INTERNATIONAL HUMANITARIAN LAW

By Emmanuel E. Bagenda

1. DEFINITION, ORIGINS AND SCOPE

International Humanitarian Law (IHL) is a branch of international law that

regulates the conduct of war (armed conflict). It is based on the premise that
human beings enjoy certain fundamental rights and freedoms which must be
respected at all times, including situations of warfare. IHL thus plays a role similar
to that played by another branch of international law – international human rights
law (IHRL).

Relationship Between IHL and IHRL

There are two particular schools of thought regarding the relationship between IHL
and IHRL. The first (and less popular one) regards the two branches as totally
distinct and as applying at different moments. On this view, IHL and IHRL are
mutually exclusive – with IHRL applying to human rights violations that take
place during peacetime while IHL protects human rights in situations of armed
conflict.

The second (and more accepted view) is that IHRL and IHL are complementary
and that while IHL is the dominant applicable body of law (lex specialis) during
situations of armed conflict, IHRL is an overarching set of background rules and
principles (lex generalis) which apply not just in peacetime but in situations of
armed conflict where the rules of IHL are either silent or inadequate. In short,
while IHL applies only during situations of armed conflict, IHRL applies both
during peace time and wartime.

IHL and International Refugee Law

There is similarly a strong degree of complementarity between IHL and

international refugee law (IRL). Like IHL, for instance, IRL is aimed at protecting
the rights of persons fleeing persecution (which includes armed conflict) and who
cross an internationally recognized border. Until they cross such border therefore,
such individuals (known as “internally displaced persons”) are mainly protected by
IHL and not IRL. After they cross the border though, they come under the purview

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of IRL and its attendant protections. At the same time however, they may continue
to enjoy the protection of IHL if the theatre of armed conflict follows them across
the border (i.e. the conflict spreads to their country of refuge).

Definition of “Armed Conflict”

Because IHL only applies during situations of armed conflict, it is important to

determine when such situations arise. Broadly speaking, there are two standards by
which armed conflict is defined, one based on IHL and the other based on public
international law (the branch of international law that regulates political relations
between states).

The IHL definition of “armed conflict” is based on a manual published by the

International Committee of the Red Cross (2008) which regards armed conflict as
“a situation in which there is recourse to armed force….. regardless of the
reasons or the intensity of this confrontation. Moreover, no formal declaration
of war or recognition of the situation is required.”

Under PIL, the dicta of the International Court of Justice in the Nicaragua decision
is often cited as a useful guide to defining armed conflict. In defining an “armed
attack”, the court adopted and endorsed the definition of “aggression” (an unlawful
attack by one country against another) under General Assembly resolution 3314
(XXIX) and described it as an articulation of customary law in this respect. The
resolution defines aggression as “the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or
in any other manner inconsistent with the Charter of the United Nations….” It
further notes that acts of aggression include the following:

(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation

(b) Bombardment by the armed forces of a State against the territory of another
State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another
State;

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(d) An attack by the armed forces of a State on the land, sea or air forces, or marine
and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another
State with the agreement of the receiving State, in contravention of the conditions
provided for in the agreement or any extension of their presence in such territory
beyond the termination of the agreement;

(f) The action of a State in allowing its territory to be used by that other State for
perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or

mercenaries, which carry out acts of armed force against another State of such
gravity as to amount to the acts listed above, or its substantial involvement therein.

From the above, it’s clear that while IHL takes a slightly more liberal view of
armed conflict, one that need not be restricted to formal military action by state
actors. PIL on the other hand, mostly regards “armed conflict” from a
predominantly statist-focus that allows only limited room for armed action by non-
state groups.

2. TEXTUAL SOURCES OF IHL

IHL is mainly based on treaty law, the most notable of which are the four Geneva
Conventions (each of which covers a specific category of persons affected by
armed conflict) as well as the three additional protocols (each of which covers a
specific theme).

The Geneva conventions (1949) are structured as follows:

1. First Geneva convention (protects wounded and sick soldiers on land during
war);
2. Second Geneva Convention (protects wounded, sick and shipwrecked
military personnel at sea during war);
3. Third Geneva Convention (protects prisoners of war)
4. Fourth Geneva Convention (protects civilians).

The Three Additional Protocols are structured as follows:

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 1. Additional Protocol 1 (applies to international armed conflict);
2. Additional Protocol 2 (applies to non-international armed conflict, i.e.
conflict that takes place within a state);
3. Additional Protocol 3 (applies to use of distinctive emblems during war).

Thus, while the four Geneva conventions cover different categories of “protected
persons”, all four have certain identical articles 2 and 3 ("Common Articles").
Common Article 2 (CA 2) applies the provisions of the given convention to
“international armed conflicts” while Common Article 3 (CA 3) applies the said
provisions to “non-international armed conflicts.”

The first two Additional Protocols on the other hand are split along the nature of
the conflict. Additional Protocol 1 (AP 1) deals with international armed conflicts
while Additional Protocol 2 (AP 2) concerns non-international armed conflicts.
Additional Protocol 3 (AP 3) applies to both international and non-international
conflicts. A detailed review of the differences between the types of armed conflict
may be useful.

3. TYPES OF ARMED CONFLICTS

As noted, IHL applies to situations of armed conflict. International law recognizes

two types of armed conflict – “international” and “non-international.”

 International Armed Conflicts (IACs) are armed conflicts that pit two or
more States against each other. They include "all cases of declared war or of
any other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of them."
(CA2)

 IACs also include "all cases of partial or total occupation of the territory of a
High Contracting Party, even if the said occupation meets with no armed
resistance." (CA2)

 IACs also include "armed conflicts in which peoples are fighting against
colonial domination and alien occupation and against racist régimes in the
exercise of their right of self-determination. (AP 1)

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Non-International Armed Conflicts (NIACs) on the other hand include every
"armed conflict not of an international character occurring in the territory of one of
the High Contracting Parties" (CA3).

 CA3 does not, therefore, provide a detailed definition of its scope of

application, nor does it contain a list of criteria for identifying the situations in
which it is meant to apply. However, AP 1 and AP 2 elaborate and define
NIACs to include armed conflicts on the territory of a state party which are
 (a) Between governmental forces and nongovernmental armed groups;
 (b) Between non-governmental groups only;
 (c) Between its armed forces and dissident armed forces or other organized
armed groups which, under responsible command, exercise such control over
a part of its territory as to enable them to carry out sustained and concerted
military operations…. (Art 1 of AP 2). This, however excludes "situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature."

4. KEY PRINCIPLES OF IHL

IHL applies to all situations that amount to IACs or NIACs and is binding on all
parties to the conflict (be they state or non-state). In every such situation of armed
conflict, parties to that conflict are under an international legal obligation to grant
certain fundamental protections to the victims of the conflict and to respect the
rules on the conduct of hostilities. Even situations of non-conventional warfare
which nevertheless fit within the definition of IAC or NIAC will be governed by
IHL. In June 2006, the United States Supreme Court ruled in the case of Hamdan
v. Rumsfeld that America's armed conflict with al-Qaeda was non-international in
character and, as such, was governed by CA3.

IHL particularly regulates armed conflict by setting out certain minimum rules
regarding the execution of war, conduct of combatants and the nature of

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accepted/prohibited weaponry. The regulatory scope revolves around three broad
principles, namely necessity, distinction and proportionality.

1. Necessity

Military attacks, action or weapons must only be intended to help in the military
defeat of the enemy and must target military objects or personnel (See Article 52
of AP 1)

2. Distinction

Prohibition of attacks on civilians/non-combatants and their property (See Art 48

of AP 1). "Combatants" include all members of the armed forces of a party to the
conflict combatants, except medical and religious personnel (Article 43 (2) of AP
1). "Civilians" include all persons who are not members of the armed forces. The
civilian population comprises all persons who are civilians (Art 50 of AP1;
see also ICTY decision in Blaškić (2000) where civilians were defined as “persons
who are not, or no longer, members of the armed forces”). Civilians are
protected as long as they do not take part in hostilities (Art 51 (3) of AP 1). " Non-
combatants" are members of the armed forces who, because of their role (eg
medical personnel and religious chaplains) are protected from attacks.

3. Proportionality

Any harm caused to civilians or civilian property must be proportional and not
"excessive in relation to the concrete and direct military advantage anticipated"
(See article 51 para. 5(b) of AP 1)

Considered together, the principles of necessity, distinction and proportionality

determine the kind of weaponry that may be used. There is particularly a
prohibition of indiscriminate weaponry and attacks (see articles 35 and 36 of
the AP I).

Enforcement of Geneva Conventions

Violations of the Geneva Conventions and protocols may be categorized as grave

breaches or non-grave breaches.

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Grave breaches include certain acts or omissions (as listed in the conventions and
protocols. See, for instance, Article 49 of the First Convention). They include
willful killing, torture or inhuman treatment, including biological experiments,
willfully causing great suffering or serious injury to body or health, and extensive
destruction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly.

Grave breaches amount to war crimes (see, for instance, Article 85(5) of AP 1).
With regard to grave breaches, the High Contracting Parties (state parties to the
Conventions) are obligated to:

1. Enact any legislation necessary to provide effective penal sanctions for persons
committing, or ordering to be committed, any of the grave breaches. (Art 49 of 1st
Convention and Article 49 of 3rd convention).

2. Search for persons alleged to have committed, or to have ordered to be

committed, such grave breaches, and shall bring such persons, regardless of their
nationality, before its own courts. (See Article 149 of the 3rd convention)

3. Hand over any persons alleged to have committed grave breaches to another
state party.

With regard to non-grave breaches, parties are obligated to take all measures
necessary to prevent violations of the conventions and protocols."

5. CHALLENGES TO IHL

IHL’s enforcement thus relies on universal jurisdiction exercised by all the state
parties. In theory therefore, every state party can exercise criminal jurisdiction over
every individual suspected of grave breaches even where the prosecuting state has
no territorial or nationality links to the crime. In practice however, this
enforcement mechanism proved ineffectual as few states were willing to exercise
universal jurisdiction over grave breaches in instances where they had no actual
links to the offence. The few examples of states exercising universal jurisdiction
include Spain’s request to get former Chilean dictator Augusto Pinochet extradited
from the United Kingdom in 1999, as well as Belgium’s issuance of an arrest
warrant against Democratic Republic of Congo’s foreign minister, Yerodia
Ndombasi, in 2000.

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In addition to state unwillingness to exercise universal jurisdction, IHL’s
enforcement was hampered by the following:

 The fact that contemporary conflicts often do not fit neatly within the
dichotomy of international and non-international";

 Use of new military technologies ("drones" and cyber-attacks) that were not
envisaged by the framers of the conventions and the Additional Protocols;
 Unconventional (asymmetrical) warfare that is perpetrated almost
exclusively by non-state actors (e.g. terrorist attacks) and not states.

As we’ll see in subsequent classes, these limitations in IHL’s enforcement set the
stage for the emergence of a new mechanism for punishing some IHL violations –
that of international criminal law.

END

Literature

International Humanitarian Law and the Challenges of Contemporary Armed

Conflict (2011, Report by the ICRC)

Universal Jurisdiction over War Crimes (ICRC Advisory Manual on International

Humanitarian Law (2014)

William Schabas, Enforcing International Humanitarian Law: Catching the

Accomplices (2001, IRRC, vol. 83, No. 842)