International

Humanitarian Law (IHL)

Dr Russell Buchan
 Introduction
! Use of Force – jus ad bellum

! Law of armed conflict – jus in bello

! Law of war
! Law under hostilities
! IHL
! Law of IAC
! Law of NIAC

Applicable law

! Hard Law
! Hague Regulations
! Geneva Conventions 1949 and their Additional Protocols 1977
! Customary international law

! Soft Law
! ICRC Interpretive Guidance
! San Remo Manual
! Harvard Air and Missile Warfare Manual
! Tallinn Manual 2.0 on Cyber Operations

Types of conflict
! International armed conflict
! Any act of violence between states triggers IAC
! Internationalised armed conflict – attribution, occupation, belligerency

! Non-International armed conflict

! Tadic: armed conflict between states and armed group or between such groups.
! What is armed conflict?
! What is an armed group?

! Internationalised armed conflict

! Attribution
! Occupation
! Belligerency

 Areas of regulation

! Targeting of combatants
! Civilian protection
! Medical and religious protection
! Environment
! POWs
! Third party (neutral) states

Targeting in IAC

! Who can be targeted?

! Combatants / civilians (Art 48 AP I) (consequences relate to targeting and POW status)

! Combatant? Article 4A GC III

1. belongs to a party to the conflict
2. under the command of a person responsible for his subordinate
3. Have a fixed distinctive sign recognizable at a distance
4. Carry arms openly
5. Conduct operations in accordance with the laws of war

Civilians

! Residual category – if not combatant, civilian

! Protection from direct targeting

! Prohibited from participating in hostilities – otherwise unlawful combatant

! But civilians can be directly targeted where they DPH

DPH and ICRC criteria

1. the act must be likely to adversely affect the military operations or military
capacity of a party to an armed conflict or, alternatively, to inflict death,
injury, or destruction on persons or objects protected against direct attack
(threshold of harm), and
2. there must be a direct causal link between the act and the harm likely to
result either from that act, or from a coordinated military operation of
which that act constitutes an integral part (direct causation), and
3. the act must be specifically designed to directly cause the required threshold
of harm in support of a party to the conflict and to the detriment of another
(belligerent nexus).

For such time

! Targeting only for such time that participation lasts

! This includes (ICRC)

! Acts immediately preparatory to specific hostile act
! When the hostile act is committed; and
! Until civilian physically separates himself from act

Examples of DPH?

Hors de Combat

! Combatants can be hors de combat – outside of conflict – and thus protected

from attack when:

! In the power of the opposing party (but this is not capture rather than kill)
! Unconsciousness due to injury or illness
! Surrender

 Military objects

! The cardinal principle of distinction applies to military objects/civilian

objects.

! Military objects are defined in Article 52(2) Additional Protocol I (reflective of

custom):

- ‘military objectives are limited to those objects which by their nature,

location, purpose or use make an effective contribution to military action and
whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage’

Article 51.5.b AP I

! The rule of proportionality

! Only relevant where there is risk of collateral damage – otherwise,

proportionality does not come into play

! ‘an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military advantage
anticipated.’

 continued:

! The test is excessive, not extensive, and this is not an exact science
! WMD? Are they inherently disproportionate?
! The appraisal is between two incomparables: injury or damage to civilians/
civilian objects, on the one hand, and the overall military advantage on the
other.
! The judgement is subjective and is based upon what is reasonable given the
circumstances
! The appraisal must be based upon available information, which may be
imprecise (due to the ‘fog of war’) or outdated (due to the time-lag between
the collection of the information and the time of the attack)