Definition of IHL

 IHL is a set of rules that seek to limit the humanitarian consequences of armed conflicts.
It is sometimes also referred to as the law of armed conflict or the law of war (jus in
bello). The primary purpose of IHL is to restrict the means and methods of warfare that
parties to a conflict may employ and to ensure the protection and humane treatment of
persons who are not, or no longer, taking a direct part in the hostilities.
 HL is that body of international law which governs situations of armed conflict.
 the rules that govern the justice of war (jus ad bellum) from those that govern just and
fair conduct in war (jus In bello) and the responsibility and accountability of warring
parties after the war (jus post bellum).
 belligerents therefore cannot justify failure to respect IHL by invoking the harsh nature
of armed conflict; they must comply with their humanitarian obligations in all
circumstances. 1 This also means that IHL is equally binding on all parties to an armed
conflict, irrespective of their motivations or of the nature or origin of the conflict.
purpose of IHL
 is to protect the victims of armed conflicts and regulate hostilities based on a balance
between military necessity and humanity.
four precepts og IHL
 do not attack non-combatants,
 attack combatants only by legal means,
 treat persons in your power humanely,
 protect the victims.

Basic Principles of IHL:

 – the distinction between civilians and combatants,

 – the prohibition to attack those hors de combat,
 – the prohibition to inflict unnecessary suffering,
 – the principle of necessity, and
 – the principle of proportionality.

Principle of Distinction

 cornerstone of IHL
 the only legitimate object which States should endeavor to accomplish during war is to
weaken the military forces of the enemy,”7 whereas “[t]he civilian population and individual
civilians shall enjoy general protection against dangers arising from military operations.
 at all times distinguish between the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their operations only against military
objectives.

principle of proportionality

 prohibits attacks “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.”202 Given that direct attacks
against civilians and civilian objects are already prohibited, the proportionality evaluation is
 relevant only when attacks are directed against lawful targets. The key term to be examined in
the proportionality equation is “excessive.”

Combatants- are members of the fighting forces of the beligerent parties. In principle, therefore, all
members of the armed forces of a party to an international armed conflict are combatants, except
medical and religious personnel assuming exclusively humanitarian functions

levée en masse the spontaneous act of the people of a territory not yet occupied by an enemy force of
taking up arms for self-defense

principle of proportionality

Where the infliction of incidental harm on civilians or civilian objects cannot be avoided.

three distinct sources:

 treaties
 custom
 and the general principles of law. ( In addition, case-law, doctrine and, in practice, “soft law” )

treaty law

 the most relevant sources of IHL

 The scope of applicability of the treaty is defined in the text itself, the respective rights and
obligations are spelled out in carefully negotiated provisions, which may be supplemented with
express reservations or understandings, and the States Parties are clearly identified through the
act of ratification or accession
 once an IHL treaty has become binding on a State, not even a substantial breach of its provisions
by another State – including by its enemy in an international armed conflict – permits the
termination or suspension of the treaty’s application as a consequence of that breach.
 Sources of IHL in cases of armed conflict:
1. 4 1949 genevs conventions:
(1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field,
(2) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked
Members of Armed Forces at Sea,
(3) the Convention Relative to the Treatment of Prisoners of War, and
(4) the Convention Relative to the Protection of Civilian Persons in Time of War.
2. their Additional Protocol I, and weapons treaties, such as the 1980 Convention on
Certain Conventional Weapons or the 2008 Convention on Cluster Munitions.

Custom

 treaty law is the most tangible source of IHL, its rules and principles are often rooted in custom,
namely general State practice (usus) accepted as law (opinio juris).
 Customary law does not necessarily predate treaty law; it may also develop after the conclusion
of a treaty or crystallize at the moment of its conclusion.
 advantage of customary IHL is that it is a dynamic body of law constantly evolving in tandem
with State practice and legal opinion. Customary law can therefore adapt much more quickly to
 new challenges and developments than treaty law, any change or development of which
requires international negotiations followed by the formal adoption and ratification of an agreed
text. Also, while treaties apply only to those States that have ratified them, customary IHL is
binding on all parties to an armed conflict irrespective of their treaty obligations
 The disadvantage of customary law is that it is not based on a written agreement and,
consequently, that it is not easy to determine to what extent a particular rule has attained
customary status.
 Although IHL is widely codified in broadly accepted multilateral conventions, customary rules
remain important to protect victims on issues not covered by the treaties, because some legal
systems only customary rules are directly applicable in domestic law.

General Principles of Law

 here is no agreed definition or list of general principles of law. In essence, the term refers to legal
principles that are recognized in all developed national legal systems, such as the duty to act in
good faith, the right of self-preservation and the non-retroactivity of criminal law. General
principles of law are difficult to identify with sufficient accuracy and therefore do not play a
prominent role in the implementation of IHL.
 Martens Clause-in cases not regulated by treaty law, “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.

Historical Development of International Humanitarian Law

 codified International Humanitarian Law (IHL) was born in 1864, when the initial Geneva
Convention was adopted.
 proves the existence of two things: – a common understanding of the need for regulations of
some kind even during wars; – the feeling that, in certain circumstances, human beings, friend or
foe, deserve some protection.

Shortcomings of ancient humanitarian rules and customs:

 their applicability was restricted to specific regions, traditions, ethnic or religious groups, did not
cover those who did not belong to the same religion or group, and were very often limited to a
specific war
 their implementation was the sole responsibility of the belligerents

inception of modern IHL dates back to the battle of Solferino, a terrible battle in northern Italy between
French, Italian and Austrian forces in 1859

 Henry Dunant witness the battle

 Dunant published a short book in 1862, A Memory of Solferino
 He discussed the horrors of the battle, but also tried to find remedies to the suffering he had
witnessed, hence he invited the States to formulate some international principles in protecting
the wounded in a battle.
  His call was heard by International Committee on Red Cross, its main objective was to examine
the feasibility of Dunant’s proposals and to identify ways to formalize them, and soon persuaded
Swiss Government to convene a diplomatic conference.
 conference was held in Geneva in August 1864 (adopted the Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the Field.)
 development of 1864 geneva convetion has been marked by three main characteristics:
 the categories of war victims protected, and of situations in which victims are
protected ) have been steadily expanded
 treaties have been regularly updated and modernized
 existence, up until 1977, of two separate branches of law:
I. Geneva Law, which is mainly concerned with the protection of
the victims of armed conflicts, i.e., non-combatants and those
who no longer take part in the hostilities
II. Hague Law, the provisions of which relate to limitations or
prohibitions of specific means[68] and methods[69] of warfare
 These two branches of law were merged with the adoption of Protocols I and II in 1977.

Military objectives and civilian objects

IHL provides that attacks must be strictly limited to military objectives and that civilian objects may not
be the object of attacks or reprisals.

 Civilian objects are negatively defined as all objects that are not military objectives.
 Military objectives, in turn, are defined as “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. If there is any doubt whether an object
normally used for civilian purposes, such as a place of worship, a house or other dwelling
or a school, is being used to make an effective contribution to military action, it is
presumed not to be so used

two criteria of military object

1. it must contribute effectively to the adversary’s military action (as opposed to mere policy
objectives or the war-sustaining capabilities of the enemy), and it has to do so by its “nature”
(e.g. the intrinsically military characteristics of weaponry), “location” (e.g. a physical obstacle
impeding military operations), “purpose” (e.g. the intended future use of an ammunition factory
under construction), or current “use” (e.g. a building being used as a sniper position).
2. an object making an effective contribution to the enemy’s military action can qualify as a military
objective only if its destruction, capture or neutralization also offers the attacker a definite
military advantage.

b) Dual-use objects- y civilian object can be used for military purposes and can therefore be a military
objective for the duration of such use (logistical infrastructure (roads, bridges, railways, ports and
airports), power plants, and electricity and communication networks)
.Specially protected objects

(a) Cultural property - defined as comprising essentially any secular or religious movable or immovable
property of great importance to the cultural heritage of all people, such as monuments of
architecture or history, archaeological sites, works of art, books, museums, and libraries and other
buildings containing cultural property. cultural property protected under IHL should be marked with
the emblem of the 1954 Convention, a downward pointed blue square shield on a white
background.160 Such marking is purely indicative in nature and is not a precondition for the special
protection afforded by IHL.

a second Protocol was adopted in 1999 that introduced a new system of “enhanced protection” for
cultural property that:

(1) represents cultural heritage of the greatest importance to humanity;

(2) enjoys the highest level of protection in domestic law;

(3) is not used for military purposes or to shield military sites and has been formally declared not to be
intended for such use

b) Works and installations containing dangerous forces - dams, dykes and nuclear power stations, are
specially protected from attack because their partial or total destruction would likely have catastrophic
humanitarian consequences for the surrounding civilian population and objects.

c) Objects indispensable to the survival of the civilian population IHL prohibits the starvation of civilians
as a method of (e.g. foodstuffs, agricultural areas, crops, livestock, drinking water and irrigation systems)

d) Natural environment From a more general and long-term perspective, no civilian population can be
adequately protected against the effects of war if the natural environment it depends on for its
sustenance is destroyed, poisoned or severely damaged by military operations. Article 35 of Additional
Protocol I therefore includes protection of the natural environment as a basic rule of IHL.

4. Civil defence organizations certain humanitarian tasks intended to protect the civilian population
against the dangers, and to help it to recover from the immediate effects, of hostilities or disasters, and
to provide the conditions necessary for its survival. These tasks are: (i) warning; (ii) evacuation; (iii)
management of shelters; (iv) management of blackout measures; (v) rescue; (vi) medical services,
including first aid, and religious assistance; (vii) fire-fighting; (viii) detection and marking of danger
areas; (ix) decontamination and similar protective measures; (x) provision of emergency accommodation
and supplies; (xi) emergency assistance in the restoration and maintenance of order in distressed areas;
(xii) emergency repair of indispensable public utilities; (xiii) emergency disposal of the dead; (xiv)
assistance in the preservation of objects essential for survival; (xv) complementary activities necessary to
carry out any of the tasks mentioned above, including, but not limited to, planning and organization.

METHODS OF WARFARE

 “the right of the Parties to the conflict to choose methods or means of warfare is not unlimited
 (means of warfare)- use of certain weapons
 (methods of warfare)- e ways in which such weapons can be used
