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This paper considers the legality of the decisions and deportation proceedings undertaken by Israel against the population of Jerusalem, from the international humanitarian perspective. Israel claims that Jerusalem is the capital of the State of Israel and therefore is incumbent on all present within the borders of the State of Israel, whether citizens or residents or others, to provide loyalty and obedience to the State of Israel, which gives Israel the right to expel any person who provides the association or to work with parties hostile to them, causing new displaced Palestinians, whether internally or externally. Fourth Geneva Convention forbids mass forcible transfer of population from the occupied territories. The paper will try to answer the following questions: What is the legitimacy of decisions and actions of forced deportation by Israel against the population of Jerusalem under the rules of international humanitarian law?

Legal constraints have often failed to protect civilians from the adverse affects of war. It was no different during the Gaza conflict. IHL proved hardly relevant to the suffering of civilians inside and outside of Gaza a year ago. In order to prevent the rules from becoming even more irrelevant, States should take their obligation to ensure respect for IHL more seriously. The obligation to ensure respect implies that every State ought to take action with regard to any other State which does not respect this law. The duty to ensure respect provides for a system of collective responsibility for compliance with IHL. In the past, the Security Council explicitly called on States to ensure respect by Israel, as Occupying Power, for its obligations under the Geneva Conventions. The International Court of Justice also stated in its Advisory Opinion on the Wall: “all States Parties to the Fourth Geneva Convention have the obligation to ensure compliance by Israel with IHL”. The duty to ensure respect has various dimensions. I have identified one particular measure available to States in order to fulfil their obligation to ensure respect: fact finding.

During more than forty years of occupation, Israel, the Occupying Power, has sporadically expelled Palestinian individuals from the Occupied Palestinian Territory. Whilst this was protested against as unlawful by human rights defenders, the practice was upheld by the Israeli High Court on security grounds. Recently, cases of expulsions from the West Bank have become more frequent and they are no longer based on security considerations. The Israeli policy of expulsions has further been formalised through military legislation. Now, every person in the West Bank whose registered address in the Palestinian Population Registry is not in the West Bank must hold a permit in order to stay in the occupied territory. In the absence of such a permit, an individual is considered infiltrator and subject to prosecution and expulsion. Ten of thousands of Palestinians whose registered address is in the Gaza Strip and which have been prevented by Israel from changing their address are currently exposed to expulsion from the West Bank to Gaza. This article analyses the Israeli policy under international humanitarian law, mainly under the law of occupation. It explores the prohibition on forcible transfers and deportations from occupied territory as well as its implementation by the Israeli High Court. It further discusses core issues such as the definition of protected persons in the Fourth Geneva Convention, their right to live and reside in the occupied territory and the powers granted to the Military Commander in occupied territory.

Pursuant to Article 49(6) of the Fourth Geneva Convention: an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Adopted in 1949, Article 49(6) has no parallel provision in the Hague Convention of 1907, and the prohibition against civilian transfers is not typically considered a part of customary international law. As a result of its relative newness, there have been few occasions to interpret exactly how the provision applies. It is unclear, for example, whether a State has violated Article 49(6) if its civilians settle in an occupied territory “voluntarily.”In an effort to better understand Article 49(6) and to move toward a more consistent application of its prohibition, this Essay looks at the experience and treatment of civilian settlers in the context of several other arguably belligerent occupations (i.e., situations that were or would today be governed by occupation rules). Each of the conflicts explored in Parts I through IV - which examine the transition of East Timor from Indonesian control to independence, the continuing negotiations between Morocco and the Sahrawi people of the Western Sahara, the ongoing peace talks between Turkish and Southern Cyprus, and the break-up of the Baltic States toward the end of Soviet power - involves the transfer of settlers into a territory that was not previously independent and that was controlled by an external foreign power in an arguably illegitimate way.The similar trajectories of these conflicts suggests that the ICJ was correct in assuming a state’s material “encouragement” of civilian settlers is enough to bring the state within the purview of Article 49(6). However, neither international political bodies nor the new governments of previously occupied territories have ever embraced forcible removal of illegally transferred civilian settlers. To the contrary, history suggests that such settlers often get a voice in deciding the territory’s fate and, in most circumstances, have a right to remain in the area after occupation has ended. Despite the black and white rhetoric of the ICJ’s reparation principle, history shows that any remedy provided under Article 49(6) must in practice carefully balance the rights of persons harmed by the occupying power, the comparative innocence of settlers transferred into an occupied territory, and the feasibility of implementation in any particular case before it will be deemed acceptable to the U.N.’s governing bodies and the international community writ large.

Belligerent occupation is governed by The Hague Regulations of 1907, as well as by the Fourth Geneva Convention of 1949 and the customary laws of belligerent occupation. Security Council Resolution 1322 (2000), paragraph 3, “calls upon Israel, the occupying Power, to abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in a Time of War of 12 August 1949 …” The Security Council vote was fourteen to zero, becoming obligatory international law.

Israel is a serial human rights international law abuser. The UN Human Rights Commission affirms that it violates nearly all 149 articles of the Fourth Geneva Convention, which governs the treatment of civilians in war and under occupation, and is guilty of grievous war crimes.1 Imagine life under these conditions: Living in limbo under a foreign occupier; having no selfdetermination, no right of return, and no power over your daily life; being in constant fear, economically strangled, and collectively punished; having your free movement denied by enclosed population centers, closed borders, regular curfews, roadblocks, checkpoints, electric fences, and separation walls; having your homes regularly demolished and land systematically stolen to build settlements for encroachers in violation of international law prohibiting an occupier from settling its population on conquered land; having your right to essential services denied—emergency health care, education, employment, and enough food and clean water; being forced into extreme poverty, having your crops destroyed, and being victimized by punitive taxes; having no right for redress in the occupier’s courts under laws only protecting the occupier; being regularly targeted by incursions and attacks on the ground and from the air; being wilfully harassed, ethnically cleansed, arrested, incarcerated, tortured, and slaughtered on any pretext, including for your right of self-defence; having no rights on your own land in your own country for over six decades and counting; vilified for being Muslims and called terrorists, Jihadists, crazed Arabs, and fundamentalist extremists. Victimized by slow-motion genocide to destroy you.

The East-West detente has uncovered the importance of statehood for the international protection of peoples in international conflicts. The importance becomes obvious from a comparison between the legal position of the Kuwaitis with that of the Kurds and, more in particular, the Palestinians in that respect. The Gulf war urged the Security Council to enforce Iraq's compliance with the 1949 Fourth Geneva Convention. The Council has also taken the position that Israel should apply this convention de jure in the 1967 occupied Palestinian territories, albeit lessforcefully. This is partly due to the fact that the UN itself has caused confusion concerning the legal status of these territories. History shows that the Palestine Mandate should not be considered as indivisible in such a way that the creation of Israel automatically implied the termination of the mandate as a whole. The Palestine Mandate still exists for the area of the Arab state, defined in the General Assembly Resolution 181 (II) of November 29,1947, recommending a partition plan for Palestine. Subsequent resolutions of both the General Assembly and the Security Council imply that the Palestinian people can only claim the West Bank including East Jerusalem -hereafter referred to as the West Bank- and the Gaza Strip as its future territory. The Palestinian people appears to have resigned itself to this fact of life since its acceptance of Security Council Resolutions 242 of November 22,1947, and 338 of October 22,1973. In doing so it has stopped any further erosion of its claim to an independent state by virtue of its right to self-determination. Neither the Gulf war nor an international peace conference on the Middle East can alter the new situation one bit anymore. For the first time since 1947 the General Assembly is now in the position to keep the promise of self-determination towards the Palestinian people as well. The 1950 advisory opinion of the International Court of Justice on the international status of South West Africa gives it a good point of departure for assuming its full responsibility for doing justice to the right to self-determination of the Palestinian people. Legally speaking the role of the UN in the development of the International Peace Conference on the Middle East is crucial for the future of Israel and Palestine.

Treaties long have recognized that a state may detain without trial not only opposing armed forces, but also civilians and others who pose threats to its security. While the procedural rules for administrative detention in international armed conflict are reasonably robust, only a very limited set of treaty rules apply to administrative detention in noninternational armed conflicts. This article examines the treaty rules governing detention procedures in international and non-international conflicts. It then analyzes realworld examples of administrative detention by multi-national forces and individual states. The article concludes that states should, as a matter of policy, apply several key principles drawn from treaties governing international armed conflict to all administrative detentions. These rules impose a high standard for a state to initially detain a person, require the state to immediately review that detention, permit the detainee to appeal the detention decision, require the state to review the detention periodically, and obligate the state to release the detainee when the reasons for his detention have ceased. A state also should inform a detainee why it has detained him. The article argues that these core procedures, drawn from the Fourth Geneva Convention and Article 75 of Additional Protocol I, are battle-tested and that adopting such baseline rules as matter of clearlystated policy would: ensure that all states strike the proper balance between national security and personal liberty; let states avoid answering hard questions about the type of armed conflicts they are fighting; and might facilitate multi-national operations among allies with different detainee policies.

This chapter demonstrates how the concept of necessity under Article 64 Fourth Geneva Convention (GCIV) has been transformed from the concept associated with military necessity as envisaged by drafters of the Hague Regulations into a broader concept that can accommodate diverging needs of inhabitants in occupied territories. It addresses the most salient and controversial question concerns the legislative scope of occupying powers. The chapter shows that the occupant is required to maintain the judiciary, except in case of hindrance to the application of GCs or in case of the need to ensure effective administration of justice. The three necessity exceptions stipulated in Article 64 of GCIV are: the need to fulfil the obligations under GCIV; the need to maintain the orderly government of the territory; and the need to ensure the security of the occupying power, of the members and property of the occupying forces or administration.Keywords: Fourth Geneva Convention (GCIV); Hague Regulations; legislative power; occupying power

Article 46 of the 1907 Hague Regulations lays down the general requirement of respecting private property in occupied territory. This chapter classifies three categories of private property: immovable property; movable property; and taxes and contributions. Pillage in occupied territory is absolutely prohibited under Article 47 Hague Regulations and Article 33(2) Fourth Geneva Convention (GCIV). Under the Hague Regulations, contrary to privately owned movables which are subject to detailed rules, there is no express reference to immovable private property in occupied territory. Two general rules governing all private property (movable or immovable) must be noted. First, pillage is absolutely prohibited, and punishable under national military laws. Second, reprisals against the property of protected persons are forbidden. The power of the occupant to expropriate private land is recognised as an implicit right, even though the concept of expropriation as such is not expressly mentioned in the conventional law of occupation.Keywords: expropriation; immovable property; movable property; occupied territory; pillage; private property

This chapter delineates the boundaries between civilians entitled to immunity from attacks and those who lose such immunity in an occupied territory. The threshold for applying the law on conduct of hostilities depends on whether an occupying power has lost the capacity to mount effective lawand- order operations. The chapter discusses the category of persons who are immune from direct attack during the conduct of hostilities which occur in occupied territory. It presents the definition of protected persons within the meaning of Article 4 Fourth Geneva Convention (GCIV) and that of civilians under API. Having identified the category of unprivileged belligerents (or unlawful combatants) operating in occupied territory, the chapter explores the nature of this controversial category of persons in the specific context of occupation. The concept of direct participation in hostilities should be considered applicable both to international armed conflict (IAC) and to non-international armed conflict (NIAC).Keywords: combatants; direct participation; Fourth Geneva Convention (GCIV); hostilities; international armed conflict (IAC); non-international armed conflict (NIAC); occupied territory; protected persons; unprivileged belligerents

This chapter deals with the meaning and elements of occupation, and different types of occupation. It then focuses on sources of the law of occupation. The scope of analysis encompasses controversial issues of contemporary concern, such as the customary law nature or not of the rules embodied in the Fourth Geneva Convention (GCIV), the relationship between treaties and customary rules, and the derogability or not of the Security Council resolutions from the conventional and customary laws of occupation. The chapter discusses the legal implications of the transitional nature of occupation. In the chapter, the issue of protected persons is touched upon only to the extent necessary for elucidating the personal scope of application of the law of occupation. The question of the scope of application ratione personae is closely connected to that of the scope of application ratione materiae.Keywords: belligerent occupation; customary law; Fourth Geneva Convention (GCIV); law of occupation

The prohibition of the destruction of enemy property is a well-established principle in customary law. As Article 53 Fourth Geneva Convention (GCIV) prohibits only destruction, the occupying power reserves the right to requisition private property. With respect to public property, it is entitled to confiscate any movable property belonging to the occupied State for the purpose of military operations, and to administer real property belonging to that State. A so-called scorched earth policy involves the systematic destruction of whole areas by occupying forces in their withdrawing phrase before the arrival of the enemy forces. Exceptions to the general rule that prohibits the destruction of property are recognised only where there is imperative military necessity. Extensively destroying and appropriating property, not justified by military necessity and carried out unlawfully and wantonly is a grave breach of the Geneva Conventions and punishable as such, as recognised in Articles 147 and 148 GCIV.Keywords: customary law; enemy property; Fourth Geneva Convention (GCIV); grave breach; military necessity test; occupied territory; scorched earth policy

This chapter begins with the question whether or not the existing framework of International Humanitarian Law (IHL) confers rights upon individual persons in the sense of the entitlement to raise complaints of violations of specific rules of IHL treaty provisions. It examines that many IHL treaty-based rules specifically provide rights to individual persons. The chapter explores what may be considered general principles of IHL, which govern the protection of individual persons. It analyses the structure of the rights guaranteed under Fourth Geneva Convention (GCIV). The chapter focuses on what may be described as general principles of GCIV, namely the set of rules regulating all the GCIV provisions dealing with the rights of individual persons in occupied territories. It ends with a discussion of specific elements of the rights to humane treatment elaborated under Part III, Section I of GCIV.Keywords: Fourth Geneva Convention (GCIV); fundamental rights; humane treatment; IHL treaty-based rules; individual persons; international humanitarian law (IHL); occupied territories

This chapter examines two specific prohibited acts in occupied territory: deportation or forcible transfer of protected persons; and forced labour. With respect to the former issue, there is ample body of case-law, which is derived both from the international jurisprudence and from national case-law, which has engendered complex doctrinal discourse on specific elements of deportation or forcible transfer. The chapter reviews general principles on this matter. The occupying powers take measures of temporary evacuation of civilians, total or partial when their presence is deemed as obstacle to military operations. When drafted in 1949, specific rules embodied under Article 49 Fourth Geneva Convention (GCIV) were innovative and not reflective of pre-existing customary international law. The drafters broadened the scope of prohibited acts to encompass acts going beyond the Nazi practice, such as the individual deportation of civilians in an occupied territory, or the forcible transfer of civilians within the occupied territory.Keywords: customary international law; forced labour; forcible transfer; occupied territory; protected persons; specifically prohibited acts; temporary evacuation

The Fourth Geneva Convention lays down detailed provisions on the administration of the occupied territory. It is recognized that the Occupying Power is entitled to take measures to protect its own security and permits certain restrictions on civilians within the territory. Where does the law of occupation stand today? It would seem that, prior to Iraq, two separate tracks were beginning to appear. First, there were those occupations which did not meet with international support and to which the international community therefore argued that the law of occupation applied in its full rigour. The second strand were those occupations carried out with the assent of the international community or to which the international community was prepared to extend a degree of legitimacy. To these, attempts were made to remove the constraints of the law of occupation by the application of United Nations law in the form of Security Council Resolutions. Keywords: fourth Geneva convention; international community; Iraq; law of occupation; occupying power; security council resolutions; United Nations law

In order to assess the relative merits of these two contrasting views about U.S. obligations under international and domestic law concerning refugees, this article first examines briefly the relevant international law (the 1951 U.N. Convention and 1967 Protocol relating to the Status of Refugees and the fourth Geneva Convention of 1949, "Protection of Civilian Persons in Time of War") and the U.S. 1980 Refugee Act. Next it reviews the policy of the U.S. government concerning Central Americans who have come to the United States since 1980 and critiques U.S. policy based on the views of the United Nations High Commissioner for Refugees (UNHCR), the lawyers for the defense in the Jack Elder case, the General Accounting Office (GAO) and other recent research on Mexican and United States refugee policy. The article then assesses recent developments concerning Central American asylum applicants in southern Texas and the significance of court cases related to their treatment by the INS. Finally, it concludes with a look at some policy options available to the United States government that would bring its treatment of Central American migrants more in line with international and domestic legal expectations.

In her instructive article, Professor Lapidoth discussed, inter alia, the applicability of the laws of war to the territories administered by the Israel Defence Forces since the Six Day War of 1967. Being in full agreement with Professor Lapidoth that from the legal standpoint the situation is in need of improvement, I wish to deal more extensively with two questions: (1) What is the position of the Government of Israel regarding the applicability to Judea and Samaria and to the Gaza Strip of the Hague Regulations of 1907 respecting the Laws and Customs of War on Land, and of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War? (2) What is the position of the Supreme Court with regard to the applicability of the Regulations and the Convention to these territories.

Gaza, Iraq, and Lebanon provide three examples of the international law of belligerent occupation in action. The end of Israeli governance in Gaza and the Israeli withdrawal of military and civilian personnel from the Gaza Strip evidence the vitality of the factual tests for belligerent occupation under the Fourth Geneva Convention. The Iraq example highlights the acceptance of limits in the conventional and customary law of occupation. Syria's presence in Lebanon raises the question of the reach of the Fourth Geneva Convention. The United Nations (UN) investigations into the assassination of Rafik Hariri have opened a window through which one glimpses evidence relevant to such a claim.The law of belligerent occupation, like the laws of war more generally, is not meant to provide political answers to international controversies. At the same time, its application is inseparable from such political conflicts. Keywords:belligerent occupation; Fourth Geneva Convention; Gaza; International Law; Iraq; Lebanon; United Nations (UN)

The international law governing belligerent occupation is codified in Articles 42-56 of the 1907 Hague Regulations, the Fourth Geneva Convention, and Additional Protocol I. The respective rules of international humanitarian law apply whenever a belligerent State occupies the adversary's territory, or a part thereof. Articles 27 of Fourth Geneva Convention state that the occupying power may take measures of control and security as a result of the 1991 war against Iraq. The occupying powers have introduced significant changes in the Iraqi system, changes which go far beyond what is anticipated in international humanitarian law. The Coalition Provisional Authority (CPA) disbanded the Iraqi military, creating in its stead new armed forces with a new command structure. The Security Council Resolution 1483 gives the Coalition the mandate to administer Iraq and work towards its political and economic reorganization. Keywords: coalition provisional authority (CPA); Fourth Geneva Convention; international humanitarian law; Iraq; security council resolution 1483

Note: This chapter addresses forced displacement of civilians for reasons related to an armed conflict, whether within or outside the bounds of national territory. It thus covers the treatment of both internally displaced persons and persons who have crossed an international border (refugees). The only exception to this is Rule 130, which covers both forcible and non-forcible transfer of populations into occupied territory . Rule 129. A. Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand . B. Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand . Practice Volume II, Chapter 38, Section A. Summary State practice establishes these rules as norms of customary international law applicable in international (A) and non-international (B) armed conflicts respectively. International armed conflicts The prohibition of the deportation or transfer of civilians goes back to the Lieber Code, which provides that “private citizens are no longer … carried off to distant parts”. Under the Charter of the International Military Tribunal (Nuremberg), “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” constitutes a war crime. The prohibition of the transfer or deportation of civilians is set forth in the Fourth Geneva Convention.

Article 43 of the 1907 Hague Regulations is a key provision of the law of belligerent occupation. This essay examines how it has been understood by states and scholars, how it was developed by the Fourth Geneva Convention of 1949 and whether and how it was respected by the US and the UK during their recent occupation of Iraq. Under Article 43, an occupying power must restore and maintain public order and civil life, including public welfare, in an occupied territory. Local legislation and institutions based upon such legislation must be respected by an occupying power and by any local authorities acting under the global control of the occupying power. This general prohibition to change the local legislation also applies to post-conflict reconstruction efforts, including constitutional reforms, and changes of economic and social policies. The author examines the exceptions to the prohibition and assesses whether the widespread legislative activities by the occupying powers in Iraq fall under these exceptions. He then analyses the question of whether the law of military occupation ceased to apply in Iraq on 30 June 2004. It is also suggested that Article 43 applies to some peace operations and provides a useful framework even for those peace operations to which it does not formally apply.

Objective: To examine the link between different weapons used in modern wars and their potential to injury civilians Design: Retrospective analysis of prospectively collected data about hospital admissions. Setting: Hospitals of the International Committee of the Red Cross. Subjects: 18 877 people wounded by bullets, fragmentation munitions, or mines. Of these, 2012 had been admitted to the hospital in Kabul within six hours of injury. Main outcome measures: Age and sex of wounded people according to cause of injury and whether they were civilians (women and girls, boys under 16 years old, or men of 50 or more) Results: 18.7% of those injured by bullets, 34.1% of those injured by fragments, and 30.8% of those injured by mines were civilians. Of those admitted to the Red Cross hospital in Kabul within six hours of injury, 39.1% of those injured by bullets, 60.6% of those injured by fragments, and 55.0% of those injured by mines were civilians. Conclusions: The proportion of civilians injured differs between weapon systems. The higher proportion injured by fragments and mines is explicable in terms of the military efficiency of weapons, the distance between user and victim, and the effect that the kind of weapon has on the psychology of the user. Key messages During war, mines and fragmenting munitions (mortars, bombs, and shells) are more likely than bullets to injure civilians Civilians in a city under siege are particularly at risk of being injured by weapons whose users are not able to see the victim The inherent nature of weapons may be a factor in determining whether civilians are killed or injured There is a need for greater respect for the Fourth Geneva Convention and for greater controls on weapons being transferred to untrained and undisciplined forces

This paper inquires into whether the right to a fair trial can be restricted with regard to alleged terrorists within the framework of the ‘war on terror’. After briefly identifying the relevant sources of this right and its content, possible restrictions are analysed. The paper elaborates, in particular, on international humanitarian law, such as the Third and Fourth Geneva Convention, and international human rights law, such as the International Covenant on Civil and Political Rights and the American Declaration of the Rights and Duties of Man. It further deals with US constitutional law. We conclude that the right to a fair trial fully applies to alleged terrorists irrespective of the context of their detention (armed conflict or peace) or the qualification of these terrorists (de facto or unlawful combatants) and thus amounts to a general principle of transnational criminal law.

A group of British doctors has called for a boycott of the Israeli Medical Association (IMA) and its expulsion from the World Medical Association (WMA) in a letter published in the Guardian newspaper. The petition, signed by 130 doctors, argues that by refusing to criticise Israeli policies in the Palestinian territories occupied by Israel, the IMA is failing to uphold international medical ethical standards. The Israel Defense Forces “have systematically flouted the fourth Geneva convention guaranteeing a civilian population unfettered access to medical services and immunity for medical staff,” the letter says, citing reports of soldiers attacking ambulances; patients and essential drugs obstructed at checkpoints, and bombing of the public health infrastructure. “The Israeli Medical Association has a duty to protest about war crimes of this kind but has refused to do so,” it continues. “Eighteen leading Palestinian health organisations have appealed to fellow professionals abroad to recognise how the IMA has forfeited its right to membership of the international medical community.” Derek Summerfield of the Institute of Psychiatry, one of the letter's organisers, said a boycott was the only remaining option when all normal channels have been exhausted. “We've sent exhaustive reports, with evidence carefully documented by leading human rights organisations, to the IMA, the World Medical Association, and the BMA, but they've been ignored.” Dr Summerfield said that the BMA …

This paper analyses major recent cases decided by the International Criminal Tribunals for the former Yugoslavia and for Rwanda and dealing with crimes committed against civilians in the power of the opposing side which constitute serious violations of the Fourth Geneva Convention relative to the protection of civilian persons in time of war. The jurisdiction of the International Criminal Court to try crimes of such a nature is also examined. In the author's view, the two International Tribunals, and in particular the ICTY, have made a significant contribution to the legal protection of civilians by giving the provisions on breaches of the humanitarian law treaties a more precise meaning. Furthermore, the ICTY's decision to apply the legal provisions on grave breaches to non-international armed conflicts (Tadic case) has established a firm basis for improved protection of civilians against crimes in civil wars. The new International Criminal Court will have a sound practice to build upon as regards protection by international criminal law of civilians in enemy power.

The legal protection of children was introduced into international humanitarian law after the Second World War. Experience during that conflict had, in fact, pointed to the urgent need to draw up an instrument of public international law for protecting civilian population in wartime. The results of the ICRC's efforts in this field led to the adoption of the 1949 Fourth Geneva Convention relative to the protection of civilian persons in time of war. From that time on, children, as members of the civilian population, were entitled to benefit from the application of that Convention. Moreover, the first international humanitarian law regulations concerning armed conflicts not of an international character, contained in article 3, common to the four 1949 Geneva Conventions, were drawn up at the 1949 Diplomatic Conference. Here again, children were protected, in the same way as all “persons taking no active part in the hostilities”.

We have looked at the protection offered to children in conflict situations by the Fourth Geneva Convention of 1949 and the Additional Protocols of 1977. The principle that children are particularly vulnerable and in need of special protection has been developed in these provisions.When the idea of a Convention on the Rights of the Child was first put forward there were debates about whether this was the best way to proceed. The International Union for Child Welfare expressed reservations about the Polish draft proposal stressing the legal difference between a Declaration and a Convention. Although a Convention is theoretically stronger than a Declaration because it is legally binding, experience has shown that a Declaration adopted unanimously has a greater moral impact than a Convention only ratified by a few countries.Evi Underhill in a paper (undated) “Comments on the Draft Convention on the Rights of the Child” posed not only the question whether Conventions are necessary but also whether they are effective or implemented and if they correspond to the large variety of national customs, political, economic and legal structures.Certainly, concern has been expressed about the lack of geographical representation of Member States attending the working group which is drafting the Convention on the Rights of the Child. In the meantime some NGOs are urging that the drafting process should be speeded up.

The refugee does not enjoy special protection in IHL except in several provisions which will be considered below, nor is there any particular definition of a refugee as a person protected by IHL. The refugee is above all a civilian person and is protected as such by the relevant provisions of IHL. The sole criterion, for the purposes of the Fourth Geneva Convention, is in fact the absence of protection by any government. The term “refugee” is thus given a broad connotation. In international public law there are two defined categories of refugee, to which a third category is usually added by analogy.

Ten years ago, two Protocols additional to the Four Geneva Conventions were adopted in Geneva: one relating to the protection of victims of international armed conflicts, the other to the protection of victims of non-international armed conflicts. This marked a forward step in the development of international humanitarian law applicable in armed conflicts. The most outstanding problem confronting international humanitarian lawyers in the postwar years has been the protection of civilians in circumstances of armed conflicts, particularly in a period characterized by wars of national liberation. The two Protocols scored achievements on two points. First, provisions were elaborated aiming at protecting civilians from the effects of hostilities as opposed to simply protecting civilians in occupied territories as had been the case of the Fourth Geneva Convention of 1949. Secondly, the scope of the application of humanitarian law was greatly widened so as to bring a greater number of victims of armed conflicts under the protection of humanitarian law. This should in turn facilitate the observance and implementation of humanitarian law in conflicts. It is attempted in this paper to make some comments on the achievements of the Protocols, especially Protocol I relating to international armed conflicts.

This presentation postulates that the protections offered by International Humanitarian Law were shaped by and continue to reflect social constructions of vulnerability and victimhood. Specifically, it examines Article 17 of the Fourth Geneva Convention, which reads:“The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.”This provision—by listing people who are socially constructed as vulnerable—fails to provide protection for all civilians. Adult men and women are not protected by this article. Empirical research suggests that some of these excluded civilians may be at greater risk when a besieged enclave is captured. Military-aged men are socially constructed as, at least, potential combatants and may be summarily executed by the attacking force. The continued failure to recognize and provide protection based on this reality undermines the fundamental principles of non-discrimination (among non-combatants) and distinction (between combatants and non-combatants) in International Humanitarian Law. Ultimately, this essay argues that non-combatants could be better protected through an assessment of the actual risks faced by individual civilians.

The expulsion of refugees, either by the state party or by the non-state party to the 1951 Refugee Convention or countries has protracted the refugees’ suffering. Some countries which are the parties to the 1951 Convention even drive out the refugees to outside their national territory for reasons that the refugees were threatening national security or disturbing public order in the country. In the discussion, it is found that firstly, the principle of non - refoulement is a jus cogen and has become customary international law. The non - refoulement principle has legal binding power to both the State party and the non-State party to the 1951 Refugee Convention. Secondly, according to Article 32 paragraph 1 of the 1951 Convention, the implementation of the principle of non-refouelement is not absolute. Exceptions can only be made if the refugees concerned become a threat to national security and disturb public. Thirdly, Indonesia has not yet the State Party to the Refugee Convention of 1951 but Indonesia is subject to the principle of non-refouelement . This is because (i) Indonesia has ratified the Convention against Torture, the Fourth Geneva Convention Relative to the Protection of Civilian Person in Time of War and the ICCPR/International Covenant on Civil and Political Rights (set on the principle of non-refoulement ), (ii) the obligation of the state to rule of customary international law (based on the moral and ethical aspects of the enforcement of international law), and (iii) there is legal instrument issued by the government related to the principle of the principle of non-refouelement ; Fourth, there is no written sanctions imposed on Indonesia if violations of international law are with regard to the refugee problems.