Introduction to International

Humanitarian Law
Humanitarian Law is the body of law to ensure respect for humanitarian principles. It seeks to limit the
effects of armed conflict and protect victims of war.
by Haziq Ali Khan
Index
1 Origins of International Humanitarian Law

2 Jus ad bellum

3 Jus in bello

4 Sources of International Humanitarian Law

5 Geneva Conventions and Additional Protocols

6 Humanitarian Principles

7 Applicability of International Humanitarian Law

8 Definition of International Armed Conflicts

9 Definition of Non-International Armed Conflicts

10 Definition of Combatants

11 Unlawful Combatants

12 Civilians

13 Levée en masse

14 Mercenaries

15 Article 13 GC I

16 Article 4 of GC III

17 Enforcement and Accountability

18 Conclusion and Future of International Humanitarian Law

Origins of International Humanitarian
Law

First Geneva Convention Second Geneva Additional Protocols

The convention was signed in Convention Two protocols were added in
1864, following the work of Henry It was signed in 1906, and it 1977 to address the conduct of
Dunant. extended protections to hostilities.
wounded soldiers at sea.

Third Geneva Convention Fourth Geneva Convention

Definition of Jus ad bellum
"Jus ad bellum" refers to the criteria that must be met in order for a state to be justified in using force
against another state. These criteria include self-defense, the defense of others, the protection of human
rights, and the authorization of the United Nations Security Council.
(Article 2(4) UN Charter and Article 51 UN Charter).

Reference for Jus ad bellum

Source: ICRC Commentary on the Additional Protocols
Definition of Jus in bello
"Jus in bello" refers to the rules that regulate the conduct of hostilities between belligerent parties. These
rules aim to protect civilians and other non-combatants, and limit the methods and means of warfare that
can be used.
(Geneva/Hague Streams)

Reference for Jus in bello

Source: ICRC International Humanitarian Law Treaties and Documents
Sources of International Humanitarian
Law
1. Treaty
2. Customary International Humanitarian Law
3. General Principles
4. Soft Law Instruments
Geneva Conventions and Additional
Protocols
Common Article 1: Common Article 2: Common Article 3: Additional Protocol
Requires respect for the Applies the Convention Covers non-international I and II:
Convention and its to all parties in an armed armed conflicts and Applies additionally to
provisions in all conflict, regardless of provides basic conflicts and provides
circumstances. nationality. protections for all comprehensive
persons affected. regulation of methods
and means of warfare.
Humanitarian Principles
1 2 3 4 5 6
Prohibiti
on on
Proporti
onality
Distincti
on
Militar Huma Precau
causing y nity tion
unneces Neces (deprivatio
sary sity n of the
sufferin right to life;
g torture and
cruel,
inhuman or
degrading
treatment;
freedom of
movement;
the rights
of the
child;
women’s
human
rights;
arbitrary
deprivation
of liberty
and due
process;
and
protection
of the
civilian
population)
Applicability of International
Humanitarian Law

International Armed Conflict Non-International Armed Conflict

The Geneva Conventions and Additional Protocol I Common Article 3 and Additional Protocol II apply
apply to armed conflicts between two or more to civil wars and other non-international armed
states. conflicts.
Definition of International Armed
Conflicts
International armed conflicts are conflicts between two or more states where the use of armed force is
used and where the parties involved have a sufficient level of organization to be able to engage in armed
conflict.
Definition of Non-International Armed
Conflicts
Non-international armed conflicts are conflicts that take place within the territory of a state between the
armed forces of the state and one or more armed groups or between such groups within a state. The
armed group(s) must be sufficiently organized and have the capacity to carry out sustained and concerted
military operations.
Definition of Combatants
Combatants are individuals who are authorized to engage in hostilities during an armed conflict. They are
members of the armed forces of a party to the conflict or members of other organized armed groups that
are under a responsible command, have a fixed distinctive sign recognizable at a distance, carry their arms
openly, and abide by the laws and customs of war. Article 43(2) of AP I
"Direct Participation in Hostilities"
Direct participation in hostilities consists of specific acts carried out by individuals as part of the conduct of
hostilities between parties to an armed conflict. Constitutive elements of direction participation in
hostilities: In order to qualify as direct participation in hostilities, a specific act must meet the following
cumulative criteria:
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); 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 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)
Direct participation in hostilities | How does law protect in war? - Online casebook
Unlawful combatants
The term “unlawful combatant” is used to refer to an individual who belongs to an armed group, in a
context where either the individual or the group do not fulfil the conditions for combatant status. The term
was employed by the administration of President George W. Bush of the United States in its ‘global war on
terror’ to describe persons who are, in its view, neither combatants nor civilians but belong to a third
category of persons who can be attacked at any time and can be detained indefinitely without trial. It is
also sometimes used as a synonym for “unprivileged belligerent”.
Unlawful combatants | How does law protect in war? - Online casebook
Civilians
Under IHL, the category of civilians is opposable to that of “combatants.” In an international armed
conflict, all persons who are not combatants are civilians. Persons with civilian status may not be directly
targeted in attacks. Civilians who directly participate in hostilities, however, lose that protection for the
duration of their participation in hostilities. In non-international armed conflicts, there is no combatant
status. Members of armed groups with a continuous fighting function may, according to doctrine, be
targeted like combatants. All other persons must not be directly targeted. The civilian population is a
term that refers to groupings of civilian persons. The presence of some combatants within the general
civilian population does not render the civilian population as a whole targetable.
(AP I Art 50, GC IV Art 4)
IHL contains certain rules applicable to civilians who accompany the armed forces.
Civilians | How does law protect in war? - Online casebook
levée en masse
The conditions for levée en masse are;
(a)Spontaneously taking up arms during an actual invasion period, where territory is not yet occupied,
(b)without having had time to organize themselves into regular armed units
(c) they must carry their arms openly and respect the laws and customs of war. The conditions stand
fulfilled, albeit they were without proper distinctive uniform
Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is
promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that
promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the
conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its
armed forces. (Article 47 AP I)
GC I relates primarily to treatment of the
wounded and sick who are in the
immediate vicinity of hostilities.
Article 13 of First GC protects the following persons:
1. Members of the armed forces
2. Other categories of persons who (not being members of the armed forces) either have combatant
status or otherwise entitled to prisoner of war status.
Application of article 13 to civilians
No requirement and article 13 that a person be in enemy hands in order to be covered by GC 1. But if they
fall in enemy hands they are protected as POW as affirmed by article 14. In such case first and third
conventions apply simultaneously.
Other than the limited number of civilians who fall under paragraphs four and five of Article 13, 1st GC does
not apply to civilians who are wounded or sick. They are protected under GC 4 and other rules of IHL.
HISTORICAL BACKGROUND
✓ 1864 GC 1: concerned with protection of wounded and sick armed members in the field to whatever
nation they belong.
✓ 1906 GC 1 (revised): extended protection to all members of armed forces including non-combatants and
any others who were officially part of the Armed forces without being combatants (such as medical
personnel chaplains ETC).
✓ 1929 first GC remained unchanged

✓ 1949 GC 1: concerns were raised regarding the protection of civilians who were wounded or sick
because of or during armed conflicts. As a result the fourth Geneva convention was developed as a
separate treaty for civilians.
SCOPE OF APPLICATION WOUNDED AND SICK BELONGING TO THE FOLLOWING CATEGORIES
First conventional supplies to wounded and sick members of a party's own armed forces in addition to
those of the armed forces of the adverse party. Parties to a conflict have obligation towards wounded and
sick persons such as the obligation in article 15 of the first convention to search for and collect the
wounded and sick even when such persons are not in their hands.
DIFFERENT CATEGORIES AND ARTICLE 13
1. Members of the Armed forces of a party to the conflict as well as members of militias or volunteer
corps forming part of such armed forces.
The term "Armed forces" was specifically chosen to encompass all military personnel, no matter to which
service they belong, be it land, sea or Air forces.
1. Militias and volunteer forces which belong to a party to a conflict but are not part of its regular armed
forces which have been recognized since at least 1899, when they were enumerated in the hag
regulations. The innovation in 1949 was to extend those conditions to cover organized resistance
groups fighting against occupying powers, including when the occupying power had established full
control over the whole territory.
2. Regular armed forces fighting for a government not recognized by the opposing forces. Where is state
exists but where the government in power may not be recognized as the legitimate government of the
territory by other states that are parties to the conflict. (Situation of Taliban and the US led coalition in
Afghanistan in 2001- 2002) Paragraph 3 the first to the detaining power instead of opposing forces
which suggests that to fall under it, the wounded and sick must be detained. The term should be
interpreted in the light of the aim of the provision, which is to ensure that assistance is provided without
exception. Thus, wounded and sick persons benefit from the protection owed to them by enemy forces
even when they are not yet in their hands or detained.
3. Persons who accompany the armed forces without actually being members thereof are protected,
extends the protection of first Geneva convention to some civilians in a specific roles. E.g • Journalists
embedded with armed forces, • Private contractors who supplies services to armed forces and • Who
are authorized to do so by a party to the conflict
DISTINCTION BETWEEN ARTICLE 13(4)OF GC 1 AND ARTICLE 4A (4) OF GC 3
There's a minor distinction in the wording of these two articles. Article 4A(4) adds that the armed forces
which have authorized persons to accompany them shall provide them with an identity card similar to the
annexed model. The omission of this phrase in article 13 is logical, as it may not be feasible, in practice, to
check for an identity card before or even while respecting and collecting the wounded and sick, whereas
such checks can be made once a person is in the power of the enemy. In any case, the preparatory work on
article 4 indicates that possession of an identity card should not be taken as a necessary element for POW
status. Nevertheless, States are required to issue them to protect those persons.
1. Civilian crews of merchant ships and civilian aircraft of a party to the conflict who are wounded or sick
also enjoy the protection if they do not benefit from more favorable treatment under any other
provisions in international law. The more favorable treatment clause refers to the 1907 Hague
Convention which provides: "That certain merchant sea men must not be made prisoners of war. They
must, however, be respected, collected and cared for in accordance with the first convention". • The
crews of neutral merchant vessels and civilian aircraft are not protected by GC 1, but they may be
protected by the GC 4.
2. Paragraph 6 protects wounded and sick who were participating in a "levee en mass" (mass rising),
provided that they fulfill certain conditions.
PROTECTION OF THE WOUNDED AND SICK WHO ARE NOT COVERED BY FIRST CONVENTION
It is of course clearly understood that those not included in this enumeration of Article 13 still remain
protected, either by other conventions, or simply by the general principles of international law. Thus, article
13 cannot in any way entitle a party to a conflict to fail to respect a wounded person, or to deny the
requisite treatment, even where the person does not belong to one of the categories specified in it.
• Anyone in need of medical attention is entitled to receive it. • When a wounded or sick person falls into
enemy hands, the priority must be to provide medical care with the least possible delay. • The
determination as to whether that person needs the conditions for being a prisoner of war can be made
later, at an appropriate time and place. • Some obligations such as obligation to search for and collect the
wounded and sick must be carried out before it is possible to determine whether these persons meet the
criteria in article 13.
Article 4 - Prisoners of war
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following
categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps
forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized
resistance movements, belonging to a Party to the conflict and operating in or outside their own territory,
even if this territory is occupied, provided that such militias or volunteer corps, including such organized
resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not
recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian
members of military aircraft crews, war correspondents, supply contractors, members of labour units or of
services responsible for the welfare of the armed forces, provided that they have received authorization
from the armed forces which they accompany, who shall provide them for that purpose with an identity
card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of
civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other
provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms
to resist the invading forces, without having had time to form themselves into regular armed units, provided
they carry arms openly and respect the laws and customs of war.

Article 4 of GC III defines who is a

prisoner of war and identifies the
persons entitled to the protection of the
third convention.
ARTICLE 4A ✓ List the categories of persons who, if they fall into the power of the enemy, are prisoners of
war. This list mirrors the list of protected persons in article 13 of GC 1 and 2 (wounded, sick and
shipwrecked)
✓ Article 4A is relevant to the definition of combatants. All are entitled to POW status if they fall into the
power of the enemy. It includes:
• Members of the Armed forces (including members of militias or volunteer corps forming part of the armed
forces under 4A(1) and
(2) • Members of other militias and volunteer corps including organized resistance movements under 4A
(3) [irregular Armed forces that belong to the party to the conflict].
(4) Persons who take up arms spontaneously In response to an invading army (levee en masse) under Art
4A(6).
✓ Civilians

• Persons accompanying the armed forces under 4A(4) • Crews referred to in sub-paragraph 4A(5)
✓ Military medical personnel and chaplains They are an express exception to the rule that members of the
Armed forces are prisoners of war IF they fall into enemy hands. If these persons fall into the power of the
enemy they are not prisoners of war but must receive as a minimum the benefits and protection of the third
convention while being retained.
TERM "FALLEN INTO THE POWER OF THE ENEMY"
✓ Third convention protects not only captured POWs but also those who have fallen into the power of the
enemy by other means, suggest surrender or mass capitulation. The term within the meaning of article 4 of
the third convention implies that:
•The detaining power exercises some level of physical control or restraint over the person, and
•that the person is no longer willing are able to participate in hostilities or defend themselves.
✓ It would thus not include persons who merely reside or operate in a territory controlled by a belligerent
party.
✓ There may be situations, however, in which persons have surrendered and are horse the combat but
have not fallen into the power of the enemy and would therefore not be prisoners of war.
THE TERM "ENEMY"
✓ Definition: The term "enemy" refers to the enemy state, namely the adversary state during an IAC arising
between two or more high contracting parties.
✓ Question of Nationality The question of the rule of an individual's nationality in determining their POW
status in this interstate regime has arisen, particularly in relation to individuals who are nationals of the
detaining power but are serving in enemy armed forces.
• 1st View: According to this view, prisoners of war who have nationality (or dual nationality) of the
detaining power, as well as stateless persons, are entitled to the full protection due to them under the third
convention, including recognition that they cannot be prosecuted for lawful acts of war.
• 2nd View: Lauterpatch, for example, considers the "traitorous subjects of a belligerent" who fight in the
armed forces of the enemy are not entitled to the privileges of members of the armed forces and are
instead to be treated as criminals.
Case laws:
1. In Quirin (1942) US SC and in Territo US Court of Appeal maintained: " Citizens who associate
themselves with the military arm of the enemy government are enemy belligerents within the meaning
of the fourth Hague convention of 1907 and the law of war".
2. In Koi in (1968) UK Privy Council adopted lauterpatch's view and considered that: " The exclusion of
one's own nationals from POW status is implicit from articles 87 and 100 of the third convention"
Due to diversity of practice and views, ICRC considers that nationality should not be effective in the
determination of POW status for the reason that, "convention refers throughout to the power on which the
prisoner depends and not to the power of nationality". (Other reasons see in commentary para 971)
✓ Treason Granting POW status to a state's own nationals does not exclude the possibility of prosecuting
such individuals for treason, meaning that there is no need to deny such status in order to punish this or
similar acts.
✓ National of a third State It should be underscored that the question of the impact of nationality on POW
status is limited to "OWN" nationals of a detaining power. That is to say, that the fact that an individual is a
national of a third state and not a national of the armed forces in which they are serving nor a national of
the adversary is widely considered to be irrelevant when it comes to determining prisoner of war status.
Enforcement and Accountability
International Criminal Court
The ICC prosecutes individuals for war crimes, crimes against humanity, and genocide.

Universal Jurisdiction
Allows states to prosecute individuals for international crimes committed anywhere in the world.

Domestic Prosecutions (Complementarity)

All states have the obligation to prosecute persons who commit serious violations of international
humanitarian law.
Conclusion and Future of International
Humanitarian Law
The Future
Continued work on implementation and
enforcement of international
humanitarian law and finding new ways
to protect vulnerable populations.
1 Challenges
The rapid evolution of warfare and the
2 challenges of enforcing international
humanitarian law in non-international
armed conflicts.
3 Call to Action
Everyone has the responsibility to ensure
respect for international humanitarian
law, including states, individuals, and
non-state actors