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E-NOTES

Class & Section : B.A.LL.B VIII Semester

Paper Code : LLB 414

Subject : International Humanitarian Law

UNIT-IV
International Criminal Court

The International Criminal Court (―the ICC‖ or ―the Court‖) is a permanent international court
established to investigate, prosecute and try individuals accused of committing the most serious
crimes of concern to the international community as a whole, namely the crime of genocide,
crimes against humanity, war crimes and the crime of aggression.

Some of the most heinous crimes were committed during the conflicts which marked the
twentieth century. Unfortunately, many of these violations of international law have remained
unpunished. The Nuremberg and Tokyo tribunals were established in the wake of the Second
World War. In 1948, when the Convention on the Prevention and Punishment of the Crime of
Genocide was adopted, the United Nations General Assembly recognised the need for a
permanent international court to deal with the kinds of atrocities which had just been perpetrated.

The idea of a system of international criminal justice re-emerged after the end of the Cold War.
However, while negotiations on the ICC Statute were underway at the United Nations, the world
was witnessing the commission of heinous crimes in the territory of the former Yugoslavia and
in Rwanda. In response to these atrocities, the United Nations Security Council established an ad
hoc tribunal for each of these situations.

These events undoubtedly had a most significant impact on the decision to convene the
conference which established the ICC in Rome in the summer of 1998.

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The Rome Statute- On 17 July 1998, a conference of 160 States established the first treaty-
based permanent international criminal court. The treaty adopted during that conference is
known as the Rome Statute of the International Criminal Court. Among other things, it sets out
the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms
for States to cooperate with the ICC. The countries which have accepted these rules are known as
States Parties and are represented in the Assembly of States Parties.

The Assembly of States Parties, which meets at least once a year, sets the general policies for the
administration of the Court and reviews its activities. During those meetings, the States Parties
review the activities of the working groups established by the States and any other issues
relevant to the ICC, discuss new projects and adopt the ICC‘s annual budget.

Countries ratified the Rome Statute- Over 120 countries are States Parties to the Rome
Statute, representing all regions: Africa, the Asia Pacific, Eastern Europe, Latin America and the
Caribbean, as well as Western European and North America.

Seat of the Court- The seat of the Court is in The Hague in the Netherlands. The Rome Statute
provides that the Court may sit elsewhere whenever the judges consider it desirable. The Court
has also set up offices in the areas where it is conducting investigations.

How is the Court funded?

The Court is funded by contributions from the States Parties and by voluntary contributions from
governments, international organisations, individuals, corporations and other entities.

How does the ICC differ from other courts?

The ICC is a permanent autonomous court, whereas the ad hoc tribunals for the former
Yugoslavia and Rwanda, as well as other similar courts established within the framework of the
United Nations to deal with specific situations only have a limited mandate and jurisdiction. The
ICC, which tries individuals, is also different from the International Court of Justice, which is the

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principal judicial organ of the United Nations for the settlement of disputes between States. The
ad hoc tribunal for the former Yugoslavia and the International Court of Justice also have their
seats in The Hague.

Is the ICC an office or agency of the United Nations?

The ICC is an independent body whose mission is to try individuals for crimes within its
jurisdiction without the need for a special mandate from the United Nations. On 4 October 2004,
the ICC and the United Nations signed an agreement governing their institutional relationship.

Is the ICC meant to replace national courts?

The ICC does not replace national criminal justice systems; rather, it complements them. It can
investigate and, where warranted, prosecute and try individuals only if the State concerned does
not, cannot or is unwilling genuinely to do so. This might occur where proceedings are unduly
delayed or are intended to shield individuals from their criminal responsibility. This is known as
the principle of complementarily, under which priority is given to national systems. States retain
primary responsibility for trying the perpetrators of the most serious of crimes.

Under what conditions does the ICC exercise its jurisdiction?

When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of
the ICC with respect to the crimes enumerated in the Statute. The Court may exercise its
jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the
crime was committed in the territory of a State Party. Also, a State not party to the Statute may
decide to accept the jurisdiction of the ICC. These conditions do not apply when the Security
Council, acting under Chapter VII of the United Nations Charter, refers a situation to the Office
of the Prosecutor.

Is the ICC’s jurisdiction time bound?

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The ICC has jurisdiction only with respect to events which occurred after the entry into force of
its Statute on 1 July 2002. If a State becomes a party to the Statute after its entry into force, the
Court may exercise its jurisdiction only with respect to crimes committed after the entry into
force of the Statute for that State, unless that State has made a declaration accepting the
jurisdiction of the ICC retroactively. However, the Court cannot exercise jurisdiction with
respect to events which occurred before 1 July 2002. For a new State Party, the Statute enters
into force on the first day of the month after the 60th day following the date of the deposit of its
instrument of ratification, acceptance, approval or accession.

Who can be prosecuted before the ICC?

The ICC prosecutes individuals, not groups or States. Any individual who is alleged to have
committed crimes within the jurisdiction of the ICC may be brought before the ICC. In fact, the
Office of the Prosecutor‘s prosecutorial policy is to focus on those who, having regard to the
evidence gathered, bear the greatest responsibility for the crimes, and does not take into account
any official position that may be held by the alleged perpetrators.

Can the ICC try children?

No. The Court has no jurisdiction with respect to any person who was under the age of 18 when
the crimes concerned were committed.
If those who bear the greatest responsibility hold high political or military office, are they not
exempt from prosecution? Can they not be granted immunity or amnesty? No one is exempt
from prosecution because of his or her current functions or because of the position he or she held
at the time the crimes concerned were committed. Acting as a Head of State or Government,
minister or parliamentarian does not exempt anyone from criminal responsibility before the ICC.
In some circumstances, a person in a position of authority may even be held responsible for
crimes committed by those acting under his or her command or orders. Likewise, amnesty cannot
be used as a defence before the ICC. As such, it cannot bar the Court from exercising its
jurisdiction.

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Structure of the ICC

The ICC is composed of four organs: the Presidency, the Chambers, the Office of the Prosecutor
and the Registry. Each of these organs has a specific role and mandate.

Presidency:
The Presidency consists of three judges (the President and two Vice-Presidents) elected by an
absolute majority of the 18 judges of the Court for a maximum of two, three-year terms.
The Presidency is responsible for the administration of the Court, with the exception of the
Office of the Prosecutor. It represents the Court to the outside world and helps with the
organisation of the work of the judges. The Presidency is also responsible for carrying out other
tasks, such as ensuring the enforcement of sentences imposed by the Court.

Chambers
The 18 judges, including the three judges of the Presidency, are assigned to the Court‘s three
judicial divisions: the Pre-Trial Division (composed of seven judges), the Trial Division
(composed of six judges), and the Appeals Division (composed of five judges). They are
assigned to the following Chambers: the Pre-Trial Chambers (each composed of one or three
judges), the Trial Chambers (each composed of three judges) and the Appeals Chamber
(composed of the five judges of the Appeals Division). The roles and responsibilities of the
judges are outlined below, by category of Pre-Trial, Trial, and Appeals Chambers.

Judges:
The judges are persons of high moral character, impartiality and integrity who possess the
qualifications required in their respective States for appointment to the highest judicial offices.
All have extensive experience relevant to the Court‘s judicial activity. The judges are elected by
the Assembly of States Parties on the basis of their established competence in criminal law and
procedure and in relevant areas of international law such as international humanitarian law and

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the law of human rights. They have extensive expertise on specific issues, such as violence
against women or children.
The election of the judges takes into account the need for the representation of the principal legal
systems of the world, a fair representation of men and women, and equitable geographical
distribution.
The judges ensure the fairness of proceedings and the proper administration of justice.

Pre-Trial Chambers:
The Pre-Trial Chambers, each of which is composed of either one or three judges, resolve all
issues which arise before the trial phase begins. Their role is essentially to supervise how the
Office of the Prosecutor carries out its investigatory and prosecutorial activities, to guarantee the
rights of suspects, victims and witnesses during the investigatory phase, and to ensure the
integrity of the proceedings. The Pre-Trial Chambers then decide whether or not to issue
warrants of arrest or summons to appear at the Office of the Prosecutor‘s request and whether or
not to confirm the charges against a person suspected of a crime. They may also decide on the
admissibility of situations and cases and on the participation of victims at the pre-trial stage.

Trial Chambers:
Once an arrest warrant is issued, the alleged perpetrator arrested and the charges confirmed by a
PreTrial Chamber, the Presidency constitutes a Trial Chamber composed of three judges to try
the case.
A Trial Chamber‘s primary function is to ensure that trials are fair and expeditious and are
conducted with full respect for the rights of the accused and due regard for the protection of the
victims and the witnesses. It also rules on the participation of victims at the trial stage.
The Trial Chamber determines whether an accused is innocent or guilty of the charges and, if he
or she is found guilty, may impose a sentence of imprisonment for a specified number of years
not exceeding a maximum of thirty years or life imprisonment. Financial penalties may also be

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imposed. A Trial Chamber may thus order a convicted person to make reparations for the harm
suffered by the victims, including compensation, restitution or rehabilitation.

The Appeals Chamber:

The Appeals Chamber is composed of the President of the Court and four other judges. All
parties to the trial may appeal or seek leave to appeal decisions of the Pre-Trial and Trial
Chambers. The Appeals Chamber may uphold, reverse or amend the decision appealed from,
including judgments and sentencing decisions, and may even order a new trial before a different
Trial Chamber. It may also revise a final judgment of conviction or sentence.

Office of the Prosecutor:

The Office of the Prosecutor is an independent organ of the Court. Its mandate is to receive and
analyse information on situations or alleged crimes within the jurisdiction of the ICC, to analyse
situations referred to it in order to determine whether there is a reasonable basis to initiate an
investigation into a crime of genocide, crimes against humanity, war crimes or the crime of
aggression, and to bring the perpetrators of these crimes before the Court.
In order to fulfil its mandate, the Office of the Prosecutor is composed of three divisions: (i) the
Investigation Division, which is responsible for conducting investigations (including gathering
and examining evidence, questioning persons under investigation as well as victims and
witnesses). Inthis respect, for the purpose of establishing the truth, the Statute requires the Office
of the Prosecutor to investigate incriminating and exonerating circumstances equally. (ii) The
Prosecution Division has a role in the investigative process, but its principal responsibility is
litigating cases before the various Chambers of the Court. (iii) The Jurisdiction,
Complementarily and Cooperation Division, which, with the support of the Investigation
Division, assesses information received and situations referred to the Court, analyses situations
and cases to determine their admissibility and helps secure the cooperation required by the Office
of the Prosecutor in order to fulfil its mandate.

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Registry:
The Registry helps the Court to conduct fair, impartial and public trials. The core function of the
Registry is to provide administrative and operational support to the Chambers and the Office of
the Prosecutor. It also supports the Registrar‘s activities in relation to defence, victims,
communication and security matters. It ensures that the Court is properly serviced and develops
effective mechanisms for assisting victims, witnesses and the defence in order to safeguard their
rights under the Rome Statute and the Rules of Procedure and Evidence.
As the Court‘s official channel of communication, the Registry also has primary responsibility
for the ICC‘s public information and outreach activities.

Crimes within the jurisdiction of the ICC:

Genocide:
According to the Rome Statute, ―genocide‖ means any of the following acts committed with the
intent to destroy, in whole or in part, a national, ethnical, racial or religious group:
• Killing members of the group;
• causing serious bodily or mental harm to members of the group;
• deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
• imposing measures intended to prevent births within the group;
• forcibly transferring children of the group to another group.

Crimes against humanity:

Crimes against humanity‖ include any of the following acts committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the attack:
• murder;
• extermination;
• enslavement;
• deportation or forcible transfer of population;

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• imprisonment;
• torture;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
• persecution against an identifiable group on political, racial, national, ethnic, cultural,
religious or gender grounds;
• enforced disappearance of persons;
• the crime of apartheid;
• other inhumane acts of a similar character intentionally causing great suffering or serious
bodily or mental injury.

War crimes:
―War crimes‖ include grave breaches of the Geneva Conventions and other serious violations of
the laws and customs applicable in international armed conflict and in conflicts ―not of an
international character‖ listed in the Rome Statute, when they are committed as part of a plan or
policy or on a large scale. These prohibited acts include:
• murder;
• mutilation, cruel treatment and torture;
• taking of hostages;
• intentionally directing attacks against the civilian population;
• intentionally directing attacks against buildings dedicated to religion, education, art, science
or charitable purposes, historical monuments or hospitals;
• pillaging;
• rape, sexual slavery, forced pregnancy or any other form of sexual violence;
• conscripting or enlisting children under the age of 15 years into armed forces or groups or
using them to participate actively in hostilities.

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Aggression:
As adopted by the Assembly of States Parties during the Review Conference of the Rome
Statute, held in Kampala (Uganda) between 31 May and 11 June 2010, a ―crime of aggression‖
means the planning, preparation, initiation or execution of an act of using armed force by a State
against the sovereignty, territorial integrity or political independence of another State.
The act of aggression includes, among other things, invasion, military occupation, and
annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its
character, gravity and scale, a manifest violation of the Charter of the United Nations.
The perpetrator of the act of aggression is a person who is in a position effectively to exercise
control over or to direct the political or military action of a State.

ICRC
The ICRC is an independent, neutral organization ensuring humanitarian protection and
assistance for victims of war and armed violence. It takes action in response to emergencies and
promotes respect for international humanitarian law and its implementation in national law.

Since 1863, the mission of the International Committee of the Red Cross (ICRC) has been
to protect and assist victims of armed conflict and promote understanding and respect for
international humanitarian law.

As the guardian and promoter of IHL, the ICRC takes action to protect and assist victims of
armed conflicts and other situations of violence, and to foster respect for the law. It does the
latter, notably by spreading knowledge of IHL, by supporting its implementation at the domestic
level, by monitoring respect for it and by reminding parties to conflicts of their obligations. The
ICRC also plays an important role in the development of IHL.

The four Geneva Conventions and their Additional Protocols give the ICRC a specific mandate
to act in the event of armed conflict. During international armed conflicts, the ICRC has a right
to visit prisoners of war and civilian internees to make sure that their treatment and the
conditions in which they are being held are consonant with IHL. Information on the detainees

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must be sent to the ICRC‘s Central Tracing Agency, which ensures that detainees do not go
missing. The ICRC also provides humanitarian assistance, such as consignments of foodstuffs,
medical supplies and clothing, to people in need.

In addition to the tasks incumbent upon it under IHL treaties, the ICRC has a broad right of in

(1) The violations are major and repeated or likely to be repeated;

(2) Delegates have witnessed the violations with their own eyes, or the existence and extent of
those violations have been established on the basis of reliable and verifiable sources;
(3) Bilateral confidential representations and, when attempted, humanitarian mobilization efforts
(i.e. calling on third parties to influence the conduct of parties to a conflict who commit
violations of ihl) have failed to put an end to the violations; and
(4) Such publicity is in the interest of the persons or populations affected or threatened initiative
(see common article 3, article 9 of the first, second and third geneva conventions, and article
10 of the fourth geneva convention). it may always offer its services to the parties to a
conflict.

The ICRC also has a right of initiative – recognized in the Statutes of the International Red Cross
and Red Crescent Movement – in situations that do not reach the threshold of an armed conflict,
but that warrant humanitarian action. In situations where IHL does not apply, the ICRC may
offer its services to governments without that offer constituting interference in the internal affairs
of the State concerned.

On the strength of the conclusions it draws from its protection and assistance work, the ICRC
makes confidential representations to the relevant authorities in the event of violations of IHL.
Confidentiality is one of the main working methods of the ICRC. It is a long-standing ICRC
policy and a practice that derives directly from the principles of neutrality and impartiality. It
enables the ICRC to establish and maintain a constructive dialogue with parties to an armed
conflict and other stakeholders; to have access to conflict areas, places of detention and victims
of armed conflict and other situations of violence; and to ensure the security of its beneficiaries

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and of its staff. Bilateral confidential representations to the parties to a conflict is the ICRC‘s
preferred mode of action to put an end to violations of IHL or of other fundamental rules
protecting persons in situations of violence, or to prevent the occurrence of such violations.
However, this mode of action is complementary to others. In particular, the ICRC reserves the
right to issue a public denunciation of specific violations of IHL if:

Treaties developing IHL are adopted by States. Under the Statutes of the International Red Cross
and Red Crescent Movement, the ICRC also has a mandate to ―prepare any development‖ of
IHL. In order to fulfil this mandate, the ICRC, notably, prepares draft texts for submission to
diplomatic conferences. For instance, the first drafts of the Geneva Conventions were drawn up
by the ICRC in consultation with States, submitted and further discussed, modified and finally
adopted at diplomatic conferences.

The ICRC also organizes consultations with States and other interested parties with a view to
ascertaining the possibility of reaching agreement on new rules or otherwise strengthening IHL.
For instance, following the 31st International Conference of the Red Cross and Red Crescent,
and the adoption of Resolution

Strengthening Legal Protection for Victims of Armed Conflicts, the ICRC has engaged in
consultations with States in order to strengthen IHL in the fields of detention and strengthen
compliance with IHL.

Since its creation in 1863, the ICRC's sole objective has been to ensure protection and assistance
for victims of armed conflict and strife. It does so through its direct action around the world, as
well as by encouraging the development of international humanitarian law (IHL) and promoting
respect for it by governments and all weapon bearers. Its story is about the development of
humanitarian action, the Geneva Conventions and the Red Cross and Red Crescent Movement.

The ICRC was founded in 1863

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To examine the proposals made by Henry Dunant in his book on the Battle of Solferino. Having
come upon this terrible battlefield by chance, Dunant reacted to what he saw in just the same
way as the ICRC was to react to war throughout its history: his first thought was to bring
practical aid to the wounded. Instinctively, he applied the principle of humanity – the endeavour
―to prevent and alleviate suffering wherever it may be found‖ which is still the essential
principle of the entire Red Cross and Red Crescent Movement, and immediately did everything
possible to organize help for the thousands of wounded men who had been left to die where they
fell. The ICRC was formed to examine these two proposals and to work towards their
implementation. Henry Dunant‘s book had prepared the ground so well that they were both a
tremendous success. At the end of 1863, the very year in which the ICRC was founded, the first
voluntary aid societies – the future National Red Cross or Red Crescent Societies – were set up.
On 22 August of the following year, 1864, the Convention for the Amelioration of the Condition
of the Wounded in Armies in the Field was adopted. This was the source of international
humanitarian law.

It was the inadequacy of the rules protecting prisoners of war, highlighted by events during the
First World War that led to the drafting of the 1929 Geneva Conventions. It was the tragedy of
the Holocaust that largely prompted their revision in 1949, and the addition of a Convention
specifically designed to protect the civilian population. The bombing of cities during the Second
World War, and later episodes of massive bombing, notably over Vietnam, led to the
reaffirmation and development of the rules governing the conduct of hostilities, as codified in the
1977 Protocols additional to the 1949 Geneva Conventions.

The problem of prisoners who refuse to go home is not catered for; the rules overlook the fact
that prisoners may be in danger on their return. Too much haste is therefore unwise; the
prisoner‘s own wishes must be taken into account. But it is not easy to determine what those
wishes are because the prisoner may have been subjected to propaganda or pressure, or have
been given false or incomplete information. Respecting a prisoner‘s wishes, therefore, raises the
question of how to determine those wishes, and this enters the realm of philosophy: what is the

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free will of a young man who is under constant pressure and subjected to systematic
propaganda? Ideally, a prisoner who says he does not want to be repatriated should be kept for
some time in a neutral environment, what should be the status of a prisoner who has refused to
be repatriated, and to what protection should he be entitled? In short, the first sentence, so short
and peremptory, of Article 118 of the Third Geneva Convention (―Prisoners of war shall be
released and repatriated without delay after the cessation of active hostilities‖) would
undoubtedly be the better for a few ―ifs‖ and ―buts‖.

The four Geneva Conventions and their Additional Protocols give the ICRC a specific mandate
to act in the event of armed conflict. During international armed conflicts, the ICRC has a right
to visit prisoners of war and civilian internees to make sure that their treatment and the
conditions in which they are being held are consonant with IHL. Information on the detainees
must be sent to the ICRC‘s Central Tracing Agency, which ensures that detainees do not go
missing. The ICRC also provides humanitarian assistance, such as consignments of foodstuffs,
medical supplies and clothing, to people in need.

In addition to the tasks incumbent upon it under IHL treaties, the ICRC has a broad right of
initiative (see common Article 3, Article 9 of the First, Second and Third Geneva Conventions,
and Article 10 of the Fourth Geneva Convention). It may always offer its services to the parties
to a conflict.

The ICRC also has a right of initiative – recognized in the Statutes of the International Red Cross
and Red Crescent Movement – in situations that do not reach the threshold of an armed conflict,
but that warrant humanitarian action. In situations where IHL does not apply, the ICRC may
offer its services to governments without that offer constituting interference in the internal affairs
of the State concerned.

In international armed conflicts, including situations of military occupation, the Geneva

Conventions are crucial for ensuring protection for victims. The provisions of the Conventions –
for instance, on the material conditions of detention – have been fundamental in saving the lives

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and ensuring the well-being of many detainees. It is on the basis of these rules that the ICRC
reminds States that they have consented to abide by certain standards of treatment in times of
armed conflict; and it is these rules that enable the ICRC to carry out its humanitarian mission in
the field.

Recent international armed conflicts demonstrate the continuing relevance of the Geneva
Conventions. During the conflict between Eritrea and Ethiopia, the ICRC visited - in the year
2000 alone - over 1,000 Ethiopian prisoners of war and 4,300 civilian internees. The ICRC also
organized safe passage across the front lines for 12,493 civilians of Ethiopian origin. In
cooperation with the Eritrean Red Cross, the ICRC distributed aid to over 150,000 civilians
affected by the conflict, and provided surgical supplies for the treatment of 10,000 war-wounded,
in cooperation with the Eritrean Ministry of Health.

In Iraq, between April 2003 and May 2004, the ICRC visited 6,100 prisoners of war and 11,146
civilian internees and detainees held by the occupying powers; and over 16,000 Red Cross
messages were exchanged between prisoners and their families. Even in the fairly short conflict
between Russia and Georgia in 2008, a number of prisoners of war benefited from the status and
protection conferred upon them by the Third Geneva Convention. On the basis of this
Convention, the ICRC was able visit the POWs in question.

Not all the positive effects of the Geneva Conventions can be reflected in concrete figures. That
does not mean that they do not exist. ICRC delegates, in armed conflicts around the world, can
testify that they do. We know, for instance, that the distinctive emblems of the Red Cross and the
Red Crescent have protected innumerable hospitals, medical units and personnel as well as
numberless wounded and sick persons. These emblems, which derive their protective value from
the Geneva Conventions, are known throughout the world.

Most of recent armed conflicts are of a non-international character (for instance, the conflicts in
Sri Lanka, Sudan, Colombia and Afghanistan today); and when we reflect on the role of the
Geneva Conventions today, we must do so with that fact in mind. Conflicts of this kind vary

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greatly. They may be traditional civil wars; spill-over conflicts or multinational/internationalized

non-international armed conflicts (i.e. armed conflicts in which third States intervene to assist
government armed forces against organized armed opposition groups).

Article 3 common to the four Geneva Conventions – common Article 3 – deals with such
situations. It was the first treaty provision to specifically address non-international armed
conflicts. Common Article 3 is, in many respects, a mini-convention within the Conventions.
Given the prevalence of non-international armed conflicts, common Article 3 is of the utmost
importance. It establishes a set of fundamental rules that must be followed in all circumstances.
It sets out minimum legal standards for the treatment of all persons in enemy hands, regardless of
how they may be classified, legally or politically, or in whose custody they may be. Clearly, no
one can be seen as or treated to be outside the protection of the law. Humane treatment must be
ensured for everyone

Common Article 3 has been supplemented in a number of important areas by the 1977 Protocol
II additional to the Geneva Conventions (Additional Protocol II). Despite this development, a
number of gaps and ambiguities remain in IHL governing non-international armed conflict.

Firstly, determining if and when a particular situation amounts to a non-international armed

conflict can be difficult – factually and, sometimes, legally. It can, for example, be difficult to
ascertain the level of violence that exists or the extent to which an armed group is organized.
These are essential in assessing whether the intensity of the fighting meets the definition of
‗armed conflict‘ or if the armed group in question qualifies as a party to the conflict. Common
Article 3 does not offer much guidance in these areas. The lack of clear criteria has sometimes
been used by parties to refute the existence of an armed conflict, thereby denying the application
of IHL altogether, and depriving those who are affected of the essential protection to which they
are entitled. International tribunals, particularly the International Criminal Tribunal for the
former Yugoslavia, have helped to clarify some issues but significant questions remain.

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Secondly, treaty law still falls short of meeting some essential protection needs in non-
international armed conflict. For example, the rules governing the conduct of hostilities are very
rudimentary and no detailed rules exist on enforcing the law in non-international armed conflict.
The progressive emergence of new customary rules has filled some of these gaps.

Finally, there are areas in which both treaty and customary law are silent. How should these gaps
be filled? For example, while customary IHL prohibits the arbitrary deprivation of liberty, it
gives no details on how this prohibition must be understood in non-international armed conflict.
Common Article 3, Additional Protocol II and customary IHL do not provide a detailed
regulatory framework of procedural safeguards governing internment. The ICRC proposed a set
of procedural principles and safeguards that should — as a matter of law and policy be applied
as a minimum to all cases of deprivation of liberty for security reasons.

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