2. REFERENTES CONCEPTUALES
2.2 Educación Ambiental (EA)
2.2.2 La educación ambiental (EA), en Colombia
This Section addresses the various circumstances in which the delivery of humanitarian assistance can be necessary, given their magnitude, grave nature or overwhelming impact. The international legal regulation of humanitarian assistance commenced with its regulation in times of occupation, leading to its regulation in other circumstances too.2 Given the change in warfare over the past decades resulting
in a vast increase of non-international armed conflicts, as well as keeping in line with chronology where conflict often precedes occupation, this Section firstly addresses armed conflict. Subsequently the circumstance of occupation will be addressed, to determine in which situations humanitarian assistance may be necessary and lastly (natural) disasters are discussed. To consider the scope of application of the legal framework concerning humanitarian assistance, the various circumstances in which it takes place must be considered. The regulation of the provision of humanitarian assistance has followed the general legal regulation of the various circumstances such as conflict and disaster, in which aid is provided. Indeed, humanitarian assistance need only be provided when it has been ascertained that a humanitarian crisis is taking place as part of the factual circumstances of conflict, occupation or natural disaster. Upon such an assessment, no international legal dispute will exist concerning the status of the situation and thereby the legality of the provision of humanitarian assistance.3 Such establishments are furthermore of relevance in
relation to the role of the affected state sovereign, that has the primary role in the provision of assistance when such aid may be needed. The determination of such a crisis is often assessed by the sovereign itself but, as seen below, can also be established in other manners should the affected state be dismissive with regard to the provision of aid.
3.2.1 Defining an Armed Conflict
A primary circumstance potentially warranting the provision of humanitarian assistance, is traditionally an armed conflict.4 The legal qualification of this
immediately enables the provision of assistance to take place within two distinct
2 Heike Spieker, ‘The Right to Give and Receive Humanitarian Assistance’, inHJ Heintze & A Zwitter
(eds), Humanitarian Assistance and International Law (Springer 2011) 12.
3
See in this regard Section 8.2.1 Circumstances of Denial or Obstruction: Determining a Humanitarian Crisis.
4 It is relevant to note that each law has its scope of applicability, divided into ratione materiae, ratione
personae, ratione loci and ratione temporis. For the purposes of this research however, these notions will not be examined individually. In so far as the scope of application of a certain law is relevant to the application of provisions of humanitarian assistance, this research will address them ad hoc in the following Sections.
circumstances; namely an international armed conflict and a non-international armed conflict.5 Although increasingly the legal distinction between the two types of
conflict is being discussed,6 both will be defined separately for the purpose of this
research. Firstly, regarding the concept of an international armed conflict, Common Article 2 of the Geneva Conventions notes:
“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to 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. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof”.
With the Geneva Conventions, a declaration of war is no longer necessary for the rules of international humanitarian law, as laid down in these Conventions, to become applicable.7 To avoid states’ arguments that international humanitarian law is not
applicable in certain instances due to the fact that the state of war has not been recognised, the Conventions become applicable from the very moment that hostilities take place.8 However, the Conventions do not define this notion of ‘armed conflict’,
nor does any other treaty, and Pictet notes in the Commentary that any intervention of armed forces between two states can be considered an armed conflict, regardless of length or intensity.9 Additional Protocol I has furthermore elaborated that an armed
conflict may include those situations in which a people fight against ‘colonial
5 Much has been written on the concept of armed conflict. Therefore, this research will only briefly
establish the legal concepts of an ‘international armed conflict’ and a ‘non-international armed conflict’. For further reading, see amongst others Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conflicts (Hart 2008); Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (Cambridge University Press 2010); and Sylvain Vité, ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual situations’, (2009) 91 International Review of the Red Cross 873, 69 – 94. See also the International Law Association, ‘Final Report on the Meaning of Armed Conflict in International Law’ of the Committee on the Use of Force (Hague Conference 2010).
6 Ibid ILA ‘Final Report on the Meaning of Armed Conflict in International Law’ 8-9. As this research
will focus for a large part on the lex lata, it remains important to distinguish both types of armed conflict, and the relevant provisions regarding humanitarian assistance related thereto.
7
Jean Pictet, Commentary on the Geneva Conventions of 12 August 1949 Volumes I-IV (International Committee of the Red Cross 1952-1959), Volume IV Commentary GC IV Article 2, 20. See also Frits Kalshoven & Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (Cambridge University Press 2011) 30-31.
8
Pictet, Commentary on the Geneva Conventions of 12 August 1949 (n 7).
9 Ibid Article 2, 20-21. The Commentary states: “Any difference arising between two States and leading
to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to human personality is not measured by the number of victims. Nor, incidentally, does the application of the Convention necessarily involve the intervention of cumbrous machinery. It all depends on circumstances”.
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domination, alien occupation and racist régimes’ in the exercise of their right to self- determination, as opposed to viewing them as a non-international armed conflict.10
For a definition of a non-international armed conflict, Common Article 3 of the Geneva Conventions is a starting point. Common Article 3 notes that its provisions are applicable:
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”.11
Article 3 follows with the declaration that it is applicable to ‘each party’ to the conflict, thereby encompassing non-state actors fighting against the sovereign. From this text, it is clear that Common Article 3 distinguishes itself from the abovementioned international conflicts, as well as that it presupposed the existence of an armed conflict. A clear definition of such a conflict was not to be reached during the drafting phase on 1949. The Commentary, while considering that Common Article 3 should receive the widest possible scope of application, submits a list of conditions that may be considered for a non-international armed conflict.12
10 Article 1 AP I states: “The High Contracting Parties undertake to respect and to ensure respect for this
Protocol in all circumstances. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”.
11 The full text of Common Article 3 of the Geneva Conventions 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 have 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. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict”.
12
Pictet, Commentary on the Geneva Conventions of 12 August 1949 (n 7) Common Article 3, 35-36 stating: “1. That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention. 2. That the legal Government is obliged to have
Furthermore, Additional Protocol II (AP II) must be considered, which states in its primary Article:
“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”.13
This text is considered to set a higher threshold than Common Article 3, which unlike large parts of AP II has a customary international law status.14 It must be noted that
(internal) disturbances or clashes that do not meet the threshold of an armed conflict,15 can be distinguished based on their intensity and level of organisation.16
Protocol II has, both due to its higher threshold and applicability only to state parties, excluded more instances than Common Article 3 which holds customary status.17 AP
II is applicable, as stated in Article 1, only to those non-international armed conflicts that take place between a state party and ‘dissident armed forces or other organised
recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory. 3. (a) That the de jure Government has recognized the insurgents as belligerents; or (b) That it has claimed for itself the rights of a belligerent; or (c) That it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or (d) That the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression. 4. (a) That the insurgents have an organization purporting to have the characteristics of a State.(b) That the insurgent civil authority exercises de facto authority over persons within a determinate portion of the national territory. (c) That the armed forces act under the direction of an organized authority and are prepared to observe the ordinary laws of war. (d) That the insurgent civil authority agrees to be bound by the provisions of the Convention. The above criteria are useful as a means of distinguishing a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection”. It must be noted that these conditions are not considered to be comprehensive or ultimate, see in that regard outside of the
Commentary itself also Prosecutor v. Fatmir Limaj, Haradin Bala, Isak Musliu, (Judgment Trial Chamber II) IT-03-66-T (30 November 2005) § 85-86 and ILA ‘Final Report on the Meaning of Armed Conflict in International Law’ (n 5)20.
13 Article 1 Additional Protocol II to the Geneva Conventions, 1977 (Additional Protocol II or AP II) 14 Yves Sandoz, Christophe Swinarski & Bruno Zimmermann (eds) Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Protocol I and II (International Committee of the Red Cross 1987) Protocol II Article 1, 1348. See also ILA Committee on the Use of Force final report p12.
15
Ibid Commentary to the Additional Protocols.
16Prosecutor v. Tadića.k.a “Dule” (Judgment Trial Chamber) IT-94-1-T (7 May 1997) § 562. See also
ILA ‘Final Report on the Meaning of Armed Conflict in International Law’ (n 5) 28.
17
Sandoz, Swinarski & Zimmermann Commentary to the Additional Protocols (n 14)Protocol II Article 1, 1349.
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armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. This allows for a second category of non- international armed conflicts to be discerned, namely when a level of ‘control’ is reached by the armed groups within a state.
More recently the International Criminal Tribunal for the former Yugoslavia (ICTY) has also given a concrete definition of an armed conflict in the well-known Tadić-decision, stating that:
“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there”.18
With regard to an international armed conflict, the ICTY considered the length and intensity of such a conflict, deliberating that the Geneva Conventions contain language that suggests their application beyond strictly during the existence of armed violence.19 Such is of relevance to the provision of assistance: aid may be needed for
a civilian population that is itself not subject to hostilities, but may have been cut off from the outside world, or fled to remote areas. The ICTY furthermore considered the ‘geographical scope’ of international armed conflicts, with regard to the application of the Conventions. The Chamber concluded that a distinction can be made between certain provisions of the Geneva Conventions that can be limited to areas of direct hostilities, whilst other provisions, amongst which those pertaining to the protection of civilians are not as limited and may apply to the entire territory of the states that are in conflict.20 Indeed, the provisions pertaining to the provision of
humanitarian assistance relate to the protection of civilians. The ICTY reasoned so in referral to Article 6(2) of GC IV, which declares that the Convention remains applicable until the ‘general close of military operations’21 and argued that a stricter
18Prosecutor v. Tadića.k.a “Dule” (Appeals Chamber Decision on the Defence motion for Interlocutory
Appeal on Jurisdiction) IT-94-1-AR72 (2 October 1995) §70 [Emphasis added EEK].
19 Ibid § 67. 20 Ibid § 68. 21
Article 6 GC IV states: “The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2. In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations. In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. Protected persons
reading of the Article and similar ones, would defeat the very rationale behind GC III and GC IV.22 The Geneva Conventions after all, as part of humanitarian law, aim
to protect those caught in conflict, which is also what the provision of humanitarian assistance attempts to do. Article 6 of the Fourth Geneva Convention furthermore notes that the Convention shall apply ‘from the outset of any conflict’.23 The line of
reasoning of the ICTY also follows the official Commentary, which remarks in relation to the protection of civilians, that the Fourth Convention should be applied immediately once a civilian population comes into contact with foreign armed troops.24 Thus, the application of the Geneva Conventions can be considered to
commence with the establishment of an international armed conflict, and the application of provisions in relation to the civilian population can be established in regard to an entire territory. Thus, humanitarian law provides different levels of protection to those in need according to the specific category of armed conflict in