BASIC INTRODUCTION TO IHL

 A branch of Public International Law

 Deals with the situation of an armed conflict and prescribes the rules applicable to
parties to the conflict
 It is also referred to as the law of armed conflict or jus in bello
 It is often contrasted with jus ad bellum that deals with legality of an armed conflict
or war (ref. article 2(4) and 51 of the UN Charter)
 It is both complementary and supplementary to another branch of Public International
Law – International Human Rights Law.

 Primary Objective of IHL:

- IHL presupposes that war are inevitable.
- It also presupposes the concept of ‘fog of war’, that is, it is more difficult to make
‘rational and correct choices’ during a wartime than peace time.
- To this end, IHL seeks to:
o minimize loss of innocent lives
o minimize unnecessary suffering on all the sides of the war
o minimize wanton destruction of civilian properties
o preserve the ‘minimum of humanity’ even during the fog of war (see for
example, common article 3 to the GCs)
- IHL does NOT seek to
o Prohibit all forms of violence during a war
o Protect everyone in every circumstances during a war.

 It provides a set of rules applicable during an armed conflict governing:

- Treatment of sick and wounded
- Conduct of hostilities
o Rules of targeting
o Means and methods of warfare
- Detention in the context of an armed conflict
o Prisoner of war
o Civilian internment and other forms of detention

 Two leading sources (among others) governing IHL are:

o The Four Geneva Conventions of 1949 and their three Additional Protocols
(1977 and 2005)
o The Hague Conventions of 1899 (4 in total) and 1907 (13 in total)
HISTORICAL DEVELOPMENT OF IHL

Abstract sources loosely inculcating the notions of IHL

 Sun Tsu, The Art of War, Verse 19: “Treat your captives well and care for them – all
the soldiers taken must be cared for with magnanimity and sincerity so that they may
be used by us. This is called winning the battle and becoming stronger”.
 Ten Rules in Ta’rikh al-Rusul wa al-Muluk, including:
- You must not mutilate,
- neither kill a child or aged man or woman.
- Do not destroy a palm-tree, nor burn it with fire and do not cut any fruitful
tree.
- You must not slay any of the flock or the herds or the camels, save for your
subsistence
- You are likely to pass by people who have devoted their lives to monastic
services;
- leave them to that to which they have devoted their lives
 Mahabharata and the concept of Dharma Yuddha and Adharma/Kutta Yuddha

 Manusmriti

- Wars must have honest duels

- Travelers should be spared, so should people who are eating, drinking water
or pursuing special avocations and diplomatic errands
- Brahmins should be spared at all cost and are not to be engaged in war

Pre World Wars

 Case of Peter Von Hagenbach (1474): "Von Hagenbach was accused of crimes
against the laws of God and humanity and tried before a tribunal. "In his defence, he
argued that he had followed superior orders. The court denied this plea, convicted him
of the crime and executed him.” Source: Bassiouni, M. Cherif, Perspectives on
International Criminal Justice, 50 Va. J. Int'l L. 269, 298 (2010))

• In the late 16th and 17th centuries a number of great scholars and jurists turned their
minds to the subject of laws governing the conduct of war.

• Most notable amongst these are Alberato Gentili 1552—1608, Bathazor Ayala 1548,
Francisco Suarez 1548—1617, Fransciso de Vittoria 1483—1546 and Hugo Grotius
1583—1645. Grotius is generally credited with writing the first complete text on
LOAC and his book De Jure Belli ac Pacis is still regarded as a major authority.

 1625: The book De jure belli ac pacis (On the Law of War and Peace) by Hugo
Grotius (law of war was described as a part of the natural law)
  1859: The battle of Solferino (40,000+ casualties, lack of treatment to the sick and
wounded) philanthropist and businessman Henry Dunant organized civilian relief
programs to assist the wounded soldiers.

 1863: Lieber Code (a code of conduct for US Field Armies, prepared by Francis
Lieber and signed by Abraham Lincoln)

 Also, in 1863: a) formation of the ICRC; b) formation of the first National Red Cross
Societies; c) final text of the 1st Geneva Convention

 1864: The first Geneva Convention on Amelioration of the Condition of the

Wounded in Armies in the Field

 1868: St. Petersburg Declaration Renouncing the Use, in Time of War, of Certain
Explosive Projectile

 1899 and 1907: The Hague Conventions.

During and Post the World Wars (problems in application of IHL manifested the most
clearly in this period)

 1925: Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or
other Gases, and of Bacteriological Methods of Warfare

 1929: Geneva Convention on Prisoners of War

 1945.1948: Establishment of the International Military Tribunal in Nuremberg and

Tokyo for the prosecution of major war criminals of the WWII. Among others, led to
the development of ‘Nuremberg Principles’ held as a watershed in development of
international criminal law.

 1949:

- Geneva Convention I on Wounded and Sick in the Field

- Geneva Convention II on Wounded, Sick and Shipwrecked at Sea
- Geneva Convention III on Prisoners of War
- Geneva Convention IV on Civilians

 1977:
- Additional Protocol 1to the Geneva Conventions applicable to international
armed conflict (to address GC’s lack of specific rules on conduct of hostilities
and rules applicable to guerilla warfare)

- Additional Protocol 2 to the Geneva Conventions applicable to non-

international armed conflicts (to address the inadequacy of the Common
Article 3 to the GCs)
 1980: UN Convention on Prohibitions or Restrictions of the Use of Certain Chemical
Weapons

 1993/1994: Establishment of the International Criminal Tribunal for the Former

Yugoslavia (ICTY) in The Hague, the Netherlands and Rwanda (ICTR) in Arusha,
Tanzania. Another milestone in prosecution of war crimes. Led to development of
many significant jurisprudences for both IHL and ICL (International Criminal Law).

 1997: Ottawa Convention Banning Anti-Personnel Land Mines

 1998: Adoption of the (Rome) Statute of the International Criminal Court (helmed as
the most important development in International Criminal Law.

 2002: Entry into force of the (Rome) Statute of the International Criminal Court
(helmed as the most important development in International Criminal Law.

 2005: Publication of the ICRC Study on Customary International Humanitarian Law

 Also, in 2005: Adoption of the Additional Protocol III to the Geneva Conventions

 2008: Convention on Cluster Munitions

 2017: Treaty on the Prohibition of Nuclear Weapons

*********
CLASSIFICATION OF ARMED CONFLICT

 An armed conflict has no general definition in IHL

 But there are two general classifications:
1) International armed conflict
2) Non-international armed conflict

International armed conflict (classifications)

1) Declared war (common article 2(1) to the GCs): However, a declared war does not
amount to an armed conflict if there are no actual hostilities on ground.

2) Use of force (common article 2(1) to the GCs): This may be use of any assault
weapons against the territorial sovereignty of another state.

 Concept of a single shot IAC (Jean Picter): a single shot of assault weapons as
stated above is sufficient for there to be an IAC.

3) Invasion (common article 2(1) to the GCs): an armed incursion in the territory of
another state against the territorial sovereignty or political independence of that state.

4) Occupation (total or partial) (common article 2(2) to the GCs: An armed

incursion following which the invading state effectively replaces the local
government of that state.

5) National Liberation Wars (article 1(4) of the Additional Protocol 1 to the GCs):
IF it is a fight against colonial domination, alien occupation or racist regimes.

Non-international armed conflict (classifications)

1) Lower-threshold armed conflicts or common article 3 non-international armed

conflicts

The elements to prove (Tadic Interlocutory Appeals Judgement, para 70) are:
 Minimum intensity (of the hostilities)
 Structural organization (of the armed group waging war against the
government also called an OAG)

2) Upper-threshold armed conflicts or the Additional Protocol II non-international

armed conflicts
 Minimum intensity
 Structural organization of the OAG
 Control over a significant part of the territory of a state by an OAG (art. 1 of
the AP II)
Differences between the upper and lower threshold:
 The upper threshold requires an additional element: control over territory
 The upper threshold NIAC is only relevant in any situation if the state party has
ratified/acceded the additional protocol II
 The upper threshold NIAC is not relevant to NIACs that involve conflicts between
two or more OAGs only (not including states)

Riots and Insurgencies not amounting to NIAC

 Not all violent situations between a group of people and their governments amount to
a NIAC.
 The applicable test is always the lower threshold (but upper threshold may apply if
the above conditions are also satisfied)
 Violence falling short of the intensity + organization criteria are not regarded as
armed conflicts

********