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Thursday, June 6, 2019

European colonization of the Americas

From Wikipedia, the free encyclopedia

The European colonization of the Americas describes the history of the settlement and establishment of control of the continents of the Americas by most of the naval powers of Western Europe.

Political map of the America in 1794
 
Spanish conquistador style armour
 
American Discovery Viewed by Native Americans (Thomas Hart Benton, 1922). European "discovery" and colonization would have disastrous effects on the indigenous peoples of the Americas and their societies.
 
Systematic European colonization began in 1492, when a Spanish expedition headed by the Italian explorer Christopher Columbus sailed west to find a new trade route to the Far East but inadvertently landed in what came to be known to Europeans as the "New World". He ran aground on the northern part of Hispaniola on 5 December 1492, which the Taino people had inhabited since the 9th century; the site became the first permanent European settlement in the Americas. Western European conquest, large-scale exploration and colonization soon followed. Columbus's first two voyages (1492–93) reached the Bahamas and various Caribbean islands, including Hispaniola, Puerto Rico, and Cuba. In 1497, Italian explorer John Cabot, on behalf of England, landed on the North American coast, and a year later, Columbus's third voyage reached the South American coast. As the sponsor of Christopher Columbus's voyages, Spain was the first European power to settle and colonize the largest areas, from North America and the Caribbean to the southern tip of South America. 

The Spaniards began building their American empire in the Caribbean, using islands such as Cuba, Puerto Rico, and Hispaniola as bases. The North and South American mainland fell to the conquistadors, with an estimated 8,000,000 deaths of indigenous populations, which has been argued to be the first large-scale act of genocide in the modern era. Florida fell to Juan Ponce de León after 1513. From 1519 to 1521, Hernán Cortés waged a campaign against the Aztec Empire, ruled by Moctezuma II. The Aztec capital, Tenochtitlan, became Mexico City, the chief city of what the Spanish were now calling "New Spain". More than 240,000 Aztecs died during the siege of Tenochtitlan. Of these, 100,000 died in combat. Between 500 and 1,000 of the Spaniards engaged in the conquest died. Later, the areas that are today California, Arizona, New Mexico, Colorado, Texas, Missouri, Louisiana, and Alabama were taken over by other conquistadors, such as Hernando de Soto, Francisco Vázquez de Coronado, and Álvar Núñez Cabeza de Vaca. Farther to the south, Francisco Pizarro conquered the Inca Empire during the 1530s. The de Soto expedition was the first major encounter of Europeans with North American Indians in the eastern half of the United States. The expedition journeyed from Florida through present-day Georgia and the Carolinas, then west across the Mississippi and into Texas. De Soto fought his biggest battle at the walled town of Mabila in present-day Alabama on October 18, 1540. Spanish losses were 22 killed and 148 wounded. The Spaniards claimed that 2,500 Indians died. If true, Mabila was the bloodiest battle ever fought between native Americans and Europeans in the present-day United States. The centuries of continuous conflicts between the North American Indians and the Anglo-Americans were secondary to the devastation wrought on the densely populated Meso-American, Andean, and Caribbean heartlands.

The British colonization of the Americas started with the unsuccessful settlement attempts in Roanoke and Newfoundland. The English eventually went on to control much of Eastern North America, The Caribbean, and parts of South America. The British also gained Florida and Quebec in the French and Indian War. 

Other powers such as France also founded colonies in the Americas: in eastern North America, a number of Caribbean islands and small coastal parts of South America. Portugal colonized Brazil, tried colonizing the eastern coasts of present-day Canada and settled for extended periods northwest (on the east bank) of the River Plate. The Age of Exploration was the beginning of territorial expansion for several European countries. Europe had been preoccupied with internal wars and was slowly recovering from the loss of population caused by the Black Death; thus the rapid rate at which it grew in wealth and power was unforeseeable in the early 15th century.

Eventually, most of the Western Hemisphere came under the control of Western European governments, leading to changes to its landscape, population, and plant and animal life. In the 19th century over 50 million people left Western Europe for the Americas. The post-1492 era is known as the period of the Columbian Exchange, a dramatically widespread exchange of animals, plants, culture, human populations (including slaves), ideas, and communicable disease between the American and Afro-Eurasian hemispheres following Columbus's voyages to the Americas.

Henry F. Dobyns estimates that immediately before European colonization of the Americas there were between 90 and 112 million people in the Americas; a larger population than Europe at the same time. 

Norse trans-oceanic contact

Voyages of the Vikings to America.
 
Norse journeys to Greenland and Canada are supported by historical and archaeological evidence. A Norse colony in Greenland was established in the late 10th century, and lasted until the mid 15th century, with court and parliament assemblies (þing) taking place at Brattahlíð and a bishop located at Garðar. The remains of a Norse settlement at L'Anse aux Meadows in Newfoundland, Canada, were discovered in 1960 and were dated to around the year 1000 (carbon dating estimate 990–1050 CE). L'Anse aux Meadows is the only site widely accepted as evidence of pre-Columbian trans-oceanic contact. It was named a World Heritage site by UNESCO in 1978. It is also notable for its possible connection with the attempted colony of Vinland, established by Leif Erikson around the same period or, more broadly, with the Norse colonization of the Americas.

Early conquests, claims and colonies

Italian explorers who played a key role in the European colonization of the Americas (clockwise from top): Christopher Columbus, John Cabot, Amerigo Vespucci and Giovanni da Verrazzano
 
Early explorations and conquests were made by the Spanish and the Portuguese immediately following their own final reconquest of Iberia in 1492. In the 1494 Treaty of Tordesillas, ratified by the Pope, these two kingdoms divided the entire non-European world into two areas of exploration and colonization, with a north to south boundary that cut through the Atlantic Ocean and the eastern part of present-day Brazil. Based on this treaty and on early claims by Spanish explorer Vasco Núñez de Balboa, discoverer of the Pacific Ocean in 1513, the Spanish conquered large territories in North, Central and South America. 

Territorial evolution of North America of non-native nation states from 1750 to 2008
 
Central America & Caribbean sovereignty 1700–present
 
Spanish conquistador Hernán Cortés took over the Aztec Kingdom and Francisco Pizarro conquered the Inca Empire. As a result, by the mid-16th century, the Spanish Crown had gained control of much of western South America, and southern North America, in addition to its earlier Caribbean territories. Over this same timeframe, Portugal claimed lands in North America (Canada) and colonized much of eastern South America, naming it Santa Cruz and Brazil. 

Spanish and Portuguese empires in 1790.
 
Other European nations soon disputed the terms of the Treaty of Tordesillas. England and France attempted to plant colonies in the Americas in the 16th century, but these failed. England and France succeeded in establishing permanent colonies in the following century, along with the Dutch Republic. Some of these were on Caribbean islands, which had often already been conquered by the Spanish or depopulated by disease, while others were in eastern North America, which had not been colonized by Spain north of Florida. 

Early European possessions in North America included Spanish Florida, Spanish New Mexico, the English colonies of Virginia (with its North Atlantic offshoot, Bermuda) and New England, the French colonies of Acadia and Canada, the Swedish colony of New Sweden, and the Dutch New Netherland. In the 18th century, Denmark–Norway revived its former colonies in Greenland, while the Russian Empire gained a foothold in Alaska. Denmark-Norway would later make several claims in the Caribbean, starting in the 1600s.

As more nations gained an interest in the colonization of the Americas, competition for territory became increasingly fierce. Colonists often faced the threat of attacks from neighboring colonies, as well as from indigenous tribes and pirates.

Early state-sponsored colonists

Juan Ponce de León (Santervás de Campos, Valladolid, Spain)

The first phase of well-financed European activity in the Americas began with the Atlantic Ocean crossings of Christopher Columbus (1492–1504), sponsored by Spain, whose original attempt was to find a new route to India and China, known as "the Indies". He was followed by other explorers such as John Cabot, who was sponsored by England and reached Newfoundland. Pedro Álvares Cabral reached Brazil and claimed it for Portugal.

Amerigo Vespucci, working for Portugal in voyages from 1497 to 1513, established that Columbus had reached a new set of continents. Cartographers still use a Latinized version of his first name, America, for the two continents. Other explorers included Giovanni da Verrazzano, sponsored by France in 1524; the Portuguese João Vaz Corte-Real in Newfoundland; João Fernandes Lavrador, Gaspar and Miguel Corte-Real and João Álvares Fagundes, in Newfoundland, Greenland, Labrador, and Nova Scotia (from 1498 to 1502, and in 1520); Jacques Cartier (1491–1557), Henry Hudson (1560s–1611), and Samuel de Champlain (1567–1635), who explored the region of Canada he reestablished as New France.

In 1513, Vasco Núñez de Balboa crossed the Isthmus of Panama and led the first European expedition to see the Pacific Ocean from the west coast of the New World. In an action with enduring historical import, Balboa claimed the Pacific Ocean and all the lands adjoining it for the Spanish Crown. It was 1517 before another expedition, from Cuba, visited Central America, landing on the coast of Yucatán in search of slaves. 

Spanish/Portuguese colonies
 
These explorations were followed, notably in the case of Spain, by a phase of conquest: The Spaniards, having just finished the Reconquista of Spain from Muslim rule, were the first to colonize the Americas, applying the same model of governing their European holdings to their territories of the New World. 

Ten years after Columbus's discovery, the administration of Hispaniola was given to Nicolás de Ovando of the Order of Alcántara, founded during the Reconquista. As in the Iberian Peninsula, the inhabitants of Hispaniola were given new landmasters, while religious orders handled the local administration. Progressively the encomienda system, which granted tribute (access to indigenous labor and taxation) to European settlers, was set in place.

A relatively common misconception is that a small number of conquistadores conquered vast territories, aided only by disease epidemics and their powerful caballeros. In fact, recent archaeological excavations have suggested a vast Spanish-Indian alliance numbering in the hundreds of thousands. Hernán Cortés eventually conquered Mexico with the help of Tlaxcala in 1519–1521, while the conquest of the Incas was supported by some 40,000 Incan renegades led by Francisco Pizarro in between 1532 and 1535.

Over the 1st century and a half after Columbus's voyages, the native population of the Americas plummeted by an estimated 80% (from around 50 million in 1492 to eight million in 1650), mostly by outbreaks of Old World diseases. 

In 1532, Charles V, Holy Roman Emperor sent a vice-king to Mexico, Antonio de Mendoza, in order to prevent Cortes' independentist drives, who definitively returned to Spain in 1540. Two years later, Charles V signed the New Laws (which replaced the Laws of Burgos of 1512) prohibiting slavery and the repartimientos, but also claiming as his own all the American lands and all of the indigenous people as his own subjects. 

Painting depicting a Castas with his mixed-race daughter and his Mulatta wife by Miguel Cabrera, 1763
 
When Pope Alexander VI issued the Inter caetera bull in May 1493 granting the new lands to the Kingdom of Spain, he requested in exchange an evangelization of the people. Thus, during Columbus's second voyage, Benedictine monks accompanied him, along with twelve other priests. As slavery was prohibited between Christians, and could only be imposed in non-Christian prisoners of war or on men already sold as slaves, the debate on Christianization was particularly acute during the 16th century. In 1537, the papal bull Sublimis Deus definitively recognized that Native Americans possessed souls, thus prohibiting their enslavement, without putting an end to the debate. Some claimed that a native who had rebelled and then been captured could be enslaved nonetheless. 

Later, the Valladolid debate between the Dominican priest Bartolomé de Las Casas and another Dominican philosopher Juan Ginés de Sepúlveda was held, with the former arguing that Native Americans were beings doted with souls, as all other human beings, while the latter argued to the contrary and justified their enslavement. 

The process of Christianization was at first violent: when the first Franciscans arrived in Mexico in 1524, they burned the places dedicated to pagan cult, alienating much of the local population. In the 1530s, they began to adapt Christian practices to local customs, including the building of new churches on the sites of ancient places of worship, leading to a mix of Old World Christianity with local religions. The Spanish Roman Catholic Church, needing the natives' labor and cooperation, evangelized in Quechua, Nahuatl, Guaraní and other Native American languages, contributing to the expansion of these indigenous languages and equipping some of them with writing systems. One of the first primitive schools for Native Americans was founded by Fray Pedro de Gante in 1523.

To reward their troops, the Conquistadores often allotted Indian towns to their troops and officers. Black African slaves were introduced to substitute for Native American labor in some locations—including the West Indies, where the indigenous population was nearing extinction on many islands.

During this time, the Portuguese gradually switched from an initial plan of establishing trading posts to extensive colonization of what is now Brazil. They imported millions of slaves to run their plantations. The Portuguese and Spanish royal governments expected to rule these settlements and collect at least 20% of all treasure found (the quinto real collected by the Casa de Contratación), in addition to collecting all the taxes they could. By the late 16th century American silver accounted for one-fifth of Spain's total budget. In the 16th century perhaps 240,000 Europeans entered American ports.

The search for riches

Fur traders in Canada, trading with people of Indigenous ancestry, 1777
 
Inspired by the Spanish riches from colonies founded upon the conquest of the Aztecs, Incas, and other large Native American populations in the 16th century, the first Englishmen to settle permanently in America hoped for some of the same rich discoveries when they established their first permanent settlement in Jamestown, Virginia in 1607. They were sponsored by common stock companies such as the chartered Virginia Company financed by wealthy Englishmen who exaggerated the economic potential of this new land. The main purpose of this colony was the hope of finding gold.

It took strong leaders, like John Smith, to convince the colonists of Jamestown that searching for gold was not taking care of their immediate needs for food and shelter and the biblical principle that "he who will not work shall not eat" (see 2 Thessalonians 3). The lack of food security leading to extremely high mortality rate was quite distressing and cause for despair among the colonists. To support the Colony, numerous supply missions were organized. Tobacco later became a cash crop, with the work of John Rolfe and others, for export and the sustaining economic driver of Virginia and the neighboring colony of Maryland.

From the beginning of Virginia's settlements in 1587 until the 1680s, the main source of labor and a large portion of the immigrants were indentured servants looking for new life in the overseas colonies. During the 17th century, indentured servants constituted three-quarters of all European immigrants to the Chesapeake region. Most of the indentured servants were teenagers from England with poor economic prospects at home. Their fathers signed the papers that gave them free passage to America and an unpaid job until they became of age. They were given food, clothing, housing and taught farming or household skills. American landowners were in need of laborers and were willing to pay for a laborer’s passage to America if they served them for several years. By selling passage for five to seven years worth of work, they could then start on their own in America. Many of the migrants from England died in the first few years.

Economic advantage also prompted the Darien Scheme, an ill-fated venture by the Kingdom of Scotland to settle the Isthmus of Panama in the late 1690s. The Darien Scheme aimed to control trade through that part of the world and thereby promote Scotland into a world trading power. However, it was doomed by poor planning, short provisions, weak leadership, lack of demand for trade goods, and devastating disease. The failure of the Darien Scheme was one of the factors that led the Kingdom of Scotland into the Act of Union 1707 with the Kingdom of England creating the united Kingdom of Great Britain and giving Scotland commercial access to English, now British, colonies.

In the French colonial regions, the focus of economy was on sugar plantations in Caribbean. In Canada the fur trade with the natives was important. About 16,000 French men and women became colonizers. The great majority became subsistence farmers along the St. Lawrence River. With a favorable disease environment and plenty of land and food, their numbers grew exponentially to 65,000 by 1760. Their colony was taken over by Britain in 1760, but social, religious, legal, cultural and economic changes were few in a society that clung tightly to its recently formed traditions.

Religious immigration

Penn's Treaty with the Indians
 
Roman Catholics were the first major religious group to immigrate to the New World, as settlers in the colonies of Portugal and Spain (and later, France) belonged to that faith. English and Dutch colonies, on the other hand, tended to be more religiously diverse. Settlers to these colonies included Anglicans, Dutch Calvinists, English Puritans and other nonconformists, English Catholics, Scottish Presbyterians, French Huguenots, German and Swedish Lutherans, as well as Jews, Quakers, Mennonites, Amish, and Moravians.

Many groups of colonists went to the Americas searching for the right to practice their religion without persecution. The Protestant Reformation of the 16th century broke the unity of Western Christendom and led to the formation of numerous new religious sects, which often faced persecution by governmental authorities. In England, many people came to question the organization of the Church of England by the end of the 16th century. One of the primary manifestations of this was the Puritan movement, which sought to "purify" the existing Church of England of its offensive residual Catholic rites. 

Waves of repression led to the migration of about 20,000 Puritans to New England between 1629 and 1642, where they founded multiple colonies. Later in the century, the new Pennsylvania colony was given to William Penn in settlement of a debt the king owed his father. Its government was established by William Penn in about 1682 to become primarily a refuge for persecuted English Quakers; but others were welcomed. Baptists, German and Swiss Protestants and Anabaptists also flocked to Pennsylvania. The lure of cheap land, religious freedom and the right to improve themselves with their own hand was very attractive.

Forced immigration and enslavement

African slaves 17th-century Virginia, 1670.
 
Slavery was a common practice in the Americas prior to the arrival of Europeans, as different American Indian groups captured and held other tribes' members as slaves. Many of these captives were forced to undergo human sacrifice in Amerindian civilizations such as the Aztecs. In response to some enslavement of natives in the Caribbean during the early years, the Spanish Crown passed a series of laws prohibiting slavery as early as 1512. A new stricter set of laws was passed in 1542, called the New Laws of the Indies for the Good Treatment and Preservation of Indians, or simply New Laws. These were created to prevent the exploitation of the indigenous peoples by the encomenderos or landowners, by strictly limiting their power and dominion. This helped curb Indian slavery considerably, though not completely. Later, with the arrival of other European colonial powers in the New World, the enslavement of native populations increased, as these empires lacked legislation against slavery until decades later. The population of indigenous peoples declined (mostly from European diseases, but also from forced exploitation and atrocities). Later, native workers were replaced by Africans imported through a large commercial slave trade. 

By the 18th century, the overwhelming number of black slaves was such that Amerindian slavery was less commonly used. Africans, who were taken aboard slave ships to the Americas, were primarily obtained from their African homelands by coastal tribes who captured and sold them. Europeans traded for slaves with the slave capturers of the local native African tribes in exchange for rum, guns, gunpowder, and other manufactures.

Slavery

Harbour Street, Kingston, Jamaica, c. 1820
 
The total slave trade to islands in the Caribbean, Brazil, Mexico and to the United States is estimated to have involved 12 million Africans. The vast majority of these slaves went to sugar colonies in the Caribbean and to Brazil, where life expectancy was short and the numbers had to be continually replenished. At most about 600,000 African slaves were imported into the United States, or 5% of the 12 million slaves brought across from Africa. Life expectancy was much higher in the United States (because of better food, less disease, lighter work loads, and better medical care) so the numbers grew rapidly by excesses of births over deaths, reaching 4 million by the 1860 Census. Slaves were a valuable commodity both for work and for sale in slave markets and so the policy of actively encouraging or forcing slaves to breed developed, especially after the ending of the Atlantic slave trade. From 1770 until 1860, the rate of growth of North American slaves was much greater than for the population of any nation in Europe, and was nearly twice as rapid as that of England.

Slaves imported to the Thirteen colonies/United States by time period:
  • 1619–1700 – 21,000
  • 1701–1760 – 189,000
  • 1761–1770 – 63,000
  • 1771–1790 – 56,000
  • 1791–1800 – 79,000
  • 1801–1810 – 124,000
  • 1810–1865 – 51,000
  • Total – 597,000

Disease and indigenous population loss

Drawing accompanying text in Book XII of the 16th-century Florentine Codex (compiled 1540–1585)
Nahua suffering from smallpox

The European lifestyle included a long history of sharing close quarters with domesticated animals such as cows, pigs, sheep, goats, horses, dogs and various domesticated fowl, from which many diseases originally stemmed. Thus, in contrast to the indigenous people, Europeans had developed a richer endowment of antibodies. The large-scale contact with Europeans after 1492 introduced Eurasian germs to the indigenous people of the Americas.

Epidemics of smallpox (1518, 1521, 1525, 1558, 1589), typhus (1546), influenza (1558), diphtheria (1614) and measles (1618) swept the Americas subsequent to European contact, killing between 10 million and 100 million people, up to 95% of the indigenous population of the Americas. The cultural and political instability attending these losses appears to have been of substantial aid in the efforts of various colonists in New England and Massachusetts to acquire control over the great wealth in land and resources of which indigenous societies had customarily made use.

Such diseases yielded human mortality of an unquestionably enormous gravity and scale – and this has profoundly confused efforts to determine its full extent with any true precision. Estimates of the pre-Columbian population of the Americas vary tremendously.

Others have argued that significant variations in population size over pre-Columbian history are reason to view higher-end estimates with caution. Such estimates may reflect historical population maxima, while indigenous populations may have been at a level somewhat below these maxima or in a moment of decline in the period just prior to contact with Europeans. Indigenous populations hit their ultimate lows in most areas of the Americas in the early 20th century; in a number of cases, growth has returned.

According to scientists from University College London, the colonization of the Americas by Europeans killed so much of the indigenous population that it resulted in climate change and global cooling.

Impact of colonial land ownership on long-term development

Geographic differences between the colonies played a large determinant in the types of political and economic systems that later developed. In their paper on institutions and long-run growth, economists Daron Acemoglu, Simon Johnson, and James A. Robinson argue that certain natural endowments gave rise to distinct colonial policies promoting either smallholder or coerced labor production. Densely settled populations, for example, were more easily exploitable and profitable as slave labor. In these regions, landowning elites were economically incentivized to develop forced labor arrangements such as the Peru mit'a system or Argentinian latifundias without regard for democratic norms. French and British colonial leaders, conversely, were incentivized to develop capitalist markets, property rights, and democratic institutions in response to natural environments that supported smallholder production over forced labor.

James Mahoney, a professor at Northwestern University, proposes that colonial policy choices made at critical junctures regarding land ownership in coffee-rich Central America fostered enduring path dependent institutions. Coffee economies in Guatemala and El Salvador, for example, were centralized around large plantations that operated under coercive labor systems. By the 19th century, their political structures were largely authoritarian and militarized. In Colombia and Costa Rica, conversely, liberal reforms were enacted at critical junctures to expand commercial agriculture, and they ultimately raised the bargaining power of the middle class. Both nations eventually developed more democratic and egalitarian institutions than their highly concentrated landowning counterparts.

List of European colonies in the Americas

Puerto Plata, Dominican Republic. Founded in 1502, the city is the oldest continuously-inhabited European settlement in the New World.
 
Cumaná, Venezuela. Founded in 1510, it is the oldest continuously-inhabited European city in the continental Americas.

English and (after 1707) British

Courland (indirectly part of Polish–Lithuanian Commonwealth)

Danish

Dutch

  • New Netherland (1609–1667)
  • Essequibo (1616–1815)
  • Dutch Virgin Islands (1625–1680)
  • Berbice (1627–1815)
  • New Walcheren (1628–1677)
  • Dutch Brazil (1630–1654)
  • Pomeroon (1650–1689)
  • Cayenne (1658–1664)
  • Demerara (1745–1815)

    • French

    Knights of Malta

    Norwegian

    Portuguese

    Russian

    The Russian-American Company's capital at New Archangel (present-day Sitka, Alaska) in 1837

    Scottish

    Spanish

    Spanish General Arsenio Martínez Campos in Havana, Spanish Cuba, 1878

    Swedish

    Failed attempts

    German

    Italian

    Exhibitions and collections

    In 2007, the Smithsonian Institution National Museum of American History and the Virginia Historical Society (VHS) co-organized a traveling exhibition to recount the strategic alliances and violent conflict between European empires (English, Spanish, French) and the Native people living in North America. The exhibition was presented in three languages and with multiple perspectives. Artifacts on display included rare surviving Native and European artifacts, maps, documents, and ceremonial objects from museums and royal collections on both sides of the Atlantic. The exhibition opened in Richmond, Virginia on March 17, 2007, and closed at the Smithsonian International Gallery on October 31, 2009.

    The related online exhibition explores the international origins of the societies of Canada and the United States and commemorates the 400th anniversary of three lasting settlements in Jamestown (1607), Québec (1608), and Santa Fe (1609). The site is accessible in three languages.

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    Right of asylum

    From Wikipedia, the free encyclopedia

    Asylum seekers by country of origin in 2009. 
     
      40,000 asylum seekers
      30,000 asylum seekers
      20,000 asylum seekers
      10,000 asylum seekers
      <10 asylum="" data="" no="" or="" seekers="" span="">
     
    Remains of one of four medieval stone boundary markers for the sanctuary of Saint John of Beverley in the East Riding of Yorkshire.
     
    Sanctuary ring on a door of Notre-Dame de Paris (France).
     
    Medieval boundary marker at St. Georgenberg, Tyrol.
     
    Plaque at St. Mary Magdalene Chapel, Dingli, Malta, indicating that the chapel did not enjoy ecclesiastical immunity

    The right of asylum (sometimes called right of political asylum, from the Ancient Greek word ἄσυλον) is an ancient juridical concept, under which a person persecuted by one's own country may be protected by another sovereign authority, such as another country or church official, who in medieval times could offer sanctuary. This right was recognized by the Egyptians, the Greeks, and the Hebrews, from whom it was adopted into Western tradition. René Descartes fled to the Netherlands, Voltaire to England, and Thomas Hobbes to France, because each state offered protection to persecuted foreigners. 

    The Egyptians, Greeks, and Hebrews recognized a religious "right of asylum", protecting criminals (or those accused of crime) from legal action to some extent. This principle was later adopted by the established Christian church, and various rules were developed that detailed how to qualify for protection and what degree of protection one would receive.

    The Council of Orleans decided in 511, in the presence of Clovis I, that asylum could be granted to anyone who took refuge in a church or on church property, or at the home of a bishop. This protection was extended to murderers, thieves and adulterers alike. 

    That "Everyone has the right to seek and to enjoy in other countries asylum from persecution" is enshrined in the United Nations Universal Declaration of Human Rights of 1948 and supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Under these agreements, a refugee is a person who is outside that person's own country's territory owing to fear of persecution on protected grounds, including race, caste, nationality, religion, political opinions and participation in any particular social group or social activities.

    Medieval England

    In England, King Æthelberht of Kent proclaimed the first Anglo-Saxon laws on sanctuary in about 600 AD. However Geoffrey of Monmouth in his Historia Regum Britanniae (c. 1136) says that the legendary pre-Saxon king Dunvallo Molmutius (4th/5th century BC) enacted sanctuary laws among the Molmutine Laws as recorded by Gildas (c. 500–570). The term grith was used by the laws of king Ethelred. By the Norman era that followed 1066, two kinds of sanctuary had evolved: all churches had the lower-level powers and could grant sanctuary within the church proper, but the broader powers of churches licensed by royal charter extended sanctuary to a zone around the church. At least twenty-two churches had charters for this broader sanctuary, including
    Sometimes the criminal had to get to the chapel itself to be protected, or ring a certain bell, hold a certain ring or door-knocker, or sit on a certain chair ("frith-stool"). Some of these items survive at various churches. Elsewhere, sanctuary held in an area around the church or abbey, sometimes extending in radius to as much as a mile and a half. Stone "sanctuary crosses" marked the boundaries of the area; some crosses still exist as well. Thus it could become a race between the felon and the medieval law officers to the nearest sanctuary boundary. Serving of justice upon the fleet of foot could prove a difficult proposition. 

    Church sanctuaries were regulated by common law. An asylum seeker had to confess his sins, surrender his weapons, and permit supervision by a church or abbey organization with jurisdiction. Seekers then had forty days to decide whether to surrender to secular authorities and stand trial for their alleged crimes, or to confess their guilt, abjure the realm, and go into exile by the shortest route and never return without the king's permission. Those who did return faced execution under the law or excommunication from the Church. 

    If the suspects chose to confess their guilt and abjure, they did so in a public ceremony, usually at the church gates. They would surrender their possessions to the church, and any landed property to the crown. The coroner, a medieval official, would then choose a port city from which the fugitive should leave England (though the fugitive sometimes had this privilege). The fugitive would set out barefooted and bareheaded, carrying a wooden cross-staff as a symbol of protection under the church. Theoretically they would stay to the main highway, reach the port and take the first ship out of England. In practice, however, the fugitive could get a safe distance away, abandon the cross-staff and take off and start a new life. However, one can safely assume the friends and relatives of the victim knew of this ploy and would do everything in their power to make sure this did not happen; or indeed that the fugitives never reached their intended port of call, becoming victims of vigilante justice under the pretense of a fugitive who wandered too far off the main highway while trying to "escape." 

    Knowing the grim options, some fugitives rejected both choices and opted for an escape from the asylum before the forty days were up. Others simply made no choice and did nothing. Since it was illegal for the victim's friends to break into an asylum, the church would deprive the fugitive of food and water until a decision was made.

    During the Wars of the Roses, when the Yorkists or Lancastrians would suddenly get the upper hand by winning a battle, some adherents of the losing side might find themselves surrounded by adherents of the other side and not able to get back to their own side. Upon realizing this situation they would rush to sanctuary at the nearest church until it was safe to come out. A prime example is Queen Elizabeth Woodville, consort of Edward IV of England. 

    In 1470, when the Lancastrians briefly restored Henry VI to the throne, Queen Elizabeth was living in London with several young daughters. She moved with them into Westminster for sanctuary, living there in royal comfort until Edward IV was restored to the throne in 1471 and giving birth to their first son Edward V during that time. When King Edward IV died in 1483, Elizabeth (who was highly unpopular with even the Yorkists and probably did need protection) took her five daughters and youngest son (Richard, Duke of York) and again moved into sanctuary at Westminster. To be sure she had all the comforts of home, she brought so much furniture and so many chests that the workmen had to knock holes in some of the walls to get everything in fast enough to suit her.

    Henry VIII changed the rules of asylum, reducing to a short list the types of crimes for which people were allowed to claim asylum. The medieval system of asylum was finally abolished entirely by James I in 1623.

    Modern political asylum

    Article 14 of the Universal Declaration of Human Rights states that "Everyone has the right to seek and to enjoy in other countries asylum from persecution." The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means has been applied directly or environmentally to the refugee) is a person who is outside that person's own country's territory (or place of habitual residence if stateless) owing to fear of persecution on protected grounds. Protected grounds include race, caste, nationality, religion, political opinions and membership or participation in any particular social group or social activities. Rendering true victims of persecution to their persecutor is a violation of a principle called non-refoulement, part of the customary and trucial Law of Nations. 

    These are the accepted terms and criteria as principles and a fundamental part in the 1951 United Nations Convention Relating to the Status of Refugees non-refoulement order.

    Since the 1990s, victims of sexual persecution (which may include domestic violence, or systematic oppression of a gender or sexual minority) have come to be accepted in some countries as a legitimate category for asylum claims, when claimants can prove that the state is unable or unwilling to provide protection.

    Right of asylum by country of refuge

    File:Ontheemden uit Midden-Europa vinden asiel in ons land Weeknummer 50-48 - Open Beelden - 10692.ogv
    The Dutch government grants asylum to a couple of hundred elderly from Yugoslavia, Poland, Hungary and the Baltic states. Since the end of World War II the people stayed in camps in Austria and West Germany. (Newsreel (in Dutch))

    European Union

    Asylum in European Union member states formed over a half-century by application of the Geneva Convention of 28 July 1951 on the Status of Refugees. Common policies appeared in the 1990s in connection with the Schengen Agreement (which suppressed internal borders) so that asylum seekers unsuccessful in one Member State would not reapply in another. The common policy began with the Dublin Convention in 1990. It continued with the implementation of Eurodac and the Dublin Regulation in 2003, and the October 2009 adoption of two proposals by the European Commission.
    France
    France was the first country to recognize the constitutional right to asylum, this being enshrined in article 120 of the Constitution of 1793. The modern French right of asylum is recognized by the 1958 Constitution, vis-à-vis the paragraph 4 of the preamble to the Constitution of 1946, to which the Preamble of the 1958 Constitution directly refers. The Constitution of 1946 incorporated of parts of the 1793 constitution which had guaranteed the right of asylum to "anyone persecuted because of his action for freedom" who are unable to seek protection in their home countries.

    In addition to the constitutional right to asylum, the modern French right to asylum (droit d'asile) is enshrined on a legal and regulatory basis in the Code de l'Entree et du Sejour des Etrangers et du Droit d'Asile (CESEDA).

    France also adheres to international agreements which provide for application modalities for the right of asylum, such as the 1951 United Nations (UN) Convention Relating to the Status of Refugees (ratified in 1952), the additional 1967 protocol; articles K1 and K2 of the 1992 Maastricht Treaty as well as the 1985 Schengen Agreement, which defined EU immigration policy. Finally, the right of asylum is defined by article 18 of the Charter of Fundamental Rights of the European Union.

    Some of the criteria for which an asylum application can be rejected include: i) Passage via “safe" third country, ii) Safe Country of Origin (An asylum seeker can be a prior refused asylum if he or she is a national of a country considered to be "safe" by the French asylum authority OFPRA), iii) Safety Threat (serious threat to the public order), or iv) Fraudulent Application (abuse of the asylum procedure for other reasons). 

    The December 10, 2003, law limited political asylum through two main restrictions:
    • The notion of "internal asylum": the request may be rejected if the foreigner may benefit from political asylum on a portion of the territory of their home country.
    • The OFPRA (Office français de protection des réfugiés et apatrides – French Office for the Protection of Refugees and Stateless Persons) now makes a list of allegedly "safe countries" which respect political rights and principles of liberty. If the demander of asylum comes from such a country, the request is processed in 15 days, and receives no social assistance protection. They may contest the decision, but this does not suspend any deportation order. The first list, enacted in July 2005, included as "safe countries" Benin, Cape Verde, Ghana, Mali, Mauritius Island, India, Senegal, Mongolia, Georgia, Ukraine, Bosnia and Croatia. It had the effect of reducing in six months by about 80% the number of applicants from these countries. The second list, passed in July 2006, included Tanzania, Madagascar, Niger, Albania and Macedonia.
    While restricted, the right of political asylum has been conserved in France amid various anti-immigration laws. Some people claim that, apart from the purely judicial path, the bureaucratic process is used to slow down and ultimately reject what might be considered as valid requests. According to Le Figaro, France granted 7,000 people the status of political refugee in 2006, out of a total of 35,000 requests; in 2005, the OFPRA in charge of examining the legitimacy of such requests granted less than 10,000 from a total of 50,000 requests.

    Numerous exiles from South American dictatorships, particularly from Augusto Pinochet's Chile and the Dirty War in Argentina, were received in the 1970s-80s. Since the 2001 invasion of Afghanistan, tens of homeless Afghan asylum seekers have been sleeping in a park in Paris near the Gare de l'Est train station. Although their demands haven't been yet accepted, their presence has been tolerated. However, since the end of 2005, NGOs have been noting that the police separate Afghans from other migrants during raids, and expel via charters those who have just arrived at Gare de l'Est by train and haven't had time to demand asylum (a May 30, 2005, decree requires them to pay for a translator to help with official formalities).
    United Kingdom
    In the 19th century, the United Kingdom accorded political asylum to various persecuted people, among whom were many members of the socialist movement (including Karl Marx). With the 1845 attempted bombing of the Greenwich Royal Observatory and the 1911 Siege of Sidney Street in the context of the propaganda of the deed (anarchist) actions, political asylum was restricted.

    United States

    The United States recognizes the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees who apply for refugee status overseas, as well as those applying for asylum after arriving in the U.S., are admitted annually. 

    Since World War II, more refugees have found homes in the U.S. than any other nation and more than two million refugees have arrived in the U.S. since 1980. During much of the 1990s, the United States accepted over 100,000 refugees per year, though this figure has recently decreased to around 50,000 per year in the first decade of the 21st century, due to greater security concerns. As for asylum seekers, the latest statistics show that 86,400 persons sought sanctuary in the United States in 2001. Before the September 11 attacks individual asylum applicants were evaluated in private proceedings at the U.S. Immigration and Naturalization Services (INS).

    Despite this, concerns have been raised with the U.S. asylum and refugee determination processes. A recent empirical analysis by three legal scholars described the U.S. asylum process as a game of refugee roulette; that is to say that the outcome of asylum determinations depends in large part on the personality of the particular adjudicator to whom an application is randomly assigned, rather than on the merits of the case. The very low numbers of Iraqi refugees accepted between 2003 and 2007 exemplifies concerns about the United States' refugee processes. The Foreign Policy Association reported that:
    Perhaps the most perplexing component of the Iraq refugee crisis... has been the inability for the U.S. to absorb more Iraqis following the 2003 invasion of the country. To date, the U.S. has granted less than 800 Iraqis refugee status, just 133 in 2007. By contrast, the U.S. granted asylum to more than 100,000 Vietnamese refugees during the Vietnam War.
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    International humanitarian law

    From Wikipedia, the free encyclopedia

    International humanitarian law (IHL) is the law that regulates the conduct of war (jus in bello). It is that branch of international law which seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting and regulating the means and methods of warfare available to combatants.
     
    IHL is inspired by considerations of humanity and the mitigation of human suffering. "It comprises a set of rules, established by treaty or custom, that seeks to protect persons and property/objects that are (or may be) affected by armed conflict and limits the rights of parties to a conflict to use methods and means of warfare of their choice". It includes "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law". It defines the conduct and responsibilities of belligerent nations, neutral nations, and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning non-combatants. It is designed to balance humanitarian concerns and military necessity, and subjects warfare to the rule of law by limiting its destructive effect and mitigating human suffering.

    Serious violations of international humanitarian law are called war crimes. International humanitarian law, jus in bello, regulates the conduct of forces when engaged in war or armed conflict. It is distinct from jus ad bellum which regulates the conduct of engaging in war or armed conflict and includes crimes against peace and of war of aggression. Together the jus in bello and jus ad bellum comprise the two strands of the laws of war governing all aspects of international armed conflicts.

    The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.

    International humanitarian law operates on a strict division between rules applicable in international armed conflict and internal armed conflict. This dichotomy is widely criticized.

    The relationship between international human rights law and international humanitarian law is disputed among international law scholars. This discussion forms part of a larger discussion on fragmentation of international law. While pluralist scholars conceive international human rights law as being distinct from international humanitarian law, proponents of the constitutionalist approach regard the latter as a subset of the former. In a nutshell, those who favor separate, self-contained regimes emphasize the differences in applicability; international humanitarian law applies only during armed conflict. On the other hand, a more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict and military occupation (i.e., IHL) or to certain groups of people including refugees (e.g., the 1951 Refugee Convention), children (the 1989 Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).

    Democracies are likely to protect the rights of all individuals within their territorial jurisdiction.

    Two historical streams: The Law of Geneva and The Law of The Hague

    Modern international humanitarian law is made up of two historical streams:
    1. The law of The Hague, referred to in the past as the law of war proper; and
    2. The law of Geneva, or humanitarian law.
    The two streams take their names from a number of international conferences which drew up treaties relating to war and conflict, in particular the Hague Conventions of 1899 and 1907, and the Geneva Conventions, the first which was drawn up in 1863. Both deal with jus in bello, which deals with the question of whether certain practices are acceptable during armed conflict.

    The Law of The Hague, or the laws of war proper, "determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm". In particular, it concerns itself with
    • the definition of combatants;
    • establishes rules relating to the means and methods of warfare;
    • and examines the issue of military objectives.
    Systematic attempts to limit the savagery of warfare only began to develop in the 19th century. Such concerns were able to build on the changing view of warfare by states influenced by the Age of Enlightenment. The purpose of warfare was to overcome the enemy state, which could be done by disabling the enemy combatants. Thus, "the distinction between combatants and civilians, the requirement that wounded and captured enemy combatants must be treated humanely, and that quarter must be given, some of the pillars of modern humanitarian law, all follow from this principle".

    The Law of Geneva

    The massacre of civilians in the midst of armed conflict has a long and dark history. Selected examples include
    to name only a few examples drawn from a long list in history. Fritz Munch sums up historical military practice before 1800: "The essential points seem to be these: In battle and in towns taken by force, combatants and non-combatants were killed and property was destroyed or looted." In the 17th century, the Dutch jurist Hugo Grotius, widely regarded as the founder or father of public international law, wrote that "wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents".

    Humanitarian norms in history

    Even in the midst of the carnage of history, however, there have been frequent expressions and invocation of humanitarian norms for the protection of the victims of armed conflicts: the wounded, the sick and the shipwrecked. These date back to ancient times.

    In the Old Testament, the King of Israel prevents the slaying of the captured, following the prophet Elisha's admonition to spare enemy prisoners. In answer to a question from the King, Elisha said, "You shall not slay them. Would you slay those whom you have taken captive with your sword and with your bow? Set bread and water before them, that they may eat and drink and go to their master."

    In ancient India there are records (the Laws of Manu, for example) describing the types of weapons that should not be used: "When he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire." There is also the command not to strike a eunuch nor the enemy "who folds his hands in supplication ... Nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight."

    Islamic law states that "non-combatants who did not take part in fighting such as women, children, monks and hermits, the aged, blind, and insane" were not to be molested. The first Caliph, Abu Bakr, proclaimed, "Do not mutilate. Do not kill little children or old men or women. Do not cut off the heads of palm trees or burn them. Do not cut down fruit trees. Do not slaughter livestock except for food." Islamic jurists have held that a prisoner should not be killed, as he "cannot be held responsible for mere acts of belligerency".

    Islamic law did not spare all non-combatants, however. In the case of those who refused to convert to Islam, or to pay an alternative tax, Muslims "were allowed in principle to kill any one of them, combatants or noncombatants, provided they were not killed treacherously and with mutilation".

    Codification of humanitarian norms

    The most important antecedent of IHL is the current Armistice Agreement and Regularization of War, signed and ratified in 1820 between the authorities of the then Government of Great Colombia and the Chief of the Expeditionary Forces of the Spanish Crown, in the Venezuelan city of santa Ana de Trujillo. This treaty was signed under the conflict of Independence, being the first of its kind in the West. 

    It was not until the second half of the 19th century, however, that a more systematic approach was initiated. In the United States, a German immigrant, Francis Lieber, drew up a code of conduct in 1863, which came to be known as the Lieber Code, for the Union Army during the American Civil War. The Lieber Code included the humane treatment of civilian populations in the areas of conflict, and also forbade the execution of POWs.

    At the same time, the involvement during the Crimean War of a number of such individuals as Florence Nightingale and Henry Dunant, a Genevese businessman who had worked with wounded soldiers at the Battle of Solferino, led to more systematic efforts to prevent the suffering of war victims. Dunant wrote a book, which he titled A Memory of Solferino, in which he described the horrors he had witnessed. His reports were so shocking that they led to the founding of the International Committee of the Red Cross (ICRC) in 1863, and the convening of a conference in Geneva in 1864, which drew up the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.

    The Law of Geneva is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict, as well as to military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the ICRC. This focus can be found in the Geneva Conventions.

    Geneva Conventions

    The First Geneva Convention of 1864.
     
    Progression of Geneva Conventions from 1864 to 1949.

    The Geneva Conventions are the result of a process that developed in a number of stages between 1864 and 1949. It focused on the protection of civilians and those who can no longer fight in an armed conflict. As a result of World War II, all four conventions were revised, based on previous revisions and on some of the 1907 Hague Conventions, and readopted by the international community in 1949. Later conferences have added provisions prohibiting certain methods of warfare and addressing issues of civil wars.

    The first three Geneva Conventions were revised, expanded, and replaced, and the fourth one was added, in 1949.
    There are three additional amendment protocols to the Geneva Convention:
    1. Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries.
    2. Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries.
    3. Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by seventeen countries and signed but not yet ratified by an additional 68.
    The Geneva Conventions of 1949 may be seen, therefore, as the result of a process which began in 1864. Today they have "achieved universal participation with 194 parties". This means that they apply to almost any international armed conflict. The Additional Protocols, however, have yet to achieve near-universal acceptance, since the United States and several other significant military powers (like Iran, Israel, India and Pakistan) are currently not parties to them.

    Historical convergence between IHL and the laws of war

    With the adoption of the 1977 Additional Protocols to the Geneva Conventions, the two strains of law began to converge, although provisions focusing on humanity could already be found in the Hague law (i.e. the protection of certain prisoners of war and civilians in occupied territories). The 1977 Additional Protocols, relating to the protection of victims in both international and internal conflict, not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights provisions.

    Basic rules of IHL

    1. Persons who are hors de combat (outside of combat), and those who are not taking part in hostilities in situation of armed conflict (e.g., neutral nationals), shall be protected in all circumstances.
    2. The wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the "Red Cross", or of the "Red Crescent," shall be required to be respected as the sign of protection.
    3. Captured persons must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
    4. No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
    5. Parties to a conflict do not have an unlimited choice of methods and means of warfare.
    6. Parties to a conflict shall at all times distinguish between combatants and non-combatants. Attacks shall be directed solely against legitimate military targets.

    Examples

    Well-known examples of such rules include the prohibition on attacking doctors or ambulances displaying a red cross. It is also prohibited to fire at a person or vehicle bearing a white flag, since that, being considered the flag of truce, indicates an intent to surrender or a desire to communicate. In either case, the persons protected by the Red Cross or the white flag are expected to maintain neutrality, and may not engage in warlike acts themselves; engaging in war activities under a white flag or a red cross is itself a violation of the laws of war. 

    These examples of the laws of war address:
    • declarations of war;
    • acceptance of surrender;
    • the treatment of prisoners of war;
    • the avoidance of atrocities;
    • the prohibition on deliberately attacking non-combatants; and
    • the prohibition of certain inhumane weapons.
    It is a violation of the laws of war to engage in combat without meeting certain requirements, among them the wearing of a distinctive uniform or other easily identifiable badge, and the carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.

    Later additions

    International humanitarian law now includes several treaties that outlaw specific weapons. These conventions were created largely because these weapons cause deaths and injuries long after conflicts have ended. Unexploded land mines have caused up to 7,000 deaths a year; unexploded bombs, particularly from cluster bombs that scatter many small "bomblets", have also killed many. An estimated 98% of the victims are civilian; farmers tilling their fields and children who find these explosives have been common victims. For these reasons, the following conventions have been adopted:

    International Committee of the Red Cross

    Emblem of the ICRC

    The ICRC is the only institution explicitly named under international humanitarian law as a controlling authority. The legal mandate of the ICRC stems from the four Geneva Conventions of 1949, as well as from its own Statutes. 

    Violations and punishment

    During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal. 

    Combatants who break specific provisions of the laws of war lose the protections and status afforded to them as prisoners of war, but only after facing a "competent tribunal". At that point, they become unlawful combatants, but must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV, Article 5.

    Spies and terrorists are only protected by the laws of war if the "power" which holds them is in a state of armed conflict or war, and until they are found to be an "unlawful combatant". Depending on the circumstances, they may be subject to civilian law or a military tribunal for their acts. In practice, they have often have been subjected to torture and execution. The laws of war neither approve nor condemn such acts, which fall outside their scope. Spies may only be punished following a trial; if captured after rejoining their own army, they must be treated as prisoners of war. Suspected terrorists who are captured during an armed conflict, without having participated in the hostilities, may be detained only in accordance with the GC IV, and are entitled to a regular trial. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.

    After a conflict has ended, persons who have committed any breach of the laws of war, and especially atrocities, may be held individually accountable for war crimes through process of law.

    Key provisions and principles applicable to civilians

    The Fourth Geneva Convention focuses on the civilian population. The two additional protocols adopted in 1977 extend and strengthen civilian protection in international (AP I) and non-international (AP II) armed conflict: for example, by introducing the prohibition of direct attacks against civilians. A "civilian" is defined as "any person not belonging to the armed forces", including non-nationals and refugees. However, it is accepted that operations may cause civilian casualties. Luis Moreno Ocampo, chief prosecutor of the international criminal court, wrote in 2006: "International humanitarian law and the Rome statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) ... or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality)."

    The provisions and principles of IHL which seek to protect civilians are:

    IHL provisions and principles protecting civilians

    Principle of distinction

    The principle of distinction protects civilian population and civilian objects from the effects of military operations. It requires parties to an armed conflict to distinguish at all times, and under all circumstances, between combatants and military objectives on the one hand, and civilians and civilian objects on the other; and only to target the former. It also provides that civilians lose such protection should they take a direct part in hostilities. The principle of distinction has also been found by the ICRC to be reflected in state practice; it is therefore an established norm of customary international law in both international and non-international armed conflicts.

    Necessity and proportionality

    Necessity and proportionality are established principles in humanitarian law. Under IHL, a belligerent may apply only the amount and kind of force necessary to defeat the enemy. Further, attacks on military objects must not cause loss of civilian life considered excessive in relation to the direct military advantage anticipated. Every feasible precaution must be taken by commanders to avoid civilian casualties. The principle of proportionality has also been found by the ICRC to form part of customary international law in international and non-international armed conflicts.

    Principle of humane treatment

    The principle of humane treatment requires that civilians be treated humanely at all times. Common Article 3 of the GCs prohibits violence to life and person (including cruel treatment and torture), the taking of hostages, humiliating and degrading treatment, and execution without regular trial against non-combatants, including persons hors de combat (wounded, sick and shipwrecked). Civilians are entitled to respect for their physical and mental integrity, their honour, family rights, religious convictions and practices, and their manners and customs. This principle of humane treatment has been affirmed by the ICRC as a norm of customary international law, applicable in both international and non-international armed conflicts.

    Principle of non-discrimination

    The principle of non-discrimination is a core principle of IHL. Adverse distinction based on race, sex, nationality, religious belief or political opinion is prohibited in the treatment of prisoners of war, civilians, and persons hors de combat. All protected persons shall be treated with the same consideration by parties to the conflict, without distinction based on race, religion, sex or political opinion. Each and every person affected by armed conflict is entitled to his fundamental rights and guarantees, without discrimination. The prohibition against adverse distinction is also considered by the ICRC to form part of customary international law in international and non-international armed conflict.

    Women and children

    Women and children are granted preferential treatment, respect and protection. Women must be protected from rape and from any form of indecent assault. Children under the age of eighteen must not be permitted to take part in hostilities.

    Gender and culture

    Gender

    IHL emphasises, in various provisions in the GCs and APs, the concept of formal equality and non-discrimination. Protections should be provided "without any adverse distinction founded on sex". For example, with regard to female prisoners of war, women are required to receive treatment "as favourable as that granted to men". In addition to claims of formal equality, IHL mandates special protections to women, providing female prisoners of war with separate dormitories from men, for example, and prohibiting sexual violence against women.

    The reality of women's and men's lived experiences of conflict has highlighted some of the gender limitations of IHL. Feminist critics have challenged IHL's focus on male combatants and its relegation of women to the status of victims, and its granting them legitimacy almost exclusively as child-rearers. A study of the 42 provisions relating to women within the Geneva Conventions and the Additional Protocols found that almost half address women who are expectant or nursing mothers. Others have argued that the issue of sexual violence against men in conflict has not yet received the attention it deserves.

    Soft-law instruments have been relied on to supplement the protection of women in armed conflict:
    • UN Security Council Resolutions 1888 and 1889 (2009), which aim to enhance the protection of women and children against sexual violations in armed conflict; and
    • Resolution 1325, which aims to improve the participation of women in post-conflict peacebuilding.
    Read together with other legal mechanisms, in particular the UN Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), these can enhance interpretation and implementation of IHL. 

    In addition, international criminal tribunals (like the International Criminal Tribunals for the former Yugoslavia and Rwanda) and mixed tribunals (like the Special Court for Sierra Leone) have contributed to expanding the scope of definitions of sexual violence and rape in conflict. They have effectively prosecuted sexual and gender-based crimes committed during armed conflict. There is now well-established jurisprudence on gender-based crimes. Nonetheless, there remains an urgent need to further develop constructions of gender within international humanitarian law.

    Culture

    IHL has generally not been subject to the same debates and criticisms of "cultural relativism" as have international human rights. Although the modern codification of IHL in the Geneva Conventions and the Additional Protocols is relatively new, and European in name, the core concepts are not new, and laws relating to warfare can be found in all cultures. 

    ICRC studies on the Middle East, Somalia, Latin America, and the Pacific, for example have found that there are traditional and long-standing practices in various cultures that preceded, but are generally consistent with, modern IHL. It is important to respect local and cultural practices that are in line with IHL. Relying on these links and on local practices can help to promote awareness of and adherence to IHL principles among local groups and communities.

    Durham cautions that, although traditional practices and IHL legal norms are largely compatible, it is important not to assume perfect alignment. There are areas in which legal norms and cultural practices clash. Violence against women, for example, is frequently legitimised by arguments from culture, and yet is prohibited in IHL and other international law. In such cases, it is important to ensure that IHL is not negatively affected.
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