Introduction to and Overview of International Humanitarian Law

Core Professional Training on Humanitarian Law and Policy

Claude Bruderlein November 22, 2010 Cebu, The Philippines

Definition
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflicts.
It protects persons who are not, or are no longer, participating in hostilities, and restricts the means and methods of warfare.
IHL aims to balance, during situations of armed conflict, humanitarian concerns and military necessity

Protection of civilians
Governments should be guided by their overriding obligation to protect each and every civilian within their jurisdiction, regardless of their gender, ethnicity, religion or political conviction. Guiding Principles on Humanitarian Assistance (A/RES/46/182 December 19, 1991)

The primary responsibility of the protection of civilians lies with the government.

Foundation of IHL
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. Martens Clause

Development of IHL
Lauterpacht says that development of the law of war has been determined by three general principles: A belligerent is justified in applying compulsion and force of any kind, to the extent necessary for the realization of the purpose of the war, with the least possible expenditure of casualties, resources and money (this is effectively the doctrine of "military necessity); Based on the principle of humanity kinds and degrees of violence which are not necessary for the purpose of war are not necessary to a belligerent (the doctrine of "unnecessary suffering"); and Chivalry which demands a certain amount of fairness in offense and defense, and a certain mutual respect between the opposing forces. www.lawofwar.org

Shared principles and goals?

Humanity: [C]apture is preferable to wounding an enemy, and wounding him better than killing him; that non-combatants shall be spared as far as possible; that wounds inflicted be as light as possible, so that the injured can be treated and cured; that wounds cause the least possible pain; that captivity be made as endurable as possible. Pictet The first laws of war were proclaimed by major civilizations several millennia before our era: I establish these laws to prevent the strong from oppressing the weak. Hammurabi, King of Babylon

What is IHL?
Importance of the law

Common framework of analysis Common vocabulary

Common standards of protection Basis of military rules of engagement Provides rights and duties for all involved parties

Key Principles of IHL

Jus ad bellum vs. Jus in Bello
Key Principles
Military Necessity Distinction Proportionality Precautionary measures in attack Humanity Impartiality Neutrality Independence

ICJ Nuclear Weapons Advisory Opinion

The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use. (ICJ, 1996)

Respecting IHL: Different Actors

States: direct and primary responsibility Individuals: responsible as state agents only

Non-State Armed Groups: limited responsibility United Nations: as an intergovernmental organization

Basic IHL Instruments

Lieber Code (1863) Hague Conventions of 1907

Restricts means and methods of warfare Convention I (1864): Treatment of battlefield casualties Convention II (1906): Extension of GC I principles to war at sea Convention III (1929): Treatment of prisoners of war Convention IV (1949): Treatment of civilians during wartime

Geneva Conventions (1949)

Additional Protocols to Geneva Convention (1977)

AP I: Protection of victims of international armed conflicts AP II: Protection of victims of non-international armed conflicts

Weapons Conventions (e.g. CCW 1980) Customary International Law