International Humanitarian Law

Monday  19th  of  April  2010  Professors  Torres and Ferrajoli held  a  lesson  about  “Derechos humanos y justicia penal”. Here we propose an article written by our colleague that participated this important event. We tried to focus on the important things said, with an eye to IHL implications.

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Any comments will be wellcome as usual.

Piergiorgio Fusillo

Daniele La Stella

Emma McGhie

Giorgia Monti

Material from the eighth week of course, going from the 28th to the 30th of April.

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Material from the seventh week of course, going from the 21th to the 23th of April.

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We want to underline this Professor Vierucci's highlight regarding IHL Legal Regime  for Non-International Armed Conflict.

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Material from the sixth week of course, going from the 14th to the 16th of April.

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About Professor Benvenuti's e-mail, we would like to illustrate those recent and sad happenings according to IHL. Please notice that every comment will be welcome as usual. We will be very happy to host some relevant material proposed by anyone.

Korean Destroyer ambushes pirates.

Suicide bombing in Pakistan.

Video Shows American helicopter Killing insurgents and journalists.

Rome, 7th April 2010

Doctor Piergiorgio Fusillo piergiorgio.fusillo@email.it

Doctor Daniele La Stella danielelastella@hotmail.com

Here we propose some of the Contentious Cases debated by Professor Annoni during the lesson of the 1^st of April.

ICJ Orders Uganda to Pay Damages to the Democratic Republic of Congo for Illegal Incursion

The ICJ, on December 19 2005 handed down a decision in Democratic Republic of Congo v. Uganda, ruling that Uganda violated the principles of non-intervention under Art 2 of the UN Charter and further violated international human rights and humanitarian law when it launched military operations in the DRC between 1998 and 2003. The Court explicitly rejected Uganda's claim of self defense in the case, holding that Uganda should pay reparations, which the government of the DRC estimates will be in the $6-10 billion range. From the ruling:

(p. 57) The Court considers that the obligations arising under the principles of non-use of force and non-intervention were violated by Uganda even if the objectives of Uganda were not to overthrow President Kabila, and were directed to securing towns and airports for reason of its perceived security needs, and in support of the parallel activity of those engaged in civil war.

In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, the Court made it clear that the principle of non-intervention prohibits a State to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State (I.C.J. Reports 1986, p. 108). The Court notes that in the present case it has been presented with probative evidence as to military intervention. The Court further affirms that acts which breach the principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.

In relation to the first of the DRC final submissions, the Court accordingly concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC. Uganda actions equally constituted an interference in the internal affairs of the DRC and in the civil war there raging. The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.

The Court further held that both IHL and human rights obligations were binding on the Ugandan troops then occupying the DRC, and that the Ugandan government was liable under the doctrine of responsibility for those acts:

(p. 71) In view of the foregoing, the Court finds that the acts committed by the UPDF [Ugandan People's Defense Force] and officers and soldiers of the UPDF are in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying Power. These obligations are binding on the Parties as customary international law. Uganda also violated the following provisions of the international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties:

• Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard to obligations of an occupying Power;
• International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7;
• First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2;
• African Charter on Human and People's Rights, Articles 4 and 5;
• Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
• Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3, 4, 5 and 6.

The Court thus concludes that Uganda is internationally responsible for violations of international human rights law and international humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law and international humanitarian law in the occupied territory.

The full opinion can be found here.

Legal Consequences of the constructions of a wall in the occupied Palestinian territory

The International Court of Justice (ICJ), principal judicial organ of the United Nations, has rendered its Advisory Opinion in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.

In its Opinion, the Court finds unanimously that it has jurisdiction to give the advisory opinion requested by the United Nations General Assembly and decides by fourteen votes to one to comply with that request.

• The Court responds to the question as follows:

The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.

Israel is under an obligation to terminate its breaches of international law;  it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion.

Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.

All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction;  all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.

The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.

• Reasoning of the Court:

The Advisory Opinion is divided into three parts:  jurisdiction and judicial propriety;  legality of the construction by Israel of a wall in the Occupied Palestinian Territory;  legal consequences of the breaches found.

An in-depth analysis can be found here.

The full decision can be found here.

Material from the fifth week of course, held form the 31th of March to the 1st of April.

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We suggest you to check the outline of the speech held by Professor Annoni during the lesson of the first of April. You can find it here.

Please notice that an analysis of the cases reported by Professor  Alessandra Annoni, University of Catanzaro, will follow soon. We suggest to visit our Blog in short time to read this material.

Wishing you an Easter full of peace

Dott.ri Fusillo and La Stella

In this topic you will find various links to third-party material useful to  better understand IHL course.

To this material we have counted numerous references during lessons and we have decided to share with everybody those documents hoping you'll find it usefull.

• Geneva Convention

The Geneva Convention is made up of four treaties and three additional protocols that set the standards in international law for humanitarian treatment of the victims of war.The Geneva Conventions apply at times of war and armed conflict to governments who have ratified its terms. The details of applicability are spelled out in Common Articles 2 and 3. The reader should recognize the controversial nature of the topic of applicability. When the Geneva Conventions apply, governments must surrender a certain degree of their national sovereignty to comply with international law. These laws may not be entirely harmonious with their national constitution or their cultural values. Despite the advantages offered by the Conventions to individuals, political pressures may cause the governments to be reluctant in accepting its responsibilities.

Geneva Convention IV

Geneva Convention Additional Protocol I

Geneva Convention Additional Protocol II

Geneva Convention Additional Protocol III

• Convention on the Rights of the Child

The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights, civil, cultural, economic, political and social rights. In 1989, world leaders decided that children needed a special convention just for them because people under 18 years old often need special care and protection that adults do not. The leaders also wanted to make sure that the world recognized that children have human rights too. The Convention on the Rights of the Child guarantees the rights of all children. This fact sheet discusses the problem that girls are not always granted equal access to their rights.

Convention on the Rights of the Child

Convention on the Rights of the Girls

• The Hague Conventions

The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences  at The Hague, Netherlands in 1899 and 1907, respectively, and were, along with the Geneva Conventions, among the first formal statements of the laws of war and war crimes in the nascent body of secular international law. A third conference was planned for 1914 (later rescheduled for 1915), but was never realized due to the start of World War I.

The Hague Conventions

• Statute of the International Criminal Court (ICC)

The United Nations has been considering the establishment of a permanent international criminal court since its creation. After years of negotiations, a Diplomatic Conference was held from 15 June to 17 July 1998 in Rome which finalised and adopted the Statute for the International Criminal Court (ICC). The Statute was finally adopted by a vote where 120 were in favour, 7 against and 21 abstained. The establishment of an ICC represents a major progress for better implementation of international humanitarian law and a clear step forward in the battle against impunity. Hence, for the Court to be truly effective, a very large number of States must ratify the Statute. The ICC will be established in the Hague and will have jurisdiction over suspected perpetrators of genocide, crimes against humanity, war crimes or aggression, including superiors or military commanders. The Court may exercise its jurisdiction, if the State on the territory of which the act or omission occurred or the State of nationality of the suspect is Party to the Statute or has accepted the jurisdiction of the Court. The Prosecutor can refer cases proprio motu ( on his/her own initiative). The Court has not a retroactive effect. The ICC is not intended to take over jurisdiction exercised by national courts: the ICC is intended to exercise its jurisdiction only when the state is unwilling or genuinely unable to prosecute. States continue to have the primary duty to prosecute suspected war criminals before their own courts.

Statute of the International Criminal Court (ICC)

• Convention on Cluster Munitions

After decades of seeing civilians suffer with each new use of cluster munitions, and in the face of an inadequate response in other fora, Norway launched the "Oslo Process" on cluster munitions in February 2007 by inviting governments supporting the development of new rules on cluster munitions to a conference in Oslo. This Process was open to all States committed to adopting urgently a treaty prohibiting cluster munitions which cause "unacceptable suffering" to civilians. The Final Declaration of the Conference, which was supported by 46 States, established several common goals, including the adoption of a legally binding international instrument prohibiting "cluster munitions that cause unacceptable harm to civilians" by the end of 2008, and the establishment of a framework for cooperation and assistance for the care and rehabilitation of survivors, the clearance of contaminated areas, risk education, and the destruction of prohibited cluster munitions. More than 100 States began to consider these issues in detail during preparatory sessions in Lima, Vienna and Wellington in 2007 and early 2008. Following the last preparatory meeting, States adhered to the Wellington Declaration, confirming their attendance as full participants in negotiations at the Diplomatic Conference held in Dublin, Ireland, in May 2008. After these successful international conferences and various regional meetings in many other parts of the world, 107 States adopted the Convention on Cluster Munitions on May 30, 2008 in Dublin.

Convention on Cluster Munitions

• Convention on the Prevention and Punishment of the Crime of Genocide

The Convention on Genocide was among the first United Nations conventions addressing humanitarian issues. It was adopted in 1948 in response to the atrocities committed during World War II and followed G.A. Res. 180(II) of 21 December 1947 in which the UN recognised that "genocide is an international crime, which entails the national and international responsibility of individual persons and states." The Convention has since then been widely accepted by the international community and ratified by the overwhelmingly majority of States.  The jurisprudence of the International Court of Justice considers the prohibition of genocide as peremptory norms of international law ( see Reservations to the Convention on Genocide, 1951 I.C.J. Rep. 15, 23; see also Case Concerning Barcelona Traction, Light and Power Co. (Belg. v. Spain), 1970 I.C.J., Rep. 3, 32). Moreover, the ICJ recognises that the principles underlying the Convention are principles which are recognised by civilised nations binding on States, even without any conventional obligation. Noteworthy, the Convention provides for a precise definition of the crime of genocide, in particular in terms of the required intent and the prohibited acts (Article II). It also specifies that the crime of genocide may be committed in time of peace or in time of war.

Convention on the Prevention and Punishment of the Crime of Genocide

• The Charter of the United Nations

The Charter of the United Nations is the foundational treaty of the international organization called the United Nations.  It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on June 26, 1945, by 50 of the 51 original member countries (Poland, the other original member, which was not represented at the conference, signed it later). It entered into force on October 24, 1945, after being ratified by the five permanent members of the Security Council-the Republic of China (later replaced by the People's Republic of China), France, the Union of Soviet Socialist Republics (later replaced by the Russian Federation), the United Kingdom, and the United States-and a majority of the other signatories. Today 192 countries are the members of the United Nations. As a charter, it is a constituent treaty, and all members are bound by its articles. Furthermore, the Charter states that obligations to the United Nations prevail over all other treaty obligations. Most countries in the world have now ratified the Charter. One notable exception is the Holy See, which has chosen to remain a permanent observer state and therefore is not a full signatory to the Charter.

The Charter of the United Nations

• Opinion of ICJ in Nicaragua vs United States (Case Nicaragua 1986)

The Republic of Nicaragua vs The United States of America  was a 1986 case of the International Court of Justice  (ICJ) in which the ICJ ruled in favor of Nicaragua  and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting Contra guerrillas in their rebellion against the Nicaraguan government and by mining  Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council  and thereby prevented Nicaragua from obtaining any actual compensation.  The Nicaraguan government finally withdrew the complaint from the court in September 1991, following a repeal of the law requiring the country to seek compensation, thus settling the matter. The court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956". The court had 16 final decisions which it voted upon. In Statement 9, the court stated that the U.S. encouraged human rights violations by the Contras by the manual entitled Psychological Operations in Guerrilla Warfare. However, this did not make such acts attributable to the U.S. The very long judgment first listed 291 points. Some regarding that the United States had been involved in the "unlawful use of force". The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government. This was followed by the statements that the judges voted on.

Opinion of ICJ in Nicaragua Case

Material from the fourth week of course, going from the 24th to the 26th of March.

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It's with pleasure that we highlight those documents from Harvard University:

Harvard University

• Humanitarian Policy and Conflict Research
• International Humanitarian Law Research Initiative

We will also like to underline the meeting held by:

Professors Fausto Pocar, Gabriella Venturini and Marco Odello

Further information can be found here.

Material from the third week of course, going from the 17th to the 19th of March.

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Material from the second week of course, going from the 10th to the 12th of March.

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Regarding  the lesson held the 11th of March:  The beginning and  termination of hostilities  in  international armed conflicts (Prof.
Marina Mancini, University of Reggio Calabria) We propose an article by our colleague, Fiamma De Nardo.

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Material from the first week of course, going from the 3rd to the 5th of March.

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INTERNATIONAL HUMANITARIAN LAW COURSE

(Professor Paolo Benvenuti)

Calendar of the Course

(March-May 2010. Wednesday- Thursday – Friday, 15.45-17.45)

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Benvenuto,

Questo Blog nasce principalmente con l'obiettivo di ordinare e rendere disponibile il materiale didattico utile per affrontare il corso di IHL.

Tale corso è tenuto dal Professor Paolo Benvenuti presso l'università di Roma 3, facoltà di giurisprudenza, il mercoledì, giovedì e venerdì dalle 15.45 alle 17.45 in aula 4.

Questi topic sono un aiuto ai frequentanti del corso, e per quanto possibile, cercheremo di tenere aggiornato il Blog con i file che il Professore ci vorrà mano mano fornire, nella speranza di creare un archivio digitale, una memoria collettiva.

Il Blog non vuole essere un mero recipiente, ma un vero e proprio luogo di ritrovo dove scambiarsi idee, opinioni e chiarire, se possibile, eventuali dubbi, insomma, un estensione di quell' aula 4 dove ci ritroviamo. L' invito è quindi esteso a tutti coloro, anche non studenti, che vogliano approfondire questa materia.

Ci auguriamo che questa iniziativa abbia seguito, e ringraziamo fin d'ora chi ci vorrà aiutare in questa avventura.

Piergiorgio Fusillo e Daniele La Stella