VII. International Legal StandardsInternational humanitarian law (the laws of war) applies to situations of armed conflict. It applies without regard to the legal basis for the conflict, whether the armed conflict itself is legal or illegal under international law, and whether those fighting are regular armies or non-state armed groups. Insurgency is not in itself a violation of international humanitarian law. The laws of war do not prohibit the existence of insurgent groups or their attacks on legitimate military targets. Rather, they restrict the means and methods of warfare by all parties to an armed conflict, including non-state armed groups, and impose upon them a duty to protect civilians and other noncombatants.139 Recourse to competing principles such as “the ends justify the means” or to other bodies of law, such as interpretations of Islamic law, have no legal bearing on whether international humanitarian law has been violated. As the preamble to Protocol I states, the provisions of the Geneva Conventions “must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflicts.”140 Moreover, a failure by one party to a conflict to respect the laws of war does not relieve the other of its obligation to respect those laws. That obligation is absolute, not premised on reciprocity.141 A fundamental principle of the laws of war is that of the distinction between civilians and military objectives – attacks may only be directed at military objectives.142 Civilians are defined as persons who are not members of the armed forces.143 Civilians are only military objectives when and for such time as they are directly participating in the hostilities. Where there is doubt as to whether a person is a civilian or a combatant, that person must be considered a civilian.144 The immunity from attack of the civilians whose cases are documented in this report is clear. Civilians regardless of ethnic group or religion, government officials not directly involved in the war effort, as well as Buddhist Thais and ethnic Malay Muslims performing noncombatant jobs for the Thai authorities are all protected from direct attack by the laws of war. Also protected are students, teachers, and school administrators. 145 It is no justification to claim that the attacked civilian was part of a larger group that has members involved in the hostilities—Buddhist Thai civilians are not lawful targets just because security personnel are primarily made up of Buddhist Thais. Reprisal attacks against civilians and captured combatants are prohibited.146 Summary execution of civilians or captured combatants is prohibited.147 The dead must never be subjected to mutilation or other mistreatment.148 International humanitarian law also forbids attacks directed at civilian objects, such as homes, schools, temples and mosques, and public health centers.149 Civilian objects only become valid military objectives when used by armed forces for military purposes. Acts or threats of violence whose primary purpose is to spread terror among the civilian population are prohibited. 150 This would include attacks and threats intended to keep students and teachers away from school. In addition to attacks directed at civilians, the laws of war also prohibit indiscriminate and disproportionate attacks. An indiscriminate attack is one that is not directed at a specific military objectives or which uses a means or method of warfare that cannot or does not distinguish between civilians and combatants.151 A disproportionate attack is one in which the expected civilian loss in an attack is excessive compared to the concrete and direct military advantage anticipated.152 Many if not most of the IED attacks in populated areas violated these prohibitions. With regard to children, the Convention on the Rights of the Child also requires states to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”153 This is reflected in international humanitarian law, which provides that children are entitled to special respect and attention.154 One of the “fundamental guarantees” in Protocol II is that: “Children shall be provided with the care and aid they require, and in particular: ...They shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care.”155 139 For a discussion of the applicability of international humanitarian law to non-state armed groups, see International Committee of the Red Cross (ICRC), Henckaerts & Doswald-Beck, eds.,Customary International Humanitarian Law (Cambridge: Cambridge Univ. Press 2005), pp. 497-98. 140 Protocol I, preamble. 141 The issue of reciprocity is addressed in the ICRC’s Commentary to Protocol I, para. 51: “The prohibition against invoking reciprocity in order to shirk the obligations of humanitarian law is absolute. This applies irrespective of the violation allegedly committed by the adversary. It does not allow the suspension of the application of the law either in part or as a whole, even if this is aimed at obtaining reparations from the adversary or a return to a respect for the law from him.” 142 Ibid., rule 1, citing Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, arts. 48, 51(2); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977, art. 13(2). 143 ICRC, Customary International Humanitarian Law, rule 5, citing Protocol I, art. 50. 144 See Protocol I, art. 50(1); ICRC, Customary International Humanitarian Law, rule 16 (“Each party to the conflict must do everything feasible to verify that targets are military objectives”), citing Protocol I, art. 57(2)(a); 1999 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property, art. 7. 145 ICRC, Customary International Humanitarian Law, rules 7 and 9, citing various treaties and other evidence of state practice. 146 ICRC, Customary International Humanitarian Law, rule 146, citing, for example, First Geneva Convention, art. 46; Fourth Geneva Convention, art. 33. 147 Common article 3 to the 1949 Geneva Conventions. Thailand ratified the 1949 Geneva Conventions in 1954. 148 ICRC, Customary International Humanitarian Law, rule 113, citing Protocol II, art. 8. 149 ICRC, Customary International Humanitarian Law, chapters 1 and 2, citing, for example, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted June 8 1977, and entered into force December 7, 1978), art. 13. See also Protocol I, art. 52(3) on the general protection of civilian objects: “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.” 150 Ibid., rule 2, citing Protocol II, art. 13(2). 151 See ICRC, Customary International Humanitarian Law, rule 12. 152 See ICRC, Customary International Humanitarian Law, rule 14. 153 Convention on the Rights of the Child (CRC), G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990, art. 38. Thailand ratified the CRC in 1992. 154 See ICRC, International Humanitarian Law, rule 135, citing Protocol II, art. 4(3). 155 Protocol II, art. 4(3). |