There are four conventions, referred to as the Geneva conventions, and two optional protocols that deal with the law of war and the rules that govern officers and soldiers during a war. The protocols relate to the protection of victims of international and non-international armed conflict. So, they provide the basis for protection of all non-combatants in all types of conflicts, international and domestic.

Article 3 - the common article

Article 3 is called the 'common article' because it appears in all four of the conventions. Common article 3 binds combatants to the following provisions:

People who are not actively involved in fighting must be treated humanely in all circumstances without any discrimination whatsoever. This includes:

• soldiers who have laid down their weapons and stopped fighting;
• soldiers who have stopped fighting because of illness, injuries, or detention.

It prohibits:

• murder, mutilation, cruel treatment and torture;
• hostage taking;
• all kinds of humiliating and degrading treatment;
• arbitrary or summary execution.

It obliges all parties to collect and care for the wounded and the sick. The International Committee of the Red Cross, or any other impartial humanitarian body, may offer its services to the parties to the conflict.

Genocide

The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as 'a denial of the right of existence of entire human groups'. It is the denial of the right to life. Genocide is regarded as a crime under international law.

Special ad hoc criminal tribunals have been established to deal with people who were involved in genocide in Rwanda and Yugoslavia.

The International Criminal Court

The United Nations first recognized the need to establish an international criminal court more that 50 years ago. However, it was only in the 1990's when the idea of an international criminal court was placed firmly back on the international agenda, with genocide and ethnic cleansing in the former Yugoslavia commanding attention. This led to the UN Security Council establishing the ad hoc International Criminal Tribunal for the Former Yugoslavia.

Shortly after this, the International Law Commission completed its work on the draft statute for an international criminal court and in 1994 submitted this to the General Assembly, who created a Preparatory Committee. This committee, which met from 1996 to 1998, completed the drafting of the text.

Seen as a vital instrument in the fight against impunity and the protection of human rights in conflict situations, The Rome Statute on the International Criminal Court entered into force on 01 July 2002, after a mandatory 60 state ratification was achieved and surpassed on 11 April 2002.

Currently there are 139 signatories and 92 States Parties (ratifications) of the Rome Statute. The ICC is currently based in the Netherlands with 18 judges, a prosecutor and a registrar having been appointed.

As the first anniversary of the ICC was reached on 1 July 2003, already 200 cases had been referred to it. The ICC will now be able, in principle, to prosecute individuals for war crimes, crimes against humanity and genocide.

These crimes include crimes committed in both international and non-international armed conflict, of murder; enslavement; deportation or forcible transfer of populations; torture, sexual violence (such as rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization) and apartheid.

It also includes persecution against any identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds. Some aspects of the ICC are groundbreaking in terms of international law. They include recognition of sexual violence as a war crime (first recognized in the tribunal for the former Yugoslavia), special services to victims and witnesses, and the ICC's independence from the UN Security Council.

In Africa, the ICC faces two considerable challenges to its work. Firstly, only 22 African countries have ratified the ICC. By not ratifying and enacting implementing legislation, governments avoid the jurisdiction of the ICC extending to their states and therefore avoid prosecution.

Secondly, the United States has embarked on a global effort to undermine the ICC by using a combination of political and financial pressure to strong-arm countries into signing a bilateral legal deal with Washington.

The agreement grants US citizens immunity from prosecution by the ICC. The US is one of only seven nations - the others being China, Iraq, Libya, Yemen, Qatar and Israel - to vote against joining the ICC. The US fears that the ICC could become a forum for politically motivated prosecutions of US citizens. So far 54 states have signed this agreement. Eighteen of these are from Africa.

One of the reasons for the ICC is to remedy the shortcomings of ad hoc UN tribunals to deal with war crimes. For example, a special ad hoc tribunal was established to deal with the genocide in Rwanda, where hundreds of thousands of people were massacred. But ad hoc tribunals are limited in terms of their mandate.

In Rwanda, the tribunal is limited to events that took place in 1994, even though thousands have died in subsequent conflict as a result of the genocide. The ICC will remedy this.

Whatever the shortcomings of existing tribunals and the challenges facing the ICC, it is hoped that the court will help to deter future war criminals and help to end conflicts on the African continent by ensuring that perpetrators of war crimes or genocide are brought to justice.

For more information on the ICC go to the website http://www.iccnow.org/.This is the home page of the Coalition for an ICC, which is the primary NGO provider of online information about the ICC.

Human rights in conflict

There are certain human rights that can never be suspended either in a war or in any form of state of emergency. They are called non-derogable rights.

Article 4 of the ICCPR says the following rights are non-derogable and may not be suspended under any circumstances (including in a state of emergency):

• the right to life (article 6);
• the right not to subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular no-one shall be subjected without his free consent to medical or scientific experimentation (article 7). In other words, the deliberate infliction of pain or suffering by agents of the state is a non-derogable rights and is regarded as a crime in international law;

• the right to freedom from slavery (this includes servitude, forced or compulsory labour) (article 8);
• the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (imprisoned for debt) (article 11);

• the right not to be convicted of an offence that was not a criminal act at the time it was committed (article 15);
• the right to be protected by the law (article 16);
• the right to freedom of thought, conscience and religion (article 18).

Certain rights can be suspended, or derogated from, in the following circumstances:

• There must be public emergency which threatens the life of the nation, for example, a threat of war, an invasion by another country's army, general insurrection (a violent uprising against the government in power), a natural disaster (for example, a flood that threatens peoples' lives).

• The public emergency must be officially proclaimed (announced through the government channels).
• The Secretary-General of the UN must be informed immediately.
• Suspension of rights must be limited to the demands of the situation.

• Any suspension must be in accordance with international law.
• Any suspension must not be based solely on grounds of discrimination.