Sierra Leone: International Law

International standards that apply to the conflict in Sierra Leone can be drawn from humanitarian law, the "laws of war," which establishes minimum standards applicable to internal and international armed conflict and comprises the four Geneva Conventions of 1949, the two 1977 Protocols to those Conventions, and the customary laws of war. The laws of war, whose basic provisions are not derogable (may not be suspended) are primarily intended to protect the victims of armed conflicts. They complement those standards of international human rights law that are nonderogable and remain binding upon governments.

The armed conflict between the government of Sierra Leone and the RUF is usually described as an internal (non-international) armed conflict, although the support given to the government by ECOMOG and the military assistance allegedly given to the rebels by Liberia and Burkina Faso does give it some strong international characteristics.⁽¹⁾ As an internal armed conflict, government and insurgent forces' conduct is governed by common Article 3 of the Geneva Conventions and customary international law. The 1977 Protocol II to the Geneva Conventions contains rules providing authoritative guidance on the conduct of hostilities by the warring parties. These norms apply equally to the rebel forces of the RUF, government soldiers, and the different national components of ECOMOG.⁽²⁾

.

Article 3 applies when a situation of internal armed conflict objectively exists in the territory of a state party; it expressly binds all parties to the internal conflict, including insurgents although they do not have the legal capacity to sign the Geneva Conventions.⁽³⁾ The obligation to apply Article 3 is absolute for all parties to the conflict and independent of the obligation of the other parties. Application of Article 3 by the government cannot be legally construed as recognition of the insurgent party's belligerence, from which recognition of additional legal obligations beyond common Article 3 would flow.

The law governing internal armed conflicts does not recognize the combatant's privilege⁽⁴⁾ and therefore does not provide any special status for combatants, even when captured. Thus, the Sierra Leone government is not obliged to grant captured members of the rebel forces prisoner of war status. Similarly, government army or militia combatants who are captured by the rebel forces need not be accorded this status. Since the rebels are not privileged combatants, they may be tried and punished by the Sierra Leone government for treason, sedition, and the commission of other crimes under Sierra Leonean law. They may not be tortured, held in secret detention, "disappeared," or summarily executed; to do so is forbidden by common Article 3 and international human rights law.

Article 3 common to the four Geneva Conventions, virtually a convention within a convention, states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions;

(1) Persons taking no active part in the hostilities, including members of armed forces who had laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

U.N. General Assembly Resolution 2444, adopted by unanimous vote on December 19, 1968, expressly recognized the customary law principle of civilian immunity and its complementary principle requiring the warring parties in all armed conflicts to distinguish civilians from combatants at all times.⁽⁵⁾ It affirms the following principles for observance by all government and other authorities responsible for action in armed conflicts:

(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;

(b) That it is prohibited to launch attacks against the civilian populations as such;

(c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.

In situations of internal armed conflict, generally speaking, a civilian is anyone who is not a member of the armed forces or of an organized armed group of a party to the conflict. Accordingly, "the civilian population comprises all persons who do not actively participate in the hostilities."⁽⁶⁾ Civilians may not be subject to deliberate individualized attack since they pose no immediate threat to the adversary, though they lose their immunity from attack for as long as they directly participate in hostilities. "[D]irect participation [in hostilities] means acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces," and includes acts of defense.⁽⁷⁾

Persons protected by Article 3 include members of government, ECOMOG, and RUF forces who surrender, are wounded, sick or unarmed, or are captured. They are hors de combat, literally, out of combat, until such time as they take a hostile action such as attempting to escape.

Children are especially protected under the rules of war and under the Convention on the Rights of the Child. Article 4(3)(e) of Protocol II to the 1949 Geneva Conventions states that children shall be provided with the care and aid they require, in particular measures with the consent of their parents "to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being." States parties to the Convention on the Rights of the Child -- of which Sierra Leone is one -- shall take "all feasible measures to ensure protection and care of children who are affected by an armed conflict."⁽⁸⁾

International humanitarian law forbids acts of sexual violence in internal as in international armed conflicts. Rape and sexual assault fall within the acts prohibited by common Article 3 of the 1949 Geneva Conventions. Protocol II explicitly outlaws "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" (Article 4(2)(e)).

Under the laws of war, military objectives are defined expressly only as they relate to objects or targets, although it is clear that members of the armed forces are also permissible targets. To constitute a legitimate military objective, the object or target, selected by its nature, location, purpose, or use, must contribute effectively to the enemy's military capability or activity, and its total or partial destruction or neutralization must offer a definite military advantage in the circumstances.⁽⁹⁾

While not an all-encompassing list, customary and conventional (treaty-based) international law prohibits the following kinds of practices, orders, or actions:

• Orders that there shall be no survivors, such threats to combatants, or orders to conduct hostilities on this basis.

• Attacks against combatants who are captured, surrender, or are placed hors de combat.

• Torture, any form of corporal punishment, or other cruel treatment of persons under any circumstances.

• The infliction of humiliating or degrading treatment on civilians or combatants who are captured, have surrendered, or are hors de combat.

• Hostage taking.⁽¹⁰⁾

• Shielding, or using the presence of the civilian population to immunize areas from military operations, or to favor or impede military operations. In addition, the parties may not direct the movement of civilians in order to attempt to shield legitimate military objectives from attack, or to favor military operations.⁽¹¹⁾

• Pillage.⁽¹²⁾ This includes looting or taking booty or spoils of war. This prohibition is designed to spare people the suffering resulting from the destruction of their real and personal property: houses, furniture, clothing, provisions, tools, and so forth.⁽¹³⁾ Pillage includes organized acts as well as individual acts without the consent of the military authorities. The ordering or authorization of pillage is forbidden, and the parties are obliged to prevent or, if it has commenced, to stop pillage. All types of property, whether private, communal, state or other are protected, although the military authorities retain the right to requisition goods under certain conditions.⁽¹⁴⁾

• Destruction of property not absolutely necessary on account of military operations.⁽¹⁵⁾

• Slavery and the slave trade in all their forms.⁽¹⁶⁾ The prohibition on slavery is one of the "hard-core" fundamental guarantees, universally accepted.

There are only two exceptions to the prohibition on the deliberate displacement, for war-related reasons, of civilians: their security or imperative military reasons.⁽¹⁷⁾ Displacement or capture of civilians solely to deny a social base to the enemy clearly has nothing to do with the security of the civilians. Nor is it justified by "imperative military reasons," which require "the most meticulous assessment of the circumstances"⁽¹⁸⁾ because such reasons are so capable of abuse. One authority stated: "Clearly, imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group."⁽¹⁹⁾

The civilian population and individual civilians are to be protected against attack. The laws of war implicitly characterize all objects as civilian unless they satisfy the two-fold test required of military objectives (see above). Objects normally dedicated to civilian use, such as churches, houses, and schools, are presumed not to be military objectives. If they in fact do assist the enemy's military action, as through the placement of guns in a bell tower, they can lose their immunity from direct attack.⁽²⁰⁾

Even attacks on legitimate military targets, however, are limited by the principle of proportionality. This principle places a duty on combatants to choose means of attack that avoid or minimize damage to civilians. In particular, the attacker should refrain from launching an attack if the expected civilian casualties would outweigh the importance of the military target to the attacker. The attacker also must do everything "feasible" to verify that the objectives to be attacked are not civilian.

Prohibited indiscriminate attacks are defined in Protocol I, Article 51 (4), as

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Violations of the laws of war are all designated "war crimes" in international law. The most serious crimes, "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" reach the level at which they become "crimes against humanity."⁽²¹⁾ Grave breaches of the Geneva Conventions, crimes against humanity and genocide are crimes of universal jurisdiction. They are so universally recognized as abhorrent and in the interests of the entire international community to suppress that any nation may prosecute the perpetrators, regardless of their nationality, the nationality of victims or of where the crime took place. Although few nations in practice provide for such a broad exercise of jurisdiction in their domestic laws, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the yet-to-be-established International Criminal Court are specifically empowered to prosecute war crimes and crimes against humanity.

1. While the conflict in Sierra Leone is primarily of an internal character, there can also be an argument that the presence of ECOMOG troops in particular has given the conflict international dimensions, in which case all four Geneva Conventions would apply. Human Rights Watch believes that the U.N. and all the component forces of a U.N.-mandated military force should be prepared to apply all aspects of the four Geneva Conventions in situations in which they are engaged in combat. We believe that the most basic standards of international humanitarian law, that have acquired the status of customary international law, are definitely binding on all forces operating in Sierra Leone, including those operating under the U.N.-endorsed ECOMOG mandate.

2. Sierra Leone and the four countries contributing troops to the ECOMOG force in Sierra Leone (Nigeria, Ghana, Guinea, and Mali) have all ratified the four Geneva Conventions and both their protocols.

3. As private individuals within the national territory of a state party, certain obligations are imposed on them. International Committee of the Red Cross, Commentary on the Additional Protocols of 1977 (Geneva: International Committee of the Red Cross, 1987), p. 1345.

4. The combatant's privilege is a license to kill or capture enemy troops, destroy military objectives and cause unavoidable civilian casualties. This privilege immunizes members of armed forces or rebels from criminal prosecution by their captors for their violent acts that do not violate the laws of war but would otherwise be crimes under domestic law. Prisoner of war status depends on and flows from this privilege. See Solf, "The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice," American University Law Review, vol. 33, p. 59.

5. "Respect for Human Rights in Armed Conflicts," United Nations General Assembly Resolution 2444, G.A. Res. 2444, 23 U.N. GAOR Supp. (No. 18), p. 164, U.N. Doc. A/7433 (1968).

6. Robert K. Goldman, "International Humanitarian Law and the Armed Conflicts in El Salvador and Nicaragua," American University Journal of International Law & Policy, vol. 2, p. 553.

7. ICRC Commentary on the Additional Protocols, pp. 618-19.

8. Convention on the Rights of the Child, Article 38 (4).

9. See Protocol I, Article 52 (2).

10. The ICRC Commentary on the Additional Protocols, p. 874, defines hostages as "persons who find themselves, willingly or unwillingly, in the power of the enemy and who answer with their freedom or their life for compliance with the orders of the latter and for upholding the security of its armed forces."

11. See Protocol I, Article 51 (7).

12. Fourth Geneva Convention, Article 33. This is a reflection of customary law.

13. ICRC, Commentary on the IV Geneva Convention (Geneva: ICRC, 1958), p. 226.

14. Ibid., pp. 226-27.

15. Both pillage and unnecessary destruction are forbidden by customary international humanitarian law governing internal armed conflicts. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989), pp. 46-47; see IV Geneva, Article 53.

16. See Protocol II, Article 4 (2) (f).

17. Article 17 (1) of Protocol II states: "The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition."

18. ICRC Commentary on the Additional Protocols, p. 1472.

19. Ibid.

20. The Code of Medical Neutrality, a reformulation and compilation of standards based on the rules set out in the Geneva Conventions and Protocols, drafted by the International Commission on Medical Neutrality, sets out the rights of medical workers and the sick or wounded.

21. The Rome Statute of the International Criminal Court, adopted on July 17, 1998, defines "crime against humanity" to mean "any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Eenslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender ... or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character internationally causing great suffering, or serious injury to boty or to mental or physical health."