International law for the protection of victims of war. Protecting victims of war. These include

Keywords

INTERNATIONAL HUMANITARIAN LAW / GENEVA CONVENTIONS / INTERNATIONAL AND INTERNAL ARMED CONFLICTS / NON-SELECTIVE ASSAULT / ATTACK ON A CIVIL OBJECT/ TERRORISM / PROTECTED PERSONS/ JUS COGENS / ERGA OMNES / / GENEVA CONVENTIONS / INDISCRIMINATE ATTACKS / CIVILIAN OBJECT ATTACKS / CIVILIAN POPULATION PROTECTION/ TERRORISM / PROTECTED PERSONS

annotation scientific article on law, author of scientific article - Ledyakh Irina Andreevna

The article deals with Geneva Conventions 1949 and Additional Protocols thereto, laying down basic principles and norms. The specifics of the legal nature of these acts are emphasized, which embody the interaction of the two main sources of international law, contractual and customary, and the latter acquires special meaning in cases of serious violations of international law. The author gives a description of Art. 1, common to all the conventions under consideration, which enshrines the basic obligation of states to respect the norms of humanitarian law and ensure their respect by other countries. This commitment is a basic principle international humanitarian law that protects human values in times of armed conflict and must be respected in all circumstances. This fundamental principle international humanitarian law refers to the norms of jus cogens of international law, i.e. is imperative, and operates erga omnes, extending to all, without exception, participants in armed conflicts, both international and internal, and giving rise to a universal obligation to all the international community generally. Universality in this case means that the control over the implementation of the norms of humanitarian law is not limited only to the national level. International jurisprudence is also moving in the direction of recognizing the norms of humanitarian law as norms of jus cogens. Particular attention is paid to the characterization of legal means of protecting the population in the context of armed conflicts; considered the legal status of various categories of persons under the patronage international humanitarian law in both international and domestic conflicts. Raised the question of the role of norms international humanitarian law in countering terrorism. The role of the International Committee of the Red Cross in the formation and functioning of international humanitarian law, compiling the Code of Customary Law. The author shows that the modern development of norms international humanitarian law designed to resist the tendency to get used to its violations in armed conflicts.

The Obligation to Respect Norms of International Humanitarian Law on Protection of War Victims

The article analyzes 1949 Geneva Conventions with additional Protocols, that establish main principles and norms of international humanitarian law. These acts represent a combination of two main sources of international law contracts and customs. Customs are of particular importance in cases of serious violations of international law. The author analyzes art.1 common to all conventions studied that establishes the main obligation of the states to respect the norms of humanitarian law and ensure such respect by other countries. This undertaking is the main principle of international humanitarian law and belongs to jus cogens part of international law i.e. constitutes an imperative norm, an obligation erga omnes , binding for all parties to a military conflict international or national, creating a universal obligation. This means that control after the enforcement of the norms of the humanitarian law is not limited to the national level. International courts practice also acknowledges the norms of humanitarian law as jus cogens. Particular attention in the article is paid to characteristic of legal methods of protection of the population in military conflicts. Legal status of different categories of people protected by international humanitarian law is analyzed. The article discusses the question of the role of international humanitarian law in combat terrorism. International Red Cross plays a crucial role in creating international humanitarian law and drafting customary law code. The author shows that current development of international humanitarian law rules shall be a counterforce against the tendency of adjustment to its violations in course of military conflicts.

The text of the scientific work on the topic "Obligation to respect the norms of international humanitarian law in defense of the victims of war"

LAW AND INTERNATIONAL RELATIONS

COMMITMENT TO INTERNATIONAL HUMANITARIAN LAW IN PROTECTION OF VICTIMS OF WAR

I.A. Ledyakh

Human Rights Sector, Institute of State and Law of the Russian Academy of Sciences, st. Znamenka, 10, Moscow 119019, the Russian Federation(e-mail: [email protected]).

The article deals with the Geneva Conventions of 1949 and their Additional Protocols, which establish the basic principles and norms of international humanitarian law. The specifics of the legal nature of these acts are emphasized, which embody the interaction of the two main sources of international law - contractual and customary, and the latter is of particular importance in cases of serious violations of international law. The author gives a description of Art. 1, common to all the conventions under consideration, which enshrines the basic obligation of states to respect the norms of humanitarian law and ensure their respect by other countries. This obligation is a basic principle of international humanitarian law protecting human values in times of armed conflict, which must be respected in all circumstances. This fundamental principle of international humanitarian law is one of the norms of jus cogens of international law, i.e. is imperative and operates erga omnes, extending to all participants in armed conflicts without exception - both international and internal - and giving rise to a universal obligation to the entire international community as a whole. Universality in this case means that the control over the implementation of the norms of humanitarian law is not limited only to the national level. International jurisprudence also follows the path of recognizing the norms of humanitarian law as norms of jus cogens.

Particular attention in the article is given to the characteristics of legal means of protecting the population in armed conflicts; the legal status of various categories of persons under the protection of international humanitarian law in the conditions of both international and internal conflicts is considered. The question was raised about the role of the norms of international humanitarian law in countering terrorism. The role of the International Committee of the Red Cross in the formation and functioning of international humanitarian law, the compilation of the Code of Customary Law is emphasized. The author shows that the modern development of the norms of international

humanitarian law is designed to counter the tendency to become accustomed to its violations in armed conflicts.

8v International humanitarian law, Geneva Conventions, international and internal armed conflicts, indiscriminate attack, attack on a civilian object, terrorism, protected persons, jus cogens, erga omnes.

Not being able to eradicate wars, humanity follows the path of humanizing laws and protecting the lives of war victims through specially developed norms and principles. In 1949, four Geneva Conventions1 were adopted, which establish the basic principles and norms of international humanitarian law. The main principle was enshrined in Art. 1 common to all these Conventions and their Additional Protocols. In accordance with it, the participating States undertake to comply under all circumstances and to force other States to comply with the provisions of the Geneva Conventions. In this formulation, the most important is not only the obligation to “comply”, but also the requirement to “force”, i.e. compel other states to comply with these provisions "under any circumstances", "at any time", "always and everywhere".

When developing the Geneva Convention on the Protection of Civilian Population in Time of War, the tragic fate of citizens who ended up in the territories occupied by Nazi Germany was taken into account. The basic principles of the protection of civilians required that this problem be addressed in a broader and more severe context of limiting the methods and means of warfare. The Convention provided for restrictions on the methods and means of warfare. It was necessary to determine on what humanitarian priorities and human values the universal system of law governing armed conflicts should be based. To this end, additional protocols have been adopted

1 The Geneva Conventions in international law are four international treaties for the protection of victims of war, signed in Geneva on August 12, 1949: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention); Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention); the Geneva Convention concerning the Treatment of Prisoners of War (Third Geneva Convention); Geneva Convention for the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).

to the Geneva Conventions. They include norms that significantly expand the means of protecting the population, civilians and civilian objects.

Since the Geneva Conventions have been ratified by almost all states of the world (196 ratifications), their norms have the status of customary norms of international law. This shows the interaction of the two main sources of international law - treaty and customary, the latter becoming of paramount importance in cases of serious violations of humanitarian principles and norms.

An authoritative international organization, the International Committee of the Red Cross (hereinafter, the ICRC), always participates in initiating the adoption of new norms of international humanitarian law (hereinafter referred to as IHL). It is she who takes note of and investigates complaints of violations of humanitarian principles and norms. The mandate of the international community entrusts it to promote compliance with the provisions of IHL applicable in armed conflicts, which confirms the leading role of this organization. Thus, in the final statement of the International Conference for the Protection of Victims of War in 1993, convened at the initiative and with the participation of the ICRC, the need for more responsible compliance with the provisions of IHL was confirmed. To this end, it was decided to establish an intergovernmental group of experts3. This group adopted a number of significant recommendations aimed at ensuring respect for humanitarian norms.

However, despite the efforts made, the principles and norms of humanitarian law and human rights are constantly being violated.

Besides, in modern world in the context of an increase in the number of armed conflicts and the use of the latest types of weapons of mass destruction, including their indiscriminate use, and

2 Additional Protocol Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (Protocol I); Additional Protocol Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (Protocol II); Additional Protocol Concerning the Adoption of an Additional Distinctive Emblem of December 8, 2005 (Protocol III) // URL: http://www.un.org/ru/humani tarian/law/geneva.shtml (Accessed: 06/05/2016) .

See: International Conference on the Protection of War Victims. Geneva, August 30-September 1, 1993 Final Statement //A/48/742, December 8, 1993

As well as the emergence of new threats emanating from international terrorism, wars are becoming increasingly destructive. IN last years the situation became even more aggravated due to the emergence of a new type of asymmetric wars, called “wars of controlled chaos”4. These wars are waged by criminal terrorist methods and means. Such methods, for example, are characteristic of the Sunni terrorist organization based on religious-ethnic hostility and the ideology of radical jihadism, intolerance towards "infidels", the "Islamic State of Iraq and the Levant" (ISIL).

To characterize the peculiarities of the operation of the norms of humanitarian law, one should dwell on the role of the principle of jus cogens in the IHL system. It is an imperative form of expression of general international law, i.e. is accepted and recognized by the international community of states as a norm, deviation from which is unacceptable. For example, Art. 1 of the Geneva Conventions and Additional Protocol I is equated with peremptory norms, since, as already indicated above, States Parties must not only comply with this obligation, but also compel other States to comply with relevant agreements in all circumstances. This wording emphasizes the imperative nature of this norm, its inviolability and contains obligations erga omnes. This means that this rule applies and applies to everyone. This obligation affects all states without exception, since all of them, according to the International Court of Justice, "have a legal interest in protecting these rights."

In this regard, the obligation to “force to comply” can be compared with the obligation provided for in paragraph 6 of Art. 2 of the UN Charter, according to which the UN ensures that non-member states act in accordance with the principles of the Charter to the extent that "this is necessary for the maintenance of international peace and the security of mankind."

Returning to the principle of jus cogens, it should be noted that not all treaties on the law of armed conflict contain provisions similar to the peremptory norms under consideration.

4 See: Vladykin O. War of “controlled chaos”: lessons for Russia. Round table in the editorial office of the Independent Military Review // Independent Military Review. 2014. No. 38. P. 4-7.

By virtue of this, states can make reservations when denouncing treaties they have concluded. The possibility of States to make reservations is, as we know, admissible, although not unlimited. The right to formulate reservations is subordinated to the Vienna Convention on the Law of Treaties of 1969, which requires that the content of the reservation be consistent with the “scope and purpose of the treaty” (clause “c”, Article 19). This is what makes it possible to consider provisions that have not become the subject of reservations as belonging a priori to jus cogens, if they are not disputed by other States.

At the same time, it should be noted that the denunciation does not enter into force until the end of the conflict and the state remains bound by the principles of international law, which follow from the customs that have developed on the basis of the laws of humanity and the dictates of public conscience, as the well-known Martens Clause says5.

When discussing the draft Vienna Convention on the Law of Treaties, the UN International Law Commission refused to compile a list of jus cogens norms, confining itself to pointing to general value criteria and moral imperatives. During the discussion, it was proposed to include in its text specific legal provisions on the prohibition of the use of force, the slave trade, piracy, genocide, violations of human rights and the right to self-determination of peoples. At the same time, the demand was put forward that all states should participate in the suppression of such violations. However, all this was not taken into account, since the relevant norms, which are norms of jus cogens, for non-compliance with which international legal responsibility follows, are enshrined in the UN Charter.

The rules relating to the suppression of violations of IHL are contained in all the Geneva Conventions and in Protocol I, in particular, in its Art. 85.

Under Protocol I, acts are considered to be serious offenses if they are committed intentionally and cause death, serious bodily injury or damage to health.

5 The Martens Clause, included in the preamble to the 1899 Hague Convention, provides that “until such a time as it is possible to issue a more complete code of the laws of war, the High Contracting Parties consider it appropriate to certify that in cases not provided for by the decrees they have adopted, the population and the belligerents remain under the protection and operation of international law, insofar as they arise from the customs and laws of humanity and the requirements of public consciousness established between educated peoples.

(Section 3, Article 85). These include making the civilian population or civilians the object of attack; the use of indiscriminate weapons against the civilian population when it causes excessive civilian casualties or damage to civilian objects. In paragraph 4 of Art. 85 actions such as "the use of the practice of apartheid and other inhumane and degrading acts that offend the dignity of the individual, based on racial discrimination" are also named serious violations. Violations of the special regime of protection subject to suppression cultural property- historical monuments, works of art, places of worship that are attacked and destroyed. In addition, these serious violations are considered as war crimes (paragraph 5 of article 85).

In a dissenting opinion on the Advisory Opinion of the International Court of Justice of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons,6 Judge Weeramantry recognized the jus cogens status of all humanitarian law rules relating to the means and methods of warfare and called them “fundamental rules of a humanitarian character, deviation from which is impossible without denying the basic concepts of humanity, which they are aimed at protecting. The President of the Court, M. Bedjaoui, emphasized that most of the norms of humanitarian law should be considered peremptory norms of international law. He emphasized two principles: 1) prohibiting the use of weapons that have an indiscriminate effect, 2) prohibiting the use of weapons that cause excessive suffering. These norms are without a doubt part of the norms of jus cogens. The Court regards them as inviolable principles of international law8.

It follows that, thanks to the absolute legal binding nature of the rules of jus cogens, they acquired a special meaning in the system

6 See: International Court of Justice Advisory Opinion on the Legality of the Threat nuclear weapons or its application No. A/51/218, 19 July

Cit. Quoted from: Shetai V. Contribution of the International Court of Justice to International Humanitarian Law // International Journal of the Red Cross. Sat. articles. 2003. No. 849-852. S. 108.

8 See: ibid. S. 107.

IHL. In modern international law, their sources are general multilateral treaties, as well as international legal customs recognized by almost all states. Most of the provisions of IHL recognize the obligatory observance of customary rules that take precedence regardless of their recognition in national law.

The International Court of Justice in many of its decisions has indicated that most of the principles and norms of IHL are jus cogens, for example, in its opinion on the applicability of reservations to the Convention on the Prevention and Punishment of the Crime of Genocide9 on May 28, 1951. The Court also confirmed this position in the decisions on the suit of Nicaragua against the United States in 198610 and in the case of genocide on the suit of Bosnia-Herzegovina against Yugoslavia of July 11, 199611 jus cogens, but also by referring to the obligation erga omnes, which expands and strengthens the legally binding nature of specific norms of jus cogens. And if the meaning and main meaning of the latter is to prohibit the commission of a crime, then the application of the obligation erga omnes is aimed at ensuring compliance by all participating States with these imperative requirements.

The position of the International Court of Justice is also shared by the ICRC, which, emphasizing the role of custom in enforcement of IHL, has repeatedly pointed out that the parties to internal military conflicts are obliged to more actively use customary law. It is known that these conflicts are accompanied by massive violations of IHL, which directly leads to an increase in civilian casualties, and those who have committed or ordered to commit "serious violations" usually avoid punishment, although the participating States agree

9 Advisory Opinion of the International Court of Justice No. 15 on the Legality and Validity of Reservations to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, issued in 1951 at the request of the UN General Assembly // Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide. Opinion. ISJ Reports. 1951. P. 15.

10 See: Military and Paramilitary Activities in and against Nicaragua: Nicaragua v. United States of America. Meritis // ICJ Reports. 1986.

11 See Bosnia-Herzegovina v. Yugoslavia. Preliminary objection // ISJ Reports. 1996.

under the Rome Statute of the International Criminal Court,12 are required to criminalize such persons in national law.

In addition, the Geneva Conventions provide for the need to ensure compliance with the rules of IHL by the armed forces of the participating States, as well as other subjects of law. The ICRC believes that the contracting parties should not only comply with the Conventions themselves, but also do everything necessary to ensure universal respect for the humanitarian principles underlying them. The requirement to ensure universality of compliance with the Geneva Conventions means that compliance with the obligation is not limited to the national level. Moreover, the State party must acquire the necessary means to ensure the faithful application of each of the Geneva Conventions, since “in the event of failure of another Power to fulfill its obligations, the Contracting Party must ensure its respectful attitude to the convention."

This duty is reproduced in Art. 89 of Additional Protocol I, according to which, in the event of serious violations of the Conventions or this Protocol, States took measures both jointly and individually in cooperation with the UN. This provision echoes Art. 56 of the UN Charter, by virtue of which states undertake to take joint action aimed at achieving common goals, including Art. Article 55 of the Charter calls for ensuring the observance of human rights.

In addition, it should be noted paragraph 1 of Art. 41 UN General Assembly Resolution A/RES/56/83 on State responsibility

for internationally wrongful acts,14 which argues that states must cooperate to stop any “serious violations” of jus cogens. At the same time, the International Law Commission, which prepared the corresponding report for the UN, does not consider that all norms of the law of armed conflicts are inviolable.

URL: http://www.un.org/ra/law/icc/rome_statute(r).pdf (accessed 10.06.2016).

David E. Principles of the law of armed conflicts. A course of lectures delivered at the Faculty of Law of the Open University of Brussels. M., 2011. S. 630-631.

14 URL: http://www.un.org/ru/ga/sixth/56/sixth_res.shtml (accessed 10.06.2016).

These are the norms of jus cogens. In her opinion, it is unacceptable to resort to coercion when it comes to humanitarian law obligations that do not have the character of jus cogens.

The norms of humanitarian law have formed a special legal arsenal for the protection of the population living in the exceptional conditions of an armed conflict. This special right of protection has been applied for a long time. It was already provided for in the Lieber Code of 1863,15 which stated that “the person, property and honor of unarmed citizens are subject to protection, as far as the difficult military situation allows” (Article 22).

Persons who find themselves in enemy-controlled or occupied territories are under the special protection of IHL. They are divided into 12 categories of protected persons. These include the wounded and sick, medical and religious personnel, prisoners of war, persons deprived of their liberty, internees, as well as women and children. For each category, a special status and treatment regime has been established for them in order to mitigate their suffering from the consequences of the war, to exclude any discrimination on any grounds relating to race, nationality, religion or political opinion.

In the most detailed form, these categories are defined in Art. 27 of the Geneva Convention for the Protection of Civilian Persons in Time of War, according to which protected persons "have the right in all circumstances to respect for the person, honor, family rights, religious beliefs." They must be treated humanely, protected from any acts of violence or intimidation, insults and public curiosity. In relation to these persons, the parties may take control and security measures. The Convention prohibits the infliction of physical suffering on protected persons and the use of any form of violence against them. Collective punishment, all methods of intimidation or terror, hostage-taking, as well as reprisals against both the indicated persons themselves and their property are prohibited.

The Party in whose power the protected persons are is responsible for the treatment of their representatives,

15 Instructions for the Government of Armies of the united States in the Field. (Lieber Code). 26 April 1863 // URL: https://ihl-databases.icrc.org/ihl/INTRO/110 (accessed 10/12/2016).

moreover, this does not remove personal responsibility from these representatives (Article 29). The authorities of the country of armed conflict should enable the relevant organizations (eg ICRC, National Red Cross Societies) to provide the necessary assistance to protected persons, within the limits of military or security reasons.

With regard to internal military conflicts, humanitarian law recognizes five categories of protected persons. Basic guarantees for their protection are provided in accordance with Art. 3, as well as Art. 4 of Additional Protocol II. The civilian population and objects necessary for survival are protected by art. 13 and 14 of Protocol II. Article 5 of this Protocol protects persons deprived of their liberty; Art. 3 of the Geneva Convention for the Protection of Civilian Persons in Time of War and Art. 7, 8 Protocol II - wounded, sick and shipwrecked; Art. 9 of Protocol II - medical and religious personnel. In addition, with regard to persons providing medical, sanitary and spiritual assistance to victims of armed conflicts, these norms are supplemented by provisions extending patronage to all personnel of civilian hospitals and ambulance transport (Article 11 of Additional Protocol I). Disrespect for the status of protected persons may be considered a war crime.

The rights of protected persons who are in the power of the enemy or in occupied territories are recognized as inviolable and inalienable. This follows from the provisions of the General Art. 6, 7, 8 of the Geneva Conventions. They state that the belligerents do not have the right to conclude agreements that could worsen the legal position of such persons and limit their rights, and protected persons themselves cannot voluntarily renounce the rights granted to them. In Art. 8 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, this rule is formulated more strictly: protected persons "can in no case waive, in part or in full, the rights provided to them by the convention or special agreements, if any." This means that the rights granted have

16 See: Boucher-Saulnier F. Practical Dictionary humanitarian law. M., 2004. S. 343-344.

are absolute, and the requirement to comply with IHL applies to all parties to the conflict.

In the context of this issue, it is impossible not to touch upon the issue of terrorism as a way to conduct military operations by criminal methods and means. Terrorist acts, which not only brought suffering to individuals, but also posed a threat to the life of the nation and even the course of historical development, have always been considered illegal acts, and terror has been prosecuted in international law in criminal proceedings.

The emergence and use of such a dangerous and aggressive form of terrorism as state terrorism has been facilitated by wars. In the XX century. the world was overwhelmed by a wave of terrorist attacks carried out with monstrous cruelty. The urgency of the fight against terrorism at that time was so great that it prompted the Council of the League of Nations to start drafting the Convention on the Prevention and Punishment of Terrorism and the Convention on the Establishment of the International Criminal Court, the jurisdiction of which was supposed to be limited exclusively to terrorist acts. But due to the sharp aggravation of political contradictions and the aggressive aspirations of Nazi Germany, it was not possible then to unite the efforts of states to combat terrorism18.

Today, a return to the idea of establishing an international tribunal for terrorists and their accomplices seems necessary and timely. The proposal made by the Federation Council and State Duma RF at a joint meeting on November 20, 2015 should be implemented within the framework of the UN19.

Terrorism has become a means of waging war in Chechnya, Afghanistan, Pakistan, Angola, and so on. There is a tendency when international terrorism becomes a way of using military force against other countries. Often terrorist acts are aimed

See: A Collection of the Texts of Multiple International Instruments of General Interest (1935-1937) / Ed. by M.O. Hudson. Vol. VII. No. 402-505. Washington, 1941. P. 862-893.

18 See: Gasser H-P. Terrorist acts, "terrorism" and international humanitarian law // International Journal of the Red Cross. Sat. articles. 2002. No. 845-847. S. 242.

19 The jurisdiction of the International Criminal Court allows it to try cases against persons accused of committing terrorist acts. This means that the prosecution of terrorists at the international level is becoming a common practice. See: Gasser H-P. Decree. op. S. 239.

to overthrow the existing system, liquidate institutions of power, and often to physically eliminate political leaders and heads of state (Libya, Afghanistan, Egypt, Iraq, etc.).

The Geneva Conventions contain rules prohibiting the commission or threat of acts of terrorism. Acts of violence or the threat of violence with the primary purpose of terrorizing the civilian population, as well as indiscriminate attacks, are prohibited. These acts are criminalized, and in case of particularly grave consequences (“serious violations”), they are elevated to the rank of war crimes.

Among those counteracting terrorism, one should also include rule 2 of the code of ordinary IHL20 compiled by ICRC researchers, which states: “Acts of violence or threats of violence with the aim of terrorizing the civilian population are prohibited.” Violation of this norm in the course of international and internal conflicts is qualified as a crime, which is recognized and supported judicial practice many countries.

The UN General Assembly and the UN Commission on Human Rights adopted several resolutions condemning the terrorization of civilians during the conflicts in the former Yugoslavia21 and Rwanda22. The international criminal tribunals established there, when investigating cases, substantiated accusations of terror by violating the laws and customs of war or unlawful attacks. Acts of violence also included indiscriminate shelling, regular bombing by

for the purpose of terrorizing the civilian population.

See: Henkerts J.-M., Doswald-Beck L. Customary International Humanitarian Law. T. 1. Norms. Geneva, 2006, p. 10.

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 was established by UN Security Council Resolution of 25 May 1993 // S/RES/827 (1993) .

International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994 was established in accordance with resolution 955 (1994) of the UN Security Council of November 8, 1994 // S / RES / 955 (1994); S/RES/978 (1995); S/RES/1165 (1998).

See: Henkerts J.-M., Doswald-Beck L. Decree. op. pp. 11-14. PROCEEDINGS OF THE INSTITUTE OF STATE AND LAW RAS 1/2017

Acts of terrorism committed during internal military conflicts are classified as war crimes. Relevant provisions are contained in the draft code of crimes against the peace and security of mankind (paragraph 6 of article 2)24; the Statute of the International Tribunal for Rwanda (art. 4(d))25; Statute of the Special Court for Sierra Leone (art. 3(d))26. The prohibition of acts of terrorism against the civilian population in internal military conflicts, especially in a civil war, applies to both sides of the conflict: both the forces of the state and opposition armed groups. Thus, corresponding legal obligations are also imposed on the side participating in the conflict as an anti-government opposition. In addition, according to the International Convention for the Suppression of the Financing of Terrorism of 1999, the collection of funds for its financing is considered a crime.

As already mentioned, the source of IHL is not only treaty, but also customary rules. In many countries they are applied by national courts.

The study of customary IHL rules applicable in armed conflicts was initiated by the XXVI International Conference of the Red Cross. The ICRC experts did a great job summarizing the rules for conducting armed conflicts in various states, on the basis of which their set of 161 rules was compiled. As Judge of the International Court of Justice Ab. Koroma, the results of this activity will certainly contribute to better compliance with IHL27.

This code includes a number of fundamental norms. For example, Rule 139 sets out the requirement that each party to an armed conflict must comply with and enforce the rules of IHL with its armed forces.

24 The UN International Law Commission prepared three editions of this draft: in 1954, 1991 and 1996. The last version of the draft was submitted to the UN General Assembly in 1996. See: URL: http://www.un.org/law/ILC/ texts/dcode.htm (Accessed: 05/15/2016).

URL: http://www.un.org/ru/law/ictr/charter.shtml (date of access: 15.05.

26 URL: http://www.un.org/ru/documents/bylaws/charter_sierra.pdf (Accessed 15 May 2016).

See: Henkerts J.-M., Doswald-Beck L.Decree. op. S. XXI-XXII.

mi forces, as well as persons or groups actually acting on its orders or under its control. This obligation of States is part of their general obligation to respect international law and applies to both international and internal armed conflicts. It is confirmed both in military regulations and in civil national legislation.

This instruction is confirmed by the practice of international organizations and statements of international conferences (ICRC, OSCE, summits of heads of state or government), and is also contained in declarations, resolutions of the UN or the Security Council. Reference to this obligation is also found in international jurisprudence, most often in decisions of the International Court of Justice. Along with this, some military charters and national legislative acts (for example, Russia, Switzerland, Azerbaijan, etc.28) provide for the obligation of citizens not to violate the provisions of IHL. This obligation is confirmed in Protocol II to the Convention on Certain Conventional Weapons, as well as in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (clause 1, article 7). In these normative acts, the obligation of the state, as a rule, is accompanied by the requirement to issue orders and orders in military manuals and manuals.

To do this, customary law 141 requires that its armed forces be provided with legal advisers and consultants. Their absence from opposition groups, however, cannot justify either side of the armed conflict. Norm 143 is of great importance, which obliges the states to encourage the education of the population in the norms of IHL, to propagate the rules for the protection of victims of war.

In case of serious violations of Additional Protocol I, the state party undertakes to act both jointly and individually in accordance with the UN Charter (Article 89 of the Protocol), which expands the possibilities for the UN to influence the process of interaction between the parties to the conflict. A similar requirement is included in Protocol II of 1999 to the Hague Convention for the Protection of Cultural

So, in Art. 356 of the Criminal Code of the Russian Federation "Use of prohibited means and methods of warfare" provides criminal liability for violations of international humanitarian law.

values in the event of an armed conflict, in Art. 31 of which it is established that in case of serious violations, the belligerents undertake to act jointly through the Committee for the Protection of Cultural Property or individually in cooperation with UNESCO and the UN and in accordance with the UN Charter.

It should be noted that compliance with the rules of IHL is the responsibility of all parties to armed conflicts, including UN forces, when they, as combatants, carry out enforcement measures or peacekeeping operations under a UN mandate. Participants in such operations are protected under the 1994 Convention on the Safety of United Nations and Associated Personnel. In the Bulletin of August 6, 1999, the UN Secretary-General outlined the fundamental principles and norms of IHL29. To the state where the UN forces are deployed, this international organization undertakes to guarantee full compliance with the principles and norms of the conventions to be applied by the military personnel of the UN.

Peacekeeping forces operating under UN command must be held accountable for violations committed by personnel under UN control. They may also be subject to claims for damages. The aforementioned Bulletin emphasizes that in case of violation of IHL, members of the UN forces are subject to prosecution in their national courts (Sect. 4).

In addition, in sect. 6 of the Bulletin states that "the right of UN forces to choose the methods and means of armed action is not unlimited." UN forces, as well as other participants in military conflicts, are prohibited from using weapons that can cause unnecessary damage or unnecessary suffering, as well as serious damage to the natural environment. Ever since the adoption of the Protocol of June 17, 1925 on the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases and Bacteriological Agents in War30, the use of asphyxiating, poisonous and other gases and biological agents of warfare has been under an absolute ban. As prohibited in the Bullet-

See: United Nations Compliance with International Humanitarian Law // Bulletin of the UN Secretary-General 8TDOV/1999/13. August 6, 1999

current international law. T. 2. M., 1997.

The shadow lists new types of weapons - anti-personnel mines, booby traps and incendiary weapons. Unfortunately, the list does not include the ban on the use of the most dangerous - blinding laser weapons, established in 1995 on the basis of Protocol IV to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects.

Methods of warfare prohibited for UN forces include: 1) an order to leave no one alive; 2) an attack on objects necessary for the survival of the civilian population; 3) causing serious damage to the natural environment; 4) military operations against installations containing dangerous forces; 5) the use of cultural property for purposes that will lead to their destruction or damage.

In recent decades, there has been a tendency to become accustomed to violations of IHL - they have become a common occurrence that accompanies armed conflicts. The degree of their intensity and cruelty rolls over. Wars, violence and hatred are becoming more widespread and, accordingly, the number of victims of armed conflicts that develop into civil wars is multiplying.

The Geneva Conventions protecting the victims of war have been adopted, as noted above, by most states. However, this does not affect the effectiveness of their application. Unfortunately, the Geneva Conventions hold a kind of record of the exact opposite nature in terms of the number of serious violations of their provisions. The reaction to them is the interaction of humanitarian law with human rights law in times of armed conflict. IHL has the potential and contributes to the observance of the priority principle enshrined in the Geneva Conventions and their Additional Protocols, as well as in other humanitarian acts, which provide for the obligations of States Parties to comply with the rules of IHL and to ensure their observance by other states.

REFERENCES

Boucher-Saulnier F. Practical Dictionary of Humanitarian Law. M.: MIK, 2004. - 551 p.

Vladykin O. War of "controlled chaos": lessons for Russia. Round table in the editorial office of the Independent Military Review // Independent Military Review. 2014. No. 38. P. 4-7.

Gasser HP. Terrorist acts, "terrorism" and international humanitarian law // International Journal of the Red Cross. Sat. articles. 2002. No. 845-847. pp. 235-268.

David E. Principles of the law of armed conflicts. A course of lectures delivered at the Faculty of Law of the Open University of Brussels. M.: ICRC, 2011. - 1144 p.

HenkertsJ.-M., Doswald-Beck L. Customary International Humanitarian Law. T. I. Norms. Geneva: ICRC, 2006. - 818 p.

Shetai V. Contribution of the International Court to International Humanitarian Law // International Journal of the Red Cross. Sat. articles. 2003. No. 849-852. pp. 89-128.

THE OBLIGATION TO RESPECT NORMS OF INTERNATIONAL HUMANITARIAL LAW ON PROTECTION OF WAR VICTIMS

Irina A. Ledyakh

Human Rights Department, Institute of State and Law, Russian Academy of Sciences, 10, Znamenka st., Moscow 119019, Russian Federation (e-mail: [email protected]).

Particular attention in the article is paid to characteristic of legal methods of protection of the population in military conflicts. Legal status of different categories of people protected by international humanitarian law is analyzed. The article discusses the question of the role of international humanitarian law in combating terrorism. International Red Cross plays a crucial role in creating international humanitarian law and drafting customary law code. The author shows that the current development of international humanitarian law rules shall be a counterforce against the tendency of adjustment to its violations in course of military conflicts.

International humanitarian law, Geneva Conventions, indiscriminate attacks, civilian object attacks, civilian population protection, terrorism, protected persons, jus cogens, erga omnes.

Bushe-Sol "n" e F. Prakticheskii slovar" gumanitarnogoprava. Moscow: MIK, 2004, 551 p. (in Russ.).

David E. Printsipy prava vooruzhennykh konfliktov. Kurs lektsii, prochitannykh na yuridicheskom fakul "tete Otkrytogo Bryussel" skogo universiteta. Moscow: The International Committee of the Red Cross, 2011, 1144 p. (in Russ.).

Gasser Kh-P. Terroristicheskie akty, "terrorizm" i mezhdunarodnoe gumanitarnoe parvo. MezhdunarodnyizhurnalKrasnogo Kresta. Sb. staei. , 2002, no. 845-847, pp. 235-268 (in Russ.).

Henckaerts J.-M., Doswald-Bek L. Obychnoe mezhdunarodnoe gumanitarnoe pravo. Normy. T.I. Geneva: International Committee of the Red Cross, 2006, 818 p. (in Russ.).

Shetai V. Vklad Mezhdunarodnogo suda v mezhdunarodnoe gumanitar-noe pravo // Mezhdunarodnyi zhurnal Krasnogo Kresta. Sb. Statei, 2003, no. 849-852, pp. 89-128 (in Russ.).

Modern international law requires states to refrain from the use of force or the threat of force in resolving disputes and conflict situations between them and recognizes aggressive war as a crime against peace. However, the legal prohibition of war does not mean that there are no more sources that give rise to wars. This necessitates legal regulation a wide range of social relations arising in the course of armed conflicts. At the same time, the purpose of such regulation is their maximum humanization.

war casualties- these are persons who do not take a direct part in hostilities or ceased such participation from a certain moment: wounded and sick combatants and non-combatants, prisoners of war, civilians, including the occupied territories.

At present, the main international acts in the field of protection of war victims are the four Geneva Conventions of 1949, drafts of which were prepared with the participation of the International Committee of the Red Cross, as well as two Additional Protocols to them of 1977.

Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field;

Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;

Convention on the Treatment of Prisoners of War;

Convention for the Protection of Civilian Persons in Time of War.

Within the meaning of the 1949 Geneva Convention on the Treatment of Prisoners of War, a “prisoner of war” is understood to mean a person who has fallen into the hands of an enemy from the armed forces of another belligerent power.

The prisoners of war are:

the personnel of the armed forces of the belligerent;

The partisans

personnel of the militia and volunteer detachments;

personnel of organized resistance movements;

Non-combatants

members of the crews of ships of the merchant fleet and civil aviation;

· A spontaneously revolted population, if it openly bears arms and observes the laws and customs of war.

Section 2 of the Convention's “General Regulations for the Protection of Prisoners of War” establishes that “prisoners of war are in the hands of the enemy Power, but not of the individuals or military units that take them prisoner”; prisoners of war must always be treated humanely. No prisoner of war may be subjected to physical mutilation or scientific or medical experience. These provisions of the Convention apply to all prisoners of war, regardless of their race, nationality, religion, political opinion, etc.

The convention establishes that during interrogation a prisoner of war must give his last name, first name and rank, year of birth and personal number. Prisoners of war may not be subjected to coercive measures to obtain any information from them. All personal items, except for weapons, remain with prisoners of war.

Valuables may only be taken away for security reasons. The money is credited to the personal account of a prisoner of war.

A prisoner is not a criminal, but a disarmed enemy temporarily in the power of an enemy state. Therefore, the deprivation of his liberty should be preventive, not punitive. Prisoners of war must be placed in camps under conditions no less favorable than those enjoyed by the enemy army stationed in the area. The diet of prisoners of war must be adequate in quantity, quality and variety.

Prisoners of war are provided with medical assistance and retain their freedom of religion.

Prisoners of war must salute all officers, and prisoners of war officers - only those of higher rank.

The use of weapons against prisoners of war is regarded as an emergency measure and cannot be used without warning.

The Convention regulates in detail issues related to the work of prisoners of war. Soldiers may be employed in suitable jobs, taking into account age, rank and physical ability. Under no circumstances may officers be forced to work. Article 50 lists the jobs in which prisoners of war may be used: Agriculture, housework, trading activities, loading and unloading transport. Prisoners of war must not be used in work of a military nature or dangerous to the life of workers.

Prisoners of war must not be deprived of the right to correspond with their families; they have the right to receive letters, parcels with food, clothing, etc. Prisoners of war may submit requests to the military command under whose authority they are, send complaints to representatives of the protecting power. Prisoners of war are subject to the laws, regulations and orders in force in the armed forces of the state that captured them.

For the commission of a crime, a prisoner of war is judged by a military court; any collective punishment for individual offenses is prohibited.

Full list POW belligerents report:

Your help desk;

Protecting Power;

International Committee of the Red Cross in Geneva.

Prisoners of war are released and repatriated immediately after the cessation of hostilities.

Mode of the wounded and sick. The term “wounded and sick” includes wounded and sick military personnel and civilians who are in need of medical attention or care. This term in this case covers the wounded, sick, shipwrecked, pregnant women, nursing mothers, newborns, etc.

The Conventions establish that all the wounded and sick, regardless of race, color, religion or creed, sex, origin, enjoy the same protection.

In relation to the wounded and sick, the following actions are prohibited:

• encroachment on life and physical integrity, in particular all kinds of murders, mutilations, cruel treatment, torture and torment;

taking hostages;

· infringement on human dignity, in particular insulting and degrading treatment;

· Conviction and imposition of punishment without a prior judicial decision issued by a duly constituted court, subject to judicial guarantees.

These provisions apply to the wounded and sick, medical and religious personnel belonging to the armed forces of the parties to the conflict and received or interned on their territory, as well as to the personnel of the militia and volunteer detachments that are part of the armed forces of a belligerent state, persons who follow the armed forces, but are not part of them, war correspondents, personnel of work teams or services serving the armed forces, as well as the population of the non-occupied territory, who, when the enemy approaches, spontaneously takes up arms if they carry them openly and observes the laws and customs of war.

After each battle, the belligerents are obliged to take measures to search for the wounded and dead, to protect them from robbery or ill-treatment. Burial or burning of corpses is carried out only after a thorough medical examination. The graves are equipped so that they can be found at any time.

Mobile medical formations and permanent medical establishments enjoy the protection and protection of the belligerents and are not the object of attack. Mobile medical formations, if they fall into the power of the opposing side, retain their material part and the personnel accompanying them. However, the enemy can use them to care for the wounded and sick of his army.

Aircraft used exclusively for the evacuation of the wounded and sick and for the transport of medical personnel and property shall enjoy protection. Such airplanes must have a clearly visible distinguishing sign.

The wounded and sick of the belligerent army, who fell into the power of the enemy, are considered prisoners of war, and the regime of military captivity should be applied to them. Reprisals are prohibited against sanitary formations and their personnel.

The position of the civilian population during the war. The position of the civilian population during the war is determined by the Hague Conventions of 1907, the Geneva Convention of 1949 “On the Protection of the Civilian Population in Time of War”, and other international legal acts. These universally recognized documents establish that “family honor and rights, the lives of individuals and private property, as well as religious convictions and the practice of faith, must be respected. It is forbidden to attack or bombard in any way undefended cities, towns, dwellings or buildings.

The direct protection of civilians is reflected in many UNGA resolutions. Thus, Resolution 2675 (XXY) of December 9, 1970, fixed, taking into account the scientific and technological revolution in military affairs, "the basic principles for the protection of the civilian population during armed conflicts."

An analysis of the existing international acts gives grounds to formulate the following legal principles for the protection of the civilian population:

1. Fundamental human rights, as recognized in international law, continue to exist in times of armed conflict.

2. In the conduct of hostilities, a distinction must be made between persons actively participating in them (combatants) and the civilian population.

3. The belligerents, in the conduct of hostilities, are obliged to make every effort to protect the civilian population from the ravages of war and to take all necessary precautions to avoid physical suffering, loss of life or damage to the civilian population.

4. Acts of violence or threats of violence for the sole purpose of intimidating or terrorizing the population are prohibited.

5. Protected residential buildings and other structures that are used only by the civilian population, they should not be the object of direct military operations.

6. Places and areas reserved solely for the protection of the civilian population shall be protected. Hospital areas and similar places should be included here.

7. Warring parties shall not make the civilian population or individual civilian the object of forced displacement reprisals or other attacks on their integrity.

Protection of cultural property during the war. Bearing in mind that in the course of armed conflicts of the past years, cultural property has suffered great damage, and that, as a result of the development military equipment they are under the threat of even greater destruction, bearing in mind that the damage done to the cultural property of each people is a damage to the cultural heritage of all mankind, and also taking into account the need to preserve the cultural heritage of the peoples of the world, on international conference convened by UNESCO in The Hague, a convention was developed and signed on May 14, 1954 for the protection of cultural property in the event of armed conflict.

According to Article 1 of the Convention, cultural property is considered regardless of origin and owner:

monuments of architecture, art and history, archaeological sites, architectural ensembles, works of art, manuscripts, books, as well as scientific collections or military collections of books and materials;

· buildings whose main and actual purpose is the preservation or display of movable cultural property, i.e. museums, large libraries, archive repositories, as well as shelters intended for the preservation of cultural property;

· centers where there is a significant amount of cultural property referred to in paragraphs "a" and "b", the so-called "centers of concentration of cultural property".

The protection of cultural property includes the protection and respect of these property.

According to Article 4 of the Convention, respect for cultural property is an obligation:

Prohibit the use of cultural property, structures for its protection and areas immediately adjacent to it for purposes that may lead to the destruction or damage of these property in the event of an armed conflict;

Prohibit, prevent and suppress any act of theft, robbery or misappropriation cultural property in any form, as well as any acts of vandalism in relation to these values;

· Prohibit requisition and refrain from taking any repressive measures against cultural property.

The most important cultural property on the basis of Article 8 of the Convention are taken under special protection and included in the International Register of Cultural Property. This register is maintained CEO UNESCO. Copies are kept by the Secretary-General of the United Nations and by each party to an armed conflict. From the moment they are included in the International Register, these valuables receive military immunity, and the belligerents are obliged to refrain from any hostile act directed against them. Cultural property under special protection during an armed conflict must be marked with a special sign. The distinctive sign of the Convention is a shield, pointed at the bottom, divided into 4 parts of blue and white. This sign is used once or three times in the form of a triangle (one sign at the bottom) to identify cultural property under special protection.

Questions for self-control:

1. List the sources of international humanitarian law.

3. List the means of warfare.

4. In what kind of work can prisoners of war not be used?

5. List the legal principles for the protection of civilians.

Literature:

1. International Covenant on Civil and Political Rights. UNGA Resolution 2200 A (XXI) of December 16, 1966. See: UN Center for Human Rights, Human Rights: Collection of International Treaties, 2007.- pp. 20-40.

2. International Covenant on Economic, Social and Cultural Rights. UNGA Resolution 2200 A (XXI) of December 16, 1966. See: UN Center for Human Rights, Human Rights: Collection of International Treaties, 2007.- pp. 8-19.

3. Charter of the Council of Europe // Collection of Legislation of the Russian Federation. 1997. - No. 12. -St. 1390.

4. International Covenant on Civil and Political Rights 1966 / Public International Law. Collection of documents: in 2 hours, Part 1 / Comp. K.A. Bekyashev, D.K. Bekyashev. M., 2006. - S. 446-458.

5. European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 // Collected Legislation of the Russian Federation. -2001. No. 2. - Art. 163.

6. Protocol No. 14 to the European Convention for the Protection of Human Rights and Fundamental Freedoms //http://conventions.coe.int/Treaty/EN/Treaties/Html/194.htm

7. Aleshin VV International law of armed conflicts. - M.: Yurlitinform, 2007. - 200 p.

8. Batyr V.A. International humanitarian law. - M.: Yusginform, 2006. 336 p.

9. Kalugin V. Yu. The course of international humanitarian law. Minsk: Tesey, 2006. - 496 p.

10. Kalugin V.Yu., Pavlova JI.B., Fisenko I.V. International Humanitarian Law Minsk: Tesey, 1999. - 306 p.

11. Kotlyarov II Russia's contribution to the formation and development of international humanitarian law // Russian Yearbook of International Law. 2007.-SPb.: Russia-Neva, 2008. - S. 62-68.

12. Kotlyarov I.I. International humanitarian law. M.: Yurlitinform, 2006. - 304 p.

13. Ledyakh I. A. An important milestone in the history of the development of international humanitarian law// International Lawyer. 2007. - No. 1. - S. 2 - 10.

14. Lukashuk I.I., International law. Special part: A textbook for students of law faculties and universities. M., 2007.

15. Lysyk V. M. Influence of the International Committee of the Red Cross on the development of international humanitarian law (in Ukrainian) // Ukrainian Journal of International Law. Kyiv. - 2006. - No. 2. - S. 74-81.

16. International humanitarian law / ed. Kapustina A. Ya. M.: Higher education, Yurayt-izdat, 2009. - 587 p.

17. International public law: Textbook / Ed. K. Bekyasheva, M.: M., 2008.

18. Nikonov K. Legal aspects of the protection of children in armed conflicts // Moscow Journal of International Law. 2007. - No. 4. - S. 216-225.

19. Ostroukhov N.V. Territorial integrity of states in modern international law and its provision in the Russian Federation and in the post-Soviet space: Monograph. - M.: Yurlitinform, 2009. 352 p.

20. Ostroukhov N. V. Some issues of codification and progressive development of humanitarian law applied during a non-international armed conflict // Moscow Journal of International Law. 2009. - No. 1. - S. 166-176.

21. Shlyantsev D.A. International law: a course of lectures. - M.: Yustitsinform, 2006. - 256 p.

Foreword ................................................................ .......................................... 4

Topic № 1. Concept, essence, sources and principles of international law. 6

Topic 2. The history of the emergence and development of international law. 32

Topic No. 3. Subjects of modern international law............. 58

Topic No. 4. The Law of International Treaties............................................... 82

Topic number 5. Law of international organizations and conferences.... 99

Topic No. 6. Responsibility in international law .............................. 124

Topic No. 7. Diplomatic and consular law .............................. 138

Topic No. 8. Territory and other spaces in international law. 162

Topic No. 9. The law of international security............................... 188

Topic No. 10. International legal means of resolving international disputes .............................................................. ................................................. .............................. 219

Topic No. 11. International air law............................................... 240

Topic No. 12. International maritime law............................................... 265

Topic number 14. International human rights law.............................. 312

Theme No. 15. The law of international cooperation of states in the fight against crime .............................................................. ................................................. ..... 331

Topic number 16. International environmental law.............................. 350

Topic No. 17. International economic law........................ 380

Topic No. 18. International humanitarian law.............................. 407

Flu Elvina Kharisovna

Patrikeyev Viktor Evgenievich