procedures: a)

Signature followed by ratification: While signature does not bind a State, it does oblige the State to behave in a way which does not render the substance of the treaty meaningless when the State subsequently ratifies and solemnly undertakes to respect the treaty. b) Accession: This is the act whereby a State which did not sign the text of a treaty when it was adopted consents to be bound by it. Accession has the same implications as ratification. A newly independent State may, by means of a declaration of succession, express the desire to remain bound by a treaty which applied to its territory prior to independence. It may also make a declaration of provisional application of the treaties while examining them prior to accession or succession.


Within the context of those procedures and under certain conditions, a State may make reservations in order to exclude or modify the legal effect of certain provisions of the treaty. The main condition is that such reservations do not run counter to essential substantive elements of the treaty. Lastly, national liberation movements covered by Article 1, paragraph 4, of Protocol I may undertake to apply the Conventions and the Protocol by following the special procedure set down in Article 96, paragraph 3, of Protocol I. Whose duty is it to spread knowledge of the Conventions and Protocols? States have a legal obligation to spread knowledge of the Conventions and Protocols: The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entie population, in particular to the armed fighting forces, the medical personnel and the chaplains.10 The High Contracting Parties undertake, in time of peace as in time of armed conflict to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular. to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed fores and to the civilian population.11 This Protocol shall be disseminated as widely as possible. (Art. 19, Protocol II) Under the Statutes of the International Red Cross and Red Crescent Movement, it is the task of the ICRC to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armd conflicts and to prepare any development thereof (Art 5, para. 2g) maintain close contact with National Societies. in matters of common concern, such as their preparation for action in times of armed conflict, respect for and development and ratification of the Geneva Conventions, and the dissemination of the Fundamental principles and international humanitarian law. (Art. 5, Para. 4a.) International Implementation of International Humanitarian Law 1. The Establishment of International Fact-Finding Commission. 2. Enquiry Procedure under the Geneva Conventions. 3. Role of International Criminal Tribunals to Implemnt International Humanitarian Law. a) The Hague Tribunal b) The Arusha Tribunal c) International Criminal Tribunals and Obligations of States d) The International Criminal Tribunals and the ICRC. 4. 5.

10 11

The Establishment of International Criminal Court and its Role in Implementing Humanitarian Law. a) The International Criminal Court and the ICRC. Meeting of the High Contracting Parties to Consider General Problems Concerning the Application of the Conventions and of the Protocol

Arts. 47, 48, 127 and 144 of, respectively, GC I, II, III & IV. Art. 83, Protocol I.


6. 7. 8. 9. 10. 11. 1. •

The Obligation of States to Transmit Official Translations, Laws and Implementing Regulations. Mutual Assistance of States in Criminal Matters. Systems for Reporting on the Application of Certain Conventions. Information transmitted within International Organizations. a) United Nations b) Regional Organizations. Cooperation with the United Nations. Measures to Exert Diplomatic Pressure. The Establishment of International Fact-Finding Commission In an effort to seeure the guarantees accorded to the victims of armed conflict, Article 90 of the Protocol I additional to the Geneva Conventions of 1949 (Protocol I) provides for the establishment of an International Fact-Finding Commission. The Commission was officially constituted in 1991 and is a permanent body whose primary purpose is to investigate allegations of grave breaches and other serious violations of international humanitarian law. As such, the Commission is an important means of ensuring that international humanitarian law is both applied and implemented during armed conflict. By recognizing the Commission’s competence, on a permanent or ad hoc basis, a State contributes significantly to the implementation of international humanitarian law and to essuring compliance with it during armed conflict. By depositing a declaration of recognition, a State therefore takes an important step in securing the fundamental guarantees laid down for the victims of armed conflict.

The Commission is composed of fifteen members of high moral standing and acknowledged impartiality, elected for five years by the parties who have declared that they accept its competence. 2.

Enquiry Procedure under the Geneva Conventions: • Articles 52, 53, 132 and 149 of the four Geneva Conventions respectively provide identical on enquiry procedure in the event of violation of the Conventions. They read as follows: • • •

3.

At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention. If agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide on the procedure to be followed. Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.

Role of International Criminal Tribunals to Implement International Humanitarian Law The United Nations Security Council, acting under Chapter VII of the United Nations Chapter, has established two international criminal tribunals. These tribunals are “ad hoc” – they


have been set up to punish crimes committed in relation to two specific contexts: the former Yugoslavia and Rwanda. a) •

The Hague Tribunal: The International Criminal Tribunal for the former Yugoslavia, based in the Hague (Netherlands), was established in February 1993 by Security Council Resolution 808. Its jurisdiction is limited to acts committed in the former Yugoslavia since 191 and covers four categories of crimes: i) Gravebreaches of the Geneva Conventions of 1949; ii) Violation of the laws and customs of war; iii) Genocide; and iv) Crimes against humanity. These crimes are defined in the Tribunal’s Statute. b) •

The Arusha Tribunal The International Criminal Tribunal for Rwanda, based in Arusha (Trnzania), was established in November 1994 by Security Council Resolution 955. Its jurisdiction in Limited to acts committed in Rwanda, or by Rwandan nationals in neighboring States, during 1994. It covers three categories of crimes as defined in the Tribunal’s Statute: i) ii) iii)

C. •

D. •

4.

Genocide; Crimes against humanity; and Violations of common Article 3 of the 1949 Conventions and Additional Protocol II (these set out rules applicable to non-international armed conflicts).

International Criminal Tribunals and Obligations of States States have clear obligations to cooperate with the Hague and Arusha Tribunals, this includes where necessary, the enactment of legislation to ensure the collection of evidence and the arrest and transfer of those accused of crimes within the Tribunal’s jurisdiction. In addition, States are themselves obliged to bring persons accused of grave breaches of the principal humanitarian law treaties, the 1949 Geneva Conventions and 1977 Additional Protocol I for trial before their own national courts or to extradite them for trial elsewhere. There is still a clear obligation on States to bring to justice those accoused of grave breaches and national courts will continue to have an important role in the prosecution of war crimes. The International Criminal Tribunals and the ICRC: The International Committee of the Red Cross supports all efforts to promote respect for international humanitarian law and, in particular to punish war crimes. In this connection, it has strongly welcomed the establishment of the Hague and Arusha Tribunals. The Establishment of International Criminal Court and its Role in Implementing Humanitarian Law:


a) •

The United Nations has considered the idea of establishing a permanent international criminal court at various times ever since the end of the Second world War. A serice of negotiations to establish a permanent International Criminal Court that would have jurisdiction over serious international crimes regardless of where they were committed started up in 1994 and led to the adoption of the Status of he International Criminal Court (ICC) in July 1998 in Rome. Under Article 8 of the Statute, the ICC has jurisdiction in respect of war crimes. These include most of the serious violations of international humanitarian law mentioned in the 1949 Geneva Conventions and their 1977 Additional Protocols, whether committed during international or non-international armed conflicts. Under the 1949 Geneva Conventions and 1977 Additional Protocol I, States must prosecute persons accused of war crimes before their own national courst or extradite them for trial elsewhere. Nothing in the ICC statute releases States from their obligations under existing instruments of international humanitarian law or under customary international law. By virtue of the Principle of complementarities, the jurisdiction of the ICC is intended to come into play only if a state is genuinely unable or unwilling to prosecute alleged war criminals over which it has jurisdiction. To benefit from this principle, States will need to have adequate legislation enabling them to prosecute such criminals. The International Criminal Court and The ICRC The International Committee of the Red Cross supports all efforts to promete spect for international humanitarian law and, in particular to punish war crimes. In this connection, it has strongly welcomed the establishment of the International Criminal Court.

Meeting of the High Contracting Parties to Consider General Problems Concerning the Application of the Conventions and of the Protocol • “The depositary of this Protocol shall convene a meeting of the High Contracting Parties, at the request of one or more of the said parties and upon the approval of the majority of the said Parties, to coasider general problems concerning the application of the Conventions and of the Protocol”. (Art. 7, Protocol I). 5.

The Obligation of States to Transmit Official Translations, Laws and Implementing Regulations. The 1949 Geneva Conventions and their 1977 Additional Protocol I, which are part of the core of IHL, provide for the exchange of information between States parties on national measures to implement their provisions. •

According to the terms of Articles 48, 49, 128 and 145, which are common to the Geneva Conventions, and of Article 84 of Protocol I, the States parties must communicate to one another the official translations of the treaties in question and any laws and regulations they have adopted to ensure implementation. These translations are to be communicated in peacetime through the Swiss Government, which is the depositary of the Geneva Conventions and their Protocols, and in wartime through the Protecting Powers.


7.

Other treaties make provision for a similar system for exchanging information. The 1993 Convention on the Prohibition of the Development, Production Stockpiling and Use of Chemical Weapons and on their verfication procedures, also requires the States parties to inform the Organization for the Prohibition of Chemical Weapons of the Legislative and administrative measures taken to implement its provisions. (Art. 7, para. 5). Likewise, the 1999 Second protocol to the Convention for the protection of Cultural Property in the Event of Armed Conflict requires the parties to communicate without dely information to one another, through the Director-General of UNESCO, on the laws and administrative provisions they adopt to ensure that the Protocol is applied. (Art. 30,para. 3.) Mutual Assistance of States in Criminal Matters

“ The High Contracting Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of grave breaches of the Conventions or of this Protocol (…). When circumstances permit, the High Contracting Parties shall cooperate in the matter of extradition (…). (Art. 88, Protocol I)

8.

System for Reporting on the Application of Certain Conventions.

The exchange of information is the purpose of the reporting systems for which provision is made in some instruments of IHL. These documents, which are presented periodically, generally contain analysed data and often cover fields other than the adoption of legislative and administrative measures. •

According to Article 26, paragraph 2, of the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict, for example, the States parties must submit a report to the Director-General of UNESCO at least once every four years providing any information they deem appropriate on the measures which their respective administrations have taken or prepared or are envisaging in the implementation of the convention and the Regulations for its execution.

Article 7 of the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction requires the States parties to submit an annual report to the Secretary-General of the United Nations informing him in particular of national implementation measures, the stockpiles of antipersonnel mines, the location of mined areas, the quantities of anti-personnel mines retained for training purposes, the destruction of anti-personnel mines, and the measures taken to warm civilians and pervent them from entering mined zones.

Finally, Article 8 of the Optional Protocol to the Convention on t he Rights of the child on the involvement of Children in armed conflict, of 25 May 2000, stipulates that each State party must, within two years following the entry into force of the Protocol for the State, submit a report to the Committee on the Rights of the Child providing information on the measures it has taken to implement the provisions of the protocol, including those on the recruitment of children and their participation in hostilities.


Further information on the implementation of the Optional Protocol is included in the subsequent reports the State party submits to Committee on the Rights of the Child (Art. 44 of the Convention). 9.

Information Transmitted within International Organizations:

a)

United Nations

Since the adoption of the Additional Protocols in 1977, the General Assembly has regularly requested the Secretary General to report to it on the status of these instruments. Initially, that report concerned only the signing and ratification of the two Additional Protocols, but its content has gradually been extended in accordance with the biennial resolutions on which it is based. It now includes an increasing amount of detailed information, which the Member States and the ICRC present on a voluntary basis. Furthermore, this information now covers the measures taken by the States towards the implementation of IHL as a whole.

b)

Regional Organizations

Regional organizations also provide a framework within which information on national measures to implement IHL can be exchanged.

Pursuant to the resolutions adopted each year by the General Assembly of the Organization of American States, for example, numerous reports have been drawn up on the subject within that Organization since 2998, either by the Secretary - General, the Permanent Council or the Member States, or by the ICRC.

Similarly, an office for monitoring the IHL was set up within the legal department of the Legague of Arab States in 2001. The tasks of that office include collecting information and drawing up an annual report.

10.

Cooperation with the United Nations

“In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Carter”. (Art. 89, Protocol I).

11.

Measures to Exert Diplomatic Pressure

In order to secure compliance with International Humanitarian Law the following diplomatic pressure may be exerted. •

Vigorous and continuous protests lodged by as many Parties as possible with the ambassadors representing the State in question in their respective countries and, conversely, by the representatives of those Parties accredited to the government of the aforementioned State.


Public denunciation, by one or more Parties and / or by a particularly influential regional organization, of the violation of international humanitarian law.

One example would be the statement made by the United States to the Security Council on 20 December 1990 councerning the deportation of Palestinian civilians from the occupied territories: “We believe that such deportations are a violation of the Fourth Geneva Conventions… We strongly urge the Government of Israel to immediately and permanently cease deportations, and to comply fully with the Fourth Geneva Convention in all of the territories it has occupied since June 5, 1967” (S/PV. 2970, Part II, 2 January 1991, pp. 52-53). Similarly, resolution 5038/ES, of the Council of the League of Arab States, at its extraordinary session (Cairo, 30-31 August 1990), condemned, in its paragraph I, “… the violation by Iraqi authorities of the provisions of international humanitarian law relative to the treatment of civilians in the Kuwaiti territory under Iraqi occupation”. •

Diplomatic pressure on the author of the violation, through intermediaries.

For instance, the steps that were taken by Switzerland to persuade the USSR, China and France to exert pressure upon the Arab States in the Zerka affair of 1970 when three civilian planes were hijacked by Palestinian movements. 12 The Role of the Media Media can play and important role for the implementation of the international humanitarian law. Though the Media have no legal function in international humanitarian law. Undeniably, however, they influence its implementation by showing an image of the conflicting Parties forwards which those Parties are generally far from indifferent, and that depends largely on the way in which those Parties apply humanitarian law. Implementation of international humanitarian Law in National Level: Each country has different needs and priorities for the implementation of international law. The same holds true, of course, for experts working in this field at international level. When it comes to humanitarian law, one traditional school of though considers penal sanctios, legal provisions against the misuse of the protective emblems and administrative regulations to be important. The required measures should include the following: A.

National legislation

Laws and regulations should provide for the application of the Geneva Conventions (I, 48; II, 49; III, 128; IV, 145) and Additional Protocol I AP 1, 84)

National legislation must be enacted to provide for appropriate penal sanctions of grave breaches of international humanitarian law (I, 49-50; II), 50-51; III, 129-130; IV, 146-147; AP I, 85-91).

12

Articles Written By Dr. Borhan Uddin Khan.


Legislative measures are required to prevent and suppress, at all times, misuse of the protective emblems (I, 53-54;II, 43-45).

B.

Organizational measures in peacetime:

National Red Cross and Red Crescent Societies and other voluntary aid societies must be duly recognized and authorized by their government (I, 26).

Medical establishments and units shall, as far as possible, be situated in such a manner that attacks against military objectives cannot imperil their safety (I, 19).

Medical establishments, units, transports and perennial shall be marked by the distinctive emblem of the red cross or red crescent (I, 38-44; II, 41-45; IV, 18).

Optional light, radio and electronic signals should be provided to mark medical establishments, units and transports more effectively (AP I, Annex I, Articles 5-8).

In the study, development, acquisition or adoption of a new weapon, means or method of warfare, it must be determined whether its use would, in some or all circumstances, be prohibited by international law (AP I, 36).

To the maximum extent feasible, military objectives shall not be located within or near densely populated areas (AP I, 58).

A civil defence organization should be set up for exclusively humanitarian tasks: to protect the civilian population against the dangers and to help it to recover from the immediate effects of hostilities or disasters, and to provide the conditions necessary for its survival (IV, 63; AP I, 61-67).

National information bureaux for prisoners of war and civilians (III, 122-124; IV, 136-141), and tracing services for missing persons and children (AP I, 33-78) shall be organized.

Preparation shall be made for the notification of hospital ships (II, 22).

Steps shall be taken to safeguard cultural property (1954 Hague Convention, 3).

Legal advisers for military leaders shall be employed and trained (AP I, 82).

C.

Organizational measures to be taken in the event of armed conflict:

Special agreements should be considered for all matters concerning which it may be deemed suitable to make separate provision (I, 6; II, 6; III, 6; IV, y).

Protecting Powers or substitutes should be appointed (I, 8, 10; II, 8, 10; III, 8, 10; IV, 9, 11; AP K, 5).


The activities of the International Committee of the Red Cross must be facilitated and supported (I, 9; II, 9; III, 9; IV, 10; AP I, 81).

The possibilities and procedures for international fact-finding should be encouraged and supported (I, 52; II, 53; III, 132; IV, 149; AP I, 90).

The use of good offices for the settlement of disputes should be accepted and supported (I, 11; II, 11; III, 11; IV, 12).

Hospital zones and localities shall be established for the wounded and sick (I, 23 and Annex I).

Hospital and safety zones and localities shall be established for the civilian population (IV, 14 and Annex I).

Prisoners of war shall be protected, and procedures shall be enacted for a competent tribunal to determine the status of persons who have fallen into enemy hands (III, 5 para, 2; AP I, 45 para. 2).

D.

Dissemination and educational measures:

Dissemination activities shall be developed at various levels for the military forces and the civilian population (I, 47; II, 48; III, 127; IV, 144; AP I, 83, AP II, 19).

Qualified personnel shall be trained to facilitate the implementation of the Geneva Conventions and the Additional Protocols (AP I, 6), the 1954 Hague Convention on the protection of cultural property and the Regulations for its execution (1954 Hague Convention, 25-27).

Bangladesh Perspective: It was one of the important incidents rising Bangladesh as an independent state in 1971 in this sub-continent after terminating the British colonialism. Bangladesh did not gain its independence peacefully rather than historic work. So it is clear to say that international humanitarian law was deeply involved with the liberation war of Bangladesh. It is generally recognized that every state has a responsibility to implement and execute the provisions of international humanitarian law. Common Article –1 of four Geneva Convention of 1949 and AP –1977 (Art. 1 Chapter-1) provide that the high contracting parties undertake to respect and to ensure respect for the present convention in all circumstances. So, Government is principally responsible for the implementation of the international humanitarian law. Ratification of the conventions by Bangladesh: Bangladesh ratified the four Geneva Convention of 1949 as a 132 states party and declared itself bound to abide by those convention what is ratified by Pakistan. On 21 November in 1971 the


Security Council of UN invited all the contracting states to take all necessary measures for the protection of human life and to abide by convention of 1949 and also to protect the wounded, sick and prisoners of war and civilian population. Bangladesh did not have any objection to fulfil such kinds of duties. Bangladesh also ratified the Additional Protocol of 1977. Bangladesh further ratified the following conventions: 1.

The Biological weapons convention, 1972.

2.

The Environmental Modification Convention, 1976.

3.

The Conventional Weapons Convention, 1980.

4.

The Chemical Weapons Conventions, 1993.

5.

The Ottawa Anti Personnel Land Mines Convention, 1972.

6.

Optional Protocol of the Convention on the Rights of the Child, 2000.

But Bangladesh has yet not ratified the Hague Convention on the Protection of cultural property, 1954 and the Protocol thereof. The Impact of international humanitarian law on the National Legislation: After independence Bangladesh adopted its new constitution on 4th November 1972 and it came to enforce in the same year. The question of human rights was the vital point in the time of liberation war. The proclamation of independence on 10th April, 1971 declared the importance of human rights and fundamental freedoms. The Proclamation of Independence provides that We further resolve that we undertake to observe and effect to all duties and obligation that devolve upon us as a member of the family of nations and to abide by the Charter of the United Nations. Duties of Bangladesh: To implement the international humanitarian law, the duties of Bangladesh are followings: 1.

To enact national law for the prevention of the violation of international law: International Humanitarian Law states the principle of personal penal responsibility. If any act committed by any person punishable under the national law then the state can take penal sanction against that person. Bangladesh is responsible to take criminal proceeding against the person who commits gross violation of international humanitarian law. In this case nationality or place of occurrence shall not came under consideration. As a state party of the convention Bangladesh has duties to enact some laws with penal sanctions to prevent the violation of international humanitarian law. But, still Bangladesh did not enact any specific law for this purpose.


2.

Communication of the translation of the convention and protocols and laws of application: Bangladesh has the duty to translate the conventions and protocols for the application as a member state to the states which are engaging into the conflict so that they can be applied by their populations and be disseminated.

3.

To protect the emblems of Red Cross and Red Crescent: Bangladesh should have to enact legislation to prevent and suppress at all times misuse of the protective emblems.

4.

Dissemination of the conventions and Protocols : Bangladesh has an obligation to undertake in time of peace as in time of war to disseminate the text of the present convention as early as possible.

5.

To take necessary measures for the implementation of International Humanitarian Law: There are some provisions to prevent the protected person and property in the present convention. For example:

6.

•

Medical establishment shall be situated in such a manner that attacks against a military objectives can not imperil their safety (Convention I, 19).

•

Optional light, radio and electric signal should be provided to make medical establishment units and transport more effectively (Ap-I, Annex-1 Art. 5-8).

•

Steps shall be taken to safeguard cultural property (1954, Hague Con.).

Recognition of the International Fact-Finding Commission :

Some mechanism to implement the international procedures in time of war, the recognition of International Fact Finding Commission is one of them. Which depends on the expressed declaration of the member state concerned. Bangladesh has not yet proclaimed such Declaration. There are some articles related to the International Humanitarian Law in the constitution of Bangladesh. They arei)

Preamble Provides:


“It shall be a fundamental aim of the state to realise through the democratic process a socialis society, free from exploitation-a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens”. ii)

Article 11 Provides:

“The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed”. iii)

Article 25 Provides:

“The State shall base its international relations on the principles of respect for national sovereignty and equality, non-interference in the internal affairs of other countries, peaceful settlement of international disputes, and respect for international law and the principles enunciated in the United Nations Charter”. iv)

Article 145A Provides:

“All treaties with foreign countries shall be submitted to the President, who shall cause them to be laid before parliament”. *

The reflection of International Humanitarian Law with the other national laws:

The first step in Bangladesh to implement the Geneva Convention is the Geneva Convention Implementing Act. 1936. The main aim in this Act is to implement the Article 28 of 1929 Convention. This article deal with the protection of Red Cross and Red-Crescent emblem. Another Act is Bangladesh Red Crescent Society Order, 1973. Article 5 of this Order and schedule 1 deals with the aim and objects of the Red-Crescent Society. Such as♦

To maintain the provisions of Geneva Convention and to help the wounded and sick persons in time war.

To reduce the sufferings for all in neutrally as to race, colour, sex, religion belief, political status etc.

International crimes (Tribunal) Act, 1973 also deals with the International Humanitarian Law. Conclusion : International Humanitarian Law is no longer the vanishing point of jurisprudence; on the contrary, it is burgeoning as viable system of justice gaining a voice and a will, with its sanction resting with activities humanity. Frequent violations of humanitarian law and a widespread ignorance of their contents problems and limits have caused considerable difficulties for acceptance of this part of International Law. At the same time, the great complexity and the technical nature of various measures may hinder proper implementation. Such problems of motivation and acceptance can only be solved through joint efforts and continued international co-operation.


Preface At present humanity is threatened by wars, armed conflicts, confrontations and power struggles which creates various problems-socio-legal, economic, political and humanitarian. The impact of armed conflicts on the human race is of such act that it demands timely action by governments, organizations and individuals. Bibliographical Index * Ahmed Fakhruddin, The Caretakers A Fast Hand Account of the Interim Government of Bangladesh (1990-1991) (Dhaka, UPL, 1998) *

Ahmed Moudud, Bangladesh: The Era of Sheikh Mujibur Rahman (Dhaka UPL, 1983)

*

Brohi, A.k. Fundamental Law of Pakistan, (Karachi: Din Muhammadi Press, 1958)

*

Chudhury, Dilara, Constitutional Development in Bangladesh, (Dhaka UPL, 1995.

*

The Constitution of the Peoples Republic of Bangladesh as modified up to 31 st May, 2000.

*

DLR.

*

Halim, Md. Abdul, Constitution, Constitutional Law and Politics.

*

Huda, A.K.M. Shamsul, The Constitution of Bangladesh Vol. II, 1sted (Chittagong, Signet press Ltd,) 1997.

*

Islam, Mahmudul, Constitutional Law of Bangladesh, (Dhaka, Bangladesh Institute of Law and International Affairs, 1995) Kamal, Justice Mustafa, Bangladesh Constitutions: Trends and Issues, (Dhaka, Dhaka University, 1994).

* *

Khan, Burhanuddin, International Humanitarian Law (in Bengali) (Dhaka, Centre for Rights and Governance).

*

Patwari, A.B.M. Mafizul Islam, The Fundamental Principles of The Constitutional Law (Dhgaka, UPL.) (in Bengali).

*

Philips, O’ Hood, Constitutional and Administrative Law, 7thed (London: English Language Book Society, 1987).

*

Rahman, Justice Latifur, The Constitution of the Peoples Republic of Bangladesh with Comments & case Laws, 1st ed. 2004 (Dhaka Mullick Brothers, 42 Bangladesh).

*

Rahman, Md. Safiqur, The Law, Judicial system and Development of Constitution of Bangladesh (in Bengali), (Dhaka, Biswa Shahitta Bhaban,) 1998.


* * * *

The Daily Star. The Daily Observer, The Weekly Jai Jai Din. Wheare, K.C. Modern Constitutions, (London: Oxford University Press, 1966).

humanitarian law  

INTERNATIONAL HUMANITARIAN LAW ITS AUTHORITATIVENESS AND DEVELOPMENT

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