UNIT 6 WHAT IS INTERNATIONAL

ARMED CONFLICT? (WAR)

Structure
6.1 Introduction
6.2 Objectives
6.3 Historical Background
6.4 The Concept of Armed Conflict of an International Character
6.4.1 Definition of the International Aimed Conflict

6.5 International Armed Conflict and the Human Rights

6.6 Common Article 2 of the Geneva Conventions
-,
6.7 Occupation under Geneva Convention IV
6.7.1 When does Occupation Come to an End?
6.7.2 What is the Situation of People Deprived of their Liberty, during and after Occupation?
6.7.3 Conclusion

6.8 Summary
6.9 Terminal Questions
6.10 Answers and Hints
6.11 References and Suggested Readings

6.1 INTRODUCTION
Warfare being one of the oldest collective activities of mankind, it is no surprise that
it has attracted a considerable body of law governing its conduct! . The purpose of
International Humanitarian Law is to limit the suffering caused by war by protecting ,
and assisting its victims as far as possible. The law therefore addresses the reality of .' -
a conflict without considering the reasons for legality of resorting to force. It regulates
only those aspects ofthe conflict which are of humanitarian concern. It is known as
jus in bello (law inwa]'). Its provisions apply to the warring parties irrespective of
the reasons for the conflict and whether or not the cause upheld by' either party is
just. In the case of international armed conflict, it is often harder to determine which
state is guilty of violating the United Nations Charter. The application of humanitarian
law does not involve the denunciation of guilty parties as that would be bound to
arouse controversy and paralyse implementation of the law, since each adversary
would claim to be a victim of aggression. Moreover, IHL is intended to protect war
victims and their fundamental rights, no matter to which party they belong.

Until the end of the First WorldWar, resorting to armed force was regarded not as
an illegalactbut as an acceptable way of setting differences.

In 1919 the covenant of the League of Nations and, in 1928, the Treaty of Paris,
(Briand- Kellogg Pact) sought to outlaw war. The adoption of the United Nations
I Michael A. Meyer, Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols

and th/1981 Weapons Convention, 1990, at p. 3.

2 International Humanitarian Law, Answers to Your Questions, ICRC, Geneva, pp. 1-41, at p. 6.
16
Charter in 1845 confirmed the trend: "the members of the organization shall abstain, W'hat is the International
Armed Conflict? (War)
in the international relations from resorting to the threat or use of force."

6.2 OBJECTIVES
After reading this unit, you should be able to:

• explain the meaning and the concept of international armed conflict;

• discuss when does it starts and ends?;

• describe how to distinguish between international armed and non international armed
conflict; and

• discuss what is the difference between the international armed conflict and the human
rights?

6.3 HISTORICAL BACKGROUND

The International Humanitarian Law of armed conflict is:

• A part of international law

• A part of the international law governing armed conflicts, whether international or

internal, and

• Humanitarian in nature, i.e. designed to prevent or mitigate loss oflife and suffering
and to reduce the destructive effects of hostilities upon civilians life, health, habitat
and well being.

Humanity is one of the principles which have determined the growth of the law of
war. Its role has been thus described: "the whole growth of the laws and usages of
war and is determined by three principles. They are,

i) the principle that a belligerent is justified in applying any amount and any kind of
force which is necessary for the realisations of the purpose of war- namely, the
over powering of the opponent.

ii) the principle of humanity at work, which postulates that all such kinds and degrees
of violence as are not necessary for the overpowering ofthe opponent should not
be permitted to a belligerent.

ill) there is in operation the principle of chivalry, which arose in the middle ages and
. introduced a certain amount of fairness in offense and defence and a certain mutual
respect. In contradistinction to the savage cruelty of former times, belligerents
gradually adopted the view that the realisation of the purpose of war was in no way
hampered by consideration shown to the wounded, prisoners and to private
individuals who do not take part in the fighting.

The early 'Law of Arms' established a number of restrained designed to spare

women, merchants, religious clerks and children, but often with little effect. There
were legal restraints drawn from canon law, military usage,chivalry and from roman
law.
17
Wha;t:are,the Basic
Concepts of IHL? 6.4 THE CONCEPT OF ARMED CONFLICT
OF AN INTERNATIONAL CHARACTER
The International Armed Conflict exists whenever there is a resort to armed force
between two or more states' . International humanitarian law distinguishes two types
of armed conflicts, namely:

• international armed conflicts, opposing two or more States, and

• non-international armed conflicts, between governmental forces and

nongovemmental armed groups, or between such groups only. IHL treaty law also
establishes a distinction between non-international armed conflicts in the meaning
of common Article 3 of the Geneva Conventions of 1949 and non-international
armed conflicts falling within the definition provided inArt. 1 of Additional Protocol
II4.

The laws of armed conflicts are based on a fundamental though truly artificialdistinction
between international and non.international armed contlicts. This distinction, which is
deeply entrenched in the 1949 Geneva Conventions on the protection of war and
victims, has been maintained and even confirmed with the adoption, in 1977, of two
additional protocols to these conventions, Protocol I applying solely to international
armed conflicts' .

This could appear as a purely legalistic distinction if it did not entail a fundamental
distinction in the content and scope of protection for war victims in these two
admittedly different situations?.

It is interesting to note in this context, however, that none of the Declarations or

conventions on the laws of armed conflicts adopted prior to 1949 contained a
specific provision on the scope of applications of these instruments. The Geneva
Conventions of 1949 introduces fo'r the first time, in common Article 2 and 3, a
distinction in their scope of application and the rather imprecise concept of 'non-
, international' armed conflicts' .

Tracing the evolution of humanitarian legal regulation, particularly as it came to apply

to internal conflicts, which help us to understand the realities behind such a distinction
and the ways and means of improving the protection of war victims in all situations
of armed violence.

6.4.1 Definition of the International Armed Conflict

6.4.1.1 The Geneva Conventions
IHL is triggered by the existence of an armed conflict. Yet there is no settled definition
of the term "armed conflict"-which is used freely in both the Geneva Conventions
"The definition proposed by the ICRe. For further see: http://www.icrc.org/web/eng/siteengO.nsf/
htmlaU/anned-conflict-article-17030S/$file/Opinion-paper-armed-conflict.pdf

4 http://www. icrc. org/web/ eng/siteengO .nsf/htmlall/armed-conflict -articie-17030S/$file/Opinion-

paper-armed-conflict.pdf, visited on 25.1.2009 at 11.00 p.m. '

5 Rosemary Abi-Saab, "Humanitarian Law an" Internal Conflicts: The Evolution of Legal
Concern," Humanitarian Law of Armed ConflictChallenges Ahead, Martinus NijhoffPublishers,
Boston, London, 2002, pp, 219-222, at p. 219.
6 Ibid.
18'
 What is the International
and the Additional Protocols but is not defined in either. According to the Vienna
Armed Conflict?·(War) .
Convention on the Law of Treaties, "treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose." Therefore the first step in
ascertaining the meaning of the term "armed conflict" in international law is to look
at both the text and the object and purpose of the Geneva Conventions 7 •

.The Geneva Conventions recognize two distinct categories of armed conflict-

international and non-international. The full complement of protections under IHL is
applicable only to the first category. Under the Geneva Conventions, an international
armed conflict arises between "two or more of the High Contracting Parties"."

The full complement of protection s provided by IHL applies in cases of international

armed conflict. According to the Commentary to the Geneva Conventions, "it makes
no difference how long the conflict lasts, or how much slaughter takes place." Since
only States can be High Contracting Parties, an international armed conflict has
traditionally been viewed as a conflict between two States. However, as discussed
below this assumption is being questioned in the context of the "war on terror"."

A much smaller group of protections included under Common Article 3 of the

Geneva Conventions applies to a second category of armed conflicts, namely "armed
conflicts not of an international character'? ." Such conflicts "occur in the territory of
one of the High Contracting Parties," which suggests that non-international armed
conflicts typically occur within a single State" . Non-international armed conflicts are
distinguished from "internal disturbances and tensions or isolated and irregular acts
of violence." One of the factors relevant to such a factual determination is the nature,
intensity, and duration of the violence. Additionally, the protections applicable in non-
international armed conflicts bind all parties to the conflict, including non-State actors.
As a result, for a non-State actor to be dee~ed a party to a non-international armed
conflict, it must have attained a certain level of organization and command structure
such that it is capable of being identified as a party in the first place. However, many
conflicts at the periphery of the defmition of non-international armed conflict are
calling into question the detenninacy of these criteria .

.6.4.1.2 ICRC

The ICRC Commentary to the Geneva Conventions explains that the term "armed
conflict," in addition to the tenn ''war,'' was included in order to circumvent arguments
7Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 UN.T.S. 331, available
at http://untreaty.un.org/ilc/texts/instruments/english/conventionsl1_1_1969 .pdf [hereinafter
Vienna Convention].
8 id.

9Natasha T. Balendra, "Defining Armed Conflict," Cardozo Law Review, Vol. 29,2008. Further
see: Natasha T. Balendra, Public Law and Legal Theory Research Paper Series, Working Paper
no. 7- 22, December, 2008, pp. 2462-2512, at p. 2469. For further: Jean S. Pictet, Commentary on
Geneva Convention for the Amelioration of the Condition of the Condition of the Wounded
and Sick in Armed Forces in the Field, Vol. 32, 1952. http.z/papers.ssrn.com/sol Iz
papers.cfm?abstractjd= 1022481

10 Under Additional Protocol II, further protections apply in cases of conflict between a State
and armed forces that are "under responsible command [and] exercise such control over a part
of its territory as to enable them to carry out sustained and concerted military operations and
to implement this Protocol." See Additional Protocol II, supra note 3, art. \(1).
11 Natasha T. Balendra, at p. 2470. For further see: David Wippman, "Introduction: Do New
Wars Call For New Laws?", New Wars, New Laws? Applying the Laws of War in 21" Century
Conflicts, David Wippman and Matthew Evangelista eds., 2005, pp. 1-12, at p. l. 19
What are the Basic by States committing hostile acts that they are not making war but merely engaging
Concepts of IHL?
in police enforcement or legitimate acts of self-defense. The goal here is clearly
humanitarian. Yet it does not follow that the term "armed conflict" that must be
interpreted broadly in all circumstances. When the provisions of the Geneva
Conventions were drafted, the protections available under Human Rights Law (HRL)
were not taken into account. Nor had the ICCPR and the ICESR, the first legally
binding human rights instruments of universal applicability, been adopted yet. At that
time, IHL was probably viewed as the only source of protection for individuals
during times of violent conflict.

However ifHRL is also applicable in armed conflict, as appears to be the case, then
individuals might be protected even in the absence ofrnL. Therefore the humanitarian
goals of the Geneva Conventions are not always furthered by a broad interpretation
of the term "armed conflict". On the other hand, however, there is nothing in the text
or object and purpose of the Geneva Conventions to indicate that a narrow reading
is warranted either.

Self Assessment Question

I) Explain the defmition ofInternational Armed Conflict.

6.5 INTERNATIONAL ARMED CONFLICT AND

THE HUMAN RIGHTS
The relationship between international human rights law and the international law of
armed conflict is a long-standing issue. For many years the two were widely regarded
as distinct areas. And there are still some who continue to think of international
humanitarian law, as it is usually termed, as an entirely separate discipline.

The international humanitarian law of armed conflict indicates that the principle of
humanity dominates the modem law of war. The humanitarianism in warfare is no
longer an ideal excusive to the Red Cross movement. It is accepted by states and
repeatedly confirmed by the United Nations. Since 1950 international humanitarian
law has found a powerful ally in the expanding regimes of human rights, whether
international or regional. Both are based in their fundamental nature upon the dignity
and value of the individual being. So close is the intimacy, in theory, between the two
regimes that the UN General Assembly resolutions relating to the development of the
International Humanitarian Law have appeared under the title of "Human Rights in
times of Armed Conflict". It is apparent that the one has supported the other. Human
rights regimes are applicable primarily in peace time. War and other emergencies are,
under the human rights regimes, occasions when human rights are subject to derogation.
The international humanitarian law of armed conflict has a minimal relevance to peace
time. Human rights consist essentially of rights conferred upon individuals in relation
to the Government. The international humanitarian law of armed conflict consists
primarily of series of duties imposed upon states and individuals, enforceable by

20
 What is the lnternational
penal processes and punishment. These duties are designed to restrain that conduct
Armed Conflict? (War)
in warfare which imposes unneceSSalYsuffering on combatants, all warfare directed
against those civilians not engaged in the armed conflict, and all inhumane conduct
against those who are defenceless in the hands of the enemy by the tide of war
whether members of armed forces or civilians. The range of these humanitarian
prohibitions is wide".

To understand the meaning of the internal or international armed conflict it is necessary

to know the difference between the human rights and internal armed conflict.

Human Rights Law Law of Armed Conflict

The right to life is granted a high The right to shoot combatants is formally
degree of protection recognized
The right to be tried rather than The right of combatants to be detained but
detained without trial is protected not tried is protected
There appears to be a continuing There is a tendency to grant an amnesty when
obligation to prosecute human rights the conflict is over for most conflict-related
violators cnmes
The primary responsibility for ensuring Individuals as well as States may be held
compliance is imposed on the States responsible for ensuring compliance

International
Normality Disturbances T· Armed C· '1 W
er<OVnfli~. ar War

Human Rights Derogation Common Article 3 Protocol II Geneva

non-derogable HR Conventions

Self Assessment Question

2) What is the difference between Human Rights and Law of Armed Conflict?

6.6 COMMON ARTICLE 2 OF THE GENEVA

CONVENTIONS
An international armed conflict exists if one state uses force of arms against another
state. This shall also apply to all cases oftotal or partial military occupation, even
if this occupation meets with no armed resistance (Article 2, para 2 common to
Geneva Convention). The use of military force by individual persons will not suffice.
It is irrelevant whether parties to the conflict consider themselves to be war with each
other and how they describe this conflict.

It is not well established that the application of international humanitarian law is not

12 Michael A. Meyer, id at p. 5.
21
What are the Basic
dependent upon the existence of a formal state of war, or indeed upon the existence
Concepts of IHL?
of what has sometimes been called 'war in the factual sense' (in so far as that may
be different from the concept of an armed conflict). In the case of the Geneva
Conventions, the conditions of their applicability are governed by Common Article
2, Para 1which provides the conventions apply: to all cases of declared war or of'
any other armed conflict which may arise between two or l!l0re of the high contracting
parties, even if the state of war is not recognized by one of them.' Although the final
phrase does not deal expressly with the situation in which neither party to an armed
conflict admits that it is in the state of war.

However, in practice, in most conflicts in 1949, neither side has admitted that it was
in the state of war, yet they have treated the Geneva Conventions as applicable. The
conventions are also applicable in a case where a state declares war but does not
engage in actual hostilities (as happened with the states of Latin America during
a
World War II), so that if such state interns 'enemy' nationals, those internees will
be entitled to the protection of Fourth Geneva Convention.

Article 2 Para 2 also provides that the conventions also apply where the forces of
one state occupy all or part of the territory of another, even if that occupation meets
with no resistance. This provision is not, however, intended, to affect the situation in
which a state occupies territory of another, even if that occupation meets with no
resistance. This provision is not, however, intended to affect the situation in which a
state occupies a territory after the outbreak of actual hostilities, such a case is
governed by Article 2, Para 1.. The Article 1, Para 3 of Additional Protocol I
provides that the Protocol will apply in the same circumstances as the Conventions.

The Hague Conventions 1907 and a number of the other earlier treaties on
humanitarian laws are stated to apply in time of war In practice, however, the rules
which they contain are treated as rules of customary international law applicable in
an international armed conflict, whether or not that conflict is regarded by parties as
war. The Geneva Conventions do not defme 'armed conflict' an omission which was
apparently deliberate, since it was hoped that this term would continue to be purely
factual and not become laden with legal technicalities as did the definition of the war.
In any event, only the use of force by the organs of a state, rather than by private
persons, will constitute armed conflict.

Self Assessment Question

3) Can an International Armed Conflict exist without using a force by one state
against the other state?

6.7 OCCUPATION UNDER GENEVA

CONVENTION IV
Territory is considered occupied when it is actually placed under the authority of the
hostilearmy. The occupation extends only to the territory where such authority has
been established and can be exercised." With these classic words, Article 42 of the
1907 Hague Regulations on the Law and Customs of War on Land defined belligerent
22
 What is the Intematieaal
occupations. The article now forms part of customary law. As the Fourth Geneva
Armed Conflict?" (,)}:a.r)
Convention of 1949 contains no new definition, the present law relating to the
protection of persons living in occupied territory is based on the traditional concept
of belligerent occupation. It is immaterial whether the occupation was carried out
with or without the use of force.

The inhabitants of occupied territories are protected by all the provisions laid down
in the Fourth Convention for the benefit ofthe civilian population as a whole, by The
Hague Regulations of 1907, and by the Section of the Fourth Geneva Convention
devoted to occupied territories. The fundamental rule is set forth in Article 47 of the
Fourth Convention, under which the rights of persons living in occupied territory are
fully protected by intemationallaw. The occupying territory is fully protected by
international law. The occupying power may not alter their legal situation by either
a unilateral act or annexation of the territory is fully protected by international law.
The occupying power may not alter their legal situation by either a unilateral act or
annexation of the territory: the inhabitants are and remain protected persons. Individuals
living in occupied territory may also not renounce their status or waive their rights
under the Fourth Convention. The reason for this rule is to prevent abuse and
attempt at forced consent.

The aim of the law on belligerent occupation is to maintain the existing situation in
the occupied territory, the status quo ante. The military occupation is considered as
a temporary situation. Thus, national legislation remains in force, and the occupying
power may not abolish it. Local authorities, including the law courts, must be able
to continue their activities. With today's rapid advance of economic and social
development, however, this is not always possible, especially in the event of long
term occupation. The law as it stands at present takes only partial account of
occupation and lead to solution that better to serve the interests of those living in
occupied territory.

There is no pretext under which the occupying power may disregard the fundamental
rights of protected.persons, For example, persons living in occupied areas may not
be sent to the unoccupied part of their own country-or deported into the territory
of the occupying power, either individually or collectively.Within the occupied territory,
protected persons may be transferred to another area only for imperative security
'reasons. Forced labour, such as was imposed during the second world war is not
allowed. The occupying power may not settle part of its own population in the
occupied territory,a prohibition
.
aimed at preventing de facto annexation or colonization..
The occupying power must likewise care for children, in cooperation with the local
authorities, and schools must continue to function. Persons living in occupied territory
may not be compelled to serve in the armed forces of the occupying power, and
local police forces are to be employed to maintain public order in.the territory.

It is forbidden for the occupying power to destroy personal or real property (e.g.,
houses) unless for imperative military reasons and in the course of a military operations.
The occupying powers may not alter the legal status of official judges,and must allow
ministers of religionto exercise their spiritual activities. It must provide the occupied
territory with food and medical supplies. ..

The occupying power may take all measures, e,g., pass laws; that it considers'
.indispensable for the administration of the occupied territories, in particular to ensure
law and order. It may set up its own court, for example, to judge offenses aga~nst
its own security. Protected persons may be convicted by the courts set up by the
23
Wha.; are the Basic occupying power only on the basis of the regular and a fair trial. The Fourth Geneva
€oqcepts of IHL?
Convention describes the rights of the accused. They may be condemned to death,
but only for grave offences and if the death penalty is permitted by law. The Protecting
Power or the ICRC must be informed of all criminal proceedings and its
representatives must be able to attend the trial.

The occupying power may, for imperative security reasons, order persons to be
assigned residence or issue an administrative order for them to be taken, without
trial, to a camp. Such internment is not punishment. The internment must be subject
to review, and must be officially reexamined at intervals to ascertain whether it is
justified.

6.7.1 When does Occupation Come to an End?

The normal way for an occupation to end is for the occupying power to withdraw
from the occupied territory or be driven out of it. However, the continued presence
of foreign troops does not necessarily mean that occupation continues.
A transfer of authority to a local government re-establishing the full and free exercise
of sovereignty will normally end the state of occupation, if the government agrees to
the continued presence of foreign troops on its territory.However, the law of occupation
may become applicable again if the situation on the ground changes, that is to say,
if the territory again becomes "actually placed under the authority of the hostile army"
- in other words, under the control of foreign troops without the consent of the local
authorities.

The provisions relating to belligerent occupation of foreign territory apply for as long
as the occupation continues, at least as far as the most important rules are concerned.
On the other hand, Article 6 of the Fourth Convention states that a number of
provisions shall cease to apply one year after the end of military operations.

6.7.2 What is the Situation of People Deprived of their Liberty,

during and afte-r Occupation?
Prisoners of war are captured members of armed forces and associated militias who
meet the criteria laid down in the third Geneva Convention (GC III Art. 4 A (2»;
they are entitled to the rights granted in the Convention. All other people held in
occupied territory are protected by the Fourth Geneva Convention (GC IV), apart
from very few exceptions, such as the nationals of the occupying power or its allies.
However, in no case the persons deprived of their liberty for reasons related to the
situation of occupation fall outside the customary minimum standards guaranteed in
Article 75 of Protocol 1.

Prisoners of war and civilian internees must be released without delay after the end
of hostilities. However, those who are accused of an indictable offence may remain
in captivity until the end of criminal proceedings or completion of their sentence (GC
Ill, Art. 119 (5), GC IV, Art. 133 (2». Until their release, and as long as they are
under the authority of the occupant, all those in custody remain protected by
international humanitarian law (GC Ill, Art. 5 (1) and GC IV, Art. 6 (4».

6.7.3 Conclusion
Life under occupation may appear to be extremely harsh to the population concerned.
This lies in the nature of belligerent occupations, which is a form of foreign domination.
The law can do little more than what those responsible for security in the occupied
24
territory are willing to allow. Despite this limitation, international humanitarian law What is the International
Armed Conflict? (War)
relating it protected persons in occupied territory has special merit. It reduces the
otherwise unlimited authority ofthe occupying power, whose conduct is subjected to
international scrutiny. The Fourth Convention is a kind of constitution that takes effect
when a territory falls to a foreign army and becomes occupied, one that takes effect,
moreover, with no action on the part of the occupier or the occupied. In so doing,
IHL makes a significant contribution to safeguarding the human dignity in extraordinary
circumstances.

Armed forces should comply with the rules applicable in international armed conflicts
in the conduct of their operations in all armed conflicts, however such conflicts are
characterized.

1) The policy rule to comply with the rules of international humanitarian law in the
conduct of any armed conflict, irrespective of whether that conflict is characterized
as internal or international serves not only humanitarian interests but also operational
requirements." The rule avoids confusion on the side of troops and their
commanders, as regular armed forces are normally trained for military operations
in international armed conflicts and not for law enforcement purposes. Also, the
character of an armed conflict is not always clear, sometimes it may even change
during operations.

2) The policy to comply with the law of war during all armed conflicts, however such
conflicts are characterized, was first stated for the u.s. Forces" and for the German
Bundeswehr." It was vigorously endorsed by international consensus, 16 and may
be considered today as indicating a progressive development of the law. Its quite
obvious meaning is not to encourage any disregard for the legal distinction between
the two different forms of armed conflict, but rather to fully apply the rules related
to the conduct of hostilities also in a non-international armed conflict. Thus soldiers
are professionally trained to comply with international humanitarian law fully and
any misunderstanding as to the applicability of more than rudimentary (or 'minimum ')
rules in an non-international armed conflict shall be avoided.
Also the unprivileged fighters must be treated humanely.
1) Fundamental Principle
Humanitarian protection is essential for all victims of violence. This is underlined by
fundamental human rights obligations, as deriving from the ICCPR, as from the
ECHR, ACHR, the African Charter on Human and Peoples' Rights or the Arab
Charter on Human Rights. These obligations apply also in military operations, unless
they are lawfully derogated in cases of emergency or their application is excluded by
lex specialis rules of humanitarian law. Both exceptions are seldom fulfilled in reality.
Furthermore, even beyond treaty law, there are minimum standards of protection
13 See above, Section 211, para. 5 .
14DoD Directive 5100.77 of 10 July 1979, restated in DoD Direcrive 2311.01 E of9 May 2006,
DoD Law of War Program, Section 4.l. See also U.S. Army, Judge Advocate General's Legal
Center and School, Operational Law Handbook (2006), Chapter 2 Ill, <hrrp:llwww.fas.ocg/irp/
doddirl army/law2006.pdf>, with reference to the Chairman of the Joint Chiefs of Staff Instruction
(CJCSI) 51810.01, para 5. J, which gives that policy rule a different connotation, stating that the
U.S. 'will apply law of war principles during all operations that are characterized as Military
Operations Other than War'.
15 German Manual, Section 211.
16 International Institute of Humanitarian Law, 'Declaration on the Rules uf International
Humanitarian Law Governing the Conduct of Hostilities in Non-International Armed Conflicts',
in No. 278JRRC(1990), 404-408.
25
What are the Basic which have been generally accepted and must be respected as guidelines for best
Concepts of lIlL?
practice in the treatment of prisoners.

2) Restrictions in a State of Emergency

It is to be deplored that even minimum protection was denied in recent counter-
terrorist operations. Fundamental human rights must be respected without exemption.
Even in a state of emergency habeas corpus may not be completely suspended,
although in extreme cases the right to liberty and security may be limited to the effect
that in case of arrests or detentions the reasonable time to implement habeas C01pUS
may be longer than 24 hours. 17 Under existing law detainees do not loose the right
of legal protection altogether. <:»

3) Good Governance and Effective Policy

In armed conflicts as in peacetime humanitarian protection of victims is not only a
technical legal issue. It must be considered in broader terms of good governance and
effective policy. Long-term perspectives may lead to the introduction of protections
which are not strictly required under existing law. In this respect states participating
in a multinational operation may have taken differing policy decisions. In such cases,
interoperability problems must be solved. This may include the application of
humanitarian law standards by analogy, where unilateral statements are made to that
effect by the detaining power.

Self Assessment Question

4) What do you understand by Occupation? What is the situation of people
deprived of their liberty, during and after occupation?

6.8 SUMMARY
• In this unit, we discussed the meaning ofthe Law ofIntemational Armed Conflict.

• We further discussed the difference between the Human Rights and the law of
Armed Conflict

• Further, we studied the application oftheArticle 2 of the Geneva Convention.

• We saw how the territory can be occupied and what how occupation comes to an
end?

17 England and Wales Court of Appeal. Abbasi & Anor v Secretary of State for the Foreign
and Commonwealth Office [2002] EWCA Civ. 1598, para. 29. See also IACtHR, Habeas Corpus
in"
Emergency Situations. Advisory Opinions OC8/87 of 30 January 1987. Series A No.8 (1987),
para. 42, and OC-9/87 0 I '6 October 1987, Series A No. 9 (1987), para. I: "'writs of habeas corpus
[ ... ] are among those judicial remedies that are essential for the protection of various rights
whose derogation is prohibited [ ... ] and that they serve. moreover, to preserve legality in a
democratic society'. 'lbe arguments of the IACtH R. developed in implementation of Article 27
and Article 7 ACHR, arc fully applicable to Article 4 lCCPR.
26
 What isthe Internatio~a'{
6.9 TERMINAL QUESTIONS Armed Co'ht1lct?'(Warr

1) When Territory can be considered to be occupied?

2) What rights does the occupying power have regarding property and natural resources
in the occupied territory?

3) What is "International Armed Conflict". Discuss the relationship of Human Rights

Law and IHL during International Armed Conflicts.

6.10 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 6.4

2) Refer to Section 6.6

3) Refer toSection 6.7

Terminal Questions
1) Refer to Section 6.7

2) Refer to Section 6.7

3) Refer to Section 6.4

6.11 REFERENCES AND SUGGESTED

READINGS
1) Geneva Conventions

2) Code of Conduct

Books
1) Chestennan Simon, "Just War and Peace?" Humanitarian Intervention and
International Law, Oxford University Press, Oxford, UK, 2003.

2) D. Fleck, The Handbook of Humanitarian Law in Armed Conflicts, Oxford

University Press, Oxford, 1995. '

3) H.P. Gasser, International Humanitarian Law: an Introduction, in: Humanity

for All: the International Red Cross and Red Crescent Movement, Paul Haupt
Publishers, Berne, 1993.

4) Liesbeth Zegveld, Accountability of Armed Oppos Won Groups in International

Law, Cambridge University Press, Cambridge, 2002.

5) Michael A. Meyer, Reflections on Law and Armed Conflicts, Martini Nijjoff

Publishers, 1998.

6) M. Hensel, The Law of Armed Conflict, Ashgate Publishers, London, February,

2007.
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What are the Basic
7) Sassoli M., "Transnational Armed Groups and International Humanitarian Law",
Concepts-of IHL?
Program on Humanitarian Policy and Conflict Research, Harvard University,
Occasional Paper Series, Winter, Number 6, 2006.

Articles
1) Mary Ellen O'Connel, "Defining Armed Conflict," Journal of Conflict and
Security Law, Vol. 13, Winter, 2008.

2) Mona Fixda1,and Dan Smith, "Humanitarian Intervention and Just War," Mershon
International Studies Review, International Peace Research Institute, Oslo,
Vo!. 42, 1998.

3) Occupation and International Humanitarian Law: Questions and Answers, A Series

of questions and answers by the ICRC, 2004. httpr/iwww.icrc.org/Web/Eng/
siteengO.nsjlhtml/634KFC

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