Unit 1

Int’ll Humanitarian Law (IHL) is a set of rules which governs the means and method of
warfare in order to reduce the intensity of hostilities. IHL is a set of int’ll rules, established by
treaty or custom, which are specifically intended to solve humanitarian problems directly
arising from int’ll or non-int’ll armed conflict. It protects persons and property that are, or
may be, affected by an armed conflict and limits the rights of the parties to a conflict to use
methods and means of warfare of their choice.
Int’ll human rights law strives to protect the lives, health and dignity of individuals, from diff.
angle. Human rights are inherent entitlements which belong to every person as consequence
of being a human. It is set of int’ll rules, on the basis of which individuals and groups can
expect and/or claim certain behavior or benefits from governments. Humans are not inclined
to live in a permanent state of warfare and the wounds left by war will eventually have to be
tended. It is therefore necessary to maintain a commitment to human ideals on which
community may be founded following the cessation of hostilities. In this way, international
humanitarian law aims to ensure respect for the most basic human values, such as dignity,
community and freedom from suffering.
Public international law deals with Jus Ad Bellum (Jus Contra Bellum- law against war) i.e.,
laws to war which means it checks on the legality of warfare. The existence of an armed
conflict is therefore a prerequisite for international humanitarian law to operate. It is
important to note in this context that international humanitarian law is concerned with
regulating the conduct of armed conflicts, rather than their commencement. It is not
concerned with how a conflict started or who was to blame for it, but rather stipulates what
forms of conduct are permissible once the war is ongoing. So, IHL deals with Jus in Bello
i.e., Law in War- it provides humanitarian assistance in times of war irrespective of the
legality of war to both the parties involved.

An international armed conflict, according to this definition, is a conflict between the armed
forces of two or more states. A non-international armed conflict, on the other hand, is a
conflict between a state and an organised armed group within the state’s territory or between
two or more non-state groups within a state’s territory.

IHL is applicable in times of armed conflict, whether international or non- international.

International conflicts are wars involving two or more states, and wars of liberation,
regardless of whether a declaration of war has been made or whether the parties involved
recognize that there is a state of war. Non-international armed conflicts are those in which
government forces are fighting against armed insurgents, or rebel groups are fighting among
themselves. Because IHL deals with an exceptional situation – armed conflict – no
derogations whatsoever from its provisions are permitted.
In principle, IHRL applies at all times, i.e. both in peacetime and in situations of armed
conflict. However, some IHRL treaties permit governments to derogate from certain rights in
situations of public emergency threatening the life of the nation. Derogations must, however,
be proportional to the crisis at hand, must not be introduced on a discriminatory basis and
must not contravene other rules of international law – including rules of IHL. Certain human
rights are never derogable. Among them are the right to life, prohibition of torture or cruel,
inhuman or degrading treatment or punishment, prohibition of slavery and servitude and the
prohibition of retroactive criminal laws.

IHL aims to protect persons who do not or are no longer taking part in hostilities. Applicable
in international armed conflicts, the Geneva Conventions deal with the treatment of the
wounded and sick in the armed forces in the field (Convention I), wounded, sick and
shipwrecked members of the armed forces at sea (Convention II), prisoners of war
(Convention III) and civilian persons (Convention IV). Civilian persons include internally
displaced persons, women, children, refugees, stateless persons, journalists and other
categories of individuals (Convention IV and Protocol I). Similarly, the rules applicable in
non- international armed conflict (article 3 common to the Geneva Conventions and Protocol
II) deal with the treatment of persons not taking, or no longer taking part in the hostilities.
IHL also protects civilians through rules on the conduct of hostilities. For example, parties to
a conflict must at all times distinguish between combatants and non-combatants and between
military and non military targets. Neither the civilian population as a whole nor individual
civilians may be the object of attack. It is also prohibited to attack military objectives if that
would cause disproportionate harm to civilians or civilian objects.

Common Article 2 of the Geneva Conventions of 1949 states that the Conventions will apply
to ‘all cases of declared war or of any other armed conflict which may arise between two or
more of the High Contracting Parties, even if the state of war is not recognised by one of
them’. A declaration of war is therefore not necessary for the existence of an armed conflict.
International humanitarian law comes into play whenever hostilities reach a certain threshold.

An important definition of an armed conflict comes from the International Criminal Tribunal
for the Former Yugoslavia (ICTY) judgment in Prosecutor v Tadić, the first case to be heard
before that body. The Appeals Chamber in Tadić confirmed that ‘for there to be a violation of
[international humanitarian law], there must be an armed conflict’. The Appeals Chamber
then went on to say that ‘an armed conflict exists whenever there is a resort to armed force
between States or protracted armed violence between governmental authorities and organised
armed groups or between such groups within a State’. This was reaffirmed in the later case of
Prosecutor v Kunarac. The definition proposed by the Appeals Chamber in Tadić recognises
two distinct tests for the existence of an armed conflict. The first test refers to ‘a resort to
armed force between States’. This is the classic definition of an international armed conflict.
It traditionally involves a formal declaration of warfare by one or both states, although this is
not strictly necessary. The second test refers to ‘protracted armed violence between
governmental authorities and organised armed groups or between such groups within a State’.
This formulation recognises that international humanitarian law may also apply to conflicts
involving non-state groups. The test covers both conflicts involving a combination of states
and non- state groups and conflicts in which no states are directly involved.

According to the ICTY Appeals Chamber in Tadić, an armed con- flict involving non-state
groups arises only if the violence is protracted and the non-state groups are organised. What
amounts to ‘protracted armed violence’ within the meaning of the Tadić definition? The ICTY
Trial Chamber has clarified that ‘protracted armed violence’ contrasts with ‘banditry,
unorganised and short-lived insurrections’.23 Rioting, for example, is not normally treated as
an armed conflict, but merely a civil disturbance. This was reiterated by the Inter-American
Commission on Human Rights (IACHR) in the case of Juan Carlos Abella v Argentina. 24
The IACHR stated that an armed conflict must be contrasted with ‘dis- turbances with no
concerted intent’ and ‘isolated and sporadic acts of violence’.25 Among the examples given
by the IACHR in Abella of situations falling short of armed conflict were violent civilian
demonstrations, students throwing stones at police, bandits holding hostages for ransom and
politi- cal assassinations.26 It may be difficult to draw the line in particular cases. However,
the IACHR observed in Abella that ‘in making such a determi- nation, what is required in the
final analysis is a good faith and objective analysis of the facts in each particular case’.27 A
legalistic adherence to any particular definition is inappropriate. Rather, a holistic assessment
of the facts is required. The Abella case concerned a skirmish at a military base during a time
of political unrest in Argentina. The IACHR concluded that an armed conflict had occurred,
even though the skirmish only lasted for 30 hours in total. Its reasoning emphasised ‘the
concerted nature of the hostile acts undertaken by the attackers, the direct involvement of
governmental armed forces and the nature and level of the violence’.28 The IACHR noted
that the case involved a ‘carefully planned, coordinated and executed’ armed attack against ‘a
quintessential military objective – a military base’. It also cited the International Committee
of the Red Cross (ICRC) recommenda- tion that the rules of international humanitarian law
‘should be applied as widely as possible’.29 This reasoning suggests that, in borderline cases,
there may be a presumption in favour of the existence of an armed conflict.

Principles of IHL [pg. 50]

1. Distinction
The principle of distinction requires military commanders to distinguish at all times
between military targets and civilian objects. Only legitimate military targets may be
attacked. Article 48 of Additional Protocol I makes it clear that this principle takes the form
of an absolute prohibition, stating that parties ‘shall at all times distinguish between civilian
objects and military objectives and [. . .] shall direct their operations only against military
objectives’. Principle of military necessity states that party may do what is necessary to
achieve military objective and no more. The principle of distinction supplements it with
further restriction. Attacks may never be directed at civilians, even if such strategy would
produce a military benefit.
This also helps in protecting the humanitarian workers, such as medical personnel and red
cross officials, from becoming the object of military attacks. Humanitarian workers are
crucial to efforts of Red Cross to alleviate harms of armed conflict.
2. Proportionality
The principle of distinction advocates no harm to civilians, however, in certain
circumstances attack on legitimate military object would lead to incidental damage to
civilians and property. These harmful side effects are regulated in IHL. This doctrine
prohibits attacks that may be expected to cause injury to civilian life or property that is
excessive in relation to anticipated military advantage. Article 51(5)(b) of AP I which
prohibits attacks ‘which may be expected to cause incidental loss of civilian life, injury to
civilians, damage to object or combination thereof, which would be excessive in relation to
concrete and direct military advantage anticipated.
Proportionality can never be justified by a direct attack on civilians, but only if directed to
military object that may impact incidentally on civilians. The legal framework therefore
mandates the following procedure for military commanders: first, abide by the principle of
distinction by ensuring attacks are directed only at legitimate military targets; second,
assess proportionality, making sure that a planned attack on a military objective will not
cause unreasonable damage to civilian objects.
3. Necessity
 Military Necessity
According to this principle, a party making an attack is permitted to use only that degree of
force required to achieve the anticipated military objective that will result in minimum loss
of life and property. Military necessity is sometimes depicted as a permissive doctrine; that
is, as permitting a party to do whatever is necessary to achieve desired military outcome.
However, it is viewed as restrictive doctrine- a party may do what is necessary to achieve
the objective and no more. Article 54 of Additional Protocol I likewise provides that
civilian crops and livestock may not be destroyed or removed, except by parties in their
own territory ‘where required by imperative military necessity’.
i. Proper evidence of the legitimate target
ii. Level of threat posed by the legitimate target
iii. Which option will cause lesser casualties
Case: Israel Targeted killing case [refer paragraph 7]
There must be balance bet. military necessity and proportionality as military necessity is a
permissive doctrine whereas proportionality is prohibitive.

4. Prohibition on Superfluous Injury/ unnecessary injury

The basic idea is attacking forces are proscribed from inflicting injury on opposing
combatant beyond what is necessary to remove them from active combat. Art. 22 of Hague
Regulation states that the rights of belligerents to adopt means of injuring the enemy is not
unlimited’. This principle appears in very similar terms in Article 35(1) of Additional
Protocol I. Article 35(2) then states that ‘it is prohibited to employ weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or unnecessary
suffering’.
The International Committee of the Red Cross (ICRC) study on customary international
humanitarian law describes the prohibition on inflicting superfluous injury or unnecessary
suffering as a fundamental rule applicable in both international and non-international armed
conflicts.

5. Prohibition on Indiscriminate attacks

Art. 51(4) of AP I states that indiscriminate attacks are prohibited. The provision clarifies
that attacks are considered indiscriminate if they:
- Are not directed at specified military objective
- Employ a method that cannot be directed at a specific military objective; or
- Apply a method or means of combat the effects of which cannot be limited to specific
military objective.
The first limb deals with attacks that are indiscriminate in the sense that they are not
directed at a specific, identifiable military target. The second limb deals with attacks that
use a type of weapon or method of targeting that is incapable of being spatially limited to
specific military objective. The third limb covers attacks whose effects cannot be confined
to a specific military objective. It also covers attacks that may be capable of being confined
to a military target at the time they are launched, but will have subsequent effects extending
beyond that objective.
6. Neutrality
It is common for parties on both sides of a conflict to depict themselves as fighting for
justice and to accuse their opponents of being at fault. If international humanitarian law
 imposed different rules on unjust aggressors and innocent parties, both sides of a conflict
would try to exploit this for their own advantage. This would undermine the underlying
goal of establishing dependable limits on warfare. The principle of neutrality therefore
plays an important role in promoting universal respect for humanitarian principles.

Sources:
Article 38(1) of the Statute of the International Court of Justice
(ICJ). It requires the ICJ to apply in its decisions the following sources of
international law:
● international conventions;
● international custom;
● ‘the general principles of law recognised by civilised nations’;
● as a supplementary source, judicial decisions and ‘the teachings of
the most highly qualified publicists’.

Religion as Source
1. Hinduism
- War as a means of last resort
- Classification of war – open, concealed, silent
- Rules of warfare – equality of weapons, prohibition on perfidy and ruses
- Protection of civilian population
- Distinction bet. combatants and non-combatants

2. Buddhism
- Legitimacy of warfare- go for war only after all peaceful methods have been exhausted.
It also emphasizes the importance of peaceful resolution of disputes- conciliation,
arbitration and mediation- Buddha mediated in disputes when Sakyan and Kolian
people were about to go to war for dispute related to river Rohini.
- Just war theory- acc. to Buddhism, there is no just war
- Respect for Environment/ natural resources and ecosystem- he developed the idea of
principle of trusteeship which in modern era is begging to be developed- meant that
even during wartime- animals, plants needed to be protected and insured against
destruction. Art. 35(3) AP I prohibits methods of warfare expected to cause widespread
long term and severe damage to environment.
- Arms Trade- it prohibits the arms trade, just as it prohibited the slave trade. These trades
are condemned bcoz they are totally opposed to basic teachings of Buddhism as right
to livelihood.
The growth of arms trade is one of the major industries and source of livelihood in
modern world but is at odds with the fundamentals of Buddhism. The scarcity of
categorical prohibitions of this trade is one of the reasons for its growth.
- Superiors’ order
It states that carrying out duties for state is not an excuse for killing. It also means that
superior orders are no defense and in context of war it gives it also includes torture,
environmental damage, enslavement of enemy, use of cruel methods of punishment.
Buddhism goes even further stating that not even supernatural forces can absolve an
individual from responsibility for his acts.
 - Collective Punishment
It follows from concept that one person cannot be punished for the act of another. Even
if punishment is imposed for an act of heinous wrongdoing, that punishment must be
imposed on wrongdoer and not on associates of it. The religion prescribes greatest
clarity the total unacceptability of such method. Buddhism’s constant reminder that
individual alone is responsible for his actions is useful to impermissibility of such
principle of action.

- Right to Asylum
Right to seek asylum in holy place, where writ of law does not extend was recognized
in buddhism. Such cultural tradition clearly recognized the sanctity of religious places
and their immunity from civil and criminal processes. The same immunities would
apply to anyone seeking refuge in these places, and would apply even more to conduct
in time of war.

- Treatment of PoW- principle of compassion base of Buddhism- same to be shown to

prisoners of war – same care and concern as their own soldiers- upon termination of
hostilies they would need to be given safe passage back to their countries of origin.
Forced labour during their period of captivity prohibited- health care obligatory.

Lieber Code
The American states were in civil war from 1861 to 1865. In 1863, YS president Abraham
Licoln, issued a famous order to his troops, entitled instructions for government of Armies of
US in the Fields. His order came to be known as Liber Code. It represented an ambitious
attempt to set out detailed guidelines for the conduct of all aspects of land-based warfare.
Although the code was purely internal document and was undermined by discretion given to
commanders in name of military necessity, it influenced later international attempts to regulate
the means and methods of warfare. Among the issues addressed are whether armed force is
justified by military necessity, the principle of humanity, the distinction between combatants
and civilians, POW status, retaliation, and permissible methods and means of warfare.
However, some of the rules are no longer permissible under modern humanitarian law.

St. Petersburg Declaration

It was a discussion on use of light range explosive. Such explosives even though would target
one combatant, inflicted far more injury than an ordinary rifle would. So, it was decided to
forbid the use of such explosive under 400 gms in weight. Although the declaration was for
one specific issue, the reasoning became imp. for IHL perspective. The declaration emphasized
the importance of alleviating the suffering of combatants and noted that infliction of injury
during armed conflict was permissible only to the extent necessary to overcome enemy
resistance.

THE HAGUE PEACE CONFERENCES

Following the St Petersburg Declaration, the Russian government continued to encourage
international discussion on rules and customs concerning warfare. It was at Russia’s instigation
that delegates from a number of states arrived at The Hague in 1899 to debate measures aimed
at preventing the outbreak of further wars in Europe. The stated focus of the Hague Peace
Conference was firmly on the jus contra bellum. The main issue scheduled for discussion
concerned the creation of compulsory arbitration mechanisms for disputes between nations, in
order to forestall recourse to armed hostilities. However, the delegates also discussed the need
for standards governing the conduct of warfare.

Martens Clause
After the St. Petersburg Declaration, the states came together at Hague and formed a Hague
Regulation 1899 to codify the existing customs governing conduct of land warfare. The
Martens Clause provided that, in situations not envisaged by the drafters of the Hague
documents, military commanders were not entitled to act arbitrarily, but should abide by ‘the
laws of humanity and the dictates of the public conscience’. Although the precise legal
implications of this provision continue to be debated, it clearly emphasizes the underlying
humanitarian principles endorsed by the St Petersburg delegates.
First inserted in preamble of 1899 Hague convention II containing rules and regulations on
laws and customs of war on land and reinstated in 1907 Hague Convention IV. Internaional
legal rule which considers humanitarian factors and rules are no less binding that actions
motivated by military or political concerns. Contributes to laws of humanity and dictates public
conscience. Warning issued by the clause is only moral and political in nature.

KW Case: (favouring martens clause)

The defendant, a police officer, had been accused of violations of the laws and
customs of war, in that he had caused serious injury to a number of civilians detained
after fighting against the German occupiers in occupied Belgium. The Court pointed
out that Article 46 of the Regulations annexed to the IVth Hague Convention on the
Laws and Customs of War on Land imposed upon the occupying power the duty to
respect ‘the lives of persons’. However, no provision of the Regulations expressly
prohibited acts of violence and ill treatment against the inhabitants of occupied territories. The
Court thus referred to the Martens Clause. It noted in this regard that in its search for the
principles of international law resulting from the principles of humanity and the dictates of the
public conscience, it was to be guided by the Universal Declaration of Human Rights, Article
5 of which provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment’. The Court then found that the acts performed by the accused against
his victims amounted to torture and cruel treatment and concluded that they constituted
violations of the customs of war.
Points to the proper modalities of construction of customary principles or rules of humanitarian
law. By virtue of the clause, reference should thus not be made to vague principles of humanity,
but rather to those human rights standards that have been laid down in international instruments
such as the Universal Declaration.

UNIT 2

Common Article 3 of the Geneva Conventions was the first, and for some time the only,
provision to bring non-international conflicts within the reach of international humanitarian
law. It was supplemented by the adoption of Additional Protocol II to the Geneva
Conventions in 1977. The rationale behind the protections contained in Common Article 3 is
that there are certain principles of humanity so fundamental that they apply to combatants and
civilians in all kinds of conflict. Prior to 1949, the Geneva Conventions assisted only persons
caught up in international conflicts. Belligerent groups in civil conflicts were widely
perceived as domestic criminals and attempts by the Red Cross Movement to aid those
belligerents as inadmissible aid. For this reason, suggestions that the Conventions in their
entirety should be applied to non-international conflicts were rejected; their implementation
would have greatly restricted states in their capacity to deal with insurgents, including having
to treat them as prisoners of war, rather than using ordinary criminal procedures.

Common Article 3 is accordingly limited to the most fundamental of principles underlying

the Geneva Conventions; it could not be said that torture or mutilation, for example, are
reasonable measures for a state to suppress a rebellion against it by an insurgent group.
A distinction needs to be drawn in this context regarding the scope of Common Article 3 and
Additional Protocol II.

Common Article 3 has the broader scope of the two. It applies to armed conflicts ‘not of an
international character’ occurring in the territory of a state party. Additional Protocol II, on
the other hand, applies to armed conflicts not covered by Additional Protocol I that take place
in the territory of a state party between its armed forces and dissident armed forces or other
armed groups. The non-state groups in question must be under responsible command, and
control enough of the state’s territory to carry out ‘sustained and concerted military
operations’ and to implement the Protocol.
The more limited scope of Additional Protocol II occurred as a result of fears by a number of
states who negotiated the text of the Additional Protocols that an expansive field of
application would limit their ability to deal effectively with internal disturbances. It therefore
appears that Additional Protocol II will technically only apply to armed conflicts where one
of the parties is a state, whereas the principles expressed in Common Article 3 potentially
apply to conflicts where no states are involved. It has been suggested that both state and non-
state participants in internal armed conflicts are bound by Common Article 3 by virtue of its
customary law status. Additional Protocol II is also expressly stated not to apply to ‘internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence’ and other
similar incidents. It therefore reiterates the overarching definition of armed conflict discussed
earlier in this chapter.

IHL is applicable in times of armed conflict, whether international or non-international. Int’ll

conflicts are wars involving 2 or more states, liberation wars, irrespective of declaration of
war.

Armed conflict can be categorized into 2 heads:

1. International Armed conflict- involved bet. 2 or more states

i. Armed hostility, physical violence, minimum violence
ii. Additional protocol (Art. 1)- war of national liberation

Acc. to common Art.2, Geneva Convention will apply to all cases of declared war or of any
other armed conflict, which may arise bet. 2 or more of the High Contracting parties, even if
the state of war is not recognized by one of them. A declaration of war is therefore not
necessary for the existence of an armed conflict. International humanitarian law comes into
play whenever hostilities reach a certain threshold.

• Private parties like Star-link or Wagner group cannot be held liable as per GC only
high contracting parties are included which excludes private organizations.
Case: Prosecutor v. Tadic (ICTY- tribunal for Yugoslavia)
For there to be violation of IHL, there must be armed conflict, which means whenever there
is a resort to armed forces between 2 states- same was reaffirmed in Prosecutor v. Kunarac.

2 Non-international armed conflict

Common Article 3 (only article to bring NIAC within IHL)
i. Armed forces state has organized armed group - State engaging with other non-
state i.e., organized armed group.
ii. OAG-– 2 rebels engaging in hostilities.
* OAG- operating within individual capacity
* Proacted Armed violence- certain intensity of hostility occurred
[Juan Carlos Abella v, Argentina- the court concluded that an armed conflict had occurred
even though violence lasted only for 30 hours.]

Additional Protocol II
-armed force engaging with OAG

Cases
1. Prosecutor v. Haradinaj
2. US v. Nicargua – Effective control test and Overall control test

Common Article 3- mini convention which embodies the principle of humane treatment- it
embodies the principles of IHL including proportionality, necessity, distinction & prohibition
of weapons that cause indiscriminate attacks.

Unit 3
POW: GC III ; AP I (only operate in International Armed Conflict), POW war also enjoy
protections in non-international conflicts.
Article 4 of Geneva Convention III provides an extensive definition of prisoner of war status.
A prisoner of war is defined as a person belong- ing to any of a number of enumerated
categories, who has ‘fallen into the power of the enemy’.
The first category listed in the provision covers members of the regular armed forces of a
party to the conflict.
The second category includes members of other armed groups who:
• are under responsible command;
• bear a fixed, distinctive sign recognisable at a distance;
• carry arms openly; and
• respect the requirements of international humanitarian law.

These first two categories, then, correspond to the categories of legally recognised
combatants discussed previously in Chapter 3. Anyone who is recognised under Geneva
Convention III as a combatant is therefore entitled to prisoner of war status if captured by the
enemy.
Article 4 then goes on to list several additional categories of prisoners of war who may not be
covered by the definition of a combatant.
These include:
 • persons who typically accompany armed forces, but are not members of the forces
themselves, such as civilian members of aircraft crews, war correspondents, supply
contractors and so on;
• members of crews of merchant marine and civil aircraft of a party to the conflict;
• inhabitants of a particular region who spontaneously take up arms;
• former members of armed forces who are caught in an attempt to rejoin the forces of
which they used to be members.

The definition of prisoner of war status in Geneva Convention III has now been
supplemented by Additional Protocol I. According to Article 44 of Additional Protocol I,
‘[a]ny combatant, as defined in Article 43, who falls into the power of an adverse Party shall
be a prisoner of war’. We pre- viously encountered the Article 43 definition of a combatant in
Chapter 3. The definition covers all armed forces or groups under the command of a party to
the conflict who are subject to an internal disciplinary system and distinguish themselves
from the civilian population or, in situations where this is not possible, carry arms openly
whenever engaging in or preparing to engage in an attack. The effect of Additional Protocol I
is to slightly widen the definition of prisoner of war status set out in Geneva Convention III.

Unit 4- 7: Treatment of victims and POW

GENEVA CONVENTION I for the AMELIORATION OF THE CONDITION OF THE

WOUNDED AND SICK IN ARMED FORCES IN THE FIELD (1949)

A1: Responsibility of High Contracting Parties (states)

A2: Application of convention: all cases of declared war/ any other armed conflict between
two or more HCP, even if war is not recgnised by one of them. Applicable for occupation
also.
A3:Conflict not of international character- NIAC -- each party bound principles and
regulations regarding the humane treatment of individuals not actively participating in
hostilities, including soldiers who have surrendered or are incapacitated. It emphasizes that
such individuals must be treated without discrimination based on race, religion, sex, or other
similar criteria.

Specifically, it prohibits:

a) Acts of violence against these individuals, such as murder, mutilation, cruel treatment, and
torture.
b) Taking hostages.
c) Acts that violate personal dignity, including humiliating and degrading treatment.
d) Sentencing or executing individuals without a fair trial by a legally constituted court.

Furthermore, it mandates the collection and care of the wounded and sick, with the option for
impartial humanitarian organizations like the International Committee of the Red Cross to
provide assistance. It encourages parties involved in conflicts to establish special agreements
to uphold these provisions. Additionally, it clarifies that adherence to these rules does not
affect the legal status of the conflicting parties.

Wounded and Sick – 12 to 18

A12: Protection and care – Members of armed frces, wounded, sick – respected and protected
in all circumsatnces. Treat them humanely. Women to be treated with all consideration.
A13: Protected persons: wounded and sick of members of parties to conflict, volunteer corps,
commanded by person, someone who has fixed distincti sign, carry atrms openly, anyone
who is conducting operations of war in accordance with customs of war, inhabitants of non
occupied territory.
A14: Status—wounded and sick who all into enemy hands : POW
A15: Search for casualties—after conflict take all possible measures to find the wounded and
sick and protect them against ill treatment, search for the dead to prevent despoiled
A16: Recording and forwarding of info – record any particulars that may assist in
identification- info forwarded to Info Bureau
A17: Prescriptions regarding the dead-- Parties to the conflict shall ensure that burial or
cremation of the dead, carried out individually as far as circumstances permit, is preceded by
a careful examination, if possible by a medical examination, of the bodies, with a view to
confirming death, establishing identity and enabling a report to be made.
One half of the double identity disc, or the identity disc itself if it is a single disc, should
remain on the body. Bodies shall not be cremated except for imperative reasons of hygiene or
for motives based on the religion of the deceased. In case of cremation, the circumstances and
reasons for cremation shall be stated in detail in the death certificate or on the authenticated
list of the dead. They shall further ensure that the dead are honorably interred.
A18: Role of the population- Military authorities can request civilian assistance in collecting
and caring for the wounded and sick, ensuring protection for those who respond. Both sides
in a conflict must provide protection and facilities for such humanitarian efforts, and civilians
are encouraged to assist without fear of reprisal.
Art. 4 of GC III provides an extensive definition of POW- it is person belonging to any of the
enumerated categories who has fallen into the power of enemy. The first category covers
members of regular armed forces of party to conflict. The second includes members of other
armed groups who:
- Are under responsible command
- Bear fixed, distinctive sign recognizable at distance
- Carry arms openly
- Respect the requirements of IHL
In GC III, anyone recognized as combatant is pow, Art. 4 adds list of additional categories who
may not be covered under combatant. These include:
- Person who accompany armed forces, but are not members of forces such as civilian
members of aircraft crew, supply contractor and so on;
- Members of crews of merchant marine and civil aircraft
- Inhabitants of particular region who spontaneously take up arms.
- Former members of armed forces who are caught in an attempt to rejoin the forces
The definition of pow has been supplemented by AP I- Art. 44. Any combatant as defined in
Art. 43, who falls into power of adverse party shall be pow. The effect of Additional Protocol
I is to slightly widen the definition of prisoner of war status set out in Geneva Convention III
(at least among those states that are parties to the Additional Protocol). The main difference
between the regimes is that whereas Geneva Convention III requires combatants to distinguish
themselves from civilians through a uniform or other distinctive sign, Additional Protocol I
recognizes that this is sometimes too demanding.

Art. 12: Responsibility for the treatment of prisoners

Prisoners of war are in the hands of enemy power, so it is their duty and responsibility to treat
them properly. Pow may only be transferred by detaining power to power which is party to
convention. While Pow are transferred, responsibility for application of convention lies with
Power accepting them while they are in their custody. If power fails to carry provisions of the
convention, power by whom they were transferred shall upon being notified by Protecting
power, take effective steps to correct the situation or request return of them.
Art. 13: Humane treatment of prisoners
- Must be humanely treated
- Should not be subject to physical mutilation or medical/ scientific experiments of any
kind which are not carried out in his interest
- Must be protected particularly against acts of violence or intimidation and against
insults & public curiosity
- Measures of reprisal prohibited- execution of an otherwise illegal act
- Detaining power should not do any unlawful omission/ act causing death or serious
injury- regarded as breach of this convention

Art. 18: Property of prisoners

- Articles of personal use with themselves (except for military equipments, arms,
documents)
- Clothing and feeding with themselves
- Prisoners shouldn’t be without identity
- Badge of rank or decorations and articles to be kept with themselves (sentimental value)
- Sum of money with themselves- taken with order by officer-
- Detaining power withdraw articles of value for security reason- withdrawn with
procedure laid down for sum of money impounded
- Such articles returned to them in initial shape at end of captivity

Article 19: Evacuation of prisoners

- Pow shall be evacuated as soon as captured, to camps situated far from combat area for
them to be out of danger
- Pow owing to wounds/ sickness ryn greater risk by being evacuated may be temporarily
kept in danger zone
- Pow shall not be exposed to danger while evacuating from fighting zone

Art. 20: Condition of evacuation

- Evacuation humanely and similar to detaining power’s change of station
- Supply sufficient food, water, clothing and medical
- All precaution to ensure their safety and establish list of prisoners who evacuated
- If staying in transit camp, such period should be short

Art. 21: Restriction of liberty of movement

- Detaining power (DP) may subject prisoners to internment – imposing obligation of not
leaving, beyond certain limit, if fenced- not outside its perimeter
- Pow not held in close confinement except when necessary to safeguard health
 - May be release wholly or partially on parole if that helps improve their state of mind

Art. 22: Places and conditions of internment

- Interned only in premise located on land- hygienic and healthfulness
- Those interned in unhealthy areas, injurious place removed asap
- DP shall assemble pow acc. to their nationality, language and customs (shall not be
separated from those serving at the time of their capture)

Art. 23: Security of prisoner

- Shall not be exposed to fire of combat zone or used as place immune from military
operations
- Shelther against air bombardment and other hazards of war
- Any other measure taken in their favor [general public] shall also apply to them

Art. 24: Permanent transit camp

- Transit or screening camp of permanent kind fitted under conditions described above
- Prisoners shall have same treatment as in other camps

Art. 25: Quarters

- Shall be quartered in same conditions as DP
- Allow room for prisoners habits and customs
- Also apply to dormitories- their bedding, space, blankets
- Premises shall be protected from dampness and adequately heated and lighted
- In case of men and women- separate dormitories provided

Art. 26: Food

- Daily food ration good in quantity, quality and variety- keep them healthy and prevent
weight loss – account of habitual diet taken
- Sufficient drinking water and tobacco allowed
- For preparation of their food shall be employed in their kitchen- given the means of
preparing

Art. 27: Clothing

- Clothing, underwear, footwear supplied taking into account climate of region
- Uniform of enemy armed force used to clothe prisoners of war
- Pow who work shall be provided adequate clothing as per nature of work

Art. 28: Canteen

- Canteen installed in all camps- foodstuff, soap, tobacco and ordinary articles
- Tariff not in excess of market prices
- Profit from camp used for their benefit- create special fund
- If camp closed, such fund given to int’ll org used for pow of that nationality only
Art. 29: Hygiene
- DP bound to take all sanitary measures to ensure cleanliness and healthfulness of camp,
prevent epidemics
- If women also, separate convenience accorded
- Apart from baths and shower, pow also given water and soap for personal toilet and
washing their laundry
Art. 40: Badge and nationality, decorations – shall be permitted

Spies, Mercenaries
Anyone falling within the categories of combatants and associated persons listed in Geneva
Convention III and Additional Protocol I who falls into the hands of the enemy is entitled to
prisoner of war status.
There are also some detainees who will not qualify as prisoners of war despite playing an active
role in the armed conflict. The three main categories are spies, mercenaries and unprivileged
belligerents. Parties may grant members of these classes prisoner of war status if they wish, but
they are not obliged to do so. The position of spies is covered in Article 46 of Additional
Protocol I. Spies are defined in that provision as military personnel engaged in espionage
(information gathering, sabotage and the like) who are acting clandestinely and are not in
uniform. The covert nature of spying operations is central to this definition. The article further
states that person is not a POW and may be treated as spy. Article 5 of Geneva Convention IV
stipulates that captured spies should be treated humanely and are entitled to a fair trial before
being subjected to any form of punishment. They should be treated as ‘protected persons’ under
the Convention insofar as this is consistent with the security of the detaining power. However,
they are regarded as having forfeited their rights of communication.
Mercenaries are defined under Article 47 of Additional Protocol I as persons who are not
nationals of a party to the conflict or members of the regular armed forces of a state and are
specifically recruited to fight in the conflict for a substantial material reward. The provision
states that mercenaries ‘shall not have the right to be a combatant or a prisoner of war’. This
means that mercenaries, like spies, are liable to punishment in accordance with the laws of the
detaining power. They are however, entitled to be treated humanely and afforded a fair trial
before any punishment is imposed.
Two further points fall to be made about spies and mercenaries. First, Additional Protocol I
makes it clear that if there is any doubt as to whether a detainee is a spy or a mercenary, she or
he should be assumed to be entitled to prisoner of war status until the matter is assessed by a
competent tribunal.8 Second, they are entitled to protections of GC- IV except as required by
security of detaining power. Also entitled to fundamental guarantees listed in Article 75 of AP
I, humane treatment and procedural justice.
Unprivileged Belligerents
These are persons who are actively engaged in fighting, but for one reason or other do not
satisfy the definition of combatant under GC III or AP I. This may be because the armed group
within which they operate is not sufficiently well organized to count as being under responsible
command or having an internal disciplinary system. Alternatively, it may be because they do
not distinguish themselves from civilian population. [eg- not carrying the arms openly]
The underprivileged belligerents, although not pow, still enjoy robust protections. The
guarantees available to them are similar to those enjoyed by spies and mercenaries. They will
typically be entitled to the protections of Geneva Convention IV, unless this is inconsistent with
the security of the detaining power or they are detained by their own state or its allies. They are
further protected by the fundamental guarantees in Article 75 of Additional Protocol I.
Unprivileged belligerents, like spies and mercenaries, are vulnerable to prosecution for their
hostile acts under the law of the detaining power, but they enjoy robust procedural safeguards.