A/HRC/21/50
including at the ICC.42 Parties to a conflict have an obligation to distinguish at all times
between those taking part in hostilities and the civilian population, and they must direct
attacks only against military objectives. Referred to as the ―principle of distinction‖, the
International Court of Justice in its Advisory Opinion of 8 July 1996 on the Legality of the
Threat or Use of Nuclear Weapons, recognised this principle as ―intransgressible‖ in
customary international law.
37.
Attacks on places where both civilians and combatants may be found are prohibited
if they are not directed at a specific military objective, or if they use methods or means of
combat which cannot be directed at a specific military objective. It is prohibited to launch
an attack which may be expected to cause incidental loss of civilian life, injury to civilians,
and/or damage to civilian objects which would be excessive in relation to the anticipated
concrete and direct military advantage.
38.
Customary IHL establishes that all ―parties to the conflict must take all feasible
precautions to protect the civilian population and civilian objects under their control against
the effects of attacks‖. Each party to the conflict must, to the extent feasible, avoid locating
military objectives within or near densely populated areas. Each party to the conflict must,
to the extent feasible, remove civilian persons and objects under its control from the
vicinity of military objectives.
39.
Attacking, destroying, removing or otherwise rendering useless objects which are
indispensable to the survival of the civilian population is prohibited. Sieges must still allow
for vital foodstuffs and other essential supplies to be delivered to the civilian population.
40.
Medical personnel as well as hospitals, medical units and transport must be
respected and protected in all circumstances. Medical personnel, units and transport lose
their protection if they are being used, outside their humanitarian function, to commit acts
harmful to the enemy.
41.
IHL also incorporates specific protections for objects. It is prohibited to commit an
act of hostility directed against places of worship which constitute the cultural or spiritual
heritage of peoples.
42.
The Rome Statute sets out a number of war crimes which correspond to these
breaches of IHL guarantees. They include the crime of intentionally attacking civilians, and
intentionally attacking civilian buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded
are collected.43
C.
Arbitrary arrest and unlawful detention
43.
Article 9 of the ICCPR prohibits arbitrary arrest or detention of individuals. It
provides that ―no one shall be deprived of liberty except on such grounds in accordance
with such procedures as are established by law‖. Persons arrested are to be informed at the
time of arrest of the reasons for the arrest and promptly informed of any charges.44 Anyone
arrested or detained on a criminal charge is to be brought promptly before a judge or other
officer authorized by law to exercise judicial power and is entitled to trial within a
reasonable period or release.45 Persons have a right to take proceedings before a court for
the purposes of reviewing the lawfulness of detention and to be released if the detention is
42
43
44
45
54
Rome Statute, Art. 8 (2) (e) (i)–(iv).
Rome Statute, Art. 8 (2) (e) (iv).
Article 9 (2) ICCPR.
Article 9 (3) ICCPR.
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