CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

       One can be tempted to say from a biblical perspective that, the origin of the word conflict is even older than the existence of man. This from the naturalist[1] point of view is seen in the fact that, the bible which has been recorded as the supreme of all laws (rules of morality) gives an account of the first ever fought war. It holds in revelation 12:7-12 that, war broke out in heaven and it was fought by the devil who was an angel and his supporters on one hand and by angel Michael and his angels on the other hand. This battle was won by Michael and his angels and the devil was then casted down into the earth[2]. Looking at this issue of conflict as something which even occurred among superior beings who were considered to be holy, it might seem as if the natural person might not be able to live with his fellow human being without getting into conflicts.

       As a result of this, it has been recorded that on an Island which is inhabited by one person, there is no need of a law of conduct. But the presence of another person on that Island brings about the necessity of a rule of conduct in order to regulate their behave towards one another and in order to maintain peace between the parties. Records have shown that, violence does not just occur without a reason. It is either a people are fighting against something or they are fighting to achieve something. However, due to the fact that man is not an island, the council of States (state representatives) from different cultural and legal backgrounds had to come together and draft a Universal document that will contain the undisputed rights of man. This document became known as the universal Declaration of Human Rights. It was proclaimed by the United Nations General Assembly on the 10^th of December 1948 as a common standard of achievements for all people and nations[3]. It sets out for the first time fundamental human rights to be universally protected. This document was translated into over 500 languages as it became widely recognized as having paved the way for the adoption of over 70 human right treaties which now apply almost everywhere in the world.

       Human rights can be define as that body of right which are inherent and inalienable in human beings by virtue of them being born in the society. They are rights which are inherent in human beings regardless of their sex, race, ethnicity, color, nationality, religion or any other status. Inherent here implies that human beings are born with the rights while inalienable means that these rights in human beings cannot be transferred. International law lays down the obligation for government to act in a certain way or to refrain from certain conducts in order to promote human rights and protect the rights of the individuals of the states. One of the greatest achievements of the U.N has been its ability to come out with a code of international human right provisions which over time, has been able to govern the relationships of individuals in a state and the relationship of the state with the individuals. It has even come out with ways through which these rights can be respected and promoted.

       It should be noted that before the Universal Declaration of Human Rights came into play, on April 25^th 1945, the United Nations Conference was convened in San Francisco with 50 representatives of states. This led to the signing of the United Nations Charter on the 26^th of June 1945. The U.S Frankline D. Rooseve and British Prime Minister Winston Churchill can be considered as the brain behind this development because studies have turned to the fact that it was as a result of their immense contribution which started from the signing of the Atlantic Charter[4] and conceiving of the idea of a community of states that the League of Nations and later the signing of the United Nations Charter came into play. The United Nations as it is called, is an international Organization which is committed in maintaining international peace, security, friendly relations among states. It also aims at promoting friendly relations between states and human rights of indivduals. This organization came into existence after the second world war and its Charter became a guiding principle. Through its preamble, it emphasizes on the need and importance of saving the upcoming generation from the experience of war which has befallen the world and brought untold suffering twice[5].

        From a close look at the 1945 U.N Charter, 1948 Universal Declaration of Human Rights and the 1949 IV Geneva Convention, through rational thinking, one is force into conceiving the idea that it was not a mere coincidence. It would seem as though the community of states had been drawn into the idea of identifying and emphasizing on the protection of the rights of individuals throughout the world. The effects of the first and second World War had brought so much pain on not just states but on individuals who though not directly involved in the war, yet had suffered untold pain, suffering and even lost of lives. All these effects on the innocent man made the international community to see the need to spell out the rights of man which must be respected at every stage and time throughout the world (times of peace and time of war). This international action brought about two main distinct but complimentary body of law; International Human Rights and International Humanitarian Law.

         International Human Right law as explained above, are fundamental laws which are inherent and inalienable in all everywhere without distinction. They govern the obligations of states toward citizens and the obligations of citizens toward one another. They are laws which apply in times of war and also in times of peace in order to protect the rights of individuals[6]. On the other hand, International Humanitarian Law which is also known as the law of war, or the Law of Armed Conflict, is the legal framework applicable to individuals in situations of armed conflict. As a set of rules and principles, it aims for humanitarian reasons to limit the effects of armed conflict. It has the protection of persons who are not or are no longer participating in hostility to protect and the limitation of means and methods of warfare as fundamental principles[7]. Humanitarian law is distinguished from human right law in that, humanitarian law is applicable only in times of armed conflict.

       This issue of war or conflict which has been experienced in many parts of the world like Iraq, Afganistine, Russia, Denmark, in fact in almost all countries of the world exist at both the international and national level. International armed conflict has been defined as those armed conflict which occur between two or more states while national armed conflicts refer to conflicts which occur between the armed forces of a state and non-state combatants within the national boundaries of that state. However, recent trends have turn to shown that, conflict is frequently fought now but at national levels[8].

          At all levels, studies have shown that, some wars can be justified. This implies that, some wars are regarded as necessary in order for somethings to be amended. One of the classical write up on the justification of war was brought forth by St. Augustine. His inspiration was drawn from the bible and he believed that, a just war can only be waged after all peaceful options are considered. This implied that, the use of force can only be used as a last resort and a just war is waged by a legitimate authority. He held that, a war cannot be waged by individuals or groups that do not constitute the legitimate government. This this, one of his famous quotes became noted “an unjust law is really no law”[9]. Apart from him, the Islam tradition has also upheld the idea that war is necessary at some points in time especially when it is in order to defend their religion. But despite their agreement that war is necessary, they have always laid emphasis on a group of people who should be exempted from war such as children, women and the elderly. In Paquete Habana case, the U.S imposed a blockade on Cuba and declared war against Spain. Unknown to two Spanish vessels, they engaged in fishing along the coast of Cuba and near Yucatan. As a result, they were capture by blockading squadrons. However, they had no knowledge of the existing war, they had no weapons and they did not also resist arrest. The district court condemned the vessels and ordered an auction sale  but the U.S supreme court reverted the decision and upheld that, certain class of people and vessels benefited from exemption[10]

       The Universal Declaration of Human Rights in its Preamble holds that, the violation of Human Right is the cause of many barbarous acts which have shocked the conscience of man and calls on states to take actions in order to avoid conflict from being brought forth by rebel groups[11]. However, despite this call, arm conflict still continues to persist in most parts of the world and as such, civilians who are not connected to the conflict still continue to suffer. Thoughout history and up to present, civilians have been targeted by belligerents who often have made no distinction between combatant and civilians when fighting their enemies. Sometimes, civilian suffering has been an unintended result of the fighting but at other times, it has been inflicted as a deliberate military strategy. Civilians are affected in many ways in war, whether as direct victims of rape, death, injuries, forceful displacement and many other ways. The impact and experience of war will not be the same for all citizens but can vary enormously among the members of different groups. However, it will depend on the combatants and how they endeavor to target or protect civilians during hostilities.

         While wars have invariably been accompanied by suffering for civilians and soldiers alike, there have almost always been certain limits on warfare. That is either norms establishing the type of action that are acceptable or unacceptable in war including norms on who should and should not be targeted. Even if these norms have varied greatly, when certain groups have been spared from attacks, they have often included those considered to be particularly ‘innocent’, ‘vulnerable’ or weak. As the notion of ‘limited war’ and non-combatant immunity developed in particularly in medieval Europe, notions of civilian protection gradually became more sophisticated. However, it was only after the genocide and widespread atrocities against civilians during the second world war and the arm conflict in the 1950s to the 1970s that a specific legal framework was established for the protection of civilians. Today, all parties to arm conflict are bound by the rules of international humanitarian law [IHL] to take a broad range of measures to protect civilians from the effects of military operations.

The 1949 Geneva Convention IV and the 1977 Additional Protocol[12] constitute the core of the legal framework regulating attitude in war including the protection of civilians. Most of the fundamental rules pertaining to the protection of civilians are considered to be customary humanitarian law in both international and internal armed conflicts and are binding on all states weather signatories or not to the relevant treaty as well as non-state armed groups[13]. Since its creation, the ICRC’s sole objective has been to ensure protection and assistance for victims of armed conflict and strife. Its story is about the development of humanitarian action, the Geneva Conventions and the Red Cross and Red Crescent Movement. A recent International Committee of the Red Cross [ICRC] study identified several specific gaps or weaknesses in the existing legal framework particularly as regards non-international armed conflicts which is the dominant form of conflicts today[14]. Due to the current prevalence of internal armed conflict, the interaction between International Humanitarian Law and International Human Right Law is also becoming a matter of increased importance[15]. However to begin this work, it is necessary to first start by bringing out a clear difference between national and international armed conflict.

1.1.1 Distinction between National and International armed conflict

      An international armed conflict refers to a situation in which two or more countries are in a situation of war involving the use of weapons by their armed forces. This definition goes in line with the definition of Oppenheim L who states that war is a contention between two or more states through their armed force for the purpose of overpowering each other and imposing such condition of peace as the victor pleases. The element which makes a conflict international is the involvement of different sovereignty state opposing each other. This implies that when a foreign state intervenes on the side of the government in purely an internal crisis, it is not an international armed conflict but where the foreign intervention supports the group fighting against the home government, it is termed an international armed conflict[16].

    Non-international armed conflict on the other hand refers to a situation which involves an armed conflict between a state government’s military forces and a dissident or other organized armed group or two of such organized armed groups fighting each other. As opposed to international armed conflicts which are inter-state confrontations, non-international armed conflicts are intra-state conflicts also known as civil wars. Common article II of the Geneva Convention doesnot define non-international armed conflicts but Additional Protocol II provides a definition which states that, non-international armed conflict are conflicts which take place in the territory of a high contracting party between its armed forces and dissident armed forces or other organized armed groups under a responsible command which exercises control over a part of its territory in order to enable them to carryout  sustained and concerted military operation. Article 8(2)(b)(f) of the Rome statute is to the effect that such an armed conflict involves a protracted armed confrontation between government authorities and organized armed groups or between such groups. Common article 3 is to the effect that internal armed conflict exist when the armed confrontation become distinguishable from other forms of violence involving situations of internal disturbance and tension such as riot, sporadic act of violence or other situations[17].

1.2  Statement of Problem

        The civilian population constitute an important part of any state population and as such, requires protection. With the adoption of the United Nation Charter in 1945 and the Universal Declaration of human right by the United Nation general assembly in 1948, expectations grow toward civilian protection. This was because it was a major achievement in world history as it was the first time that the international community set down formal standards of human rights and freedom that should be enjoyed by everyone everywhere[18]. The Universal Declaration proclaimed that, respect for human right is the foundation of freedom, justice and peace in the world. The vision outlined in the charter of the united nation and in the universal declaration of human right is that everything we do in the governance of human affair must have in view the protection and promotion of basic human rights.

           Over the years, the General Assembly, the Commission on Human Right and more recently, the Human Right Council have considered that in armed conflict, parties to the conflict have legally binding obligations concerning the rights of civilians and persons affected by the conflict. These position was covered by the IV Geneva Convention and Additional Protocol II as far as internal armed conflicts are concerned. However, during conflict, civilian still continue to suffer as though they were no laws protecting them. They even face daily threat of violence and death as they find themselves unavoidably caught up in the middle of the conflict. Despite being protected under international humanitarian and human right law, civilians continue to be the victims of violence and sometimes are targeted by combatants. These deliberate attacks can include campaign of sexual violence or deliberately killing to instill fear and coerce compliance from the civilians.

Individual states, the United Nation, regional organizations and humanitarian agencies including non-governmental organizations all play important roles in protecting the civilians, whether through political and legal action, military activities or humanitarian actions. However international and national efforts to protect civilians in times of internal armed conflicts have proven to be insufficient, inconsistent or ineffective.

1.3 Research Objective

This work on the protection of civilians in times of crisis has the following research objectives;

1.3.1 Main Research Objective

• To investigate the limitations of the choice of means and methods of waging war.

1.3.1.1 Specific Research Objectives

• To examine the mechanisms put in place to protect civilians
• To know if perpetrators of acts or omissions violating the protection of civilian are held criminally liable.
• To evaluate the effectiveness of the mechanisms put in place to protect civilians.

1.4 Research Question

This work on the protection of civilians in times of armed conflict has the following research questions;

1.4.1 Main Research Question

• To what extent is the choice of the means and method of warfare limited?

1.4.1.1 Specific Research Question

• What are the mechanisms put in place to protect civilians during armed conflict?
• Are violators of the protection accorded to civilian criminally responsible?
• How effective is mechanism put in place to protect civilians?

[1] Sir William Blackstone served as a member of parliament from 1761 to 1770 and he became a justice of the court of Common Plea. He was not a scientific jurist. He regarded England as a country whose actions and conduct are imposed by a superior power on its subjects. He pronounced that, municipal laws derive their validity as a result of their conformity with the law of nature which was handed down by God. He held that, no human law is of any validity if it so differs from the law of God.

[2] Revelation 12:7-12

[3] 1948 Universal Universal Declaration of Human Rights

[4] David Carlin, 17thSeptember2019,  Roosevelt Churchill and the creation of the United Nations, https://www.forbes.com> accessed on the 23 of June 2021

[5]U.N Publications, United Nations: Peace, dignity and equality on a healthy planet, https://www.un.org> un-charter> accessed on the 23 of June 2021

[6] https://phap.org> accessed on the 23 of June 2021

[7]Francisco Forrest Martin, Stephen J. Schnably, Richard J. Wilson, Jonathan .S. Simon, Mark V. Tushinct, 2005, “International Human Rights and Humanitarian Law: Treaties, Cases and Analysis”, Center for International Human Rights Law Inc, Cambridge University Press, Page 1

[8] Valerie Epps,28/08/2013,  “Civilian Casualities in Mordern Warfare: The Death of the Collaterial Damage Rule ,Georgia Journal of International and Comparative Law, Vol 41, page 313

[9] Saint Augustine, 17/12/2018, “Just War Theory”, https://www.mtholyoke.edu/-jasingle/justwar.html, accessed on the 23/06/2021

[10] Law school case brief, The Paquete Habana- 175 U.S. 677, 20 S. Ct.290 (1900), https://www.lexisnexis.com>ca

[11] The Preamble of the United Nations Universal Declaration of Human Rights 1948

[12] The 1949 Geneva Convention and the 1977 Additional Protocol

[13] Camilla Waszink, (August 2011) Protection of Civilians under International Humanitarian Law; trends and challenges page 3

[14] Dr. Jakob Kellenberger ICRC president, (21^st September 2010), ‘strengthening legal protection for victims of armed conflict’

[15] Cordula Droege, ‘The interplay between international humanitarian law and international human right law in situations of armed conflicts’, Isreal Law Review , vol 40, 2007

[16] Dr. Fon F. Forsuh, 2015, The international criminal court and war crimes: A critical appraisal, University of Yaounde II Soa, Page 46

[17] ibid

[18] Universal Declaration of Human Right 1948