International Humanitarian Law (Term Paper Sample)

INTERNATIONAL HUMANITARIAN LAW
TERM PAPER
NOVEMBER, 5, 2013
CLIENTS NAME
INSTITUTION
1950 WORDS
Introduction
According to the rules of customary international law (IHL), parties to a conflict need to distinguish between the civilians and combatants and military objective and civilian objectives. It is essential to offer a guide on what might be attacked in order to free the civilian populace from the impacts of hostilities. The most important guide regarding armed conflicts is that the combatants may only attack military objectives. However, despite the right to attack only military objectives, the attack will be illegal if the combatants’ use of force may lead to excessive collateral damage on either the civilians or the civilian objects. In addition, the combatants need to take precautionary measures to ensure they do not harm civilians even if they are attacking lawful targets. In this light, it is important to define military objectives and offer an explanation why there are limitations on the attacks on military objectives.
Pursuant to Article 52 (2) of Protocol 1, military objectives need to fulfil two criteria. First, it must be a factor in the military action of the adversary. This is often highlighted by the objects “nature, locality, reason or use”. Secondly, the destruction, capture or neutralization must present a clear military benefit to the combatants. Therefore, an attack on a specific area may be tantamount to a military objective if the destruction, capture or neutralization may present a military advantage to the combatants. However, the advantage that is anticipated from the attack needs to be considered as a whole and not as an isolated part of the war in that an attack as a whole needs to be a limited event rather than the whole war.
The rule stipulating that only military objectives may be attacked is anchored on the principle that the principal aim of any conflict is to triumph politically; therefore, the acts of violence aimed at ensuring political dominance should only endeavour to prevail upon the forces of the enemy. Violent acts that have political, psychological or economic significance may be more resourceful in overcoming the adversary. However, they are not necessary because the enemy can be defeated by weakening its military forces. Once the military force is overcome, there is a guarantee that the economic, political and psychological base will ultimately fail.
The essay will analyze the military objectives and civilian objects in relation to nuclear power station critical to the supply of electricity to the central operative plant of the enemy, a broadcasting station, and members of an armed civilian militia guarding a military installation, and “human shields” who have voluntarily placed themselves inside ammunition depots.
Members of an Armed Civilian Militia Guarding a Military Installation
Combatants fit the definition of military objectives. In this connection, even police officers fit the definition of combatants hence military objectives if they are incorporated in the military. Flowing within this line of reasoning, civilians who are not incorporated into the military but opt to take part in war, lose their protection against attacks so long as they directly participate in the war. Therefore, members of an armed civilian militia guarding a military installation are deemed to have lost their protection by directly participating in the war through guarding the military installation. However, everyone else who is not a participant in the war is afforded full protection under IHL.
Indeed, the grouping of civilians and combatants into mutually exclusive groups that complement each other assists in ensuring the effectiveness and fullness of IHL by avoiding a scenario whereby some people may fight in a war but the other group is precluded from engaging them. The existence of such a privilege would result to a lack of respect to IHL thus undermining the whole fabric of the law. Indeed, IHL frowns upon quasi-combatants. Quasi-combatants are civilians playing a role in a war or a war effort for instance, working in a war factory. This makes them lose their civilian status even though they are not direct participants in the war.
In order to ensure the full protection of civilians, there needs to be a manifest distinction between those directly engaging in military conflicts, and those who are not engaging in hostilities. For one to be in the latter group, their actions should not be such as to hinder the adversary from gaining control on their country through total military occupation. Therefore, the militia that are guarding the military installation are engaging in the hostilities by hindering the attempts of the enemy to suppress the military forces.
However, the combatants need to ensure that they do not harm the civilians because that would be in violation of the principle of necessity that holds that victory can only be attained by defeating the combatants of the country rather than the politicians or scientists.
Human Shields who have voluntarily placed themselves inside Ammunition
Human shielding occurs when persons protected by IHL for instance prisoners are used to deter attacks by combatants and military objectives. Human shielding violates the basic principles of IHL because it skews the flimsy humanitarian necessity balance consideration by influencing its protection for military ends. Additionally, protocol 1 of 1977, Article 51 (7), provides that the existence of the civilian populace shall not be used to cause some parts untouchable by operations. Therefore, parties to a conflict are precluded from shielding their military objectives from attacks by moving their civilian population to the points of attack.
The use of human shields may be passive or active. Passive human shields exist when a party to a conflict makes use of the presence of civilians in a particular locality whereas active human shields are the civilians whom the combatants consciously direct them to a particular location. However, pursuant to article 51 (7), the presence of civilians in a military objective does not render retreat unlawful in the presence of civilians. However, it is unlawful for combatants to intentionally intermingle with civilians. However, The International Committee of the Red Cross’ (ICRC) commentary to Article 51 (7) supports the article interpretation by stating that movement signifies “cover”, in cases where civilians move out of their own volition. Therefore, the intent of the military commander determines the legality of the move. However, in a situation where the citizens voluntarily placed themselves inside ammunition depots, will render themselves unprotected by IHL.
Vide Article 58 of Additional protocol 1; the use of human shield is prohibited by imposing a duty on member parties to “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives”.
Furthermore, the article states that member parties must aspire to avoid “locating military objectives within or near densely populated areas”. Indeed, there may be some humanitarian reasons for the inability to move civilian population from military objectives for instance where the civilian population need to be evacuated from a densely populated city. This may pose a greater threat than leaving them.
Therefore, the provision is underpinned on the caveat that member countries should protect their civilian population to the maximum extent possible. Therefore, the military was under an obligation to ensure that the civilian population removed from the ammunition depot failure of which, the enemy forces would not be at breach of IHL because human shielding is tantamount to a war crime. However, failure to comply with the provisions of Article 58 is not a war crime.
Broadcasting Stations
There is a raging debate as to whether the attack on mass media amounts to military objectives. It is argued that it is desirable from a jus ad bellum point of view to stop the mass media through non violent means. However, if an aggressor opts to stop broadcasting through violent means, and if the broadcasting stations are deemed essential military objectives than bridges, this would be tantamount to changing the basic principles relating to customary international law. This is because the targets of the broadcasts do not constitute military objectives. Therefore, based on this consideration, an attack on the broadcasting station would be a violation of the basic principles of IHL.
Indeed, creating a new system of IHL that does not conform to the principles set out in the traditional concepts on military objectives would be impractical. Allowing attacks on broadcasting stations would make it easy for combatants who have failed in non-violent means of stopping the media to engage in violent attacks on the institution.
Moreover, the object behind the attack makes it fail as a military objective. If ensuring that the civilians do not get information about the state of the war, then the move will be comparable to aiming at the civilian moral rather than the military objectives.
However, attacking a broadcasting station that broadcasts operations about the conduct of the army would not be a violation of IHL.
Nuclear Power Station critical to the Supply of Electricity to the central Operative Plant of the Enemy
Article 56 protocol 1 provides that,
works of installation containing dangerous forces namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack even where these objects have military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objective...