violence and the use of force

8/14/2019 Violence and the use of force

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and the use o orce VIOLENCE


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International Committee o the Red Cross19 Avenue de la Paix1202 Geneva, SwitzerlandT

+ 41 22 734 60 01F

+ 41 22 733 20 57E -mail: [email protected] .icrc.org ICRC, January 2008

Cover Photo: Fabrice Co rini/Reuters


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CONTENTS

1. LEGAL FRAMEWORK 71.1. Public international law and

national legislation 71.2. Law o armed con ict and

human rights law 8

2. SITUATIONS OTHER THAN ARMED CONFLICT 152.1. Assemblies and demonstrations 152.2. Internal disturbances

and tensions 182.3. State o emergency 20

3. ARMED CONFLICT 253.1. Non-international

armed con ict 263.2. International armed con ict 303.3. Internationalized

armed con ict 33

4. PEACE SUPPORT OPERATIONS 354.1. De nition 35

4.2. Applicable law 354.3. Practical implications 37

5. SPECIFIC ISSUES 395.1. Law en orcement 395.2. Use o orce and rearms

and conduct o hostilities 415.3. Arrest and detention 46

6. THE ICRC 516.1. In short 516.2. Practical implications 52

7. REFERENCES 577.1. ICRC publications

on these issues 577.2. Abbreviations 57


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J o r d a o

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Maintaining law and order is the responsibilityo civil authorities. It is the task o the civil

police and/or o paramilitary troops, such asgendarmeries, which are specially equipped,organized and trained or such missions. The ordinary role o the armed orces o a Stateis to de end national territory against externalthreats (international armed con ict) and todeal with internal (non-international) armedcon ict situations. However, armed orces

may be required to come to the assistanceo civil authorities to deal with much lowerlevels o violence that may be characterizedas internal disturbances and tensions.

Disturbances can involve a high level o violence, and even non-State actors maybe airly well organized. The line separatingdisturbances and tensions rom armed con ictcan sometimes be blurred, and the only way tocategorize speci c situations is by examiningeach individual case. The intensity o theviolence is the main determining actor.

Categorizing a situation is much more thana theoretical exercise. It has direct conse-

quences or both the commanders and thevictims o the violence, because it deter mineswhich rules apply, and the protection theyprovide is established in greater or lesserdetail according to the legal situation.

The present lea et summarizes the diferentlegal situations, their de nitions, the law

applicable, practical implications, and therole o the ICRC. The issues are presented instrictly legal terms. Although preventing orcontaining the escalation o violence is parto a commanders mission and legal obli ga-tion, this lea et does not deal with tacticalconsiderations. For methodological reasons,situations are grouped into three categories:situations other than armed con ict, armedcon ict, and peace support operations.

INTRODUCTION


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G i l C o

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1.1. Public international lawand national legislation

Public international law governs therelations between States themselves, orwith and between international organizations.It helps maintain a viable international society.As ar as armed con ict is concerned, adistinction is made between jus ad bellum or the law that outlaws war essentially theUN Charter that prohibits the use o orce in

the relations between States, except in caseso sel de ence or collective security and jus in bello or the law applicable in time o armed con ict (see Part 3 below). The latterdoes not make any judgement on the motivesor resorting to orce.

There are many diferent kinds o subjects o international law , or entities that assumerights and obligations under this legal system.In relation to the issue o the use o orce,the State de ned as a sovereign entitycomp osed o a population, a territory anda governmental structure is o course animportant bearer o rights and obligationsunder international law. Consequently, it isresponsible or the acts o its unctionaries

in their o cial capacity or o de acto agents.Insurgents and liberation movements also have obligations under international law in particular, under the law o armed con ict.

Article 38 o the Statute o the InternationalCourt o Justice lists the sources o inter-national law as: international conventions or

treaties; international custom, as evidence o a general practice accepted as law; the gen-eral principles recognized by civilized nations;and judicial decisions and the teachings o the most highly quali ed publicists o thevarious nations, as subsidiary means or thedetermination o rules o law.

National legislation needs to be incon ormity with a States internationalobligations. The national legislation o eachState decides on the efects o treaties in theirrespective jurisdiction. Many States simplyallow treaties to operate as law. Others requiretreaties to be converted into domestic law and in some cases rewritten or them tohave any efect.

All military or police operations, whatever their names or the orces engaged, take place withina legal ramework shaped by international law (primarily law o armed con ict and/or humanrights law) and national legislation.

1. LEGAL FRAMEWORK


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1.2. Law o armed con ictand human rights law

The law o armed con ict and human rightslaw are complementary . Both are intended

to protect the lives, integrity and dignity o individuals, albeit in diferent ways. Both alsodirectly address issues related to the useo orce.

The law o armed con ict has been codi edand developed to regulate humanitarianissues in time o armed con ict; it aims to

protect persons not (or no longer) takingpart in hostilities and to de ne the rightsand obligations o all parties to a con ict inthe conduct o hostilities. Human rights law protects the individual at all times, in peaceand war alike; it bene ts everyone and itsprincipal goal is to protect individuals romarbitrary behaviour by States. For theseprotections to be efective, internationalprovisions must be re ected in nationallegislation.

Most human rights instruments allow govern-ments to derogate , under strict conditions,

rom certain rights when con ronted with aserious public threat (see below). However,there is a hard core (see 2.3.2.) o basic rightsrom which governments cannot derogateunder any circumstances. Among these basicrights is the right to li e. No derogations arepermitted under the law o armed con ict, asthis branch o law was designed rom the

outset to apply in extreme situations. It strikesa balance between military necessities andhumanitarian objectives.


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1.2.1. Law o armed con ict The law o armed con ict is a set o rulesintended to limit the efects o armed con ict

or humanitarian reasons. O customaryorigins, it has been codi ed in treaties since1864. The law o armed con ict protectspersons not (or no longer) participating inhostilities and restricts the means andmethods o war are. The law o armed con ictis also known as international humanitarianlaw or the law o war.

The Geneva Conventions revised and ex-panded in 1949 lay down rules to protectthe ollowing groups o people:

First Convention: sick and wounded onthe battle eld

Second Convention: sick, wounded andshipwrecked at sea

Third Convention: prisoners o war

Fourth Convention: civilians in time o war The our Geneva Conventions are the mostwidely accepted international treaties. In act,

they have achieved universal acceptance:they have been rati ed by all States in theworld.

The rules governing the conduct o hostilities are set out in the Hague

Conventions o 1899 and 1907. They limit themethods and means o war are that parties toa con ict may use. In essence, they regulatethe conduct o military operations in an armedcon ict by de ning proper and permissibleuses o weapons and military tactics.

Rules on the protection o individuals and

the conduct o hostilities were brought to-gether and developed in the two Protocolsadd itional to the Geneva Conventionsadopted in 1977.

Several other treaties complement these pro-visions, such as the Hague Convention o 1954 or the Protection o Cultural Property inthe Event o Armed Con ict, the Conventionon Certain Conventional Weapons o 1980,the 1997 Convention on the Prohibition o Anti-personnel Mines and on their Destruc-tion, the Rome Statute o the InternationalCriminal Court o 1998 and the 2005 Protocol IIIadditional to the Geneva Conventions, esta-blishing an additional emblem (commonlyre erred to as the red crystal) alongside the

red cross, the red crescent and the red lionand sun.


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1.2.2. Human rights lawHuman rights law consists o a set o principles and rules, on the basis o which

individuals or groups can expect certainstandards o protection, conduct orbene ts rom the authorities , simplybecause they are human beings. The mainuniversal instruments o international humanrights law now in orce include:

The Universal Declaration o Human Rights,

adopted by the UN General Assemblyin 1948

The International Covenant on Civil andPolitical Rights o 1966

The International Covenant on Economic,Social and Cultural Rights o 1966

The Convention against Torture and OtherCruel, Inhuman, or Degrading Treatment or

Punishment o 1984

The Convention on the Rights o the Childo 1989

Regional instruments such as the EuropeanConvention on Human Rights, the AmericanConvention on Human Rights or the A rican

Charter on Human and Peoples Rights create their own international supervisorymechanisms alongside the universal system.

The right to li e is the supreme humanright, since without efective guarantees orit, all other human rights would be devoido meaning. The right o everyone to li e,liberty and security o person is proclaimed


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in Article 3 o the Universal Declaration o Human Rights. These rights are reiterated

in Articles 6.1 and 9.1 o the InternationalCovenant on Civil and Political Rights (ICCPR)as well as in regional instruments (A ricanCharter on Human and Peoples Rights, Arts4 and 6; American Convention on HumanRights, Arts 4.1 and 7.1; European Conventionon Human Rights, Arts 2 and 5.1).

Article 6.1 o the ICCPR states that: Everyhuman being has the inherent right to li e. This right shall be protected by law. No oneshall be arbitrarily deprived o his li e.

Article 9.1 o the ICCPR states that: Everyonehas the right to liberty and security o person.No one shall be subjected to arbitrary arrestor detention. No one shall be deprived o

his liberty except on such grounds and inaccordance with such procedure as are

established by law.

Pro essionals responsible or law en orce-ment should be amiliar with, in particular,the United Nations Code o Conduct orLaw En orcement O cials (CCLEO, 1979)and the Basic Principles on the Use o Forceand Firearms by Law En orcement O cials

(BPUFF, 1990). Because these two documentsdo not set legally bin ding obligations, theyare part o what is commonly known as so tlaw. However, they give use ul guidanceon speci c issues related to themaintenance o law and order.


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1.2.3. Customary international law Treaties bind only those States that haveagreed to be bound by them, usually through

rati cation. These written obligations arecomplemented by customary law derivedrom a general practice accepted as law .

The ICRC was mandated by States to carry outa study that would contribute to the clari ca-tion o the content o the customary law o armed con ict. The study, which involvedextensive research and took eight years to

complete, identi ed 161 rules which wereound to be customary today.

While the our Geneva Conventions o 1949have been universally rati ed, other treatiescomprising the law o armed con ict including the 1977 Protocols additional to theGeneva Conventions have not. However, anumber o rules and principles set out in

treaties that have not been rati ed by certainStates, including many rules governing the

conduct o hostilities and the treatment o persons not or no longer taking a direct partin hostilities, are also part o customary lawand are there ore binding on all States,regardless o which treaties they have orhave not adhered to .

A signi cant number o customary rules o

the law o armed con ict set out in muchgreater detail than treaty law the obligationso parties in non-international armedcon ict . This is especially true o rulesgoverning the conduct o hostilities. Forexample, treaty law does not expressly prohibitattacks on civilian objects in non-internationalarmed con ict, but customary internationallaw does.


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Despite the act that, nowadays, most armedcon icts are non-international, the treaty

law applicable to such con icts remainsairly limited (see section 3.1). The ICRC studyshows, however, that a large number o customary rules o the law o armed con ictare applicable in both international andnon-international armed con ict . To applythese rules there is no need to establish thata con ict is international or non-international,

as they apply in any armed con ict.

It can be especially use ul to re er to thecustomary law o armed con ict when war-ring parties orm coalitions . Contemporaryarmed con ict o ten involves a coalition o States. When the States orming a coalition donot all have the same treaty-based obliga-tions (because they have not all rati ed the

same treaties), rules o the customary law o armed con ict come to represent rules that

are common to all members o the coalition. These rules can be used as a minimumstandard or dra ting common rules o engagement or or adopting targetingpolicies. It should be borne in mind, however,that customary rules cannot weaken or re-place the applicable treaty obligations o individual coalition members.


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2.1. Assemblies anddemonstrations

2.1.1. De nition The phenomenon o people taking to thestreets to express their opinions publicly iscommon enough in most countries o theworld. Events such as rallies, demon stra-tions (or whatever they may be called)are seen as an inevitable consequence o individual and collective reedom. Althoughsuch events are not necessarily violent,un ortunately the occasions that tend tostand out and be remembered are thosewhere physical con rontation occurs (amongdemonstrators or between demonstrators

and law en orce ment o cials).

2.1.2. Applicable lawA number o rights and reedoms codi edin such instruments o international humanrights law as the ICCPR are applicable toassemblies, demonstrations, rallies and similarevents. Everyone has the right:

to hold opinions without inter erence(ICCPR, Art. 19.1);

to reedom o expression (ICCPR, Art. 19.2);

o peace ul assembly (ICCPR, Art. 21);

to reedom o association (ICCPR, Art. 22.1).

2. SITUATIONS OTHERTHAN ARMED CONFLICT

In most countries, law en orcement operations in situations other than armed con ict areconducted by the police or security orces. When military orces are deployed in such situations,they usually play a rein orcement role and are subordinated to the civilian authorities. The roleo o cials and organizations tasked with law en orcement , irrespective o who theymay be or how they are set up, is to:

a) maintain public order and security;

b) prevent and detect crime; and

c) assist in emergencies o all kinds.

The law o armed con ict does not apply to situations other than armed con ict. These aregoverned by the human rights obligations o the State concerned.


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The exercise o these rights is not withoutlimits . Restrictions can be imposed, provided

that they are:

law ul

necessary:- or respect o the rights or reputations o

others; or- or the protection o national security

or o public order, or o public health ormorals (ICCPR, Arts 19.3, 21 and 22.2)

proportionate, i.e. States must impose as ewrestrictions as possible to achieve their aims

In addition to the above, public sa ety may beinvoked as a law ul reason or restricting the righto peace ul assembly and the right to reedomo association. (See ICCPR, Arts 21 and 22.2.)

Article 22 o the ICCPR sets out the right o all per-sons to reedom o association. However, it isimpor tant to note the last sentence o para graph2: This article shall not prevent the imposition o law ul restrictions on members o the armedorces and o the police in their exercise o this

right. Many States restrict the political acti-vities o the police and the military in orderto prevent these arms-carrying orces rombecoming involved in political afairs.

2.1.3. Practical implicationsMaintaining law and order, in particular whendealing with unlaw ul assemblies, is a complex

task. Riots can be rightening experiencesor any law en orcement o cial, and it takesconsiderable courage to stand in ront o an angry and possibly armed mob. A well-trained, pro essional and disciplinedorce is needed to calm or disperse a crowdwithout resorting to the use o orce. Thechallenge is great or police or security orces,

which may be ill-prepared or ill-equippedor such a task. It is, however, ar greater ormembers o the armed orces, whose role ormission prepare them to deal with enemiesrather than ellow citizens. They are thususually neither trained nor equipped orcrowd control.

Be ore assigning such a mission to any orce,authorities need to make sure that nationallaw con orms to international standards.Furthermore, national legislation must stip-ulate the circumstances in which the armedorces may be called upon to per orm lawen orcement tasks and clari y relationsbetween the civilian power and the militaryduring such operations. Accordingly, all

necessary measures must be taken to:


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avoid excessive use o orce by lawen orcement o cers, including military

orces (see 5.1.1), while maintaining orrestoring law and order;

ensure that any person who is woundedreceives suitable treatment and thatdead bodies are treated with respect andidenti ed; and

ensure that those arrested or detained byauthorities maintaining or restoring lawand order are treated airly and humanely.

The standard operating procedures or law en orcement o cials need to becompatible with international standardsregarding the use o orce. They should beincluded in manuals written in plain languagethat is easily accessible to the various kindso personnel and trans ormed into ruleso engagement . The training o personnelshould involve practical exercises that areas close to reality as possible. A tight chaino command and discipline (includingsanctions) ensure efective supervision andcontrol. Finally, equipment , in particular

protective gear and communication devices,is key to maintaining control over a situation

and averting violence. Only law en orcemento cials with appropriate training, equip ment

and orders working in a suitable disciplinarysystem should be deployed.

Large-scale events like demonstrations andassemblies involve a degree o predictabilityin that they require preparation . Lawen orce ment agencies increasingly endeavourto be involved in the preparation phase by

negotiating the details o an event with itsorganizers. Recognition o the act thatpeople in a crowd are individuals and notmerely a aceless mob provides the basisor communication to take place betweenlaw en orcement o cials and participantsin a demonstration. Pinpointed action against individuals breaking the law has a lowimpact on a demonstration, as it does notafect innocent bystanders, who can carry onwithout interruption.


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2.2. Internal disturbancesand tensions

2.2.1. De nitionNone o the instruments o international lawofers an adequate de nition o what is to be

understood by the term internal distur-bances and tensions. Article 1, paragraph 2 o Protocol II additional to the Geneva Conven-tions o 1949 does mention situations o internal disturbances and tensions, such asriots, isolated and sporadic acts o violence and other acts o a similarnature , as not being armed con icts

(emphasis added). Beyond those ewexamples, it does not give a de nition.

In practice, disturbances are typically actso public disorder accompanied by acts o violence. In the case o internal tensions ,there may be no violence, but the Statemay resort to practices such as mass arrestso opponents and the suspension o certainhuman rights, o ten with the intention o preventing the situation rom degeneratinginto a disturbance.

2.2.2. Applicable lawEssential principles o human rights lawthat are applicable in times o disturbance

and tension and that are particularly relevantor law en orcement are:

the right o every human being to li e,liberty and security o person;

the prohibition o torture and cruel, inhumanor degrading treatment or punishment;

the prohibition o arbitrary arrest or detention;

the right to a air trial;

the right o persons deprived o theirliberty to be treated with humanity;

the prohibition o arbitrary or unlaw ulinter erence with a persons privacy, amily,home or correspondence;

the right to reedom o opinion, expression,peace ul assembly and association.


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Where national law allows emergency mea-sures to be taken in the interests o national

security, public sa ety or public order, theapplication o such measures may notbe arbitr ary or discriminatory. The right toreedom o expression, peace ul assemblyand association may be limited as aconsequence o internal disturbances andtensions only where such limitations are law-ul and necessary.

2.2.3. Practical implicationsIt is not always clear when separate incidents(such as assemblies, rallies, demonstrations,

riots, isolated acts o violence) become re-lated and, viewed together, constitutemore or less consistent patterns re erredto as disturbances or tensions. What is clear,however, is that a pattern o this kind posesserious problems or the authorities in termso maintaining public sa ety and law and order.Disturbances and tensions can eventually

lead to situations that threaten the li e o thenation and lead the government to proclaima state o emergency (see below).

The speci c law en orcement problems posedby disturbances and tensions depend on thestandards o a given law en orcement agencysorganization and equipment and on the train-ing o its personnel. The law en orcementaction taken in such situations can have ar-reaching consequences. Law ul, non-arbitraryand precisely targeted orms o action directedat initiators and perpetuators o disturbancesand tensions can lead to a reassertion o control and de use a situation . Randomaction as well as unlaw ul, arbitrary anddiscriminatory action can erode con dence

in law en orcement, urther endanger publicsa ety and be at least partly responsible orthe urther escalation o a situation.


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2.3. State o emergency

2.3.1. De nitionInternal disturbances and tensions can leadto a government losing con dence in its abili-

ty to control a situation with the measures ithas at its disposal. Accordingly, Article 4 o theICCPR lays down that States may takemeasures derogating rom their obli-gations under the present Covenant, butonly in time o public emergency whichthreatens the li e o the nation and theexistence o which is o cially proclaimed

(emphasis added).

2.3.2. Applicable lawNational legislation embodying humanrights law, i need be with derogations, is

applicable in a state o emergency. I the stateo emergency is declared or maintainedduring an armed con ict, then the law o armed con ict also applies.

Most constitutions contain emergencyclauses that empower the head o State orthe government to take exceptional measures

(including restrictions on or the suspensiono basic rights) with or without the consent o parliament in wartime or in other emergencysituations. O course, such provisions may bemisused. International law thus has the task o striking a balance between recognizing thelegitimate right o sovereign States to de endtheir constitutional order and upholdinghuman rights.

The various regional human rights instru-ments also recognize states o emergency.Whereas the ICCPR mentions only publicemergency as a basis or declaring a stateo emergency, Article 15 o the EuropeanConvention on Human Rights, Article 15 o the European Social Charter and Article 27 o

the American Convention on Human Rightsall mention war as well. The A rican Charteron Human and Peoples Rights does notcontain an emergency clause.


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The derogation o rights provided or underthe ICCPR is a suspension or restriction by the

State o certain obligations. However, evenderogations are governed by internationalhuman rights law; they do not amount to acomplete and unchecked suspension o human rights. A number o requirementsneed to be ul lled.

The emergency must be o cially

proclaimed by the domestic bodyempowered to do so. This enables thepopulation to know the exact material,territorial and temporal scope o theemergency measures and also prevents deacto derogations and retroactive attemptsto justi y human rights violations.

Derogation measures may be taken onlyto the extent strictly required by theexigencies o the situation.

The measures taken must not beinconsistent with (the States) otherobligations under international law and(must) not involve discrimination solely onthe ground o race, colour, sex, language,

religion or social origin.

Article 4.3 o the ICCPR stipulates thatany State Party shall immediately in orm

other States Parties (), through theintermediary o the Secretary-Generalo the United Nations, o the provisionsrom which it has derogated and o the reasons by which it was actuated.Similarly, in ormation must be givenwhen the state o emergency ends. Thesecommunications are meant to acilitate

international supervision. As previously mentioned, some rights

cannot be derogated under anycircumstances.


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In Article 4.2 o the ICCPR cross-re erence ismade to a number o non-derogable pro-

visions . They are:

the right to li e (Art. 6);

the prohibition o torture (Art. 7);

the prohibition o slavery and servitude(Art. 8);

the prohibition o detention or debt(Art. 11);

the prohibition o retroactivity o criminallaw (Art. 15);

the right to recognition as a person be orethe law (Art. 16);

the right to reedom o thought,conscience and religion (Art. 18).

None o these may be suspended or abro-gated under a state o emergency. Each

provision exists or all persons in allcircumstances . A State there ore may notuse the imposition o a state o emergency asan excuse or ailing to protect and upholdnon-derogable rights.


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2.3.3. Practical implicationsIt is essential or any orce that may operate in adeclared state-o -emergency situation to ully

acknowledge the act that although somehuman rights are suspended, the use o orceand rearms remains governed by nationallegislation, in compliance with internationalobligations. See also 2.1.3, 2.2.3 and 5.


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C D I C / R e u t e r s


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3. ARMED CONFLICT

According to the International Criminal Tribunal or the ormer Yugoslavia, an armed con ictexists whenever there is a resort to armed orce between States or protracted armed violencebetween governmental authorities and organized armed groups or between such groupswithin a State (Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the De enceMotion or Interlocutory Appeal on Jurisdiction, 2 October 1995 (ICTY Appeals Chamber),para. 70). In most countries, military operations are conducted by the armed orces. However,police or security orces may also be engaged; in such cases they retain their responsibility orlaw en orcement.

While domestic law and international human rights law remain applicable (with possiblederogations) in time o peace as in time o armed con ict, the law o armed con ict isexclusively applicable in time o armed con ict, whether non-international or international(apart rom preparatory and implementation measures applicable in time o peace). The lawo armed con ict protects con ict victims and regulates the conduct o hostilities.


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3.1. Non-internationalarmed con ict

3.1.1. De nitionsIn general , in non-international armedcon ict:

non-governmental armed groups ghteither among themselves or againstgovernmental orces;

with a level o intensity exceeding that o isolated and sporadic acts o violence; and

with a level o collective organizationenabling them to carry out sustained andconcerted operations.

In addition, the armed groups may also ex-ercise a certain minimum control over theterritory . Exercising such control entails nochange in the status o the parties, but itdoes determine which legal instruments areapplicable (see below).

3.1.2. Applicable law The law o non-international armed con ictdistinguishes two situations : that in which

the armed group has achieved a certainminimum control over a territory and that inwhich it has not. The applicable law dependson which situation holds.

Only a ew provisions o the law o armedcon ict speci cally concern non-internationalarmed con ict; most o the applicable legal

ramework is there ore provided by customarylaw o armed con ict. However, in general ,the ollowing instruments o the law o armedcon ict apply:

Article 3 common to the GenevaConventions o 1949;

Article 4 o the Hague Convention o 1954or the protection o cultural property;

the Convention on Certain ConventionalWeapons o 1980, its Protocols I to IV (through amended Article 1) and Protocol V;

the Ottawa Convention o 1997 banninganti-personnel mines;


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the Second Protocol o 1999 to theHague Convention or the protection

o cultural property;

the Optional Protocol o 2000 to theConvention on the Rights o the Child on theinvolvement o children in armed con ict;

Protocol III o 2005 additional to theGeneva Conventions.

Article 3 common to the Geneva Conventionso 1949 is the most undamental provisionapplicable to non-international armed con ict.It constitutes a summary o the essential rulesapplicable in all armed con ict.

Whenever an armed group has achieved acertain minimum control over a territory ,Protocol II additional to the Geneva Conven-tions, which develops and supplementsCommon Article 3, is applicable in additionto the other instruments already mentioned.Additional Protocol II contains, in particular:

an extended list o undamental rightsand protections;

precise provisions regarding personswhose liberty has been restricted;

provisions relating to prosecution andpunishment o criminal ofences relatedto internal armed con icts, including acall or a broad amnesty at the end o the hostilities;

more detailed provisions on wounded, sick

and shipwrecked persons, and on medicalunits, transport and personnel;

more precise provisions on the protectiono the civilian population, including theprohibition o orced movement o civilians,unless the security o the civilians involvedor imperative military reasons so demand.

These written obligations are complement-ed by customary law , which derives rom ageneral practice accepted as law.

Domestic law and international humanrights law, i need be with derogations, areully applicable in non-international armedcon ict (e.g. or persons arrested or detained).

Derogations rom guaranteed human rightsmust be compatible with the obligations o the State concerned under the law o armedcon ict.


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3.1.3. Practical implicationsDerived rom Common Article 3 o theGeneva Conventions, the notion o direct

or active participation in hostilities isound in multiple provisions o the law o armed con ict. Direct participation in hosti-lities by civilians entails loss o immunity romattack during the time o such partici pationand may also subject them, upon capture, tocriminal prosecution under the domestic lawo the detaining State. Despite the serious

legal consequences involved, neither theGeneva Conventions nor their Additional Pro-tocols include a de nition o what consti tutestaking an active part in the hostilities, andhow such conduct should be distingui shedrom indirect participation, which does notentail loss o protection rom direct attack. Anadditional di culty is that o de ning theduration o direct part icipation and whenconcrete preparations or an attack begin orthe return rom military engagement ends.

Contemporary con icts have given rise tourther challenges in terms o de ning andimplementing the notion o direct par-ticipation in hostilities. The use o high-techwar are (including computer network attack

and exploitation), the outsourcing o tradition-ally military unctions to private contractors

and the ght against terrorism, among otherthings, illustrate the increased inter mingling

o civilian and military activities, which makesit di cult to determine who is taking a directpart in hostilities and what measures shouldbe taken to protect those who are not directlyparticipating.

To address these challenging issues the ICRC,in cooperation with the TMC Asser Institute,

recently initiated a process aimed atclari ying the notion o direct participationin hostilities and at establishing guidance orthe inter pretation o that notion in both inter-national and non-international armedcon ict. This process, which involves around40 legal experts rom academic, military,governmental, non-governmental and human-itarian back grounds, is expected to come to aconclusion in 2008 with the publication o theInterpretive Guidance on the Notion o DirectParticipation in Hostilities under IHL.

Although there is a diferent legal basis ornon-international and international armedcon ict, the behaviour expected in practiceo armed orces in both situations is so similar

that it is neither necessary nor use ul to treatthe cases separately.


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The status o prisoner o war, or example,exists only in international armed con ict.

Nevertheless, the behaviour expected o aunit taking prisoners in a non-internationalarmed con ict (in particular, humanetreatment in all circumstances, without anyadverse distinction) does not difer romthe behaviour expected in an internationalarmed con ict. It is only when prisoners havebeen sa ely removed rom a combat area that

the legal status o a con ict becomes relevantand justi es a diference in treatment. Forexample, enemy combatants taken prisonerin an international armed con ict must beheld in prisoner-o -war camps and releasedat the end o active hostilities, whereaspersons captured while taking an active partin a non-international armed con ict aresubject to detention and may be liable tocriminal prosecution and punishment underdomestic criminal law. It cannot be expectedthat armed orces personnel will behavein two radically diferent ways in non-international and international armed con ict,but they must be made aware o thediferences and personnel such as militarypolice must receive proper training.


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3.2. International armed con ict

3.2.1 De nitionAn international armed con ict is a declaredwar or any other armed con ront ation be-

tween two or more States , even i the stateo war is not recognized by one o them.

It has to be emphasized that no minimumlevel o intensity , military organizationor control over territory is required or aninternational armed con ict to be recognizedas such. An international armed con ict may

consist merely o low-level combat (or theremay even be no combat at all), small-scaleincursions into enemy territory, or an invasionthat meets no resistance.

3.2.2. Applicable law There are over 30 international instrumentsin orce dealing with the law o international

armed con ict.

The our Geneva Conventions o 1949 (GC I IV) relating to the protection o the personsnot (or no longer) taking part in hostilities(wounded, sick, shipwrecked, prisoners o war, the dead, civilians and those caring orvictims o armed con ict) are applicable.

The Fourth Geneva Convention also appliesin all cases o partial or total occupation o the territory o a High Contracting Party,even i the occupation meets with no armedresistance (Article 2 common to the ourGeneva Conventions).

Additional Protocol I o 1977 (AP I), whichsupplements the Geneva Conventions o 1949, applies in international armed con ict,in situations o occupation (AP I, Art. 1.3),and in armed con icts in which peoples areghting against colonial domination and alienoccupation and against racist regimes in theexercise o their right o sel -determination,as enshrined in the Charter o the UnitedNations and the Declaration on Principles

o International Law concerning FriendlyRelations and Co-operation among States inaccordance with the Charter o the UnitedNations (AP I, Art. 1.4).


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Other international instruments regulatethe conduct o hostilities on land (Fourth

1907 Hague Convention and its annexedRegulations) or at sea (Tenth 1907 HagueConvention), the protection o culturalproperty (1954 Hague Convention or theprotection o cultural property, completedby two Protocols, o 1954 and 1999), theprohibition or limitation on the use o numerous types o weapons (1925 Geneva

Gas Protocol, the 1972 Biological WeaponsConvention, the 1980 Convention on CertainConventional Weapons and its ve Protocols,the 1993 Convention on Chemical Weaponsand the 1997 Ottawa Convention on anti-personnel mines), and the law o neutrality (Fi th 1907 Hague Convention respectingthe rights and duties o neutral powers andpersons in case o war on land, Thirteenth1907 Hague Convention concerning the rightsand duties o neutral powers in naval war).

In cases not covered by conventions, protocolsor other international agreements, or in theevent such agreements are denounced, civil ians and combatants remain under the protectionand authority o the principles o international

law derived rom established custom , theprinciples o humanity and the dictateso public conscience (AP I, Art. 1.2; GC I, Art.63; GC II, Art. 62; GC III, Art. 142; GC IV, Art. 158).

3.2.3. Practical implicationsWith regard to situations o internationalarmed con ict an important distinction

is made between combatants and non-combatants . According to Article 43.2 o Additional Protocol I: Members o the armedorces o a Party to a con ict (other than medicalpersonnel and chaplains covered by Article 33o the Third Convention) are combatants, thatis to say, they have the right to participatedirectly in hostilities. All those not quali ying

as combatants are non-combatants, whoare not entitled to participate in hostilitiesbut who are entitled to protection againstthe dangers arising rom military operations(AP I, Art. 51).

Persons (other than medical personnel andchaplains) who do not have combatant status are classi ed as civilians . In case o doubt whether a person is a civilian, thatperson must be considered to be a civilian. The law o armed con ict does not prohibitdirect participation in hostilitiesby civilians. However, civilians directlyparticipating in hostilities are not entitled tocombatants privilege and are not there oreimmune rom prosecution or law ul acts o

war. Civilians are entitled to prisoner o warstatus under the Third Geneva Conventiononly where they are speci cally authorized toaccompany the armed orces without being


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a part thereo (GC III, Art. 4.4 and 4.5). In allother cases, the Fourth Geneva Convention

sets out rules or the protection o civiliansnding themselves in the hands o a partyto the con ict or occupying power o whichthey are not nationals. Additional Protocol Isets out rules or the protection o civiliansagainst the efects o hostilities.

See also 3.1.3.


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3.3. Internationalizedarmed con ict

3.3.1. De nitionAn internal armed con ict is considered tobe internationalized when it involves the

armed orces o one or several oreignStates . These States intervene either bydeploying their own orces in the con ict or byexercising overall control over local orces.

3.3.2. Applicable lawIt is not su cient to establish that an armedcon ict is internationalized to determine

which law is applicable. Four diferentsi tuations need to be considered:

1. The relationship between two oreignStates intervening on behal o opposingparties to the con ict is governed by thelaw o international armed con ict.

2. The relationship between the localgovernment and a oreign Stateintervening on behal o insurgents isgoverned by the law o internationalarmed con ict.

3. The relationship between the localgovernment and insurgents is governed bythe law o non-international armed con ict.

4. The relationship between insurgents and aoreign State intervening on behal o thelocal government is governed by the lawo non-international armed con ict.

3.3.3. Practical implications

See 3.1.3. and 3.2.3.


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G I A N L u i g i G e u r c

i a / A F P


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4.1. De nition

Peace support operations encompass allmulti national operations authorized or

conducted by the United Nations. Authorizedoperations may be conducted by States or bya regional organization. Peace support ope ra-tions are undertaken or the purpose o con ict pre vention, peace-keeping,peace-en orcement or post-con ictpeace-building .

4.2. Applicable law

The law o armed con ict is applicable topeace support operations as soon and as

long as the conditions o its applicability areul lled, i.e. whenever there is a resort to theuse o orce that reaches the threshold o anarmed con ict. The applicability o the law o armed con ict (jus in bello or rules governingthe use o orce in time o war) does notdepend on the legitimacy o the operation(jus ad bellum or rules governing the right to

resort to orce). In 1999, the UN Secretary-General issued a bulletin (ST/SGB/1999/13)setting out undamental principles and ruleso the law o armed con ict applicable toUN orces.

4. PEACE SUPPORT OPERATIONS


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Peace support operations must also complywith human rights law, in particular when

taking action that inter eres with individualrights. As a matter o principle, the UN and itssubsidiary bodies are bound by internationalrules needed to ul l the purposes andexercise the unctions set out in the UNCharter. One o the purposes o the UN is thepromotion o respect or human rights andundamental reedoms. There ore, human

rights must be respected and promoted byall bodies, civilian and military, involved in apeace support operation.

The various contingents contributed by UNmember States are also bound by the

international obligations o the State theydepend on as well as by their nationallegislation , unless there are provisions tothe contrary in the mandate o the peacesupport operation. In addition, the domesticlaw o the host State, i it con orms tointernational standards, remains applicable.


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4.3. Practical implications

In a peace support operation, as in any other,the legal nature o the situation in which

the orce is deployed determines the legalramework and rules to be respected. In thisregard, the mandate, rules o engagement(setting out applicable rules, in particularor the use o orce) and status o orceagreements (governing the legal status o oreign troops in relation to a host nation) areonly indicative.

Peace support operations are by naturemultinational. This raises the issue o legal interoperability . Indeed, the various troop-contributing countries may have diferentlegal obligations in that they may not all haveadhered to a certain legal instrument. Theymay also have diferent interpretations o theirlegal obligations or have expressed

reservations when adhering to a particulartreaty or convention. Similarly, they may have

diferent opinions on the validity o theguidance provided by so-called so t lawinstruments such as the CCLEO or the BPUFF.Moreover, they may have expressed nationalexceptions to certain rules o engagement.

Customary international law helps tosettle the issue o the standards applicable to

the entire orce and to the various contingents,as it lays down rules that are common to allmembers o the orce. These rules can beused as a minimum standard when dra tingcommon rules o engagement or adoptingtargeting policies. However, customary rulescannot weaken the applicable treatyobligations o individual troop-contributingnations.


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S t r i n g e r / R e u t e r s


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5.1. Law en orcement

Law en orcement operations are normallyconducted in or associated with situationsother than armed con ict. However, they mayalso occur in situations o armed con ict andin peace support operations.

5.1.1. De nitionsLaw en orcement encompasses the ollow ingbasic responsibilities : maintaining publicorder and security, preventing and detectingcrime, and providing assistance. To ul l theirmission, law en orcement o cials exercise theollowing basic powers : arrest, detention,

search and seizure, and the use o orce andrearms (see below).

The term law en orcement o cials includes all o cers o the law, whetherappointed or elected, who exercise policepowers, especially the powers o arrest ordetention. In countries where police powersare exercised by military authorities, whetheruni ormed or not, or by State security orces,the de nition o law en orcement o cialsincludes o cers o such services (CCLEO,Art. 1). However, armed orces are usuallyneither trained nor equipped or such tasks. Itshould there ore be clear that whenever suchresponsibilities are entrusted to the armedorces, the quality o law en orcement and the

maintenance o public order may sufer.

5. SPECIFIC ISSUES

Although categories o situations such as armed con ict, situations other than armed con ict,and peace support operations can be presented in order o increasing or decreasing intensity,one particular category does not always ollow or precede another. Moreover, some unctions,such as law en orcement, arrest and detention, and the use o orce, may occur in all kinds o situations.


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5.1.2. In armed con ict and peacesupport operations

Situations o armed con ict generally have ahighly disruptive efect on public li e, public

security and public order. Armed con ict alsocommonly results in large numbers o peopledeciding to temporarily leave their homesand seek re uge elsewhere, either within theirown country or beyond its borders. Modernarmed con ict is responsible or creatingmillions o internally displaced persons andre ugees. It is important that law en orce-

ment o cials be amiliar with the rights andneeds o these groups, who are especiallyvulnerable and entitled to protection andassistance.

In non-international armed con ict , it isup to each nation to decide whether existinglaw en orcement agencies should continue tocarry out their responsibilities, or whetherthese responsibilities should be shi ted to thearmed orces. In view o their training andequipment, and also in terms o appearances,it is questionable whether armed orcesshould be given the task o en orcing the lawand maintaining law and order. Basic lawen orcement responsibilities should arguablybe le t in the hands o regular law en orce-

ment agencies or as long as possible.

Ininternational armed con ict , the GenevaConventions o 1949 and Additional Pro-

tocol I o 1977 implicitly acknowledge thecivilian status o law en orcement agencies.According to Article 43.3 o Protocol I, partiesto a con ict may incorporate a paramilitary orarmed law en orcement agency into theirarmed orces provided that they in orm theother parties to the con ict. In such a situationlaw en orcement o cials would acquire

combatant status and efectively be subjectto the regime or persons with that status.

Under Article 54 o the Fourth GenevaConvention, occupying powers may notalter the status o public o cials or judges inoccupied territories , or in any way applysanctions to or take any measures o coercionor discrimination against them, should theyabstain rom ul lling their unctions orreasons o conscience.

Finally, in the absence o civilian authoritiespeace support troops may be tasked withmaintaining law and order.


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5.2. Use o orce and rearmsand conduct o hostilities

Clearly, the use o orce or rearms in lawen orcement is an extreme measure. This

ollows directly rom the right to li e beingthe undamental human right. O course, thesituation in armed con ict is signi cantlydiferent. The principles underpinning the useo orce there ore deserve an explanation,especially since some principles, such as thoseo necessity and proportionality, are re erredto in connection with both law en orcement

and armed con ict in completely diferentsenses.

5.2.1. Use o orce and rearmsin law en orcement

The CCLEO and the BPUFF, although nottreaties, ofer guidance on the use o

orce and rearms. The CCLEO sets standardsor law en orcement practices that areconsistent with provisions on basic humanrights and reedoms. The BPUFF sets orthprinciples ormulated to assist Member States(o the Economic and Social Council) in theirtask o ensuring and promoting the properrole o law en orcement o cials.

The essential principles underlying the useo orce and rearms are those o :

legality;

precaution;

necessity; and

proportionality. Law en orcement o cials may resort to theuse o orce only when all other means o achieving a legitimate objective have ailed (necessity) and the use o orce can be justi ed (proportionality) in terms o the importance


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o the legitimate objective (legality) to beachieved. Law en orcement o cials are

urged to exercise restraint when using orceand rearms and to act in proportion to theseriousness o the ofence and the legitimateobjective to be achieved (Principles 4 and 5o the BPUFF). They are allowed to use onlyas much orce as is necessary to achieve alegitimate objective.

The use o rearms or the achievement o legitimate law en orcement objectives is

considered an extreme measure .Accordingly, the principles o necessity andproportionality are urther elaborated inPrinciples 9, 10 and 11 o the BPUFF:

Law en orcement o cials shall not userearms against persons, except :

in sel -de ence or de ence o others againstthe imminent threat o death or seriousinjury;

to prevent the perpetration o aparticularly serious crime involving gravethreat to li e; or

to arrest, or to prevent the escape o , aperson presenting such a danger and resisting their authority;

and only when less extreme means areinsu cient to achieve these objectives.

Intentional lethal use o rearms may only bemade when strictly unavoidable in order to

protect li e. (Principle 9 o the BPUFF.)


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The use o orce and rearms in connectionwith assemblies and demonstrations de-

serves closer consideration. Several principleso particular importance or policingassemb lies and demonstrations are set outin the BPUFF:

Again, the use o a rearm is an extrememeasure. This is urther illustrated by the

rules o behaviour that law en orcemento cials need to observe prior to using arearm (precaution). Principle 10 o the BPUFFprovides that:

In the circumstances provided or underprinciple 9, law en orcement o cials shall

identi y themselves as such and give a clear warning o their intent to

use rearms, with su cient time or thewarning to be observed, unless

to do so would unduly place the lawen orcement o cials at risk or

would create a risk o death or seriousharm to other persons, or

would be clearly inappropriate or pointlessin the circumstances o the incident(emphasis added).

In the dispersal o assemblies that are un-law ul but non-violent , law en orcemento cials shall avoid the use o orce or, where

that is not practicable, shall restrict such orceto the minimum extent necessary (Principle13 o the BPUFF);

In the dispersal o violent assemblies ,law en orcement o cials may use rearmsonly when less dangerous means are notpracticable and only

to the minimum extent necessary, and only

under the conditions stipulated in Principle 9(Principle 14 o the BPUFF, emphasis added).


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Principle 14 does not present an addi-tional circumstance authorizing the legal

use o rearms. It reiterates that only theconditions mentioned in Principle 9 (i.e. theimminent threat o death or serious injury)warrant the use o rearms. The additionalrisks posed by a violent assembly largecrowds, con usion and disorganization make it questionable whether the use o rearms is at all practicable in such situations,

in view o the potential consequences orpersons who are present but not involved inviolent acts. Principle 14 does not authorizeindiscriminate ring into a violent crowd as ameans o dispersing it.

5.2.2. Conduct o hostilities

in armed con ictIn armed con ict the use o orce is regulatedby a number o principles set out or suggested

in the various instruments o the law o armed con ict , in particular in the 1907Hague Convention respecting the lawsand customs o war on land and itsregulations , and in the 1977 Protocol Iadditional to the Geneva Conventions o 1949. In short, whenever orce is required toul l the mission, all easible precautions

must be taken, in particular, to con rm thattargets are legitimate military objectives andto select means and methods so as not toin ict excessive incidental harm on civilians orcivilian objects and not to cause unnecessaryor super uous sufering. Thus, or example:

Under the principle o necessity , onlythe orce required or the complete orpartial submission o the enemy and nototherwise prohibited by the law o armedcon ict may be used.

Under the principle o distinction , partiesto a con ict are obliged to distinguishbetween combatants and civilians andbetween military objectives and civilian

objects. Attacks may be directed only atcombatants and military objectives.


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Under the principle o limitation , theright to choose means and methods o

war are is not unlimited. A number o instruments either restrict or prohibit theuse o weapons or methods o a nature tocause super uous injury or unnecessarysufering.

Under the principle o proportionality ,a balance must be struck between the

expected incidental loss o civilian li e,injury to civilians and damage to civilianobjects on the one hand, and the concreteand direct military advantage anticipatedon the other hand. Attacks expected toin ict excessive incidental harm on civiliansor civilian objects are prohibited (see incontrast BPUFF under 5.2.1.).

5.2.3. In peace support operationsDepending on the situation, troops may haveto resort to using orce and rearms either

or their own protection (in sel de ence) orto achieve their mission. The same rules thenapply as or other operations depending onthe situations legal status.


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5.3. Arrest and detention

5.3.1. ArrestArrest means the act o apprehendinga person or the alleged commission o an

ofence or by the action o an authority.

The discretionary power o law en orce mento cials in deciding to make an arrest is limitedby the principles o legality and necessityand by the prohibition o arbitrariness .No one shall be deprived o his liberty excepton such grounds and in accordance with such

procedure as are established by law (ICCPR,Art. 9.1). This provision makes it clear thatthe reasons and the procedure or an arrestmust have a basis in the laws o the State. Inaddition, the law itsel must not be arbitrary,and en orcement o the law in a given casemust not be handled in an arbitrary manner.

Anyone who is arrested must be in ormed,at the time o arrest, o the reasons or his arrest

and must be promptly in ormed o any chargesagainst him. He must be brought promptlybe ore a judge or other o cer authorizedby law to exercise judicial power and mustbe entitled to trial within a reasonable timeor to release. Anyone who is deprived o hisliberty by arrest or detention must be entitledto take proceedings be ore a court, in order

that that court may decide without delay onthe law ulness o his detention and order hisrelease i the detention is not law ul. Anyonewho has been the victim o unlaw ul arrest ordetention must have an en orceable right tocompensation. Additional provisions protectthe special status o women and minors.


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5.3.2. DetentionDepriving a person o his liberty is thecommonest and oldest method used by

States to ght crime and maintain publicorder. Rather than prohibit the deprivation o liberty, international law sets out rules andguidelines intended to guarantee that thepractice is law ul and non-arbitrary . Allpersons detained (pending investigation andtrial) or imprisoned (a ter conviction) retaintheir human rights, except or those limitations

that are demonstrably necessitated by theact o incarceration. Recognition o the needto sa eguard the human rights o detaineesand prisoners has led the United Nations todevelop a variety o instruments enhancingthe provisions o the ICCPR. Additionalprotection or women (especially pregnantwomen and nursing mothers) and minors, inparticular, is provided in these instruments.

All persons deprived o their liberty shall betreated with humanity and with respector the inherent dignity o the humanperson (ICCPR, Art. 10.1 (emphasis added)). The imposition o measures which arenot strictly required or the purpose o thedetention or to prevent hindrance to the

process o investigation or the administrationo justice, or or the maintenance o securityand good order in the place o detention is

orbidden. This provision is o major impor-tance in determining the discipline and

puni sh ment that is proper or acts orofences committed during detention orimprisonment.

The prohibition o torture and cruel,in human or degrading treatment orpunishment is absolute and withoutexception . It is part o customary international

law and has been codi ed in a number o instruments o human rights and law o armed con ict. Needless to say, the scopeo the prohibition o torture encompassesall aspects o law en orcement or combatoperations and is not limited to detentionand imprisonment. Under internationalhuman rights law torture is de ned as anyact by which severe pain or sufering, whetherphysical or mental, is intentionally in ictedon a person or such purposes as obtainingrom him or a third person in ormation or acon ession, punishing him or an act he or athird person has committed or is suspected o having committed, or intimidating or coercinghim or a third person, or or any reason basedon discrimination o any kind, when such pain

or sufering is in icted by or at the instigationo or with the consent or acquiescence o apublic o cial or other person acting in an


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o cial capacity (Convention against Tortureand Other Cruel, Inhuman or Degrading

Treatment or Punishment, Article 1). In the law o armed con ict , torture canalso be committed by non-state actors.Cruel, inhuman or degrading treatment orpunishment is not de ned in internationallaw, but is understood as the in icting o serious pain. Unlike torture, there does notneed to be a purpose to the ill-treatment .

5.3.3. Detention in armed con ictIn non-international armed con ict ,the pro visions o Article 3 common to the

our Geneva Conventions apply. In addition,the rules o Protocol additional to theGeneva Conventions o 12 August 1949, andrelating to the Protection o Victims o Non-International Armed Con icts (Protocol II)must also be observed whenever criteria orits applicabil ity (such as control over territory)are met. Additional Protocol II lays down

undamental guarantees or the humanetreatment o persons detained (Article 4)similar to those in Common Article 3, mini-mum provisions or the treatment o personsinterned, detained or deprived o their libertyor reasons related to the armed con ict (Article5), and judicial guarantees or the prosecutionand punish ment o criminal ofences relatedto the armed con ict (Article 6). Prisoner-o -war status does not exist in non-internationalarmed con ict.

In international armed con ict , the mostimportant distinction to be made with regardto detention or deprivation o liberty ingeneral is that between combatants and non-combatants. Combatants who all into the

power o an adverse party must be recognized


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as prisoners o war (AP I, Art. 44.1). Article 4o the Third Geneva Convention speci es the

categories o persons entitled to prisoner-o -war status and lays down rules or thetreatment o prisoners o war during captivity. The basic premise is that prisoners o war mustat all times be humanely treated and theymust at all times be protected, particularlyagainst acts o violence and intimidation andagainst insults and public curiosity (GC III,

Art. 13).

Civilians, in particular oreign nationals, may be interned or security reasons in connec-tion with an armed con ict. Internment is ameasure that may be taken or imperativereasons o security (to protect the personsconcerned); it is there ore not a punishment. The regulations or the treatment o internees are virtually the same as those orthe treat ment o prisoners o war (see Articles79 to 135 o the Fourth Geneva Convention).

Persons afected by armed con ict and de-prived o their liberty (through arrest, detentionor internment) bene t rom the undamentalguarantees set out in Article 75 o Protocol I

additional to the Geneva Conventions.

5.3.4. Detention in peace supportoperationsStatus o orce agreements coveringoreign troops usually regulate the question

o deten tion. However, situations may arisewhere peace support troops have to detainpeople or short periods o time be orehanding them over to civilian authorities,or even or longer periods, especially in theabsence o ad equate structures due to thecollapse o the host nation. The status andtreatment o the detainees depend on the

legal nature o the situation and on eachindividual case.


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A n

j a N i e d r i n g

h a u s /

A P


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6.1. In short

6.1.1. Legal basis or actionInsituations other than armed con ict theICRC has a recognized right o initiative, set out,in particular, in the Statutes o the International

Red Cross and Red Crescent Movement, whichallows it to ofer its serv ices without thatofer constituting inter erence in the internalafairs o the State concerned or con erringany particular status on any o the parties. Inaddressing the consequences, in humanitarianterms, o the use o orce in situations otherthan armed con ict, the ICRC does not re er tothe whole spectrum o international humanrights law (IHRL) instruments. It re ers to a coreo undamental rules that protect humanbeings in situations o violence. These consti-tute a small but central and essential part o IHRL.

In non-international armed con ict theICRC also has a right o initiative recognized bythe international community and enshrined

in Article 3 common to the our GenevaConventions. The ICRC may in part icular oferits services to warring parties with a view tovisiting persons deprived o their liberty in

connection with an armed con ict so as toveri y the conditions o their detention and torestore contacts between those persons and

their amilies. Common Article 3 speci es thatthis does not afect the legal status o theParties to the con ict.

In international armed con ict , Statesparty to the Geneva Conventions o 1949and their Additional Protocols o 1977 arebound to accept the humanitarian activitieso the ICRC provided or in Article 126 o the Third Geneva Convention and Article 143o the Fourth Geneva Convention. The ICRCsright o initia tive is also acknowledged inArticle 9/9/9/10 common to the our GenevaConventions. In addition, Article 81 o Protocol Iadditional to the Geneva Conventionsstipulates that States party to a con ict mustgrant the ICRC all acilities within their power

so as to enable it to carry out the humanitarianunctions assigned to it by the Conventionsand the Protocol in order to ensure protec-tion and assistance to the victims o con icts.

6. THE ICRC

The International Committee o the Red Cross (ICRC) is an impartial, neutral and independentorganization whose exclusively humanitarian mission is to protect the lives and dignity o victims o war and internal violence and to provide them with assistance. It directs andcoordinates the international relie activities conducted by the Movement in situations o con ict. It also endeavours to prevent sufering by promoting and strengthening humanitarianlaw and universal humanitarian principles. Established in 1863, the ICRC is at the origin o theInternational Red Cross and Red Crescent Movement.


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6.1.2. Key activities The ICRCs activities involve:

visiting prisoners o war and security detainees

tracing missing persons

exchanging messages between separatedamily members

reuniting dispersed amilies

providing sa e water, ood and medicalassistance or those in need

promoting respect or internationalhumanitarian law

monitoring compliance with that law

contributing to the development o that law Its activities are unded entirely throughvoluntary contributions, mainly rom Statesand National Societies. Its network o o cesis regularly adjusted to keep step withdevelopments in armed con icts and othersituations o violence around the world.

6.2. Practical implications

The ICRC per orms its tasks in the wholerange o situations where military and police

orces may operate. It is advisable, there ore,or commanders to be acquainted withsome o the key eatures o an organizationwith which they may well share their theatreo operations.


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6.2.1. Principled action and dialoguewith all parties

According to the Geneva Conventions, humani-tarian work requires impartiality and should

bene t people regardless o their race, colour,religion or aith, sex, birth or wealth, or anyother similar criteria. It ollows that no oneshould be deprived o assistance or protec-tion merely because o his belie s, and nopopulation should be abandoned merelybecause they are under the control o a partythat the international community is attempt-

ing to isolate. The only priority that can be setmust be based on need, and the order inwhich available humanitarian aid is providedmust correspond to the urgency o the dis-tress it is intended to relieve.

Political and military leaders should be awarethat the work o the ICRC involves not onlyassistance but also protection , and thatthe two are closely connected. Activities suchas visiting prisoners to monitor their treatmentand conditions o detention, and makingrepresentations to parties to a con ict onbehal o individuals or communities thathave been the victims o violations o thelaw o armed con ict, are also a part o humanitarian work. ICRC delegates need to

be on the ground, close to people adversely

afected by con ict, to meet those peoplesneeds and in uence the behaviour and

att itudes o those responsible or the situation. To achieve these aims, they need to meet,negotiate or deal with the whole range o arms carriers rom military personnel to police,rom paramilitaries to rebels, rom peacesupport operation orces to privatecontractors.

In any con ict, parties have a tendency toreject humanitarian actors that they suspecto having ulterior political motives. Withoutdialogue however di cult it may be itwould be impossible or the ICRC to be su -ciently accepted to carry out its protectionand assistance activities. Consequently, thereis no one wielding power or in uence overpopulations that it would re use to talk to. Byadopting this approach, the ICRC is notpostulating a moral equivalence betweenparties to a con ict or con erring any par-ticular status on them (see Article 3 commonto the our Geneva Conventions). Neutrality is a means to an end, not an end in itsel . It is atool to keep open the channels needed ortaking concrete action. What the ICRC does

not do is take sides in a con ict.


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The ICRC believes that there is much scope orconstructive interaction and cooperation

between humanitarian organizations and themilitary, and that the relationship betweenthem can be enhanced by mutual consul-tation. Nevertheless, it continues to press or aclear distinction to be maintained in sub-stance and in appearance between militaryand humanitarian operations. Consequently,the ICRC must maintain its independence

in terms o decision-making and action, whileconsulting closely with international militarymissions which are deployed in the sametheatre o operations.

6.2.2. DetentionBe ore beginning visits to places o deten-tion, the ICRC rst submits to the authorities a

set o standard conditions . Delegates mustbe allowed to:

see all detainees alling within the ICRCsmandate and have access to all placeswhere they are held;

interview detainees o their choice

without witnesses; draw up, during the visits, lists o detainees

within the ICRCs mandate or receive romthe authorities such lists which the delegatesmay veri y and, i necessary, complete;

repeat visits to detainees o their choice asrequently as they may eel necessary;

restore contact between detainees andamily members;

provide urgent material and medicalassistance as required.


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6.2.3. Supporting respector the legal ramework

Clearly, the law belongs to the States that areparty to the treaties, not to the ICRC. The same

goes or the obligation to disseminate, teachand provide training in the law. Thanks to itslong-term eld presence and to the dialogueit maintains with authorities and arms carriersthroughout the world, the ICRC has devel-oped considerable experience in supportingeforts aimed at preventing violations.Recognizing that the mere teaching o legal

norms will not result, in itsel , in a change inattitude or behaviour, the ICRC approach hasgradually shi ted in the past two decadesrom dissemination o the law to itsintegration into the doctrine, training andoperations o military and police orces. Abody o law is a set o general rules, some-times too general to provide practicalguidance in combat or law en orcementsituations. The law must there ore beinterpreted, its operational meaning analysedand its concrete consequences drawn at alllevels. In short, the relevant law must betrans ormed into concrete measures, meansor mechan isms in terms o doctrine,education, training, equip ment and sanctionsto permit compliance during operations.

Whenever a State is genuinely committedto ul lling its obligation to promote com-

pliance with the applicable law, and has theresources available to sustain its eforts overthe long term, the ICRC is prepared to assumeits supportive role as de ned in the Proto-cols additional to the Geneva Conventions(Resolution 21 o the Diplomatic Con erenceadopting the Protocols invited the ICRC toparticipate actively in the efort to dissemin-

ate knowledge o the law o armed con ict)or on the basis o its statutory right o ini-tiative. To provide appropriate support toarms carriers during the integration process,the ICRC has a specialized unit at its head-quarters in Geneva and a team o specialistdelegates (with previous military or policeexperience) in the eld. They provide supportor arms carriers in terms o interpretingthe law, deriving its operational meaningand deducing the concrete consequencesto be drawn rom it. Further steps, suchas writing new tactics manuals adoptingnew curricula, reviewing and modi yingdoctrine or buying new equipment, clearlyremain the responsibility o the authoritiesand arms carriers.


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M a r

k o K o k i c /

I C R C


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7. REFERENCES

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7.1. ICRC publications on theseissues

A Guide to the Legal Review o New Weapons,Means and Methods o War are. Measures to

Implement Article 36 o Additional Protocol Io 1977

Discover the ICRC

Integrating the law

Report on Expert Meeting on Multinational

Peace Operations, Applicability o InternationalHumanitarian Law and International HumanRights Law to UN Mandate Forces

To Serve & To Protect, in particular, Chapter 7:Maintenance o Public Order; Chapter 8:Arrest; Chapter 9: Detention; and Chapter 10:Use o Force and Firearms

7.2. Abbreviations

AP I: Protocol additional to the Geneva

Conventions o 12 August 1949, and

relating to the Protection o Victimso International Armed Con icts(Protocol I), 8 June 1977

AP II: Protocol additional to the GenevaConventions o 12 August 1949, andrelating to the Protection o Victimso Non-International Armed Con icts

(Protocol II), 8 June 1977

AP III: Protocol additional to the GenevaConventions o 12 August 1949,and relating to the Adoption o an Additional Distinctive Emblem(Protocol III), 8 December 2005

BPUFF: Basic Principles on the use o Force and Firearms by Law En orcement O cials


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CCLEO: Code o Conduct or LawEn orcement O cials

GC I: Geneva Convention or theAmelioration o the Condition o theWounded and Sick in Armed Forcesin the Field, 12 August 1949

GC II: Geneva Convention or theAmelioration o the Condition o

Wounded, Sick and ShipwreckedMembers o Armed Forces at Sea,12 August 1949

GC III: Geneva Convention relative to the Treatment o Prisoners o War,

12 August 1949

GC IV: Geneva Convention relative to theProtection o Civilian Persons in Timeo War, 12 August 1949

ICCPR: International Covenant on Civil andPolitical Rights

ICRC: International Committeeo the Red Cross


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Mission The International Committee o the Red Cross is an impartial, neutral and independentorganization whose exclusively humanitarian mission is to protect the lives and dignity o

victims o war and internal violence and to provide them with assistance. It directs andcoordinates the international relie activities conducted by the Movement in situations o con ict. It also endeavours to prevent sufering by promoting and strengthening humani-tarian law and universal humanitarian principles. Established in 1863, the ICRC is at the origino the International Red Cross and Red Crescent Movement.


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violence and the use of force

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