Customary International Humanitarian Law

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Jean-Marie Henckaerts, Louise Doswald-Beck, Carolin Alvermann
Cambridge University Press, 2005 - Всего страниц: 5066
In 1995, the International Committee of the Red Cross, along with a range of renowned experts, embarked upon a major international study into current state practice in humanitarian law in order to identify customary law in this area. This book (and its companion, Volume 1: Rules) is the result of that study. Volume 2 contains a summary of the relevant treaty law, international case-law and relevant state practice including legislation, military manuals, case-law, official statements, and official military practice for each aspect of humanitarian law. Also available: Volume 1: Rules 0-521-80899-5 Hardback $100.00 C 0-521-00528-0 Paperback $38.00 D Boxed Set of 3 Volumes: Vol.l: Rules; Vol. 2: Practice: Parts 1 and 2 0-521-53925-0 Hardback $450.00 C

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58 The report pursuant to paragraph 5 of UN Security
11
62 In its judgement in the Blaˇskic case in 2000
12
objectives93 Eventually however it was deleted in the plenary because
17
National Caselaw
21
263 Ukraines Criminal Code provides that violencecommitted against
34
III Practice of International Organisations and Conferences
44
and the violence they are perpetrating against the civilian population
47
humanitarian law in Rwanda particularly those perpetrated against the civilian
48
708 The Instructions to the Muslim Fighter issued by the
2068
864 In a press release issued in 1980 the Colombian
2086
III Practice of International Organisations and Conferences
2090
during the internal conflict in El Salvador were in violation
2094
IV Practice of International Judicial and Quasijudicial Bodies
2095
remained from the early stages within the jurisdiction of the
2100
327 As for the facts linked directly to the attack
2102
case refers as was acknowledged by the Minister of Foreign
2103

395 In a resolution adopted in 1998 concerning the question
52
all acts of violence directed against the civilian population including
53
the rebel forces They have systematically mutilated or severed the
54
414 In various reports on the situation of human rights
55
The State of El Salvador through the activities of members
56
IV Practice of International Judicial and Quasijudicial Bodies
59
caused deaths andor serious bodily injuries within the civilian population
61
486 Paragraph 25 of the 1992 Agreement on the Application
68
III Practice of International Organisations and Conferences
73
IV Practice of International Judicial and Quasijudicial Bodies
75
V Practice of the International Red Cross and Red Crescent
76
VI Other Practice
77
II National Practice
79
b Militias ie volunteer groups or persons who being a
81
III Practice of International Organisations and Conferences
85
627 No practice was found
86
National Legislation
94
This definition is subjective and difficult to implement given that
96
VI Other Practice
97
III Practice of International Organisations and Conferences
100
the 1949 Geneva Conventions Reaffirming the customary nature of common
106
VI Other Practice
107
760 Paragraph 25 of the 1992 Agreement on the Application
108
National Caselaw
111
811 In 1999 in a report on human rights in
114
an officers married accommodation However use of children in a
116
viewpoint to differentiate between those individuals actually firing their firearms
121
the masas who accompany the guerrilla troops meet the conditions
123
VI Other Practice
125
or abroad that tend to uphold or perpetuate the oppression
127
Other National Practice
129
II National Practice
131
III Practice of International Organisations and Conferences
133
chapter 2
134
45 In 1994 in a Memorandum on Compliance with International
141
deal with the question of incidental or collateral damage resulting
142
59 Article 7 of the 1956 New Delhi Draft Rules
143
The requirement that attacks be limited to military objectives results
144
on all86 The report further stated that CINCCENT CommanderinChief
148
stated in part that attacks shall be strictly limited to
149
111 Paragraph 6 of the 1991 Memorandum of Understanding on
150
138 Spains Penal Code punishes
153
a US Deputy Assistant Secretary of Defense wrote that no
156
Attacks which are not directed against military objectives particularly attacks
160
Protocol II Thus while there is no explicit provision affording
162
has targeted these missiles against civilian areas in an obvious
167
The members of the Security Council strongly deplore the
168
IV Practice of International Judicial and Quasijudicial Bodies
171
d flying under the protection of accompanying enemy warships or
173
V Practice of the International Red Cross and Red Crescent
180
Military objective means so far as objects are concerned any
182
II National Practice
183
war strategy in this instance the execution of the Coalition
188
V Practice of the International Red Cross and Red Crescent
189
Disrupting government propaganda may help to undermine the morale of
190
II National Practice
191
III Practice of International Organisations and Conferences
194
421 Paragraph I of the proposed annex to Article 72
196
V Practice of the International Red Cross and Red Crescent
200
II National Practice
201
487 In 1992 in its final report to Congress on
204
an adequate distancefrom any important military objective constituting a
205
III Practice of International Organisations and Conferences
208
I Treaties and Other Instruments
211
543 The US Naval Handbook lists airfields bridges railyards docks
213
We are directing the aircraft against military targets only military
214
Storm Destruction of a bridge airport or port facility or
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potential The breaking up of this economic potential has of
218
VI Other Practice
222
Areas of land
223
II National Practice
224
National Caselaw
226
A specific area of land may be a military objective
227
II National Practice
228
exposed to attacks while performing such duties Similarly civilian employees
229
their proximity to a military objective aimed at shielding
230
such an objective or its immediate surroundings share the danger
232
III Practice of International Organisations and Conferences
235
D Loss of Protection from Attack
236
III Practice of International Organisations and Conferences
240
This language which is not a codification of the customary
245
chapter 3
247
Other Instruments
248
II National Practice
249
anticipated would be inconsistent with the principles of international law
252
II National Practice
271
198 In 1994 in its final report on grave breaches
275
such and clearly designated and assigned The attack shall be
276
I Treaties and Other Instruments
277
IV Practice of International Judicial and Quasijudicial Bodies
283
V Practice of the International Red Cross and Red Crescent
284
Attacks whose effects cannot be limited as required by international
285
Other National Practice
287
law of war prohibits attacks which entail a high risk
289
of weapons the destructive effect of which is so great
291
Other Instruments
292
303 Under Spains LOAC Manual an attack launched while considering
294
National Legislation
295
IV Practice of International Judicial and Quasijudicial Bodies
296
chapter 4
297
intentionally launching an attack in the knowledge that such attack
298
an indiscriminate attack affecting the civilian population or civilian objects
309
and direct military advantage anticipated are prohibited provides protection
313
the beginning contrary to the principle of proportionality In the
315
I do not believe the action was disproportionate You know
317
III Practice of International Organisations and Conferences
320
many of the artillery bombardments The Bosnian Serb Army forces
321
Their presence will not render military objectives immune from attack
325
in the proportionality test of Articles 51 and 57 AP
327
II National Practice
328
is a part taken as a whole and not from
329
attacks necessarily have to reach decisions on the basis of
333
II National Practice
334
chapter 5
336
III Practice of International Organisations and Conferences
341
spare and protect all civilians who are not or are
344
to implement policies Members of the AFP and PNP shall
347
National Caselaw
348
111 In 1991 in reply to a question in the
350
III Practice of International Organisations and Conferences
353
IV Practice of International Judicial and Quasijudicial Bodies
354
all parties are obliged to take every feasible precaution to
356
Aspects of the Rules of Engagement specifically the requirement that
357
II National Practice
359
171 At the CDDH Italy stated that the term feasible
361
Certain words in draft Article 5057 AP I created problems
362
Other National Practice
366
a concentrations of civilian persons
367
an attack it is necessary to determine whether the objective
371
IV Practice of International Judicial and Quasijudicial Bodies
373
successfully whether to adopt an alternative method of attack if
377
316 No practice was found
382
attack available a commander should select those which are most
383
VI Other Practice
384
Without prejudice to other precautions required by international humanitarian law
385
its adoption of the Geneva Conventions Amendment Act which incorporates
390
VI Other Practice
391
incidental loss of civilian life injury to civilians damage to
393
IV Practice of International Judicial and Quasijudicial Bodies
399
may be expected to cause incidental loss of civilian life
400
When allowed by military necessity the commander of units bombarding
405
to enter certain areas during certain periods served as an
408
483 In 1991 in response to an ICRC memorandum on
409
III Practice of International Organisations and Conferences
410
The prescriptions of Article 57 and of the corresponding
411
VI Other Practice
412
However there was no warning from NATO that a specific
413
potential risk for the civilian population provided this does not
416
The prescriptions of Article 57 and of the
418
chapter 6
419
permits information and effective warning must be given concerning defence
422
III Practice of International Organisations and Conferences
425
47 No practice was found
426
II National Practice
427
B Location of Military Objectives outside Densely Populated Areas
429
II National Practice
430
108 In 1992 in a letter to the UN SecretaryGeneral
436
best efforts to distinguish or separate its military forces and
438
IV Practice of International Judicial and Quasijudicial Bodies
440
VI Other Practice
441
134 Article 8 of the 1999 Second Protocol to the
442
organisation of this evacuation are the responsibility of the national
443
The force that has control over the civilians has an
447
III Practice of International Organisations and Conferences
448
Civilian persons and objects shall be removed from military objectives
449
VI Other Practice
450
chapter 7
453
c any persons made available for humanitarian purposes by a
458
or administration of medical transports Such assignment may be permanent
459
NGOs do not benefit from international legal protection although their
460
in the prevention of disease They are to be respected
462
105 Under the Penal Code as amended of the SFRY
469
and considered that Committee II of the CDDH was not
471
with which US military forces would almost certainly comply as
472
III Practice of International Organisations and Conferences
473
IV Practice of International Judicial and Quasijudicial Bodies
476
VI Other Practice
479
Equipment of medical personnel with light individual weapons
480
Eventuallyhowever subparagraph 3was deleted from Article 17 of draft AP
481
220 The Report on the Practice of Kuwait states that
485
IV Practice of International Judicial and Quasijudicial Bodies
486
234 No practice was found
487
accordance with medical ethics regardless of the nationality or status
488
IV Practice of International Judicial and Quasijudicial Bodies
491
Twelve members of the Lutheran Church the majority of whom
492
VI Other Practice
496
C Religious Personnel
497
V Practice of the International Red Cross and Red Crescent
506
indicate these buildings or places by some particular and visible
508
A belligerent who desires to secure by night the protection
510
Accusations have frequently been made that the rule concerning immunity
517
ensure that such medical facilities are as far as possible
518
498 Under the UK ICC Act it is a punishable
523
528 In 1992 in its final report to Congress on
527
V Practice of the International Red Cross and Red Crescent
531
The protection of medical units ceases only when they are
538
618 Medical establishments which contrary to their intended purpose are
540
installation of an observation post on a hospital roof
542
may not be attacked until after a warning has been
543
National Caselaw
544
647 In a report on the FMLN offensive in El
547
required and they must not intentionally hamper the movement of
549
729 Venezuelas Code of Military Justice as amended provides for
557
purpose of transporting wounded German soldiers Numerous members of the
558
III Practice of International Organisations and Conferences
559
979 Provided prior agreement has been obtained from the enemy
567
has been opened on medical and helicopters and planes in
573
Loss of protection of medical aircraft from attack
574
V Practice of the International Red Cross and Red Crescent
583
VI Other Practice
587
chapter 8
588
4 Article 72 of the 1994 Convention on the Safety
589
In addition to the special immunity granted to civilian and
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for them to carry out their humanitarian roles The personnel
592
upon all parties to the conflict in the former Yugoslavia
597
75 In 1996 in a statement by its President the
598
84 In 1997in a statement by its President following the
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V Practice of the International Red Cross and Red Crescent
604
personnel shall be treated in accordance with universally recognized standards
607
II National Practice
608
abduction and false imprisonment he shall in that part of
610
States intensify their efforts in the dissemination of international humanitarian
612
III Practice of International Organisations and Conferences
613
World Food Programme and of the United Nations High Commissioner
615
assistance official and reiterated the importance it attached to the
616
It called upon all factions to facilitate the work of
617
On 1 November 1996 members of another dissident SPLA group
623
VI Other Practice
627
National Caselaw
632
IV Practice of International Judicial and Quasijudicial Bodies
637
VI Other Practice
638
chapter 9
640
4 Pursuant to Article 82biii and eiii of the 1998
641
responsibility to ensure the effective prosecution and punishment of the
642
17 Under Burundis Draft Law on Genocide Crimes against Humanity
644
23 Under the International Crimes Act of the Netherlands the
645
38 In 1991in an appeal addressed to the President of
647
Tajikistan to enhance the protection of international personnel and called
653
resolutions which bind the parties The Council condemned such incidents
654
Nations compound was not a legitimate target whether or not
657
121 In 1994 during a debate in the UN Security
659
chapter 10
660
II National Practice
661
IV Practice of International Judicial and Quasijudicial Bodies
668
chapter 11
671
Other Instruments
672
expectant mothers and mothers with children under 7 years of
675
under seven Agreements may be concluded between the belligerents concerning
676
By agreement the parties to a conflict may establish certain
678
Around the Hospital a safety area is established The rules
682
VI Other Practice
683
95 In a report in 1990 the UN SecretaryGeneral referred
689
Attacks on demilitarised zones
690
179 The Report on US Practice considers that US opinio
699
any military operation the sole object of which is its
700
In order to ensure full protection of such place an
701
The town and defended posts form an indivisible whole inasmuch
702
IV Practice of International Judicial and Quasijudicial Bodies
703
that time treat the locality as a nondefended locality unless
705
be passed between the two Parties under customary law and
706
IV Practice of International Judicial and Quasijudicial Bodies
709
undefended and which are not military objectives constitutes a war
710
III Practice of International Organisations and Conferences
722
chapter 12
723
scientific or charitable purposes on the understanding that they
724
In the event of an armed conflict not of an
725
24 Article 221 of the 1999 Second Protocol to the
728
According to Section 61bix and eiv intentionally directing attacks
730
180 At the CDDH Canada noted that Article 47 bis
758
Protocol Our negative vote should not be taken as
766
230 In 1991 in a report submitted to the UN
768
245 In a resolution adopted in 1992 the UN General
771
making the clearlyrecognized historic monuments works of art or places
778
B Use of Cultural Property for Military Purposes
779
292 Article 8 of the 1999 Second Protocol to the
781
300 Section 66 of the 1999 UN SecretaryGenerals Bulletin provides
782
Other National Practice
787
were incapable of military operations from their position and elected
789
V Practice of the International Red Cross and Red Crescent
790
state or nation may order them to be seized or
792
troops Chinas historical relics and art treasures were also stolen
800
IV Practice of International Judicial and Quasijudicial Bodies
803
description whatsoever which are or have been situated in the
805
III Practice of International Organisations and Conferences
806
II National Practice
808
occupation of Germany after the Second World War a representative
810
official documents looted by Iraqi forces from the Office of
811
stressed that priority should be given to the return by
813
chapter 13
814
Other Instruments
816
used as a regular significant and direct support to military
817
in tens of thousands of civilian victims and therefore it
821
46 The YPA Military Manual of the SFRY FRY restates
825
military advantage anticipated without prejudice to the criminal nature of
826
the position with highpower explosives which would destroy the dam
831
and destroy parts of an electric power grid such as
835
a particular customer It is also unreasonable for article 56
836
III Practice of International Organisations and Conferences
837
power stations and other military objectives in the vicinity of
839
listed inter alia the following as a war crime to
840
II National Practice
841
chapter 14
844
Other Instruments
845
concrete and direct overall military advantage anticipated constitutes a war
846
place at a time when it had been clear to
853
III Practice of International Organisations and Conferences
854
making use of the guidelines for military manuals and instructions
855
Reaffirm and ensure respect for the rules of international humanitarian
856
18 Even when targeting admittedly legitimate military objectives
857
important role greater efforts should therefore be made to ensure
859
B Due Regard for the Natural Environment in Military Operations
860
was suspended However others argued that in such cases under
864
activities of Kuwait and other countries of the region including
868
IV Practice of International Judicial and Quasijudicial Bodies
869
VI Other Practice
870
Partiesshall protect theenvironment during periods of armed conflict In particular
871
National Caselaw
872
III Practice of International Organisations and Conferences
873
b Reasonable measures already taken to clean and restore the
874
IV Practice of International Judicial and Quasijudicial Bodies
875
Article 55 AP I was adopted by consensus136
877
49 votes in favour 4 against and 7 abstentions142 The
878
157 Paragraph 6 of the 1991 Memorandum of Understanding on
879
of the use of methods or means of warfare which
882
AP I Its exact scope is not yet clear though
883
225 In 1993 in a letter to the President of
888
In its oral pleadings the Solomon Islands further invoked the
894
267 In 1992 in its final report to Congress on
896
III Practice of International Organisations and Conferences
898
Governments consider identifying weapons hostile devices and ways of using
899
damage These are powerful constraints for all the States
901
event of armed conflict Article 55 AP I because its
902
Environmental modification techniques
903
thedynamics composition or structureof the Earth includingitsbiota lithosphere
904
Australia as a signatory to the 1976 ENMOD Convention has
905
It is a general principle of law that the foreseeable
909
reflecting the international communitys consensus that the environment itself
910
International Conferences
911
IV Practice of the International Judicial and Quasijudicial Bodies
912
chapter 15
915
14 The 2000 UNTAET Regulation No 200015 establishes panels with
917
for that purpose commits a war crime79 The commentary on
923
B Attacks against Persons Hors de Combat
929
II National Practice
930
VI Other Practice
940
Specific categories of persons hors de combat
941
is hors de combat whether by choice or circumstance is
944
252 Indonesias Air Force Manual states that it is prohibited
948
always been applied in combat situations and for this reason
952
himself provided that he refrains in all these cases from
957
334 In the Dostler case before the US Military Commission
960
prisoners of war is evidence of Coalition compliance with its
963
III Practice of International Organisations and Conferences
964
to the hills and others fled to the houses in
967
and 5 of the 1969 ACHR426 Furthermore the perpetrators of
968
II National Practice
973
will regain their liberty through the impending success of their
975
Paragraph 3 of Article 41 AP I dealing with the
976
C Attacks against Persons Parachuting from an Aircraft in Distress
977
if he had been disabled by wounds or sickness or
978
descent As soon as those persons reach the ground they
985
VI Other Practice
990
chapter 16
991
II National Practice
992
a identification documentsdiscs
994
booty Captured goods belong to the party to the armed
996
The current view seems to be that units may lawfully
1000
appropriation is strictly necessary for reasons of military necessity56 With
1003
imperatively demanded by the necessities of war constitutes a war
1007
necessarily make quick decisions to meet the particular situation of
1024
III Practice of International Organisations and Conferences
1025
The crime of extensive destruction of property as a grave
1028
VI Other Practice
1029
In violation of the 1907 HR public municipal and national
1035
VI Other Practice
1036
VI Other Practice
1044
Art 42 Requisitions shall be made only with the authorization
1046
The right to billet troops on the inhabitants follows from
1053
coercion present in an agreement relating to the purchase of
1070
purposes Soldiers are not allowed to become thieves or bandits
1080
591 Germanys Law Introducing the International Crimes Code punishes
1090
property by force collects money or goods without being duly
1091
683 In 1990 during a debate in the UN Security
1102
690 During the IranIraq War Iran claimed that inhabitants of
1103
to approval by Government whereas appropriation of property by individuals
1105
IV Practice of International Judicial and Quasijudicial Bodies
1111
andlivestock799 Hewas convicted bytheTribunalon this countTheTribunal
1113
VI Other Practice
1114
II National Practice
1116
799 In 1993 in meetings with the ICRC officials of
1122
chapter 17
1123
98 At the CDDH the Swedish delegate appealed urgently to
1134
106 In 1990 in the UN Sanctions Committee on Iraq
1135
V Practice of the International Red Cross and Red Crescent
1137
noninternational armed conflict in its list of war crimes to
1138
III Practice of International Organisations and Conferences
1141
IV Practice of International Judicial and Quasijudicial Bodies
1143
Other Instruments
1144
VI Other Practice
1148
d livestock
1151
considered indispensable to the survival of the civilian population instead
1160
IV Practice of International Judicial and Quasijudicial Bodies
1163
Attacks against objects used to sustain or support the adverse
1166
military target eg drinking water installations as such objects are
1167
National Caselaw
1169
VI Other Practice
1170
civilian population in times of enemy invasion of the national
1173
International Conferences
1174
2 The parties to the conflict and any High Contracting
1176
life inter alia the deprivation of access to food and
1177
against humanity when committed as part of a widespread or
1179
party and the Bosnian Croat party allow forthwith and without
1195
486 In 1997 in a statement by its President regarding
1196
511 In a resolution adopted in 2000 on the situation
1200
IV Practice of International Judicial and Quasijudicial Bodies
1205
control If the civilian population is not adequately provided
1208
Impediment of humanitarian relief
1210
of the Protecting Power The Occupant must facilitate the
1211
III Practice of International Organisations and Conferences
1214
parties concerned of serious consequences in accordance with relevant resolutions
1216
main seaport and other transportation facilities severely aggravates the present
1218
difficulties when entering the refugee camps a complaint echoed by
1221
II National Practice
1225
National Caselaw
1226
Right of the civilian population in need to receive humanitarian
1228
as vulnerable groups from international assistance inter alia in conformity
1229
National Legislation
1230
707 In 1998 in a report on protection for humanitarian
1233
719 At its Birmingham Session in 1993 the Council of
1235
Taliban do everything possible to assure thefreedom of movement of
1239
753 In 1996 in a statement by its President regarding
1240
V Practice of the International Red Cross and Red Crescent
1242
Red Cross personnel and medical personnel called upon to assist
1243
chapter 18
1244
A Ruses of War
1245
IV Practice of International Judicial and Quasijudicial Bodies
1258
as well as simulating operations of attack using dummy weapons
1259
I Treaties and Other Instruments
1270
II National Practice
1276
and nonmedical stores A hospital train must not be used
1281
ships airplanes or other modes of transportation or other buildings
1282
Tajikistan which goes against the Law the 1949 Geneva Conventions
1305
Whoever whether a corporation association or person other than the
1308
III Practice of Internatinal Organisations and Conferences
1312
IV Practice of International Judicial and Quasijudicial Bodies
1313
such emblems identity cards signs signals insignia or
1322
III Practice of International Organisations and Conferences
1326
IV Practice of International Judicial and Quasijudicial Bodies
1327
I Treaties and Other Instruments
1328
II National Practice
1329
626 No practice was found
1339
Other Instruments
1340
II National Practice
1341
713 Spains Penal Code punishes anyone who during an armed
1351
determining the responsibility of Turkey In fact recalling the practice
1354
The clothing of neutral nations must never be worn by
1356
On Land The law of armed conflict applicable to land
1358
III Practice of International Organisations and Conferences
1360
II National Practice
1361
IV Practice of International Judicial and Quasijudicial Bodies
1368
The distinction between stratagem which is allowed and perfidious or
1372
to his interests Thus to be consistent with the law
1373
VI Other Practice
1378
Other Instruments
1379
II National Practice
1380
Assassination is prohibited Assassination means the killing or wounding of
1381
Assassination that is the killing or wounding of a selected
1382
civilians This article has been construed as prohibiting assassination proscription
1384
the requisite intent would be an intent to kill injure
1388
capture an adversary by resort to perfidy is a general
1389
III Practice of International Organisations and Conferences
1393
Simulation of surrender
1394
crime1187 In addition the manual states that the following acts
1400
Perfidious acts include the feigning of an intent to surrender
1403
VI Other Practice
1404
Other Instruments
1405
IV Practice of International Judicial and Quasijudicial Bodies
1414
I Treaties and Other Instruments
1415
II National Practice
1416
and activities For example using an ambulance or medical aircraft
1418
IV Practice of International Judicial and Quasijudicial Bodies
1428
1330 The 2000 UNTAET Regulation No 200015 establishes panels with
1430
III Practice of International Organisations and Conferences
1436
IV Practice of International Judicial and Quasijudicial Bodies
1437
II National Practice
1438
IV Practice of International Judicial and Quasijudicial Bodies
1443
feigning before an attack of noncombatant status was considered as
1444
protection of persons or property laid down inthe two additional
1448
1489 In the Nwaoga case before the Supreme Court of
1449
lackedthenecessary meansto provide uniformsfor membersof their national forces
1452
I Treaties and Other Instruments
1453
III Practice of International Organisations and Conferences
1457
chapter 19
1458
II National Practice
1459
and for longer lasting interruptions of combat written agreements shall
1460
nonhostile intercourse otherwise prohibited by reason of the existence of
1464
IV Practice of International Judicial and Quasijudicial Bodies
1467
II National Practice
1468
law It may indicate that the party hoisting it desires
1471
III Practice of International Organisations and Conferences
1472
II National Practice
1473
A person to be regarded as a parlementaire must be
1475
III Practice of International Organisations and Conferences
1476
V Practice of the International Red Cross and Red Crescent
1479
firing on a
1485
V Practice of the International Red Cross and Red Crescent
1490
235 Article 33 of the 1907 HR provides that the
1491
things that are military secrets If military interest requires
1493
VI Other Practice
1494
law the right to retain a parlementaire so long as
1496
IV Practice of International Judicial and Quasijudicial Bodies
1497
II National Practice
1498
Other National Practice
1501
chapter 20
1505
1 This Convention and its annexed Protocols shall apply in
1508
These criteria have been used in all arms limitation negotiations
1518
122 In a memorandum in 1991 Australias Department of Foreign
1524
auspicesof the International Committee of the Red Cross in close
1525
All international customary law and all treaties regulating the conduct
1529
Suffering may be called unnecessary when its infliction is not
1532
AP I reproduces with slight changes Art 35 the abovementioned
1534
197 In 1988 in a memorandum on laser weapons the
1540
Although the United States has made the formal decision that
1541
particular weapon causes unnecessary suffering depends therefore on whether its
1542
humanitarian lawprohibits the useofweaponsprojectiles materialand
1548
on them under international humanitarian law States and the
1549
V Practice of the International Red Cross and Red Crescent
1551
Project illustrated in particular the effects not normally seen on
1553
employing weapons projectiles and material and methods of warfare
1555
II National Practice
1556
National Legislation
1561
317 In its written statement submitted to the ICJ in
1566
bombs landmines and boobytraps missiles delayed action weapons and naval
1578
397 In its review of the indictment in the Martic
1581
VI Other Practice
1582
III Practice of International Organisations and Conferences
1589
chapter 21
1590
11 The 2000 UNTAET Regulation No 200015 establishes panels with
1591
It is forbidden to poison water sources arrows or bullets
1593
III Practice of International Organisations and Conferences
1601
chapter 22
1604
4 During this debate the ICRC also expressed its opinion
1606
chapter 23
1607
6 In September 1991 Argentina Brazil and Chile signed the
1609
international humanitarian law These include in particular the prohibition
1610
consequently considers that the bans established partly by customary law
1618
Prior to ratification of the 1972 BWC the Danish governmental
1624
His country had been among the first to accede to
1626
prohibition of the use in war of bacteriological
1632
without the Governments permission The provisions of the Convention
1637
205 In 1970 in the context of the adoption of
1639
H The Russian Parliament has recommended to the President of
1641
cause superfluous injury or unnecessary suffering these included bacteriological
1644
the soldiers rather than those who made the decision as
1645
239 At the CDDH the SFRY voted in favour of
1647
247 A large number of UN General Assembly resolutions call
1648
259 In his message at the opening of the Fifth
1652
and of Bacteriological Methods of Warfare signed on 17 June
1654
chapter 24
1658
maintained a lethal and incapacitating chemical weapons capability for deterrence
1668
treaty law on the use of chemical weapons
1677
The need for all States without exception to abide in
1681
using inter alia chemical weapons and causing mass exodus to
1682
175 During the 1990 Session of the Conference on Disarmament
1685
224 At the 1989 Session of the Conference on Disarmament
1692
use of chemical weapons for the purpose of destroying
1695
395 In 1970 in the context of the adoption of
1716
of using chemical weapons in retaliation should the need arise
1723
III Practice of International Organisations and Conferences
1725
between Iran and Iraq conclusions that chemical weapons continue to
1726
476 In 1988 in a note with regard to a
1732
524 An article in the Bulletin of the Atomic Scientists
1742
II National Practice
1744
national policy renounced the first use of riot control agents
1746
uses riot control materials as a means of
1748
New Guinea the civil constabulary are trained in the use
1749
their suppression of a demonstration in Tbilisi in April 1988
1752
the 1925 Geneva Gas Protocol CS is in fact less
1753
In a written answer to this question the UK Minister
1754
support the view that riotcontrol agents are not covered by
1756
majority of states including the Soviets and they would presumably
1757
understanding of our allies and treaty signatories even for humanitarian
1758
disabling effect used in the definition of RCAs Thus some
1759
III Practice of International Organisations and Conferences
1761
IV Practice of International Judicial and Quasijudicial Bodies
1762
the US stated with respect to the then still draft
1768
IV Practice of International Judicial and Quasijudicial Bodies
1770
chapter 25
1771
According to Section 61bxix employing bullets which expand or flatten
1772
Although none of the treaty rules expressly applicable to internal
1778
handgun bullets presents some advantages such as the avoidance of
1779
Weighing the increased performance of the pointed ogival spitzer tip
1782
III Practice of International Organisations and Conferences
1784
IV Practice of International Judicial and Quasijudicial Bodies
1785
VI Other Practice
1786
chapter 26
1787
This provision applies equally to states which are parties to
1788
solely against combatant personnel because of the St Petersburg Declaration
1789
V Practice of the International Red Cross and Red Crescent
1793
chapter 27
1795
which in the human body escape detection by Xrays eg
1798
III Practice of International Organisations and Conferences
1801
chapter 28
1803
adequately for the right of a state victim of an
1805
15 Article 73 of the 1996 Amended Protocol II to
1806
II National Practice
1808
protective measures for civilians such as warning signs sentries fences
1810
a internationally recognized protective emblems and signs
1811
2 The commander of the emplacing unit must manage the
1817
of the Use of LandMines and Other Devices Article 5
1818
Experts on the Use of Certain Conventional Weapons in Lugano
1820
chapter 29
1826
is designed so that the mine will no longer function
1827
3 In case of armed conflicts not of an international
1828
1999 does not achieve total legislative implementation of the Treaty
1832
Other National Practice
1833
and were therefore indiscriminate Moreover such devices generally exploded close
1838
both sides parties to the Ottawa Convention For this purpose
1839
Turkey is fully conscious of the casualties and the ensuing
1844
number of States Parties have formally committed themselves to a
1857
V Practice of the International Red Cross and Red Crescent
1858
2 Effective advance warning shall be given of any delivery
1864
205 Upon acceptance of the 1996 Amended Protocol II to
1867
208 Upon acceptance of the 1996 Amended Protocol II to
1868
paragraph 3 of the amended Protocol to clarify that mines
1869
216 Upon acceptance of the 1996 Amended Protocol II to
1870
II National Practice
1871
protect civilians from their effects for example the posting of
1874
target discrimination In the case of noncommand detonated land mines
1876
to try to lay stress on their inhuman aspects or
1880
care not to create additional risks to life in attacking
1886
V Practice of the International Red Cross and Red Crescent
1893
334 According to the Report on the Practice of El
1896
ii the term preplanned as used in subparagraph 1a of
1899
that security interests require such withholding until neither party is
1900
grave concern at the indiscriminate use of antipersonnel landmines in
1911
programme but that a more precise global assessment of the
1912
V Practice of the International Red Cross and Red Crescent
1914
cooperate with mineclearance organizations according to humanitarian priorities
1915
chapter 30
1916
weapons whose production importation possession and use is also
1917
of the targets attacked would entail the acceptance of one
1925
For the purpose of crushing the resistance of the Arabs
1930
III Practice of International Organisations and Conferences
1931
91 No practice was found
1934
II National Practice
1939
129 The Military Manual of the Netherlands defines incendiary weapons
1942
agreement was to be reached on anything specific that would
1950
167 With respect to the decision by the US whether
1951
IV Practice of International Judicial and Quasijudicial Bodies
1953
VI Other Practice
1954
Other Instruments
1955
the extensive debate on the total prohibition of the use
1959
211 No practice was found
1960
chapter 31
1961
There is no evidence of any actual use of blinding
1965
III Practice of International Organisations and Conferences
1971
The ICRC is very pleased that a large number of
1977
II National Practice
1980
VI Other Practice
1982
chapter 32
1985
National Caselaw
1992
65 According to the Report on US Practiceit is the
1993
reflected what the Court in 1949 in the Corfu Channel
1994
Civilians
1996
II National Practice
1997
Other International Organisations
2001
VI Other Practice
2002
III Practice of International Organisations and Conferences
2006
Persons deprived of their liberty
2008
II National Practice
2010
321 In its General Comment on Article 4 of the
2020
All of this has not been contested by the State
2021
342 In a press release issued in 1994 during the
2023
VI Other Practice
2024
wounds detention or any other cause shall in all circumstances
2025
kind as to race colour sex language religion political or
2026
II National Practice
2029
forbidden364 The Pamphlet quotes Article 1 of the 1945 UN
2033
III Practice of International Organisations and Conferences
2036
international or internal in character and directed against any civilian
2040
III Practice of International Organisations and Conferences
2042
VI Other Practice
2043
III Practice of International Organisations and Conferences
2047
548 Article 16 GC III provides that all prisoners of
2049
III Practice of International Organisations and Conferences
2052
Apartheid
2053
religious grounds involving the violation of fundamental human rights and
2054
627 Under Norways Military Penal Code as amended anyone who
2058
638 In 1981 during a debate in the UN General
2059
practices of apartheid and other inhuman and degrading practices
2061
658 Article 13 first paragraph GC III provides that any
2062
military operations and persons placed hors de combat is prohibited
2067
1014 Article 5c of the 1946 IMT Charter Tokyo established
2110
1224 In its judgement in the General Security Service case
2136
III Practice of International Organisations and Conferences
2140
1265 In 1996 in a report on the situation of
2142
International Conferences
2143
V Practice of the International Red Cross and Red Crescent
2147
VI Other Practice
2149
him or a third person information or a confession punishing
2150
natural senses such as sight or hearing or of his
2151
IV Practice of International Judicial and Quasijudicial Bodies
2153
from the specific viewpoint of international criminal law relating to
2155
his right to be treated with humanity and with respect
2158
amounted to torture indeed the Court would have reached that
2160
VI Other Practice
2161
National Legislation
2164
International Conferences
2166
humanitarian law applicable in noninternational armed conflicts be subject
2167
prohibited According to Article 147 conducting biological experiments on
2168
1421 Pursuant to Article 82bx and exi of the 1998
2170
1430 According to Section 72 of the 1999 UN SecretaryGenerals
2171
a to acts causing physical mutilations
2180
of Santiago stated that common Article 3 of the 1949
2186
Other International Organisations
2188
1658 The Penal Code as amended of the SFRY FRY
2202
III Practice of International Organisations and Conferences
2205
1690 In a resolution adopted in 1995 on rape and
2207
The report also emphasised that unwanted pregnancy resulting from forced
2209
In additiontotreatylawtheprohibition ofslavery isajus cogensnorm in customary
2211
That trafficking in women adolescents and children for exploitation in
2214
war crime is also reflected in the Rome Statute where
2219
16 Wars armed conflicts and the occupation of territories often
2220
diminished in effect his human dignity It must have left
2222
The wages of the prisoners shall go towards improving their
2226
1799 The 2000 UNTAET Regulation No 200015 establishes panels with
2231
1858 The Penal Code as amended of the SFRY FRY
2237
III Practice of International Organisations and Conferences
2240
IV Practice of International Judicial and Quasijudicial Bodies
2243
a system to carry that policy into execution the Japanese
2244
Compelling persons to serve in the forces of a hostile
2246
II National Practice
2248
The Occupying Power must not compel protected persons to serve
2250
in the form ofcompelling civilians to join in the armed
2262
2199 In 1976 during a debate in the Sixth Committee
2277
IV Practice of International Judicial and Quasijudicial Bodies
2282
VI Other Practice
2285
2307 Under Yemens Military Criminal Code the use of civilians
2292
brought in front of their units women and children expecting
2298
their deep concern at the unscrupulous use of prisoners of
2300
VI Other Practice
2302
whereabouts of those persons with the intention of removing them
2303
2381 Under Article 18i of the 1996 ILC Draft Code
2304
National Caselaw
2307
III Practice of International Organisations and Conferences
2308
The Committee understands the continued anguish and mental stress caused
2313
VI Other Practice
2316
III Practice of International Organisations and Conferences
2318
Other International Organisations
2319
Close vigilance by the high officials and by the Judicial
2320
Investigation of enforced disappearance
2321
III Practice of International Organisations and Conferences
2323
IV Practice of International Judicial and Quasijudicial Bodies
2325
L Deprivation of Liberty
2328
2553 The US Field Manual states that unlawful confinement of
2331
III Practice of International Organisations and Conferences
2338
safeguards may never be made subject to measures that would
2342
which it found that the detention was strictly required by
2343
tribunal Those acts directly violate the right to personal liberty
2344
made in accordance with a regular procedure to be prescribed
2346
III Practice of International Organisations and Conferences
2347
Prompt information of the reasons for deprivation of liberty
2348
II National Practice
2349
2708 The Report on the Practice of Jordan states that
2350
2715 In Van der Leer v Netherlands in 1990 dealing
2351
shallbe brought before a judge or other competent judicial authority
2353
person or his counsel shall be entitled at any time
2357
If it is considered necessary for imperative reasons of security
2363
Other Instruments
2366
Governments shall prohibit by law all extralegal arbitrary and summary
2367
II National Practice
2369
No sentence may be passed and no penalty may be
2370
the right to introduce evidence to be confronted by witnesses
2386
2998 In its General Comment on Article 4 of the
2392
3015 In its judgement in McElhinney v Ireland in 2001
2397
and facilities to prepare a defense the right to legal
2398
3049 Article 671 of the 1998 ICC Statute provides that
2403
III Practice of International Organisations and Conferences
2408
Presumption of innocence
2416
the peace and security of mankind shall be presumed innocent
2418
III Practice of International Organisations and Conferences
2420
the suspicion of guilt then it is essentially substituting pretrial
2422
judicialguaranteesincludingthat anyonechargedwithanoffenceispresumed
2423
the accused should know the exact nature of the
2428
provided that the information indicates both the law and the
2429
without payment by him in any such case if he
2431
Other Instruments
2432
3242 Article 472 of the 2000 EU Charter of Fundamental
2435
International Conferences
2440
Trial without undue delay
2445
3315 Article 47 of the 2000 EU Charter of Fundamental
2447
3329 No practice was found
2448
Subparagraph 3 c provides that the accused shall be tried
2449
V Practice of the International Red Cross and Red Crescent
2450
3372 The US Air Force Commanders Handbook states that in
2454
VI Other Practice
2456
and speaks have free of any cost the assistance of
2457
3412 The US Naval Handbook states that at a minimum
2459
3421 In its views in Cadoret and Le Bihan v
2460
V Practice of the International Red Cross and Red Crescent
2461
II National Practice
2464
V Practice of the International Red Cross and Red Crescent
2467
Compelling accused persons to testify against themselves or to confess
2468
3484 Article 174g of the 2002 Statute of the Special
2469
Public proceedings
2473
Other National Practice
2477
It was not considered realistic in view of the present
2482
Other Instruments
2483
III Practice of International Organisations and Conferences
2485
3619 In its decision in Malawi African Association and Others
2487
Non bis in idem
2488
national court of Sierra Leone for acts for which he
2490
3659 The US Air Force Pamphlet provides that Article 86
2492
V Practice of the International Red Cross and Red Crescent
2493
3690 Article 49 of the 2000 EU Charter of Fundamental
2496
III Practice of International Organisations and Conferences
2499
criminal law This means a clear definition of the criminalized
2500
punishments for acts of others that
2505
VI Other Practice
2512
I Treaties and Other Instruments
2513
2 No one shall be subject to restrictions that might
2514
VI Other Practice
2525
I Treaties and Other Instruments
2526
Other Instruments
2528
A substantial body of rules and standards already confirms the
2533
chapter 33
2537
I Treaties and Other Instruments
2538
IV Practice of International Judicial and Quasijudicial Bodies
2545
51 Article 4A6 GC III grants POW status to persons
2546
forces and are not entitled to be treated as prisoners
2549
VI Other Practice
2550
II National Practice
2552
civilian population are considered combatants and members of the armed
2554
117 At the CDDH Colombia abstained in the vote on
2557
demandedby humanitarian principles iserodedbyArticle42toanunacceptable
2558
128 At the CDDH the Netherlands stated that it understood
2559
In situations where owing to the nature of hostilities an
2561
Thus soldiers not in disguise who have penetrated into the
2562
II National Practice
2563
information to an opposing belligerent Members of the armed forces
2564
V Practice of the International Red Cross and Red Crescent
2566
has succeeded in completing his mission and returning to his
2570
cease to be spies as soon as they return to
2572
VI Other Practice
2574
234 Article 1 of the 1977 OAU Convention against Mercenarism
2575
a is specially recruited locally or abroad in order to
2576
mercenary in AP I is so narrow that few persons
2577
III Practice of International Organisations and Conferences
2580
Status of mercenaries
2581
Other National Practice
2584
dealing with prisoners of war do not apply in civil
2587
318 In 1985 in a meeting with the ICRC a
2588
VI Other Practice
2589
chapter 34
2590
5 Article 15 first paragraph GC I provides that at
2591
inhabitants and relief societies even in invaded or occupied areas
2597
IV Practice of International Judicial and Quasijudicial Bodies
2602
Local arrangements shall be concluded for the search and removal
2603
Evacuation
2604
III Practice of International Organisations and Conferences
2611
V Practice of the International Red Cross and Red Crescent
2613
treatment through or in consultation with medical personnel from outside
2617
To demonstrate AFP and government concern for the population military
2623
309 According to the Report on the Practice of the
2628
326 No practice was found
2630
I Treaties and Other Instruments
2633
II National Practice
2634
V Practice of the International Red Cross and Red Crescent
2638
C Protection of the Wounded Sick and Shipwrecked against Pillage
2640
414 Section 72 of the 1999 UN SecretaryGenerals Bulletin states
2641
IV Practice of International Judicial and Quasijudicial Bodies
2651
VI Other Practice
2654
chapter 35
2655
III Practice of International Organisations and Conferences
2661
B Treatment of the Dead
2662
National Caselaw
2667
Other National Practice
2668
VI Other Practice
2669
126 Article 15 first paragraph GC I provides that at
2670
shall be guilty of looting and liable on conviction by
2677
is guilty of looting and on conviction by courtmartial liable
2679
VI Other Practice
2681
C Return of the Remains and Personal Effects of the
2682
IV Practice of International Judicial and Quasijudicial Bodies
2687
VI Other Practice
2688
II National Practice
2689
VI Other Practice
2692
place whatsoever with respect to persons hors de combat Article
2693
354 The US Operational Law Handbook provides that the Parties
2695
III Practice of International Organisations and Conferences
2696
International Conferences
2697
Other Instruments
2698
VI Other Practice
2700
Other Instruments
2701
III Practice of International Organisations and Conferences
2703
Burial in individual or collective graves
2704
452 The YPA Military Manual of the SFRY FRY stipulates
2706
V Practice of the International Red Cross and Red Crescent
2707
VI Other Practice
2709
III Practice of International Organisations and Conferences
2712
II National Practice
2716
burial shall begin and that identifyingthe bodies is a highly
2720
III Practice of International Organisations and Conferences
2726
IV Practice of International Judicial and Quasijudicial Bodies
2727
II National Practice
2728
III Practice of International Organisations and Conferences
2730
VI Other Practice
2731
graves had undertaken considerable efforts towards establishing the fate of
2734
Other Instruments
2735
the other half evacuated With respect to the dead with
2737
III Practice of International Organisations and Conferences
2739
forwarding of information concerning the dead to the Power on
2741
chapter 36
2742
Article 33 AP I was adopted by consensus1
2743
1 information is collected and registered concerning the missing person
2745
III Practice of International Organisations and Conferences
2747
47 In the Caballero Delgada and Santana case before the
2749
Article 33 AP I was adopted by consensus49
2751
III Practice of International Organisations and Conferences
2754
IV Practice of International Judicial and Quasijudicial Bodies
2756
under certain circumstances the State is obligated to use the
2757
99 The 1991 Rules of Procedure of the Joint Commission
2758
III Practice of International Organisations and Conferences
2760
and coordination mechanisms as may be necessary based on humanitarian
2762
the Working Group on Persons Unaccounted For towards establishing the
2763
Right of the families to know the fate of their
2765
II National Practice
2766
National Caselaw
2768
169 In an explanatory memorandum submitted to parliament in 1990
2769
III Practice of International Organisations and Conferences
2770
IV Practice of International Judicial and Quasijudicial Bodies
2772
of reparation and as such an expectation of the next
2774
chapter 37
2775
Other International Organisations
2787
prison clothing medicine coats and toiletries required by the inmates
2789
I Treaties and Other Instruments
2790
National Caselaw
2794
I Treaties and Other Instruments
2796
V Practice of the International Red Cross and Red Crescent
2801
III Practice of International Organisations and Conferences
2807
E Pillage of the Personal Belongings of Persons Deprived of
2808
III Practice of International Organisations and Conferences
2813
keep an individual return for each prisoner of war It
2815
300 Section 8a of the 1999 UN SecretaryGenerals Bulletin regarding
2817
National Caselaw
2821
338 In a resolution adopted in 1985 on the question
2822
V Practice of the International Red Cross and Red Crescent
2823
shall have free access to all captured combatants in order
2827
of detention and labour and may interview PWs and PWs
2828
III Practice of International Organisations and Conferences
2833
ICRC to visit and register any persons detained against their
2834
IV Practice of International Judicial and Quasijudicial Bodies
2837
the International Red Cross and Red Crescent Movement Article 52
2838
II National Practice
2843
Any prohibition of correspondence ordered for military or political reasons
2846
VI Other Practice
2849
I Treaties and Other Instruments
2853
II National Practice
2854
International Conferences
2859
K Release and Return of Persons Deprived of Their Liberty
2860
the completion of the penalty The same shall apply to
2861
VI Other Practice
2881
Unconditional release
2882
representatives to return 26 prisoners of war freed earlier by
2883
V Practice of the International Red Cross and Red Crescent
2884
two years maximum He also stated that if after two
2885
agreed to conduct a stepbystep exchange of an equal number
2886
prescribed by the parties thereto and exchanges need not necessarily
2887
III Practice of International Organisations and Conferences
2888
V Practice of the International Red Cross and Red Crescent
2891
over in groups all those prisoners of war in its
2892
II National Practice
2893
855 The US Air Force Pamphlet provides that no wounded
2894
Destination of returning persons
2896
International Conferences
2898
IV International Judicial and Quasijudicial Bodies
2900
The joint Red Cross teams shall assist in the execution
2901
chapter 38
2908
38 The 2000 UNTAET Regulation No 200015 establishes panels with
2913
183 In 1995 during a debate in the UN Security
2932
III Practice of International Organisations and Conferences
2933
caused them to abandon the village and move elsewhere However
2941
VI Other Practice
2942
Other Instruments
2943
Nevertheless the occupying Power may undertake total or partial evacuation
2944
International Conferences
2950
Ethnic cleansing
2951
IV Practice of International Judicial and Quasijudicial Bodies
2956
342 Under Article 82bviii of the 1998 ICC Statute unlawful
2957
425 In 1997 in a working paper on war crimes
2970
II National Practice
2972
International Conferences
2978
V Practice of the International Red Cross and Red Crescent
2979
received under satisfactory conditions of shelter hygiene health safety and
2980
II National Practice
2981
National Caselaw
2982
III Practice of International Organisations and Conferences
2983
VI Other Practice
2986
V Practice of the International Red Cross and Red Crescent
2992
all Parties to the conflict shall take all feasible precautions
2993
National Caselaw
2996
608 In 1994 in its initial report to the CRC
2997
UN Commission on Human Rights on Violence against Women Its
3001
Concerning categories of persons deserving special protection we draw attention
3003
Recognizes that actions by the international community in consultation and
3008
assisting the return and reintegration of refugees and displaced persons
3014
III Practice of International Organisations and Conferences
3015
continued obstruction to the return of the refugees and displaced
3017
refugees can contribute to a peaceful settlement of the conflict
3022
783 To fulfil its task of disseminating IHL the ICRC
3023
844 In 1996 in a report concerning the situation in
3033
855 In the Final Declaration of the Kosovo International Human
3035
872 In 1996 in a report concerningBosnia and HerzegovinatheUN Secretary
3038
V Practice of the International Red Cross and Red Crescent
3039
IV Practice of International Judicial and Quasijudicial Bodies
3041
895 The 1997 Agreement of the Joint Working Group on
3042
III Practice of International Organisations and Conferences
3043
913 No practice was found
3044
III Practice of International Organisations and Conferences
3046
928 In 1996 in a report on the situation in
3047
III Practice of International Organisations and Conferences
3049
Return of property or compensation
3051
of property who is found by the Commission to be
3052
to enforce the Commissions decisions in question constituted an ongoing
3053
of Population Transfer including the Implantation of Settlers and Settlements
3056
V Practice of the International Red Cross and Red Crescent
3057
chapter 39
3058
13 Paragraph 232 of the 1992 Agreement on the Application
3060
recommended that the government of Mexico pay special attention to
3068
For practice concerning the establishment of hospital and safety
3069
Other Instruments
3070
VI Other Practice
3073
131 Under Norways Military Penal Code as amended anyone who
3075
University in TurkuÅbo Finland in 1990 states that sentences of
3076
National Caselaw
3084
of Social Welfare and Development All efforts are undertaken to
3085
detained in connection with an internal armed conflict are entitled
3086
by facilitating days of tranquillity or corridors of peace to
3088
fall into the power of an adverse Party continue to
3089
V Practice of the International Red Cross and Red Crescent
3091
Education
3092
II National Practice
3094
III Practice of International Organisations and Conferences
3097
IV Practice of International Judicial and Quasijudicial Bodies
3099
VI Other Practice
3100
e children who are not nationals of the state may
3102
333 The US Air Force Pamphlet states that removal ofchildrenfrom
3104
detained in connection with an internal armed conflict are entitled
3105
National Caselaw
3108
committed the following serious violations of international humanitarian
3112
Other serious violations of international humanitarian law falling within the
3122
concerning the prohibition of the recruitment of minors under the
3123
V Practice of the International Red Cross and Red Crescent
3125
D Participation of Child Soldiers in Hostilities
3128
Awareness of the duty to fully respect the rules of
3140
Federation and the ICRC in cooperation with the Henry Dunant
3141
to support particularly through contacts with their government the adoption
3142
II National Practice
3143
from a besieged zone special attention is given to the
3145
I Treaties and Other Instruments
3147
Convoys of vehicles or hospital trains on land or specially
3150
were involved in the evacuation of specially vulnerable groups such
3151
chapter 40
3155
59 At the African Parliamentary Conference on International Humanitarian
3165
the law of war obligations of the United States
3167
their obligation not to use prohibited weapons and not to
3168
involved in the conflict in the territory of the former
3174
122 In the Final Declaration of the International Conference for
3175
IV Practice of International Judicial and Quasijudicial Bodies
3186
The parties to the conflict must ensure that the members
3187
II National Practice
3188
action cannot involve the use of a nuclear weapon without
3192
III Practice of International Organisations and Conferences
3193
232 In its review of the indictment in the Martic
3194
C Legal Advisers for Armed Forces
3196
It is crucial that legal advisers even in peacetime can
3201
law to Deputy Judges Advocate General as well as other
3204
274 In 1992 in its final report to Congress on
3205
V Practice of the International Red Cross and Red Crescent
3206
c make a legal adviser participate in normal staff work
3207
the role of the International Committee in accordance with its
3209
305 Paragraph 52 of the 2000 Cairo Plan of Action
3211
their knowledge of the international law of war but also
3213
321 Colombias Directive on IHL issued in 1993 by the
3214
Article 1 of the 1949 Geneva Conventions and Article 11
3216
Conventions AP I Art 83 which however goes further than
3220
the military and humanitarian workers Accordingly instruction in this
3226
414 At the 27th International Conference of the Red Cross
3233
41 The SANDF together with the International Committee of the
3240
Regular training of all personnel of the armed forces should
3244
III Practice of International Organisations and Conferences
3245
presented to the UN General Assembly by the governments of
3255
V Practice of the International Red Cross and Red Crescent
3256
Obligation of commanders to instruct the armed forces under their
3260
610 No practice was found
3269
levels and on the other hand to imparting clear concepts
3284
chapter 41
3288
The Instrument deposited by the Government of the United Arab
3290
II National Practice
3291
As a consequence of their absolute character these norms of
3299
11 The meansused to meet these legal and political responsibilities
3302
4 Its purpose must be to cause the enemy to
3306
If for example one party to an armed conflict commits
3311
Reprisal under the provisions of this military manual means an
3313
National Caselaw
3314
Government or legislator Commander of the Fleet Commander of the
3315
the operation of the prohibition of reprisals in the face
3318
intensity of the conflict than a response to a violation
3319
130 In its written statement submitted to the ICJ in
3321
Principles of International Law concerning Friendly Relations and Cooperation
3322
139 During discussions on reprisals in Committee I of the
3323
basis of the actual circumstances in each case and could
3325
c The Party committing the breach must be given specific
3334
III Practice of International Organisations and Conferences
3335
V Practice of the International Red Cross and Red Crescent
3336
possibility to which Kalshoven refers will be more than theoretical
3337
National Caselaw
3341
Where an excess is knowingly indulged it in turn is
3342
244 In its written statement submitted to the ICJ in
3343
argument that the use of nuclear weapons could never satisfy
3344
IV Practice of International Judicial and Quasijudicial Bodies
3345
VI Other Practice
3346
II National Practice
3347
of reprisal action by US forces states that there is
3351
Reprisals inasmuch as they consist of military operations can also
3352
VI Other Practice
3353
Reprisals or retaliation under international law are also governed by
3359
VI Other Practice
3360
II National Practice
3361
The ban on such action first appeared in the 1929
3365
even such little persuasive authority as it may have had
3369
the Geneva Conventions Protocol I and customary international law of
3373
Wounded sick and shipwrecked in the power of the adversary
3374
measures thus taken by the United Kingdom will not involve
3375
definitions as to persons or objects protected under the 1949
3380
Medical and religious personnel in the power of the adversary
3384
526 Article501ofthe2001ILCDraft Articles onStateResponsibilitydealing with Obligations not affected by countermeasures
3385
definitions as to persons or objects protected under the 1949
3389
III Practice of International Organisations and Conferences
3392
VI Other Practice
3393
II National Practice
3394
National Caselaw
3401
In theory an attempt might also be made to justify
3403
In international armed conflicts to which the four Geneva Conventions
3404
II National Practice
3407
Because of the polite acquiescence of the relevant international bodies
3416
741 According to the Report on the Practice of Iran
3417
In international armed conflicts to which the four Geneva Conventions
3424
In the War of 19141918 the illegality except by way
3427
II National Practice
3429
Shall be punished whoever in the event of an armed
3436
prohibited on behalf of its sponsors Austria Egypt Mexico Netherlands
3439
it is nonetheless applicable to the second It follows from
3440
VI Other Practice
3443
Other National Practice
3449
In international armed conflicts to which the four Geneva Conventions
3452
applies in respect of all weapons including nuclear weapons This
3461
VI Other Practice
3463
violations have ceased The United Kingdom will notify the Protecting
3464
1050 Togos Military Manual states that the following prohibitions must
3467
Natural environment
3471
1113 At theCDDH following the adoption of Article 20 AP
3476
III Practice of International Organisations and Conferences
3478
VI Other Practice
3480
significant and direct support of military operations and if such
3485
Various provisions of Additional Protocol I contain prohibitions on reprisals
3487
Geneva Conventions Protocol I and customary international law of armed
3488
National Caselaw
3490
hostilities Its conclusion might also inhibit some States from becoming
3492
with the provisions of the relevant Part even for the
3497
III Practice of International Organisations and Conferences
3499
The reports and allegations received by the Special Rapporteur indicate
3501
1256 In 1995 in a joint report on the situation
3502
of Cultural Property in the Event of Armed Conflict of
3504
VI Other Practice
3505
chapter 42
3507
31 In 1983 during a debate in the Sixth Committee
3512
including acts which adversely affect the basic human rights of
3530
The Signatory Governments agree among themselves that their respective shares
3531
National Legislation
3532
massacre to carry it out and as discovered by domestic
3535
113 Article 14a of the 1951 Peace Treaty for Japan
3537
If property to be restituted has after identification in Germany
3538
of persecution by the Axis Powers it being understood that
3540
Shoah cover and that it would be in the interest
3545
Article 2
3548
enforcement measures Claims for compensation are frequently combined with
3552
177 Argentinas Law on Compensation for Enforced Disappearances provides
3553
Socialism for losses and damages as a result of or
3555
a all money obtained through enforcement in Canada of orders
3556
201 In the Khamzaev case in 2001 a Russian District
3566
provision The Court rejected this argument holding that the Hague
3567
It stated however that for these reasons this court is
3569
217 In 1951 the German Chancellor made a declaration before
3571
suffered by the affected families Money in any quantity will
3575
to facilitate efforts to find attach and seize the assets
3580
internal armed conflict or violence to ensure that
3581
period in connection with the invasion or occupation d the
3584
as a result of environmental damage and e depletion of
3585
chain of causation therefore cannot be upheld262 The Panel included
3587
VI Other Practice
3590
307 Article 1 first paragraph of Chapter Five External Restitution
3595
c Solicitation of the good offices mediation or intervention of
3600
III Practice of International Organisations and Conferences
3604
351 In 2001 in its commentary on Article 35 of
3606
Many possibilities exist including due inquiry into the causes of
3607
for those instruments Beyond that and on a more general
3609
c in a court or other tribunal of the injured
3610
chapter 43
3611
The Tribunal shall have the power to try
3612
under international law does not relieve the person who committed
3618
and security of mankind is not affected by any motives
3619
6 Any other person to which AP II or any
3627
f any other crimes under international law
3629
a grave breaches of the Geneva Conventions
3632
The peoples of the Soviet Union that suffered losses during
3644
respect of prisoners who are in Canadian Forces custody It
3653
is that the individual who has committed any of them
3656
which he represents is not permitted to hide behind the
3657
humanity sanctioned under international law command responsibility can only
3662
Although it was true that barbarity had always existed it
3665
During the same debate New Zealand stated with regard to
3667
288 InOrderNo985191 issuedin1991theYPA ChiefofGeneralStaffstated
3672
The deliberate impeding of the delivery of food and humanitarian
3676
international humanitarian law and reiterated that those who commit
3678
ensure that persons under their control comply with the relevant
3682
responsible are brought to justice while affirming that the primary
3683
This Principle is a corollary to Principle I Once it
3687
IV Practice of International Judicial and Quasijudicial Bodies
3689
were amenable to the jurisdiction of their national criminal courts
3695
whatever their official position even if they are heads of
3697
not prevent crimes from being committed by his subordinates or
3699
The treaties of international humanitarian law provide various mechanisms
3703
Any serious violation of international humanitarian law in armed conflicts
3704
1 Taking into account the scope and extent of any
3705
is not attributable to the State the party responsible for
3706
II National Practice
3707
The alleged acts of the FIS are clearly in violation
3711
II National Practice
3716
subordinates that prisoners could be abused failed to properly exercise
3723
It is a military principle that the subordinate is bound
3724
the question of the criminal responsibility of numerous high military
3726
The Fourth Geneva Convention applies to Kuwait and as
3727
560 In its judgement in the Blaˇskic case in 2000
3732
V Practice of the International Red Cross and Red Crescent
3733
b With respect to superior and subordinate relationships not described
3736
Governments and law enforcement agencies shall ensure that superior officers
3737
II National Practice
3738
the circumstances ruling at the time that the subordinate was
3740
Commanders are also obliged to take measures in order to
3741
Where US personnel are involved military personnel with supervisory authority
3745
628 Cambodias Law on the Khmer Rouge Trial in the
3747
Art 149 A soldier who intentionally omits to take measures
3750
responsible authorities to be investigated questioned and prosecuted which then
3754
their commission or by a failure to take effective steps
3756
The Court based its decision on Article 1 of the
3757
commissions ultimate findings draw no express conclusion of knowledge but
3758
A commander may fulfil his duty to investigate and punish
3759
superior whether political or military to take reasonable
3764
683 In aresolution adoptedin1994on therapeandabuseofwomenin theareas
3765
59 The military commander is not absolutely responsible for all
3767
National Army and Serb irregular forces against Muslims and Croats
3768
War The duty of an Army commander in such circumstances
3771
acts or punish the perpetrators thereof In a way this
3774
The question of responsibility arising from a duty to act
3775
and finds that the lack of formal legal competence to
3781
illegal acts the officers and staff involved and the location
3784
the discussion of the definition of superior this implies that
3785
647 The evidence also satisfies the threepronged test established by
3788
Reporting of war crimes
3791
ADF members are obliged to report LOAC breaches to their
3792
In closing I would remark that it remains
3796
335 Where a person has the material ability
3799
person who commits a war crime pursuant to an order
3804
and such an assumption carried into practice would subvert military
3811
IV Practice of International Judicial and Quasijudicial Bodies
3814
b The person did not know that the order was
3816
The fact that an act was committed pursuant to military
3821
National Legislation
3822
The author or accomplice of a crime hereunder cannot be
3824
The agents error as to the existence of this requirement
3829
950 In his dissenting opinion in the Finta case in
3832
958 In its judgement in the Eichmann case in 1962
3834
was designed to defeat in advance any attempt by the
3835
962 In its judgement in theZuhlkecasein1948theSpecialCourt ofCassation
3837
969 In its judgement in the Von Leeb case The
3839
The acts of a subordinate done in compliance with an
3840
the accused should have recognized the orders illegality as a
3841
977 At the CDDH Canada which voted against the deletion
3842
held liable if it is established that he obeyed the
3843
986 In 1994in itsfirstperiodicalreportto the UN Committee against Torture
3844
should be brought into line with that of article 8
3845
superior orders may however be considered a mitigating factor should
3850
IV Practice of International Judicial and Quasijudicial Bodies
3852
chapter 44
3854
an act or omission committed during an armed conflict that
3865
4 of a person who in relation to an armed
3869
falls on the offender in propria persona The application of
3870
85 In 1998 during a debate in the Sixth Committee
3872
Otherwise it might be argued that these instruments only state
3876
As argued by the parties in addition to the requirements
3882
V Practice of the International Red Cross and Red Crescent
3883
139 Article 161 of the 1999 Second Protocol to the
3887
party provided that this state has an interest in punishing
3891
courts and other military tribunals of the United States as
3893
Although jurisdiction extends to enemy personnel trials have almost exclusively
3894
175 Bulgarias Penal Code as amended which contains a section
3897
Federation and committed by any person whatever his nationality states
3907
shall be guilty of an offence and on conviction on
3911
of participating in such aberrant and cruel behaviour Neither time
3913
258 In its judgement in the Eichmann case in 1961
3918
With respect to the provisions of Articles 49 GC I
3919
attempted rape in the territory of the former Yugoslavia Bosnia
3923
Applying these principles it appears that the power to punish
3926
their universal jurisdiction to encompass the punishment of some international
3929
285 In 1990 during a debate in the House of
3931
Members of the United Nations forthwith take all the necessary
3932
humanitarian law and that all countries are under the obligation
3933
International Conferences
3935
courts in the inherently universal character of the crime It
3938
C Prosecution of War Crimes
3941
contemplated in article 5 if it does not extradite him
3943
367 Frances LOAC Teaching Note in a part dealing with
3952
The Geneva Conventions make one further departure of significance For
3953
393 Australias Geneva Conventions Act as amended provides for the
3959
applicable to breaches committed out of negligence459 In addition it
3961
c grave breaches of article 3 common to the four
3964
for the purposes incidental to or consequential on the trail
3977
A person guilty of an offence in terms of the
3983
to constitute a threat to the protected interests of the
3986
Court revised this judgement into a life sentence for inter
3987
541 In its third periodic report to the CAT in
3991
States have the primary responsibility to ensure the safety and
3992
597 In 1996 in a report concerning UNAMIR in Rwanda
4004
jus cogens norms and other international crimes including sexual slavery
4005
and take necessary measures to be represented on it and
4010
their obligation to take all other measures intended to ensure
4012
is obligated either to place the individual on trial or
4014
VI Other Practice
4016
D Amnesty
4017
655 Article10ofthe2002StatuteoftheSpecialCourtforSierraLeoneprovides
4018
This terminology is used to apply to whichever Party is
4021
are granted to all persons who committed in the period
4023
to limitations or which in conformity with internal law or
4025
701 In the Saavedra case in 1993 concerning the application
4028
possible amnesty for reasons related to the conflict once hostilities
4029
III Practice of International Organisations and Conferences
4033
724 In a resolution adopted in 1997 the UN Security
4034
IV Practice of International Judicial and Quasijudicial Bodies
4039
756 In 1994 in a report on the situation of
4041
responsibility of agents perpetrators of grave violations of human rights
4043
E Statutes of Limitation
4044
778 The US Naval Handbook provides that there is no
4047
offences the prosecution of which may not be prevented under
4052
1 The right of prosecution for murder shall not be
4053
hegemony pursued by certain countries was giving rise to new
4059
who have committed crimes against humanity the representative of
4060
with retroactivity as an essential corollary for without it the
4061
860 In 1977 in reply to a question from the
4067
of persons guiltyof war crimes and crimes against humanity in
4070
The Parliamentary Assembly recommends that the Committee of Ministers
4072
VI Other Practice
4073
II National Practice
4075
penal procedures instituted as a consequence of grave breaches of
4076
of Statutory Limitations to War Crimes and Crimes against Humanity
4077
all States to take the necessary measures in accordance with
4081
Extradition
4083
to extradite any such persons to other countries wishing to
4087
II National Practice
4088
Additional Protocol I states that the contracting parties
4089
3I of 1946 on extradition and punishment of war criminals
4093
Based on Article 28 part XI of the Federal Public
4094
that the extradition and punishment of persons responsible for
4095
VI Other Practice
4097
II National Practice
4099
same provision acts committed during insurrection or civil war are
4102
V Practice of the International Red Cross and Red Crescent
4108
The Federal Republic of Germany further declares pursuant to article
4111
The Court has jurisdiction as soon as the national State
4114
crimes against humanity committed in the territory of former Yugoslavia
4116
In any case the rule regarding priority should be applied
4117
We reaffirm the ICTY President Casseses request that all States
4122
urges the parties to allow the establishment of offices of
4126
in particular concerning the apprehension and extradition of persons indicted
4129
V Practice of the International Red Cross and Red Crescent
4131

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