International humanitarian law

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Humanitarian international law is a term used in modern language that has replaced the designation of the international law of war . It describes all provisions of international law which, in the event of a war or other international armed conflict, aim to protect people, buildings and infrastructure as well as the natural environment from the effects of the fighting.

International humanitarian law thus relates to the law of warfare known as ius in bello 'law in war' , whereas the term ius ad bellum 'right to war' refers to regulations regarding the illegality or legality of international armed conflicts. In its current form, international humanitarian law deals only to a very limited extent with non-international armed conflicts . In addition, only a few provisions of international humanitarian law, such as the provisions on the use of protective symbols , are already relevant in peacetime .

With regard to its origin and historical development, its theory and systematics as well as its dissemination and acceptance, international humanitarian law is a very heterogeneous and complex area of ​​international law. In addition to a number of provisions that have been established in the form of international treaties , it also largely includes unwritten principles that have become generally applicable as customary international law . International humanitarian law contains, among other things, rules on permissible means and methods of warfare , on the treatment of protected persons such as wounded soldiers , prisoners of war and civilians , on the protection of cultural property and other structural facilities, as well as rudimentary provisions on the prosecution of war crimes . The most important regulations of international humanitarian law from a historical and substantive point of view are the Geneva Conventions with their additional protocols and the Hague Conventions .

Signatures of some delegates to the Geneva Convention of 1864

Basic principles

The rules of international humanitarian law define temporal, spatial, objective and personal limits for wars and other international armed conflicts and the related actions. The general basis of all areas of international humanitarian law is a series of principles whose customary validity has long been recognized. The rules laid down in contract law in the various agreements often serve to specify these principles or their application to specific areas of law. An important principle in this context is Martens ' clause, named after the Russian diplomat and international law expert Friedrich Fromhold Martens . For situations in armed conflicts that are not expressly regulated by written international law, this specifies established customs , the principles of humanity and the demands of public conscience as standards for evaluating actions and decisions.

A central principle in many areas of international humanitarian law is the principle of military necessity. This means that every military measure in the context of an international armed conflict must be necessary in the way it is carried out, its temporal and spatial scope as well as its expected effects on the basis of the specific military strategy and tactics . Military actions that are not necessary under these aspects must therefore be avoided. Other important regulations concern the avoidance of unnecessary suffering and a corresponding ban on the use of weapons, projectiles and materials as well as methods of warfare that are likely to cause unnecessary injury or suffering.

With regard to the question of the right to participate in hostilities, including acts of damage, international humanitarian law distinguishes between combatants , i.e. persons who are directly involved in hostilities and are allowed to carry out armed acts of damage against military targets, and non-combatants , i.e. all persons to whom this authorization is missing. The members of the armed forces of a party involved in the conflict, with the exception of medical and pastoral staff, are combatants. The non-combatants are usually particularly protected under international law. In addition to members of the medical and pastoral staff of the armed forces, the protected persons primarily include civilians . In addition, each party to the conflict is obliged in their actions to distinguish between military targets on the one hand and civilians and civilian objects on the other. The use of weapons that act indiscriminately is therefore just as prohibited as methods of combat that do not distinguish between military and civilian goals.

Violations of the rules of international humanitarian law that are customary or fixed by treaties are illegal. However, not every violation constitutes a war crime in terms of its gravity . Only particularly serious violations are generally assessed as such and accordingly on the basis of international law, in particular the Rome Statute of the International Criminal Court of July 17, 1998, or national law such as German International Criminal Code of July 26, 2002 legally prosecuted.

In retaliation is contrast to legitimate non-observances of war international law by a party to the conflict in time of international armed conflicts, which are made in response to rights violations by the other party to the conflict to move with the aim of counter-setting page of the offense and to comply with the relevant provisions. Retaliation is not a "means of retaliation ", but rather a means of recourse under international law to enforce or restore law. Measures carried out secretly or under deception about the author are not reprisals, as they cannot achieve the purpose of the act. Retaliation may only be ordered as a “ last resort ”, that is, after an attempt to settle the dispute amicably has failed and after prior threats. In terms of scope and gravity, reprisals must be commensurate with the offense committed by the opponent and must also take into account human considerations . If the conditions for reprisals are met, the executing soldiers do not act contrary to international law and are not punished.

In current international humanitarian law, there are a number of contractual prohibitions of reprisals for international armed conflicts. This expressly forbids reprisals against the wounded, sick and shipwrecked, medical and pastoral staff, medical facilities and equipment, prisoners of war, civilians, private property of civilians in occupied areas and members of the opposing state in their own national territory, objects that are essential for the civilian population, the natural environment , Systems and facilities that contain forces of a dangerous nature, as well as cultural property. In addition, international humanitarian law prohibits the use of mines, booby traps and other devices as reprisals against the civilian population as such or against individual civilians or civilian objects. The development of international humanitarian law points in the direction of customary international law prohibitions of reprisals in times of non-international armed conflicts, which correspond to the core area of ​​prohibitions of reprisals that exist for international armed conflict.

Legal historical development

The beginning in the 19th century

Gustave Moynier , co-founder of the International Committee of the Red Cross and the Institut de droit international

The earliest treatises on rules of conduct in war can be found in medieval publications, such as the work Tractatus de Bello, de Represaliis et de Duello by the Italian lawyer Giovanni da Legnano , published around 1360 . In addition to basic considerations on legitimate reasons for a war, his remarks also contained guidelines on the treatment of prisoners of war and non-combatants. Other early works devoted to similar considerations were De Re Militari et Bello Tractatus by Pierino Belli , published in 1563, and De Jure Belli ac Pacis Libri Tres by Hugo Grotius from 1625. These publications were, however, legal philosophical works and not about binding international treaties. The first written set of rules in military and legal history that laid down guidelines for warfare was the Lieber Code signed by then US President Abraham Lincoln on April 24, 1863 . This set of rules for the troops of the northern states in the American Civil War from 1861 to 1865, drawn up by the German-American lawyer Francis Lieber, contained rules on the humane treatment of prisoners of war and the civilian population as well as the principle of military necessity. However, since the Lieber Code was internal stipulations for members of a single army, it is not considered international law in the sense of legal norms that apply between different states.

The first Geneva Convention , concluded in 1864, is viewed as the historical starting point for international humanitarian law in its current form . This was based on suggestions from the Geneva businessman Henry Dunant , who, based on his experiences after the Battle of Solferino in June 1859, published the book A Memory of Solferino three years later . The Geneva Convention of 1864 “Relieving the Fate of Military Personnel Wounded in the Field Service”, which was signed by twelve states, contained ten articles stipulating the aid for wounded soldiers and the protection of the auxiliary workers involved in their care, including the introduction of the Red cross on a white background as a protective symbol . It represents the first international treaty that laid down rules for warfare. The International Committee of Aid Societies for the Care of the Wound , founded one year before the conclusion of the Convention , which has been called the International Committee of the Red Cross (ICRC) since 1876 , provided decisive impetus for the further development of international humanitarian law in the following decades.

Friedrich Fromhold Martens

With the Petersburg Declaration , four years after the Geneva Convention, followed a short and narrowly limited agreement, but far-reaching in terms of its fundamental importance. The aim of the treaty concluded by 20 states in December 1868 was a ban on high-explosive shells weighing less than 400 grams, as these would lead to serious wounds if used intentionally or accidentally against people. With the Petersburg Declaration, the use of a certain weapon system for waging war was contractually prohibited for the first time. The resulting principle that there are restrictions in the choice of means of warfare and that the use of weapons that cause unnecessary suffering is prohibited, was later expanded and specified in further international treaties.

The Brussels Conference of 1874 was the first attempt to reach a comprehensive international agreement on the laws and customs of war. It took place on the initiative of the Russian Tsar Alexander II . The Russian international law expert Friedrich Fromhold Martens had prepared a draft for a declaration on the laws and customs of war for this conference . Although this was accepted by the delegates after various changes and cuts, it never achieved the status of a binding international agreement because it was not ratified . This was mainly due to the fact that most of the participating countries were already skeptical to negative about the conference for various reasons. Smaller countries in particular feared that the stipulations contained in the Brussels Declaration would unilaterally serve the interests of the great powers.

The Institut de Droit international (Institute for International Law), founded a year before the Brussels Conference, published a handbook on the rules of land war called the Oxford Manual in 1880 under the title Manuel des lois de la guerre sur terre . This essentially represented a summary of the Brussels Declaration of 1874, the Geneva Convention of 1864 and a few other principles of customary law. It was intended as a template for corresponding legal regulations in the national law of the individual states and was thus intended to be an alternative way of implementing the six years previously formulated principles, but was almost completely ignored in this regard.

The Hague Peace Conferences in 1899 and 1907

The Huis ten Bosch , the venue for the First Hague Peace Conference in 1899

The agreement on the laws and customs of war planned in 1874 became a reality 25 years later in the context of a conference in The Hague initiated by Russian Tsar Nicholas II in the form of the Hague Land Warfare Regulations . From May to July 1899 a total of 108 representatives from 29 countries took part in this conference, known as the Hague Peace Conference. Friedrich Fromhold Martens, the spiritual father of the Brussels Declaration, co-organized the conference. The convention “Regarding the Laws and Customs of War on Land”, which consisted of five articles in the main text and 60 articles on the implementing provisions in the appendix, has been signed by 49 states in the course of history. It is still valid contract law today in the relations between these states. In addition, its principles have been customary international law for several decades and are therefore also binding on states and non-state parties to the conflict that have not explicitly acceded to the agreement. Other important agreements to supplement international humanitarian law, which emerged in the context of the conference in 1899, were a convention "on the application of the principles of the Geneva Convention of August 22, 1864 to naval warfare", a five-year ban on the use of projectiles and Explosives from the air, a ban on the use of asphyxiating or poisonous gases, and a ban on the use of deformable projectiles .

The conclusion of these Hague Accords specified the principle established by the Petersburg Declaration that there are restrictions on the choice of means of waging war in other areas. In addition, the Hague Land Warfare Regulations introduced a principle known as Martens' clause into international humanitarian law, which is generally viewed as an acknowledgment that, even in an armed conflict, there is at no time a completely unlawful area or a situation without any laws. The distinction between military and civilian goals as well as the greatest possible sparing of civilians and civilian objects during military operations became part of the contractually fixed international law through the Hague Land Warfare Regulations. With the prohibition contained in Article 56 of the Hague Land Warfare Regulations on the confiscation, destruction or damage of historical monuments, educational institutions and institutions with religious, non-profit, artistic or scientific importance, an attempt was made for the first time to protect important structural facilities from the effects of war. Another important regulation of almost all Hague Conventions is the so-called all -participation clause . It states that in the event of war or armed conflict, these agreements should only apply if all of the states involved in this conflict were parties to the respective agreement. The aim of the all-participation clause was to prevent unilateral advantages due to a two-part legal situation in the event of war with regard to the validity of the obligations arising from this agreement.

The Great Hall in The Hague , venue of the Second Hague Peace Conference in 1907

The Geneva Convention of 1864 was revised for the first time in 1906. The most important innovation was the explicit naming of voluntary aid organizations to support the care of sick and wounded soldiers. The national Red Cross societies, which had arisen in many countries since the founding of the International Committee, were thus for the first time explicitly recognized legally with regard to their tasks. In addition, the all-participation clause was incorporated into the Geneva Convention, even if it had been rejected by the ICRC.

Eight years after the first peace conference, there was a follow-up conference from June to October 1907. During this second Hague Peace Conference, the Hague Land Warfare Regulations were only slightly revised. Other agreements concluded during this conference concerned the rights and obligations of neutral states and persons in the event of war on land and at sea, an agreement on the protection of merchant ships of the opposing party in the event of war, an agreement regulating the laying of submarine contact mines, an agreement about the shelling of land targets by warships, as well as an agreement that forbade the seizure of fishing ships, mail ships, research ships and some other ships with a "harmless character" in the event of war. The agreement of 1899 on the application of the principles of the Geneva Convention to naval warfare was renewed for the revision of the Geneva Convention concluded one year earlier. The same applies to the ban on the use of projectiles and explosives from the air, which this time was limited until the next peace conference. However, since this did not take place, the agreement is legally valid to the present day. However, it was not signed or ratified by a number of important states, including France , Germany , Japan , Italy and Russia , and was therefore irrelevant in the following wars due to the all-participation clause.

The effects of the two world wars

British soldiers in World War I who were blinded by the use of gas

Seven years after the Second Hague Peace Conference, the First World War began . Although the use of poisons for warfare was forbidden by the Hague Land Warfare Regulations and also through customary use, chlorine gas was used as a weapon by the German army in April 1915 near the Belgian city of Ypres . This event represented the first large-scale use of a chemical warfare agent in a war. In February 1916, phosgene was used by the French , and in July 1917, mustard gas was used for the first time by the German troops. The information on the total number of victims through the use of chemical warfare agents in World War I fluctuates between around 20,000 to 100,000 dead and around 500,000 to 1.2 million wounded. The consequences of poisoning with these substances, which led to slow and painful death as well as severe and often permanent injuries, prompted the international community to conclude the Geneva Protocol in 1925 “on the prohibition of the use of asphyxiating, poisonous or similar gases and of bacteriological agents in war ”. Bacteriological weapons were also included in the protocol due to the expected effects of an operation, although they were not used during the war. One of the successes of this protocol was the fact that none of the warring parties used chemical warfare agents during the Second World War, even though these had been produced and stored in large quantities by several countries.

A second serious humanitarian problem during the First World War was the fate of prisoners of war . Although regulations existed in this area through the Hague Land Warfare Regulations, these were partially ignored during the war. Furthermore, from a logistical point of view, the warring states were completely inadequately prepared for the number of prisoners of war, which resulted from the manner in which the war was conducted and the duration of the war. After the end of the war, the International Committee of the Red Cross therefore pushed for an expansion and clarification of international humanitarian law in this area. This took place in 1929 with the conclusion of the second Geneva Convention on the Treatment of Prisoners of War . Since this convention was not ratified by all the powers involved in this war until the beginning of the Second World War, including the Soviet Union and Japan , the provisions of the Hague Land Warfare Regulations for the treatment of prisoners of war also remained important. The first Geneva Convention was also revised again in 1929. An important innovation was the recognition of the Red Crescent and the Red Lion with the Sun as further protective symbols in addition to the Red Cross. The all-participation clause was no longer part of the two Geneva Conventions of 1929, as the First World War had shown that it had impaired the acceptance and implementation of the 1906 Convention and the Hague Accords.

Buildings destroyed by bombing in Hamburg

The diplomatic conference of 1929 also voted unanimously in favor of an additional convention to protect civilians in times of war. A draft for such an agreement was adopted at the 15th International Red Cross Conference in Tokyo in 1934 . However, due to the Second World War, this draft was not implemented in the form of a binding agreement, planned by the Swiss Federal Government for 1940 as part of a diplomatic conference . The Second World War, which, spatially and temporally, was largely waged as a war of extermination , affected the civilian population to a previously unknown extent through area bombing and the scorched earth tactics . The treatment of prisoners of war also resulted in massive humanitarian problems. Immediately after the end of the war, the ICRC therefore sought to revise and expand international humanitarian law and organized two conferences for this purpose in 1946 and 1947. In 1949, four Geneva Conventions were passed and thus a comprehensive expansion of international humanitarian law. In addition to a new version of the first Geneva Convention "to improve the lot of the wounded and sick in the armed forces in the field" and the second Geneva Convention "on the treatment of prisoners of war", which has since been counted as the third Geneva Convention, two new agreements were concluded. The second Geneva Convention “to improve the lot of the wounded, sick and shipwrecked by armed forces at sea” was the successor to the Hague Convention “on the application of the principles of the Geneva Convention to naval warfare” of 1899 and 1907, respectively. The most important consequence of the The fourth Geneva Convention “on the protection of civilians in times of war” was added to the Second World War.

The role of the United Nations after 1949

The United Nations flag

The 1948 convention "on the prevention and punishment of genocide" represented a change in international humanitarian law in two respects. On the one hand, it was the first important international agreement, for the administration and implementation of which the United Nations, founded in 1945 immediately after the Second World War ( UN) are responsible as depositary . On the other hand, this convention marked the beginning of the development of a series of agreements whose aim is the prosecution of war crimes. Other agreements and institutions in this area under the auspices of the UN were the convention concluded in 1968 “on the inapplicability of the statute of limitations to war crimes and crimes against humanity”, the Rome Statute passed in 1998 and the International Criminal Court based on it in 2002 . As early as 1991 and thus before the Court of Justice, another important body had emerged in the form of the International Humanitarian Investigation Commission . The Commission's task is to investigate possible violations of international humanitarian law.

At the beginning of the 1950s, the currently common designation “humanitarian international law” began to prevail over the terms “martial law” or “martial law” in order to emphasize in particular the protective and thus positive aspect of this area of ​​law. A comprehensive revision and addition to international humanitarian law was the adoption of the first two additional protocols to the Geneva Conventions in 1977 after three years of negotiations. The first additional protocol specified in particular a number of provisions of the 1949 agreements, the practical application of which had proven to be inadequate. The most important aspect of the second additional protocol was the creation of provisions for non-international armed conflicts that went beyond common Article 3 of the four Geneva Conventions of 1949. The third additional protocol concluded in 2005 introduced an additional protective symbol with the red crystal . This symbol, like the Red Cross, the Red Crescent and the Red Lion with the Sun, is intended as a protective symbol of the Geneva Conventions of 1949 for the identification of people, vehicles and facilities that provide protection and assistance to those outside the country during an armed conflict Serving people involved in fighting.

The area of ​​regulations on the permitted means and methods of warfare was supplemented by additional agreements in addition to the additional protocols of 1977. These include the Biological Weapons Convention of 1971 and the Chemical Weapons Convention of 1993 as the successor to the Geneva Protocol of 1925, the ENMOD Convention "on the prohibition of the military or other hostile use of environmentally-changing technologies", the 1980 Convention on the prohibition or restriction of the that can cause excessively injurious or to have indiscriminate effects Use of certain conventional weapons , which the Ottawa Convention designated 1997 agreement banning and destruction of anti-personnel mines and the Convention on cluster munitions in 2008. with the exception of the Biological weapons Convention are under all these agreements the management and implementation by the United Nations.

The UN is also responsible for the agreements on the protection of cultural property, which was expanded into a separate area of ​​international humanitarian law through the adoption of the Hague Convention “for the protection of cultural property in the event of armed conflict” and the first protocol to this agreement in 1954 Form of the United Nations Organization for Education, Science, Culture and Communication (UNESCO) largely responsible. In 1999 the provisions of this agreement were supplemented by a second protocol and adapted to legal developments in international humanitarian law. UNESCO acts as a depositary in this area and maintains, for example, the “International Register of Cultural Property under Special Protection”.

Important provisions

International humanitarian law can be divided into a number of areas under different aspects. From a historical point of view, there is often a breakdown into "Geneva law" based on the Geneva Conventions , the "Hague law" that emerged from the Hague Agreement and the agreements that were created under the auspices of the United Nations. Initially, this division essentially corresponded to a content-related breakdown into protection against the wounded and injured by Geneva law and stipulations on permissible means and methods of warfare in Hague law. At the same time, this separation was not strict from the outset, as the Hague Law also contained rules for dealing with prisoners of war and civilians , which were only later incorporated into the Geneva Conventions. On the other hand, the additional protocols of 1977 to the Geneva Conventions also integrated provisions on permissible means and methods of warfare into the context of Geneva law.

The aspect of the protection of cultural property, which emerged in the context of Hague Law, was specified more precisely after 1949 under the leadership of the United Nations through additional agreements and expanded into an independent area. The historical framework of the UN-based parts of international humanitarian law also includes a number of agreements restricting the choice of means and methods of waging war, the original focus of Hague law, as well as essential international agreements on the prosecution of violations of international humanitarian law as completely new area. The Hague Law thus represents above all the historical starting point for essential contractual parts of the current international humanitarian law. It has been replaced in almost all areas by newer agreements, and the Hague Conventions go beyond their respective successor agreements in only a few special aspects. In these cases, it is stipulated that the corresponding regulations are to be applied in addition, but without precise information on the application of generally applicable principles of interpretation such as lex posterior derogat legi priori ("the later law takes precedence over the earlier") and lex specialis derogat legi generali ( "The special standard takes precedence over the general law").

Due to the different origins of the agreements, which summarize international humanitarian law, the diverse historical and content-related relationships between these agreements and the resulting complex structure of international humanitarian law, there is no generally applicable structure. From a practical point of view, however, a division into the following areas is often used.

Treatment of protected people

The Red Cross as a symbol of protection for the persons and institutions protected by the four Geneva Conventions

In international armed conflicts, international humanitarian law distinguishes between combatants and other members of the armed forces, with the exception of medical and pastoral staff, on the one hand, and peaceful civilians and other protected persons, on the other, with regard to the question of protection under international law. The stipulations on the treatment of protected persons go back to the Geneva Convention of 1864, which placed wounded soldiers and the auxiliary workers involved in their care under special protection. The Hague Land Warfare Regulations of 1899 and 1907 established rules for the treatment of prisoners of war and the civilian population in occupied areas. These were expanded in the Geneva Prisoner of War Convention of 1929, the Geneva Convention of 1949 and the additional protocols of 1977 to the Geneva Convention.

The currently relevant agreements with regard to protected persons are the Geneva Conventions of 1949 and their first additional protocol of 1977. According to these agreements, four groups of people in particular are considered to be protected in international armed conflicts: the wounded and sick of the armed forces in the field (Geneva Convention I) , the wounded, sick and castaways of the armed forces at sea (Geneva Convention II), prisoners of war (Geneva Convention III) and civilians in times of war (Geneva Convention IV). The protection of the Geneva Conventions also applies to members of aid organizations and other people who are active in helping and caring for the aforementioned groups of people. The general principle in the treatment of the persons protected by these agreements is that they are to be treated with humanity under all circumstances, without differentiation according to “race, color, religion or belief, sex, birth or property “Or similar reasons.

Relevant rules for their protection are a prohibition of their killing and all measures to endanger their health and physical integrity, such as the use of force against these people or their torture , mutilation or use for medical experiments. Their honor and personal convictions are also protected, and threats, insults, humiliation and the public display of protected persons are accordingly prohibited. The conflict party, in whose hands the protected persons are, has the duty to provide them with medical care, food, adequate accommodation and to ensure their safety, regardless of their nationality. Military attacks on protected persons, on buildings and facilities for their accommodation as well as land, air and sea vehicles used for their transport are prohibited. For the identification of protected persons, vehicles and facilities, the agreements and the additional protocols provide for the red cross and the equivalent symbols of the red crescent, the red lion with the red sun and the red crystal. Special regulations that take into account the specific requirements of the four groups of people mentioned are contained in the respective agreements.

Permitted means and methods of warfare

The Peace Palace in The Hague, symbol of the parts of international humanitarian law that emerged as part of the Hague Peace Conferences

Comprehensive rules on permissible means and methods of warfare were first agreed under contract law with the Hague Land Warfare Regulations of 1899 and 1907. Since then, this area of ​​international humanitarian law has been expanded to include a number of agreements that prohibit the use of certain weapon systems in particular. The currently relevant agreements on permitted means and methods of warfare are the Geneva Protocol of 1925, the Additional Protocols of 1977 to the Geneva Conventions, the Biological Weapons Convention of 1971, the ENMOD Convention "on the Prohibition of Military or Other Hostile Use of Environmentally Modifying Techniques" , the 1980 Convention on the Prohibition or Restriction of the Use of Certain Conventional Weapons which May Cause Excessive Suffering or May Work Indiscriminately and the four associated protocols of 1980 and 1995, the 1993 Chemical Weapons Convention , the 1997 Ottawa Convention and the Convention on Cluster munitions from 2008. The Hague Land Warfare Regulations are also considered customary international law in this area .

The general principles of all of the above agreements are the prohibition of weapons that cause unnecessary injuries or suffering, and the greatest possible sparing of non-military targets. The most important specific provisions of this area of ​​international humanitarian law include the prohibition of malice to wage war and the order not to let anyone live. Attacks that do not distinguish between military targets and civilian objects or civilians are also prohibited. The same applies to attacks against plants or facilities that can release dangerous forces, such as dams , dykes and nuclear power plants , if such an attack can cause heavy casualties among the civilian population. The members of the regular armed forces of a conflict party must wear a uniform or at least recognizable badges on their clothing, which allow identification as a soldier and recognition of their affiliation. The wearing of civilian clothing, simulating a wound, the use of protective symbols or the use of the national symbols of an opposing party to the conflict or a neutral country by combatants involved in the fighting are regularly prohibited as perfidy . War lists such as camouflage, mock operations or the dissemination of misleading strategic or tactical information, however, are permitted.

In addition to a large number of contractual bans on certain conventional weapons such as anti-personnel mines and cluster munitions , the use of biological and chemical warfare agents is prohibited by contract law. It is also forbidden to use methods or means of warfare which are designed or expected to cause widespread, long-lasting and serious damage to the natural environment.

Protection of cultural property and other facilities

The triple mark for cultural property to mark cultural property under special protection

The area of ​​protection of cultural property goes back historically to Article 56 of the Hague Land Warfare Regulations. The Russian painter and writer Nicholas Roerich tried in 1935 to expand this aspect through the Treaty “on the protection of artistic and scientific institutions and historical monuments”, which was later also known as the Roerich Pact . Even if this treaty is still in force, it did not acquire any greater importance due to the lack of a large number of ratifications.

It was not until the Hague Convention “for the Protection of Cultural Property in Armed Conflicts”, which came into being after the Second World War in 1954, that the protection of cultural property in times of war was comprehensively regulated. It achieved widespread acceptance and, together with its protocols from 1954 and 1999, represents the currently relevant legal basis in this area. According to the convention, cultural property is defined as movable or immovable goods that are of great importance for the cultural heritage of peoples, as well as buildings that serve to preserve or display such movable goods (e.g. museums , libraries , archives and salvage sites), and monument centers as places that have a considerable amount of cultural property according to the previous definition. The protection of cultural property includes security measures in peacetime and respect for cultural property during an armed conflict. In the context of respect, destruction, damage, theft, looting or other forms of illegal possession, and reprisals against cultural property are prohibited. The prevention and termination of such actions is expressly required. The convention defines a protective symbol that serves to mark protected cultural assets and can be used in triplicate to mark a limited number of institutions under special protection. Such facilities include salvage sites, monument centers and other very important immovable cultural assets. The granting of special protection requires entry in the “International Register for Cultural Property under Special Protection” maintained by the United Nations Organization for Education, Science, Culture and Communication (UNESCO).

The first protocol from 1954 contains provisions for the protection of cultural property against the export and for the repatriation of illegally exported cultural property. Due to difficulties that some governments had with an agreement immediately after the end of the Second World War, this part was decided in the form of a separate protocol at the same time as the Hague Convention. The second protocol from 1999 contains adaptations of the provisions of the 1954 Convention to changes in international humanitarian law, which resulted in particular from the 1977 Additional Protocols to the Geneva Conventions. This included a more precise definition of military objectives and the concept of military necessity , as well as a revision and expansion of the regulations on special protection. Five serious violations of the Convention were also defined by the protocol: attacks against cultural property under special protection, the use of cultural property under special protection for military purposes, the destruction or appropriation of protected cultural property, attacks against protected cultural property and the theft and looting of cultural property. These violations are subject to individual criminal responsibility, which obliges the contracting states to criminalize them through appropriate national legislation. The scope of the protection of cultural property was extended by the protocol to include non-international armed conflicts.

The International Committee of the Blue Shield , based in Paris, and the Association of the National Committees of the Blue Shield (ANCBS), which is based in The Hague , act as the international umbrella organization of national and international organizations in the field of national and international coordination with regard to military and civil structures for the protection of cultural assets Blue Shield associations.

Prosecuting war crimes

The building of the International Criminal Court in The Hague

Historically, the most recent area of ​​international humanitarian law is the treaty that regulates the prosecution of war crimes. The first Geneva Convention in the versions of 1906 and 1929 already contained a requirement that the contracting parties prosecute violations of the agreement within the framework of their respective national legislation. The 1919 Peace Treaty of Versailles went further , which provided in Article 227 to bring the German Kaiser Wilhelm II "publicly charged with serious violation of the international moral law and the sanctity of the treaties" and to set up an international court of justice for this purpose. Although this was not implemented, this provision was the model and legal precedent for the prosecution of war crimes after the end of World War II. From this point in time the development of international criminal law began through independent international agreements and international institutions based on them.

The beginning was marked in 1948 with the conclusion of the Convention “on the Prevention and Punishment of Genocide”. Twenty years later, the convention "on the inapplicability of the statute of limitations to war crimes and crimes against humanity" followed, which arose out of fears that war criminals of the Second World War that had not yet been investigated at this point in time could escape punishment through a statute of limitations. In 1991, on the basis of Article 90 of the Additional Protocol of June 8, 1977 to the Geneva Conventions of August 12, 1949, the International Humanitarian Investigation Commission began its work. Even if the work of the commission is purely investigative, as a permanent investigative body it represents an important basis for the effective prosecution of war crimes.

The first international tribunal to convict war criminals from 1945 onwards was the International Military Tribunal based on the London Statute for the Nuremberg Trial of the Major War Criminals and the follow-up trials , which was followed in 1946 by the International Military Tribunal for the Far East for the Tokyo Trials . It was not until 1993 that an international tribunal was set up again with the International Criminal Tribunal for the former Yugoslavia , which was based on UN Resolution 827. Just a year later, the United Nations Security Council decided, with Resolution 955, to establish the International Criminal Tribunal for Rwanda to convict the main perpetrators of the genocide in Rwanda . All of these tribunals were temporary ad-hoc institutions for the criminal investigation of war crimes that were limited in time and space to a specific war or armed conflict.

In 1998, the Rome Statute of the International Criminal Court passed the most important treaty in the area of ​​the prosecution of war crimes. On the basis of this agreement, after its entry into force in 2002, the International Criminal Court with its seat in The Hague was established as a permanent international body with jurisdiction over genocide , crimes against humanity and war crimes . However, the Tribunal will only exercise its jurisdiction if the accused is a citizen of a State party to the Rome Statute or if the crimes were committed on the territory of a State Party and if the relevant national judicial authorities are unwilling or unable to ensure effective prosecution . The Rome Statute contains rules for the organization of the court and the rules of procedure as well as definitions of the crimes mentioned. Some of these refer to other agreements. For example, serious violations of the Geneva Conventions are considered war crimes, as are violations of a number of customary provisions of international humanitarian law. As a detention center for the International Criminal Tribunal for the former Yugoslavia was created in 1994 in a Dutch prison in the Hague district of Scheveningen , the United Nations Detention Facility . Its use was later expanded to include defendants of the International Criminal Court and offenders convicted by the International Criminal Court for Rwanda, whose appeals are taking place in The Hague.

Implementation in practice

Dissemination and national implementation

For some parts of international humanitarian law, such as the regulations banning certain weapon systems, state institutions in particular are directly responsible for compliance. In these areas, the implementation of the corresponding agreements takes place by renouncing the manufacture or procurement of these weapons for the equipment of the own armed forces. In many parts, however, international humanitarian law lays down rules of conduct for members of the armed forces. The corresponding rules and customs are therefore an important part of the training of both superiors and subordinates in the armed forces of all contracting states. In addition, states are also obliged to ensure that knowledge of international humanitarian law is disseminated among the civilian population. In many countries, the national Red Cross and Red Crescent Societies are supporting this. The International Institute for Humanitarian Law, based in the Italian city of Sanremo , also plays an important role in the further development and dissemination of international humanitarian law .

Statutory regulations for the punishment of war crimes are part of the national law of most countries, often within the framework of military justice . Comprehensive and detailed laws, however, have in some cases only emerged more recently, such as the International Criminal Code that came into force in Germany in 2002 . In Switzerland , this area of ​​law is regulated by the sixth section of the Military Penal Act of 1927. The Austrian law does not have detailed provisions on criminalization of war crimes. However, after their publication in the Austrian Federal Law Gazette, all agreements ratified by Austria are part of Austrian law, on the basis of Article 9 of the Federal Constitutional Law and Article 64 of the Criminal Code, there is therefore the fundamental possibility of corresponding criminal prosecution.

Problems and shortcomings

In 2006, the four Geneva Conventions of 1949 were the first to achieve universal acceptance in the history of international law. Although this is regarded as a milestone in the development of international humanitarian law, it has in some cases been massively ignored in all wars since its inception. The history of international humanitarian law has also shown that almost all important agreements were concluded in response to serious grievances in previous wars, and that the international community has rarely succeeded in agreeing decisive improvements and additions with foresight. Similarly inadequate and hesitant was usually the adaptation of international humanitarian law to new weapon technologies or fundamental changes in warfare. Most of the currently relevant regulations were created before or immediately after the Second World War, assuming a war as a spatially and temporally limited conflict between the regular armed forces of various sovereign states . A problem resulting from this, which has so far only been insufficiently resolved by new treaties, is the severely restricted applicability of international humanitarian law to non-international conflicts. The number, severity and duration of such domestic armed conflicts rose sharply after the Second World War, mainly due to the wars of liberation and independence in Africa and Asia from the beginning of the 1960s. Approaches to solving this development, such as the Turku Declaration , have so far largely only come from private initiatives. Another problem is partially the inapplicability to peace enforcement operations according to Chapter VII of the Charter of the United Nations .

Non-governmental movements and groups can voluntarily and unilaterally undertake to comply with the provisions of international humanitarian law, but they cannot officially become parties to the relevant agreements. The inequality of resources in such disputes is known as asymmetrical warfare and affects conflicts between regular armed forces of a state and non-state units such as paramilitary militias or guerrilla groups or fighters who are not organized in military structures such as partisans or terrorists . Another problem is the unclear legal status of private security and military companies within the framework of international humanitarian law and the increasing use of such companies in the conflicts since 1990. The Montreux document adopted by 17 countries in September 2008 , which is not binding under international law, contains Recommendations in this area drawn up for the first time at intergovernmental level. A study by the ICRC published in 2009 under the title Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law also deals with the question of what protection against direct attacks by the enemy civilians who take part in armed operations themselves have. According to the analysis of this study, combatants need to be distinguished from civilians who do not take part in combat operations, but who in turn must be distinguished from civilians who take part in combat on an individual, sporadic, or unorganized basis. In this regard, the study contains recommendations on how international humanitarian law should be interpreted and what rules the warfare strategy of armed forces should follow.


Through the adoption, dissemination and application of international humanitarian law, attempts have been made and are being attempted to establish rules in various areas in a state of war, which is often perceived intuitively as legally free, through which a minimum of protection is to be implemented. In a war, however, the predictability and reliability of actions and decisions as basic requirements for an effective legal system are almost completely absent. In addition, according to the prohibition of the threat or use of force contained in Article 2 of the Charter of the United Nations , the exceptions provided for in Article 51 ( self-defense of a state ) and in Chapter VII ( peace enforcement measures ) of the UN Charter are waived , the international armed conflict is fundamentally contrary to international law. Under the term " crimes against peace " summarized facts apply since the Nuremberg trials as the "highest international crime" (1945/1946 supreme international crime ). Such a legal conception of the ius ad bellum (“right to war”) leads with regard to the legal logic to the situation, which is sometimes perceived as paradoxical, that with international humanitarian law as ius in bello (“law in war”) an attempt is made to provide a legal framework for one to define unlawful condition.

Despite all substantive and practical inadequacies, the argument in favor of international humanitarian law is that its existence and respect would have saved the lives of millions of people, prevented unnecessary suffering and mitigated the consequences of armed conflicts. An aspect that has received little attention in this context is, for example, the possible renunciation of militarily senseless resistance through surrender or surrender without a fight if there is a prospect of human treatment in captivity or as part of an occupation mandate. The exemplary implementation of the Geneva Prisoner of War Convention by the Western Allies in World War II not only saved the lives of millions of German soldiers. Countless soldiers in their own armed forces were probably spared death and injuries as a result of protracted retreat fights by the German troops and the fact that the German population often refrained from resisting. These arguments are countered by the accusation, which is largely regarded as unconvincing, that international humanitarian law makes wars more bearable and thus more probable by creating the idea of ​​the possibility of a “clean” or “human” war.


German-language books

  • German Red Cross (Ed.): The Geneva Red Cross Agreement of August 12, 1949 and the two additional protocols of June 10, 1977 as well as the Agreement on the Laws and Customs of Land War of October 18, 1907 and Annex (Hague Land Warfare Regulations). Eighth edition. Writings of the German Red Cross, Bonn 1988.
  • Horst Schöttler, Bernd Hoffmann (Hrsg.): The Geneva additional protocols: comments and analyzes. Osang Verlag, Bonn 1993, ISBN 3-7894-0104-8 .
  • Jana Hasse, Erwin Müller, Patricia Schneider: Humanitarian international law: political, legal and criminal court dimensions. Nomos-Verlagsgesellschaft, Baden-Baden 2001, ISBN 3-7890-7174-9 .
  • Hans-Peter Gasser: Humanitarian international law. An introduction. Nomos Verlagsgesellschaft, Baden-Baden 2007, ISBN 978-3-8329-2802-5 .
  • Foreign Office , German Red Cross, Federal Ministry of Defense (Ed.): Documents on International Humanitarian Law . Academia Verlag, Sankt Augustin 2006, ISBN 3-89665-418-7 .
  • Jakob Kellenberger : Humanitarian international law. Huber-Verlag, Frauenfeld / Stuttgart / Vienna 2010, ISBN 978-3-7193-1444-6 .
  • Hans Wolfram Kessler: Non-lethal weapons in international martial law . Writings on international law, Duncker & Humblot, Berlin 2013. ISBN 978-3-428-14117-3 .

English language books

  • Geoffrey Best: Humanity in Warfare: The Modern History of the International Law of Armed Conflicts. Columbia University Press, New York 1980, ISBN 0-231-05158-1 .
  • Dieter Fleck (Ed.): The Handbook of International Humanitarian Law. Second edition. Oxford University Press, Oxford / New York 2008, ISBN 978-0-19-923250-5 .
  • Frédéric de Mulinen: Handbook on the Law of War for Armed Forces. ICRC, Geneva 1987, ISBN 2-88145-009-1 .
  • International Committee of the Red Cross: Handbook of the International Red Cross and Red Crescent Movement. 13th edition. ICRC, Geneva 1994, ISBN 2-88145-074-1 .
  • Leslie C. Green: The Contemporary Law Of Armed Conflict. Juris Publishing, Huntington 2000, ISBN 1-929446-03-9 .
  • Frits Kalshoven , Liesbeth Zegveld : Constraints on the waging of war: an introduction to international humanitarian law. Third edition. ICRC, Geneva 2001, ISBN 2-88145-115-2 ; Full text available from the eLibrary Austria project
  • International Committee of the Red Cross (Ed.): Rules of international humanitarian law and other rules relating to the conduct of hostilities. Collection of treaties and other instruments. ICRC, Geneva 2005, ISBN 2-88145-014-8 .
  • Wolff Heintschel von Heinegg, Volker Epping (Ed.): International Humanitarian Law Facing New Challenges: Symposium in Honor of Knut Ipsen. Springer, Heidelberg 2007, ISBN 978-3-540-49089-0 .

Magazines, periodicals and book series

  • Yearbook of International Humanitarian Law. Cambridge University Press, ISSN  1389-1359 .
  • International Review of the Red Cross. International Committee of the Red Cross / Cambridge University Press, ISSN  1560-7755 .
  • Humanitarian international law - information documents. The Journal of International Law of Peace and Armed Conflict. DRK General Secretariat and Institute for Peacekeeping Law and International Humanitarian Law of the Ruhr University Bochum, ISSN  0937-5414 .
  • Bochum writings on peacekeeping and humanitarian international law. Institute for Peacekeeping Law and International Humanitarian Law at the Ruhr University Bochum.
  • Bofaxe . Series of publications on international humanitarian law. Published by the Institute for Peacekeeping Law and International Humanitarian Law (IFHV) at the Ruhr University Bochum.


  • René Kosirnik: The 1977 Protocols: A Landmark in the Development of International Humanitarian Law. In: International Review of the Red Cross. 320/1997. ICRC, pp. 483-505, ISSN  1560-7755 .
  • Karma Nabulsi: The Modern Laws of War from 1874 to 1949. In: Traditions of War. Occupation, Resistance and The Law. Oxford University Press, Oxford / New York 1999, ISBN 0-19-829407-7 , pp. 4-19.
  • Jean-Philippe Lavoyer, Louis Maresca: The Role of the ICRC in the Development of International Humanitarian Law. In: International Negotiation. 4 (3) / 1999. Brill Academic Publishers, pp. 503-527, ISSN  1382-340X .
  • François Bugnion: The Geneva Conventions of 12 August 1949: from the 1949 Diplomatic Conference to the Dawn of the New Millennium. In: International Affairs. 76 (1) / 2000. Blackwell Publishing, pp. 41-50, ISSN  0020-5850 .
  • Howard S. Levie: History of the Law of War on Land. In: International Review of the Red Cross. 838/2000. ICRC, pp. 339-350, ISSN  1560-7755 .
  • Dietrich Schindler : International Humanitarian Law: Its Remarkable Development and its Persistent Violation. In: Journal of the History of International Law. 5 (2) / 2003. Brill Academic Publishers, pp. 165-188, ISSN  1388-199X

Web links

Individual evidence

  1. cf. Isabelle-Constance v. Opalinski: Shots at civilization. In: FAZ. August 20, 2014; Hans Haider: Misuse of cultural goods is a criminal offense. In: Wiener Zeitung. June 29, 2012.
This version was added to the list of articles worth reading on January 23, 2007 .