|Handbook on War and Public Health (ICRC, 1996, 470 p.)|
|Chapter 9 - PROTECTING THE VICTIMS OF ARMED CONFLICTS|
|II. SPECIFIC POINTS OF INTERNATIONAL HUMANITARIAN LAW USEFUL FOR HEALTH-CARE PERSONNEL|
The four Geneva Conventions and Additional Protocol I are applicable in international armed conflicts. Additional Protocol II applies to non-international armed conflicts. It should be noted, however, that Article 3, common to all four Conventions, also concerns non-international armed conflicts. Article 3 is a miniature convention in itself, with three very important characteristics:
· it is the only reference to non-international armed conflicts in the Conventions;
· it contains a summary of the main basic guarantees;
· since it does not change the legal status of the parties to the conflict, its application cannot turn the conflict into an international armed conflict. 11
11 L.C. Green, The Contemporary Law of Armed Conflict (Melland Schill Monographs in International Law, 1993), p. 42.
Despite this last provision, the text was adopted only after long negotiations with the States which saw it as interference in their internal affairs. 12
12 See Jean Pictet, ed., Commentary, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC, 1958), p. 32.
International humanitarian law applies in situations of armed conflict, and emphasizes both the belligerents' duties towards non-combatants and the manner in which hostilities are to be conducted. The application of international humanitarian law must come to terms with military necessity: "The law of war can only be, in fact, a law of compromise between military necessity and humanitarian requirements." 13 This pragmatism, however, must not be interpreted as surrender to the armed forces present. The neutrality and impartiality of the humanitarian agencies allow them to negotiate with the authorities in charge of the military operations so that humanitarian requirements are respected to the extent necessary to protect the victims of the conflict.
13 Maurice Torelli, Le droit international humanitaire (Presses Universitaires de France, 1985), p. 12.
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."
The creation of a humanitarian "space" in situations of armed conflict will gain wider acceptance if humanitarian organizations are indeed seen by the parties to the conflict to be neutral and impartial.