the human right to water and sanitation in emergency situations

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28 CHApTER 3 - INTERNATIONAl HUMANITARIAN lAW 3.1. What is International Humanitarian Law? International Humanitarian Law (IHL) can be defined as the principles and rules that limit the use of violence in times of armed conflict and aim at protecting certain categories of persons and objects: - Protect persons who are not, or who are no longer, directly engaged in hostilities, such as the wounded, shipwrecked, prisoners of war and, more generally, civilians. The distinction between the civilian population and combatants is fundamental to IHL. The civilian population shall not be the object of attack; attacks shall be directed solely against military objectives. - Limit the effects of violence in fighting to attain the objectives of the conflict and to regulate the methods and means of warfare. IHL applies in all situations of International armed conflicts and non-international armed conflicts. Internal disturbances are not, however, taken into consideration by IHL (See Box 6). IHL is binding on all parties to an armed conflict: States, their armed forces and non-States armed groups, whether these are insurgent groups opposing the State or paramilitary groups supported by States. BOX 6 - Categorization of different types of armed conflicts - An International armed conflict means fighting between the armed forces of at least two States. The Geneva Convention defines this type of conflict as “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. - A non-International armed conflict means fighting on the territory of a State between the regular armed forces and identifiable armed groups, or between armed groups fighting one another. (To be considered a non-international armed conflict, fighting must reach a certain level of intensity and extend over a certain period of time). - Internal disturbances are characterized by a disruption of internal order resulting from acts of violence, which nevertheless have not reached a scale representative of an armed conflict (riots, struggles between factions or against the authorities, for example). Because some human rights can be temporarily limited or suspended during armed conflict, the protection provided by IHL is particularly important (see chapter 4). 3.2. Key International Humanitarian Law instruments The core instruments of International Humanitarian Law are the Four Geneva Conventions (1949) and their two Additional Protocols (1977) 22 . The Geneva Conventions contain “the most important rules limiting the barbarity of war. They protect people who do not take part in fighting… and those who can no longer fight 23 .” 22 / Originally adopted in 1864, the Geneva Convention was updated in several areas in 1949 and two Additional Protocols were added in 1977. 23 / The Geneva Conventions: The Core of International Humanitarian Law, ICRC, March 2004. © ACF - THE HUMAN RIGHT TO WATER AND SANITATION IN EMERGENCY SITUATIONS
One of the purposes of the Conventions is to prevent “grave breaches” during and in the aftermath of war and provide enforcement mechanisms for violations that might have taken place. Whilst setting the limits for armed combatants and also their rights to engage within these limitations, IHL also establishes the rights to protection of civilians, as well as what protected objects and locations are to be protected. Many of the key principles contained in these instruments also constitute customary international law, which means that they are automatically binding in all situations of armed conflict and on all parties to a conflict 24 . TYPE oF ConFLICT DESCRIPTIon IHL APPLICABLE International armed conflict Armed conflict between two or more States Non-international armed conflict - Part 1 - International laws applicable in emergencies Armed conflict between the State and one or several non-State actor, or between two or more such actors - Customary law - Four Geneva Conventions - Additional Protocol One - Customary law - Article 3 common to all Geneva Conventions - Additional Protocol Two The earlier Hague Regulation represents the second major source of law during conflict by focusing on rules relating to the methods and means of warfare, whereas the Geneva Conventions are concerned with the victims of warfare. In addition, several important treaties prohibit or regulate the use of certain weapons, such as the Mine Ban Treaty and the Convention on Conventional Weapons and its Protocols. 3.3. Monitoring respect of International Humanitarian Law Each party to a conflict has an obligation to respect and ensure respect for IHL by its armed forces and any other persons or groups acting on its instructions, or under its direction or control. In particular, States must: - Provide instruction and training on IHL to the armed forces and the general public; - Criminalize violations of the law and put in place adequate legal, administrative and disciplinary structures to prevent, monitor and investigate violations; - Prosecute and punish or extradite those responsible for serious violations of law. In addition, IHL obliges other (neutral) States to work to ensure that the parties in a given conflict respect IHL. This can be accomplished through advocacy, capacity-building, support to humanitarian operations, and prosecution or extradition of those responsible for violations of the law. All States, regardless of whether or not they are parties to a given conflict, have a duty to prosecute and punish in their own courts, or to extradite those responsible for serious violations of IHL, such as war crimes and/or grave breaches of the law, regardless of where the crime took place or the nationality of the perpetrator. Members of armed forces and groups can be held individually responsible for violations of IHL, regardless of their rank and whether or not they were acting under orders. Military commanders 24 / Henckaerts (J-M.) and Doswald-Beck (L.) Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press and ICRC, 2005. © ACF - THE HUMAN RIGHT TO WATER AND SANITATION IN EMERGENCY SITUATIONS 29
Page 1 and 2: THE HUMAN RIGHT TO WATER AND SANITA
Page 3 and 4: ACkNOWlEDGMENTS Acknowledgments The
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