ULUSLARARASI KAMU HUKUKU II

The law of war reflects the military perspective and is the old-fashioned one since the term armed conflict has now replaced war.

The law of armed conflict, however, is a better term since this term covers both the restriction of warfare (military aspect) and the protection of those who are not involved in actual hostilities and those are involved, e.g. combatants (humanitarian aspect). Along with the entry into force of the United Nations Charter and the prohibition on the use of force, war and other concepts related to it was replaced with different expressions such as dispute, situation, use of force, and aggression.

IHL is a specific body of law from the law governing the legitimacy aspects of use of force. IHL stipulates rules to be applied in conduct of hostilities in times of armed conflict (jus in bello: law in war). Rules regarding legitimacy aspect of resorting to the use of force itself are known as operational law (jus ad bellum: law on war).

IHL aims at prohibiting:

• Summary executions of civilians and military personnel,

• Ethnic cleansing and forcible displacement,

• Mistreatment of detained prisoners of war,

• Indiscriminate use of force against civilians and civilian objects,

• Attacks on medical, religious and humanitarian relief services and personnel, 28 International Humanitarian Law

• Looting and other destruction of civilian property with no military purpose,

• Terrorizing and starving the civilian population,

• Use of human shields against a pending attack,

• The use of particular prohibited methods of warfare

Ceasefire (armistice) is the pausing or ending of combat operations by mutual agreement between belligerent parties (Parry and Barker, 2009: 44). On the other hand, a peace agreement will settle the political and / or legal dispute itself, between belligerent parties.

The Martens clause aims to offer protection to victims of armed conflicts even when there is no applicable rule of IHL. It is an important principle of IHL which was formulated by the Russian international law professor Friedrich von Martens and first adopted at the First Hague Peace Conference of 1899. It has since been reformulated and incorporated in numerous international instruments (Melzer, 2016: 24).

The codification attempts in Europe began with the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864 (revised in 1906), with the initiations of a Genoese businessman, Henry Dunant (Melzer, 2016: 35). This was the starting point of a body of a humanitarian law governing the treatment and protection of those hors de combat, civilians and other non-combatants. 1864 Geneva Convention adopted the emblem of the Red Cross as a neutral protective sign for hospitals and those assisting the wounded and sick on the battlefield.

Non-international armed conflicts are protracted armed confrontations between governmental armed forces and the forces of one or more-armed groups, or between such groups operating on the territory of a State. Not all internal disturbances can be regarded as noninternational armed conflicts. There has to be a certain level of violence. According to the Article 1 of Additional Protocol II, “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature ...” are not considered as armed conflicts. The Common Article 3 of the Geneva Conventions of 1949 lays down the minimum standards to be applied “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.”

The Common Article 3 of the 1949 Geneva Conventions stated;

`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.`

Neutrality refers to the status of a State that is outside of an international armed conflict. This includes not helping the combatants of the belligerent States.

Notwithstanding the legitimacy aspect of resorting to the use of armed force, occupation is the full and effective control of a foreign national territory by enemy armed forces. Occupation entitles certain rights and imposes certain obligations for both the Occupying Power and people living in the occupied territory. Occupation does not affect the legal status of the parties to an armed conflict and the territory in question. Occupied territory is not considered as part of the territory of the Occupying Power.

Military necessity refers that all combat activity must be justified on military grounds and those are not militarily necessary are to be prohibited. . Humanity, on the other hand, limits the means and methods of warfare and requires that those who have fallen into enemy hands be treated humanely at all times. Proportionality suggests the infliction of incidental harm on non-combatants cannot be avoided. Distinction refers to an obligation to make a distinction between combatants and non-combatants, military objectives (targets) and civilian objects during an armed conflict.

Hors de combat: “A person is ‘hors de combat’ if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness; and therefore, is incapable of defending himself, provided that in any of these cases he abstains from any hostile acts and does not attempt to escape” (Article 41/2 of Additional Protocol I)

IHL aims at prohibiting:
• Summary executions of civilians and
military personnel,
• Ethnic cleansing and forcible displacement,
• Mistreatment of detained prisoners of war,
• Indiscriminate use of force against civilians
and civilian objects,
• Attacks on medical, religious and
humanitarian relief services and personnel,

• Looting and other destruction of civilian
property with no military purpose,
• Terrorizing and starving the civilian
population,
• Use of human shields against a pending
attack,
• The use of particular prohibited methods of
warfare

IHL is a specific body of law from the law
governing the legitimacy aspects of use of force.
IHL stipulates rules to be applied in conduct of
hostilities in times of armed conflict (jus in bello:
law in war). Rules regarding legitimacy aspect
of resorting to the use of force itself are known
as operational law (jus ad bellum: law on war).
Legitimacy aspect of resorting to the use of force
will not affect application of the IHL.

IHL treaties are generally divided into two: Hague Law, rules on how hostilities to be conducted, and Geneva Law, rules governing the treatment of victims of war.

Geneva Law includes the four Geneva Conventions
of 1949 and their three Additional Protocols. Namely,
the Geneva Convention (I) on Wounded and Sick on
Land; the Geneva Convention (II) on Wounded, Sick
and Shipwrecked at Sea; the Geneva Convention (III)
on Prisoners of War, the Geneva Convention (IV) on
Protection of Civilians, including administration of
an occupied territory, the 1977 Additional Protocol
(I) on international armed conflicts, the 1977
Additional Protocol (II) on non-international armed
conflicts, and the 2005 Additional Protocol (III) on
additional distinctive emblem.

Geneva Law includes the four Geneva Conventions
of 1949 and their three Additional Protocols. Namely,
the Geneva Convention (I) on Wounded and Sick on
Land; the Geneva Convention (II) on Wounded, Sick
and Shipwrecked at Sea; the Geneva Convention (III)
on Prisoners of War, the Geneva Convention (IV) on
Protection of Civilians, including administration of
an occupied territory, the 1977 Additional Protocol
(I) on international armed conflicts, the 1977
Additional Protocol (II) on non-international armed
conflicts, and the 2005 Additional Protocol (III) on
additional distinctive emblem.

Among the sources of International humanitarian law there are 

I. Treaties

II. Custom

III. General Principles of Law.

The codification attempts in Europe began with the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864 (revised in 1906), with the initiations of
a Genoese businessman, Henry Dunant.

Ottoman Empire became a party to the 1864 Geneva Convention on 5 July 1865, and it ratified the 1899 Conventions on 12 June 1907.

Hague Conferences were held in 1899 (three conventions and three declarations) and 1907 (thirteen conventions).

The First Geneva Convention concerns the wounded and sick on land.