IHL Notes Complete

Unit 1
Int’ll Humanitarian Law (IHL) is a set of rules which governs the means and method of warfare in order
to reduce the intensity of hostilities. IHL is a set of int’ll rules, established by treaty or custom, which
are specifically intended to solve humanitarian problems directly arising from int’ll or non-int’ll armed
conflict. It protects persons and property that are, or may be, affected by an armed conflict and limits
the rights of the parties to a conflict to use methods and means of warfare of their choice.
Int’ll human rights law strives to protect the lives, health, and dignity of individuals, from diff. angle.
Human rights are inherent entitlements which belong to every person as consequence of being a human.
It is set of int’ll rules, on the basis of which individuals and groups can expect and/or claim certain
behavior or benefits from governments. Humans are not inclined to live in a permanent state of warfare
and the wounds left by war will eventually have to be tended. It is therefore necessary to maintain a
commitment to human ideals on which community may be founded following the cessation of
hostilities. In this way, international humanitarian law aims to ensure respect for the most basic human
values, such as dignity, community and freedom from suffering.
Public international law deals with Jus Ad Bellum (Jus Contra Bellum- law against war) i.e., laws to
war which means it checks on the legality of warfare. The existence of an armed conflict is therefore a
prerequisite for international humanitarian law to operate. It is important to note in this context that
international humanitarian law is concerned with regulating the conduct of armed conflicts, rather than
their commencement. It is not concerned with how a conflict started or who was to blame for it, but
rather stipulates what forms of conduct are permissible once the war is ongoing. So, IHL deals with Jus
in Bello i.e., Law in War- it provides humanitarian assistance in times of war irrespective of the legality
of war to both the parties involved.
An international armed conflict, according to this definition, is a conflict between the armed forces of
two or more states. A non-international armed conflict, on the other hand, is a conflict between a state
and an organized armed group within the state’s territory or between two or more non-state groups
within a state’s territory.
IHL is applicable in times of armed conflict, whether international or non- international. International
conflicts are wars involving two or more states, and wars of liberation, regardless of whether a
declaration of war has been made or whether the parties involved recognize that there is a state of war.
Non-international armed conflicts are those in which government forces are fighting against armed
insurgents, or rebel groups are fighting among themselves. Because IHL deals with an exceptional
situation – armed conflict – no derogations whatsoever from its provisions are permitted.
In principle, IHRL applies at all times, i.e. both in peacetime and in situations of armed conflict.
However, some IHRL treaties permit governments to derogate from certain rights in situations of public
emergency threatening the life of the nation. Derogations must, however, be proportional to the crisis
at hand, must not be introduced on a discriminatory basis and must not contravene other rules of
international law – including rules of IHL. Certain human rights are never derogable. Among them are
the right to life, prohibition of torture or cruel, inhuman or degrading treatment or punishment,
prohibition of slavery and servitude and the prohibition of retroactive criminal laws.
IHL aims to protect persons who do not or are no longer taking part in hostilities. Applicable in
international armed conflicts, the Geneva Conventions deal with the treatment of the wounded and sick
in the armed forces in the field (Convention I), wounded, sick and shipwrecked members of the armed
forces at sea (Convention II), prisoners of war (Convention III) and civilian persons (Convention IV).
Civilian persons include internally displaced persons, women, children, refugees, stateless persons,
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journalists, and other categories of individuals (Convention IV and Protocol I). Similarly, the rules
applicable in non- international armed conflict (article 3 common to the Geneva Conventions and
Protocol II) deal with the treatment of persons not taking, or no longer taking part in the hostilities. IHL
also protects civilians through rules on the conduct of hostilities. For example, parties to a conflict must
at all times distinguish between combatants and non-combatants and between military and non-military
targets. Neither the civilian population as a whole nor individual civilians may be the object of attack.
It is also prohibited to attack military objectives if that would cause disproportionate harm to civilians
or civilian objects.
Common Article 2 of the Geneva Conventions of 1949 states that the Conventions will apply to ‘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’. A declaration of war is
therefore not necessary for the existence of an armed conflict. International humanitarian law comes
into play whenever hostilities reach a certain threshold.
An important definition of an armed conflict comes from the International Criminal Tribunal for the
Former Yugoslavia (ICTY) judgment in Prosecutor v Tadić, the first case to be heard before that body.
The Appeals Chamber in Tadić confirmed that ‘for there to be a violation of [international humanitarian
law], there must be an armed conflict’. The Appeals Chamber then went on to say that ‘an armed conflict
exists whenever there is a resort to armed force between States or protracted armed violence between
governmental authorities and organized armed groups or between such groups within a State’. This was
reaffirmed in the latter case of Prosecutor v Kunarac. The definition proposed by the Appeals Chamber
in Tadić recognizes two distinct tests for the existence of an armed conflict. The first test refers to ‘a
resort to armed force between States’. This is the classic definition of an international armed conflict.
It traditionally involves a formal declaration of warfare by one or both states, although this is not strictly
necessary. The second test refers to ‘protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State’. This formulation recognizes that
international humanitarian law may also apply to conflicts involving non-state groups. The test covers
both conflicts involving a combination of states and non- state groups and conflicts in which no states
are directly involved.
According to the ICTY Appeals Chamber in Tadić, an armed conflict involving non-state groups arises
only if the violence is protracted and the non-state groups are organized. What amounts to ‘protracted
armed violence’ within the meaning of the Tadić definition? The ICTY Trial Chamber has clarified that
‘protracted armed violence’ contrasts with ‘banditry, unorganized and short-lived insurrections’.23
Rioting, for example, is not normally treated as an armed conflict, but merely a civil disturbance. This
was reiterated by the Inter-American Commission on Human Rights (IACHR) in the case of Juan Carlos
Abella v Argentina. 24 The IACHR stated that an armed conflict must be contrasted with ‘disturbances
with no concerted intent’ and ‘isolated and sporadic acts of violence’.25 Among the examples given by
the IACHR in Abella of situations falling short of armed conflict were violent civilian demonstrations,
students throwing stones at police, bandits holding hostages for ransom and political assassinations.26
It may be difficult to draw the line in particular cases. However, the IACHR observed in Abella that ‘in
making such a determination, what is required in the final analysis is a good faith and objective analysis
of the facts in each particular case’.27 A legalistic adherence to any particular definition is
inappropriate. Rather, a holistic assessment of the facts is required. The Abella case concerned a
skirmish at a military base during a time of political unrest in Argentina. The IACHR concluded that an
armed conflict had occurred, even though the skirmish only lasted for 30 hours in total. Its reasoning
emphasized ‘the concerted nature of the hostile acts undertaken by the attackers, the direct involvement
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of governmental armed forces and the nature and level of the violence’.28 The IACHR noted that the
case involved a ‘carefully planned, coordinated and executed’ armed attack against ‘a quintessential
military objective – a military base’. It also cited the International Committee of the Red Cross (ICRC)
recommendation that the rules of international humanitarian law ‘should be applied as widely as
possible’.29 This reasoning suggests that, in borderline cases, there may be a presumption in favor of
the existence of an armed conflict.
Principles of IHL [pg. 50]
1. Distinction
The principle of distinction requires military commanders to distinguish at all times between
military targets and civilian objects. Only legitimate military targets may be attacked. Article 48 of
Additional Protocol I make it clear that this principle takes the form of an absolute prohibition,
stating that parties ‘shall at all times distinguish between civilian objects and military objectives
and [. . .] shall direct their operations only against military objectives’. Principle of military
necessity states that party may do what is necessary to achieve military objective and no more. The
principle of distinction supplements it with further restriction. Attacks may never be directed at
civilians, even if such strategy would produce a military benefit.
This also helps in protecting the humanitarian workers, such as medical personnel and red cross
officials, from becoming the object of military attacks. Humanitarian workers are crucial to efforts
of Red Cross to alleviate harms of armed conflict.
2. Proportionality
The principle of distinction advocates no harm to civilians, however, in certain circumstances attack
on legitimate military object would lead to incidental damage to civilians and property. These
harmful side effects are regulated in IHL. This doctrine prohibits attacks that may be expected to
cause injury to civilian life or property that is excessive in relation to anticipated military advantage.
Article 51(5)(b) of AP I which prohibits attacks ‘which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to object or combination thereof, which would be excessive
in relation to concrete and direct military advantage anticipated.
Proportionality can never be justified by a direct attack on civilians, but only if directed to military
object that may impact incidentally on civilians. The legal framework therefore mandates the
following procedure for military commanders: first, abide by the principle of distinction by ensuring
attacks are directed only at legitimate military targets; second, assess proportionality, making sure
that a planned attack on a military objective will not cause unreasonable damage to civilian objects.
3. Necessity
Military Necessity
According to this principle, a party making an attack is permitted to use only that degree of force
required to achieve the anticipated military objective that will result in minimum loss of life and
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property. Military necessity is sometimes depicted as a permissive doctrine; that is, as permitting a
party to do whatever is necessary to achieve desired military outcome. However, it is viewed as
restrictive doctrine- a party may do what is necessary to achieve the objective and no more. Article
54 of Additional Protocol I likewise provide that civilian crops and livestock may not be destroyed
or removed, except by parties in their own territory ‘where required by imperative military
necessity’.
i. Proper evidence of the legitimate target
ii. Level of threat posed by the legitimate target.
iii. Which option will cause lesser casualties.
Case: Israel Targeted killing case [refer paragraph 7]

There must be balance bet. military necessity and proportionality as military necessity is a permissive
doctrine whereas proportionality is prohibitive.
4. Prohibition on Superfluous Injury/ unnecessary injury
The basic idea is attacking forces are proscribed from inflicting injury on opposing combatant
beyond what is necessary to remove them from active combat. Art. 22 of Hague Regulation states
that the rights of belligerents to adopt means of injuring the enemy is not unlimited’. This principle
appears in very similar terms in Article 35(1) of Additional Protocol I. Article 35(2) then states that
‘it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to
cause superfluous injury or unnecessary suffering’.
The International Committee of the Red Cross (ICRC) study on customary international
humanitarian law describes the prohibition on inflicting superfluous injury or unnecessary suffering
as a fundamental rule applicable in both international and non-international armed conflicts.
5. Prohibition on Indiscriminate attacks
Art. 51(4) of AP I state that indiscriminate attacks are prohibited. The provision clarifies that attacks
are considered indiscriminate if they:
- Are not directed at specified military objective.
- Employ a method that cannot be directed at a specific military objective; or
- Apply a method or means of combat the effects of which cannot be limited to specific military
objective.
The first limb deals with attacks that are indiscriminate in the sense that they are not directed at a
specific, identifiable military target. The second limb deals with attacks that use a type of weapon
or method of targeting that is incapable of being spatially limited to specific military objective. The
third limb covers attacks whose effects cannot be confined to a specific military objective. It also
covers attacks that may be capable of being confined to a military target at the time they are
launched but will have subsequent effects extending beyond that objective.
6. Neutrality
It is common for parties on both sides of a conflict to depict themselves as fighting for justice and
to accuse their opponents of being at fault. If international humanitarian law imposed different rules
on unjust aggressors and innocent parties, both sides of a conflict would try to exploit this for their
own advantage. This would undermine the underlying goal of establishing dependable limits on
warfare. The principle of neutrality therefore plays an important role in promoting universal respect
for humanitarian principles.
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Sources:
Article 38(1) of the Statute of the International Court of Justice
(ICJ). It requires the ICJ to apply in its decisions the following sources of
international law:
● international conventions.
● international custom.
● ‘the general principles of law recognized by civilized nations.
● as a supplementary source, judicial decisions and ‘the teachings of
the most highly qualified publicists.
Religion as Source
1. Hinduism
- War as a means of last resort
- Classification of war – open, concealed, silent.
- Rules of warfare – equality of weapons, prohibition on perfidy and ruses
- Protection of civilian population
- Distinction bet. combatants and non-combatants
2. Buddhism
- Legitimacy of warfare- go for war only after all peaceful methods have been exhausted. It also
emphasizes the importance of peaceful resolution of disputes- conciliation, arbitration and
mediation- Buddha mediated in disputes when Sakyan and Kolian people were about to go to
war for dispute related to river Rohini.
- Just war theory- acc. to Buddhism, there is no just war.
- Respect for Environment/ natural resources and ecosystem- he developed the idea of principle
of trusteeship which in modern era is begging to be developed- meant that even during wartime-
animals, plants needed to be protected and insured against destruction. Art. 35(3) AP I prohibit
methods of warfare expected to cause widespread long term and severe damage to environment.
- Arms Trade- it prohibits the arms trade, just as it prohibited the slave trade. These trades are
condemned bcoz they are totally opposed to basic teachings of Buddhism as right to livelihood.
The growth of arms trade is one of the major industries and source of livelihood in modern
world but is at odds with the fundamentals of Buddhism. The scarcity of categorical
prohibitions of this trade is one of the reasons for its growth.
- Superiors’ order
It states that carrying out duties for state is not an excuse for killing. It also means that superior
orders are no defense and in context of war it gives it also includes torture, environmental
damage, enslavement of enemy, use of cruel methods of punishment. Buddhism goes even
further stating that not even supernatural forces can absolve an individual from responsibility
for his acts.
- Collective Punishment
It follows from concept that one person cannot be punished for the act of another. Even if
punishment is imposed for an act of heinous wrongdoing, that punishment must be imposed on
wrongdoer and not on associates of it. The religion prescribes greatest clarity the total
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unacceptability of such method. Buddhism’s constant reminder that individual alone is
responsible for his actions is useful to impermissibility of such principle of action.
- Right to Asylum
Right to seek asylum in holy place, where writ of law does not extend was recognized in
Buddhism. Such cultural tradition clearly recognized the sanctity of religious places and their
immunity from civil and criminal processes. The same immunities would apply to anyone
seeking refuge in these places and would apply even more to conduct in time of war.
- Treatment of PoW- principle of compassion base of Buddhism- same to be shown to prisoners

of war – same care and concern as their own soldiers- upon termination of hostilities they would
need to be given safe passage back to their countries of origin. Forced labor during their period
of captivity prohibited- health care obligatory.
Lieber Code
The American states were in civil war from 1861 to 1865. In 1863, YS president Abraham Lincoln,
issued a famous order to his troops, entitled instructions for government of Armies of US in the Fields.
His order came to be known as Liber Code. It represented an ambitious attempt to set out detailed
guidelines for the conduct of all aspects of land-based warfare. Although the code was purely internal
document and was undermined by discretion given to commanders in name of military necessity, it
influenced later international attempts to regulate the means and methods of warfare. Among the issues
addressed are whether armed force is justified by military necessity, the principle of humanity, the
distinction between combatants and civilians, POW status, retaliation, and permissible methods and
means of warfare. However, some of the rules are no longer permissible under modern humanitarian
law.
St. Petersburg Declaration

It was a discussion on use of light range explosive. Such explosives even though would target one
combatant, inflicted far more injury than an ordinary rifle would. So, it was decided to forbid the use
of such explosive under 400 gms in weight. Although the declaration was for one specific issue, the
reasoning became imp. for IHL perspective. The declaration emphasized the importance of alleviating
the suffering of combatants and noted that infliction of injury during armed conflict was permissible
only to the extent necessary to overcome enemy resistance.
THE HAGUE PEACE CONFERENCES

Following the St Petersburg Declaration, the Russian government continued to encourage international
discussion on rules and customs concerning warfare. It was at Russia’s instigation that delegates from
a number of states arrived at The Hague in 1899 to debate measures aimed at preventing the outbreak
of further wars in Europe. The stated focus of the Hague Peace Conference was firmly on the jus contra
bellum. The main issue scheduled for discussion concerned the creation of compulsory arbitration
mechanisms for disputes between nations, in order to forestall recourse to armed hostilities. However,
the delegates also discussed the need for standards governing the conduct of warfare.
Martens Clause
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After the St. Petersburg Declaration, the states came together at Hague and formed a Hague Regulation
1899 to codify the existing customs governing conduct of land warfare. The Martens Clause provided
that, in situations not envisaged by the drafters of the Hague documents, military commanders were not
entitled to act arbitrarily, but should abide by ‘the laws of humanity and the dictates of the public
conscience’. Although the precise legal implications of this provision continue to be debated, it clearly
emphasizes the underlying humanitarian principles endorsed by the St Petersburg delegates.
First inserted in preamble of 1899 Hague convention II containing rules and regulations on laws and
customs of war on land and reinstated in 1907 Hague Convention IV. International legal rule which
considers humanitarian factors and rules are no less binding that actions motivated by military or
political concerns. Contributes to laws of humanity and dictates public conscience. Warning issued by
the clause is only moral and political in nature.
KW Case: (favoring martens’ clause)

The defendant, a police officer, had been accused of violations of the laws and
customs of war, in that he had caused serious injury to a number of civilians detained.
after fighting against the German occupiers in occupied Belgium. The Court pointed.
out that Article 46 of the Regulations annexed to the IVth Hague Convention on the
Laws and Customs of War on Land imposed upon the occupying power the duty to
respect ‘the lives of persons. However, no provision of the Regulations expressly
prohibited acts of violence and ill treatment against the inhabitants of occupied territories. The Court
thus referred to the Martens Clause. It noted in this regard that in its search for the principles of
international law resulting from the principles of humanity and the dictates of the public conscience, it
was to be guided by the Universal Declaration of Human Rights, Article 5 of which provides that ‘[n]o
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. The Court
then found that the acts performed by the accused against his victims amounted to torture and cruel
treatment and concluded that they constituted violations of the customs of war.
Points to the proper modalities of construction of customary principles or rules of humanitarian law. By
virtue of the clause, reference should thus not be made to vague principles of humanity, but rather to
those human rights standards that have been laid down in international instruments such as the Universal
Declaration.
UNIT 2
Common Article 3 of the Geneva Conventions was the first, and for some time the only, provision to
bring non-international conflicts within the reach of international humanitarian law. It was
supplemented by the adoption of Additional Protocol II to the Geneva Conventions in 1977. The
rationale behind the protections contained in Common Article 3 is that there are certain principles of
humanity so fundamental that they apply to combatants and civilians in all kinds of conflict. Prior to
1949, the Geneva Conventions assisted only persons caught up in international conflicts. Belligerent
groups in civil conflicts were widely perceived as domestic criminals and attempts by the Red Cross
Movement to aid those belligerents as inadmissible aid. For this reason, suggestions that the
Conventions in their entirety should be applied to non-international conflicts were rejected; their
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implementation would have greatly restricted states in their capacity to deal with insurgents, including
having to treat them as prisoners of war, rather than using ordinary criminal procedures.
Common Article 3 is accordingly limited to the most fundamental of principles underlying the Geneva
Conventions; it could not be said that torture or mutilation, for example, are reasonable measures for a
state to suppress a rebellion against it by an insurgent group.
A distinction needs to be drawn in this context regarding the scope of Common Article 3 and Additional
Protocol II.
Common Article 3 has the broader scope of the two. It applies to armed conflicts ‘not of an international
character’ occurring in the territory of a state party. Additional Protocol II, on the other hand, applies
to armed conflicts not covered by Additional Protocol I that take place in the territory of a state party
between its armed forces and dissident armed forces or other armed groups. The non-state groups in
question must be under responsible command, and control enough of the state’s territory to carry out
‘sustained and concerted military operations’ and to implement the Protocol.
The more limited scope of Additional Protocol II occurred as a result of fears by a number of states
who negotiated the text of the Additional Protocols that an expansive field of application would limit
their ability to deal effectively with internal disturbances. It therefore appears that Additional Protocol
II will technically only apply to armed conflicts where one of the parties is a state, whereas the principles
expressed in Common Article 3 potentially apply to conflicts where no states are involved. It has been
suggested that both state and non-state participants in internal armed conflicts are bound by Common
Article 3 by virtue of its customary law status. Additional Protocol II is also expressly stated not to
apply to ‘internal disturbances and tensions, such as riots, isolated and sporadic acts of violence’ and
other similar incidents. It therefore reiterates the overarching definition of armed conflict discussed
earlier in this chapter.
IHL is applicable in times of armed conflict, whether international or non-international. Int’ll conflicts
are wars involving 2 or more states, liberation wars, irrespective of declaration of war.
Armed conflict can be categorized into 2 heads:
1. International Armed conflict- involved bet. 2 or more states

i. Armed hostility, physical violence, minimum violence
ii. Additional protocol (Art. 1)- war of national liberation
Acc. to common Art.2, Geneva Convention will apply to all cases of declared war or of any other armed
conflict, which may arise bet. 2 or more of the High Contracting parties, even if the state of war is not
recognized by one of them. A declaration of war is therefore not necessary for the existence of an armed
conflict. International humanitarian law comes into play whenever hostilities reach a certain threshold.
• Private parties like Star-link or Wagner group cannot be held liable as per GC only high
contracting parties are included which excludes private organizations.
Status of personnel from Private Military Companies (PMCs), specifically focusing on the Wagner
Group, under International Humanitarian Law (IHL).
1. Status of Individuals in an International Armed Conflict (IAC):
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• Under IHL, individuals involved in an IAC are classified as either combatants or
civilians, which determines their legal status and protections.
• Combatants, typically members of a state's armed forces, enjoy certain rights such as
prisoner-of-war status upon capture and can only be prosecuted for international
crimes.
• The analysis discusses criteria for determining whether PMCs qualify as a state's armed
forces, including organization and being under a responsible command.
2. Criteria for Determining Combatant Status:
• Factors such as organizational structure, ability to conduct military operations,
logistics, discipline, and coordination are considered in determining combatant status.
• The analysis suggests applying a less stringent level of control than "effective control,"
such as "overall control," to establish responsibility of a state over a PMC.
3. Implications for Prosecution:
• Combatants are entitled to prisoner-of-war status and cannot be prosecuted for
domestic crimes, only for international crimes.
• Civilians can be targeted if they directly participate in hostilities and can be prosecuted
for international crimes.
• PMCs involved in international crimes can be prosecuted by the International Criminal
Court (ICC), special tribunals, or under the principle of universal jurisdiction.
4. State Responsibility and Attribution:
• There's a question of whether a state, in this case Russia, could bear responsibility for
the actions of PMC personnel based on the level of control and involvement in their
actions.
• Factors such as financial support, coordination, and integration into military structures
are considered in determining state responsibility.
5. Applicability Beyond Ukraine:
• The analysis suggests that similar considerations should be applied to PMCs in other
countries where they have been alleged to commit crimes.
• As PMCs evolve and change, new analyses should be conducted to determine their
status and responsibility.
6. Need for Further Examination:
• Due to the complexity and uncertainty surrounding the treatment of PMCs under IHL
and individual criminal responsibility, further examination by relevant states, tribunals,
and international bodies is recommended.
In summary, the analysis provides a comprehensive overview of the legal complexities surrounding
the status and accountability of PMC personnel, particularly focusing on the Wagner Group, in the
context of international conflicts like the one in Ukraine. It emphasizes the need for a nuanced
approach considering factors such as organizational structure, control, and involvement of states,
and calls for continued examination to ensure accountability and justice for crimes committed by
PMC personnel.
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Case: Prosecutor v. Tadic (ICTY- tribunal for Yugoslavia)
For there to be violation of IHL, there must be armed conflict, which means whenever there is a resort
to armed forces between 2 states- same was reaffirmed in Prosecutor v. Kunarac.
2 Non-international armed conflict
Common Article 3 (only article to bring NIAC within IHL)

i. Armed forces state has organized armed group - State engaging with other non-state i.e.,
organized armed group.
ii. OAG-– 2 rebels engaging in hostilities.
* OAG- operating within individual capacity

* Proacted Armed violence- certain intensity of hostility occurred
[Juan Carlos Abella v, Argentina- the court concluded that an armed conflict had occurred even though
violence lasted only for 30 hours.]
Additional Protocol II
-armed force engaging with OAG
Cases
1. Prosecutor v. Haradinaj
The case Prosecutor v. Haradinaj refers to a significant trial held at the International Criminal Tribunal
for the former Yugoslavia (ICTY). It involved political figure and former commander of the Kosovo
Liberation Army (KLA).
The indictment accused Haradinaj, Balaj, and Brahimaj of committing war crimes and crimes against
humanity during the Kosovo War (1998-1999). The charges included murder, torture, persecution, and
the forced removal of civilians, allegedly perpetrated against Serb, Roma, and Albanian civilians
perceived to be collaborating with Serbian forces.
The trial, which began in March 2007, was highly significant as it marked one of the first times that a
former senior commander of a non-state armed group faced charges of war crimes and crimes against
humanity before an international tribunal. Haradinaj's case was particularly noteworthy due to his
subsequent rise to political prominence in Kosovo.
During the trial, the prosecution faced challenges related to witness intimidation and insufficient
evidence to establish the direct involvement of the defendants in the alleged crimes.
In April 2008, Haradinaj and Balaj were acquitted of all charges, while Brahimaj was found guilty of
cruel treatment and torture and sentenced to six years in prison.
The trial's outcome sparked mixed reactions, with supporters of Haradinaj viewing the acquittal as a
vindication of his innocence, while critics raised concerns about the ICTY's ability to effectively
prosecute individuals accused of war crimes, especially those with significant political influence.
Overall, the Prosecutor v. Haradinaj case highlighted the challenges of prosecuting individuals for war
crimes committed during complex conflicts, particularly when the evidence is scarce or compromised
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by factors such as witness intimidation. It also underscored the importance of accountability and justice
in post-conflict societies .
Landmark case in several respects:
1. First Prosecution of a Former Senior Commander: It marked one of the first instances where
a former senior commander of a non-state armed group (the Kosovo Liberation Army) was
prosecuted for war crimes and crimes against humanity before an international tribunal. This
set a precedent for holding individuals accountable for atrocities committed during internal
conflicts, even if they were not part of a recognized state military.
2. Significance for International Justice: The case was significant for international justice
efforts, as it demonstrated the willingness of international tribunals like the International
Criminal Tribunal for the former Yugoslavia (ICTY) to investigate and prosecute alleged war
crimes and crimes against humanity, irrespective of the political stature of the accused.
3. Impact on Post-Conflict Justice
4. Challenges and Controversies: The case also underscored the challenges and controversies
surrounding the prosecution of war crimes, including issues such as witness intimidation,
insufficient evidence, and the political sensitivity of the proceedings.
2. US v. Nicaragua – Effective control test and Overall control test
The case of United States v. Nicaragua was a landmark legal dispute brought before the International
Court of Justice (ICJ) in the 1980s. The case centred around Nicaragua's allegations that the United
States had violated international law by supporting armed opposition groups (Contras) in Nicaragua
and by mining Nicaraguan harbors.
Two key legal tests emerged from this case:
1. Effective Control Test: This test focuses on determining whether a state exercises effective
control over the actions of non-state actors operating within another state's territory. In the
context of United States v. Nicaragua, Nicaragua argued that the United States exercised
effective control over the Contras, thereby making the United States responsible for their
actions under international law. The ICJ found that the United States did exercise some degree
of control over the Contras, particularly through financial and military support, but it fell short
of sufficient control to attribute their actions directly to the United States.
2. Overall Control Test: This test expands on the effective control test by considering whether a
state has overall control over the military or paramilitary operations conducted by non-state
actors. It looks beyond direct command and control to assess whether the state has the authority
or ability to influence or direct the actions of these groups. While the overall control test was
not explicitly applied in United States v. Nicaragua, it represents a broader concept of state
responsibility for the actions of non-state actors.
Nicaragua case: In order for the conduct of the contra guerrillas to have been attributable to the USA,
who financed and equipped the force, ‘it would in principle have to be proven that that state had
effective control over the military or paramilitary operation in the course of which the alleged violations
where committed. Thus, general overall control is not sufficient.
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Tadic case, the degree of control might vary according to the circumstances and a high threshold might
not always be required.
Nicaragua two-step test:
“§109 What the Court has to determine at this point is whether or not the relationship of the contras to
the United States Government was so much one of dependence on the one side and control on the
other that it would be right to equate the contras, for legal purposes, with an organ of the United States
Government, or as acting on behalf of that Government.”
The test:
i. Whether a non-state actor is completely dependent on a certain state, so that it effectively
becomes an organ of that state; if not
ii. Whether the state in question had ‘effective control of the military or paramilitary
operations in the course of which the alleged violations were committed’.
A high degree of control was necessary for this to be the case. It required that (i) a Party not only be in
effective control of a military or paramilitary group, but that (ii) the control be exercised with respect
to
the specific operation in the course of which breaches may have been committed
Nicaragua tests
Nicaragua agency test
The “agency” test when considering whether the contras could be equated with United
States officials for legal purposes, in order to determine whether the United States could
incur responsibility in general for the acts of the contras.
Nicaragua effective control test
The “effective control” test determines whether the United States could be held
responsible for particular acts committed by the contras in violation of international
humanitarian law. This test hinged on the issuance of specific directives or instructions
concerning the breaches allegedly committed by the contras
Tadić:
The Chamber noted that the degree of control was not required to be rigidly the same
for any
relationship, but could vary depending on circumstances. The Chamber thus, based on a
careful
investigation of judicial and state practice, identified two degrees of control:
a. one for acts performed by private individuals engaged by a state to perform specific illegal acts in
the territory of another state (or for individuals commissioned to carry out legal actions, who act
however ultra vires breaching international law). This test is the same as the Nicaragua effective
control test.
b. another degree of control over actions by organized and hierarchically structured groups, such as
military or paramilitary units; in this case overall control by the state over the group was
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The test:
to
Nicaragua tests
Tadić:
for any
careful
control test.
The test:
EB
to
Nicaragua tests
Tadić:
for any
careful
control test.
Common Article 3- mini convention which embodies the principle of humane treatment- it embodies
the principles of IHL including proportionality, necessity, distinction & prohibition of weapons that
cause indiscriminate attacks.
Unit 3
POW: GC III; AP I (only operate in International Armed Conflict), POW war also enjoy protections in
non-international conflicts.
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Article 4 of Geneva Convention III provides an extensive definition of prisoner of war status. A prisoner
of war is defined as a person belonging to any of a number of enumerated categories, who has ‘fallen
into the power of the enemy’.
The first category listed in the provision covers members of the regular armed forces of a party to the
conflict.
The second category includes members of other armed groups who:
• are under responsible command.
• bear a fixed, distinctive sign recognizable at a distance.
• carry arms openly; and
• respect the requirements of international humanitarian law.
These first two categories, then, correspond to the categories of legally recognized combatants
discussed previously in Chapter 3. Anyone who is recognized under Geneva Convention III as a
combatant is therefore entitled to prisoner of war status if captured by the enemy.
Article 4 then goes on to list several additional categories of prisoners of war who may not be covered
by the definition of a combatant.
These include:
• persons who typically accompany armed forces, but are not members of the forces themselves,
such as civilian members of aircraft crews, war correspondents, supply contractors and so on.
• members of crews of merchant marine and civil aircraft of a party to the conflict.
• inhabitants of a particular region who spontaneously take up arms.
• former members of armed forces who are caught in an attempt to rejoin the forces of which
they used to be members.
The definition of prisoner of war status in Geneva Convention III has now been supplemented by
Additional Protocol I. According to Article 44 of Additional Protocol I, ‘[a]ny combatant, as defined in
Article 43, who falls into the power of an adverse Party shall be a prisoner of war’. We previously
encountered the Article 43 definition of a combatant in Chapter 3. The definition covers all armed forces
or groups under the command of a party to the conflict who are subject to an internal disciplinary system
and distinguish themselves from the civilian population or, in situations where this is not possible, carry
arms openly whenever engaging in or preparing to engage in an attack. The effect of Additional Protocol
I is to slightly widen the definition of prisoner of war status set out in Geneva Convention III.
Unit 4- 7: Treatment of victims and POW
GENEVA CONVENTION I for the AMELIORATION OF THE CONDITION OF THE

WOUNDED AND SICK IN ARMED FORCES IN THE FIELD (1949)
A1: Responsibility of High Contracting Parties (states)

A2: Application of convention: all cases of declared war/ any other armed conflict between two or more
HCP, even if war is not recognized by one of them. Applicable for occupation also.
A3: Conflict not of international character- NIAC -- each party bound principles and regulations
regarding the humane treatment of individuals not actively participating in hostilities, including soldiers
who have surrendered or are incapacitated. It emphasizes that such individuals must be treated without
discrimination based on race, religion, sex, or other similar criteria.
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Specifically, it prohibits:
a) Acts of violence against these individuals, such as murder, mutilation, cruel treatment, and torture.
b) Taking hostages.
c) Acts that violate personal dignity, including humiliating and degrading treatment.
d) Sentencing or executing individuals without a fair trial by a legally constituted court.
Furthermore, it mandates the collection and care of the wounded and sick, with the option for impartial
humanitarian organizations like the International Committee of the Red Cross to aid. It encourages
parties involved in conflicts to establish special agreements to uphold these provisions. Additionally, it
clarifies that adherence to these rules does not affect the legal status of the conflicting parties.
Wounded and Sick – 12 to 18

A12: Protection and care – Members of armed forces, wounded, sick – respected and protected in all
circumstances. Treat them humanely. Women to be treated with all consideration.
A13: Protected persons: wounded and sick of members of parties to conflict, volunteer corps,
commanded by person, someone who has fixed distinct sign, carry arms openly, anyone who is
conducting operations of war in accordance with customs of war, inhabitants of non-occupied territory.
A14: Status—wounded and sick who all into enemy hands: POW.
A15: Search for casualties—after conflict take all possible measures to find the wounded and sick and
protect them against ill treatment, search for the dead to prevent despoiled.
A16: Recording and forwarding of info – record any particulars that may assist in identification- info
forwarded to Info Bureau
A17: Prescriptions regarding the dead-- Parties to the conflict shall ensure that burial or cremation of
the dead, carried out individually as far as circumstances permit, is preceded by a careful examination,
if possible, by a medical examination, of the bodies, with a view to confirming death, establishing
identity and enabling a report to be made.
One half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the
body. Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on
the religion of the deceased. In case of cremation, the circumstances and reasons for cremation shall be
stated in detail in the death certificate or on the authenticated list of the dead. They shall further ensure
that the dead are honorably interred.
A18: Role of the population- Military authorities can request civilian assistance in collecting and caring
for the wounded and sick, ensuring protection for those who respond. Both sides in a conflict must
provide protection and facilities for such humanitarian efforts, and civilians are encouraged to assist
without fear of reprisal.
A27: Societies of neutral countries- A neutral country's medical personnel can assist a conflict party
only with its government's consent and the party's authorization, under their control. The neutral
government must notify the adversary, ensuring non-interference, and personnel must carry identity
cards before deployment.
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A33: Buildings and stores -- Enemy-captured mobile medical unit materials are reserved for treating
wounded. Fixed medical establishment buildings and materials remain governed by laws of war but
must not be diverted from caring for the wounded unless under urgent military necessity, with
arrangements made for patients' welfare. Destruction of defined materials and stores is prohibited.
A34: Property of aid societies – Real and personal property of aid societies which are admitted the
privileges of the convention shall be regarded as private property.
A35: Protection (medical transport) – Transport of wounded and sick should be respected and protected.
A36: Medical Aircraft – Aircraft exclusively employed for removal of wounded and sick for transport
of medical personnel and equipment shall not be attacked. Should be clearly marked with national colors
on lower, upper and lateral surfaces. Obey every summons to land. Involuntary landing on enemies’
territory – everyone on the aircraft will be a POW.
A37: Medical aircrafts can land over neutral parties’ territory out of necessity. The neutral party can
place certain conditions for the same and they should be applied equally to all the parties of the conflict.
Neutral power can detain the HCP in such a way that they don’t take part in the operations of war while
there in the neutral party’s territory.
A46: Prohibition of reappraisals: Reprisals against protected individuals, facilities, or equipment under
the Convention are forbidden. This ensures the safeguarding of medical personnel, wounded, and
medical infrastructure, upholding humanitarian principles in conflict zones. Such prohibition
underscores the imperative to prioritize care and respect for the injured and those providing medical
assistance.
GC II: AMELIORATION OF THE CONDITION OF WOUNDED, SICK AND

SHIPWRECKED MEMBERS OF ARMED FORCES AT SEA OF 12 AUGUST 1949
A12: Protection and care of Wounded, sick and shipwrecked -- Members of armed forces and others at
sea, whether wounded, sick, or shipwrecked, must be respected and protected regardless of sex, race,
nationality, or beliefs. Strict prohibitions against violence, murder, torture, and neglect are enforced,
with priority given to urgent medical needs. Women must receive special consideration in their
treatment, ensuring their dignity and well-being are upheld in all circumstances.
A13: Protected persons: The Geneva Convention applies to wounded, sick, and shipwrecked at sea
within specific categories:
• Armed forces members, militias, or volunteer corps of a conflict party.

• Militias, volunteer corps, or organized resistance movements meeting specified criteria.
• Regular armed forces loyal to unrecognized governments.
• Non-members accompanying armed forces, including civilians with authorization.
• Merchant marine and civil aircraft crews from conflict parties not covered by other laws.
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• Inhabitants spontaneously taking up arms against invading forces in non-occupied territories,
respecting laws of war.
A18: Search for casualties after an engagement – without delay search for shipwrecked. / Wounded and
protect them from pillage and ill treatment.
A19: Record and forward info
A20: Prescriptions regarding dead – same as that of land
A21: Appeals to neutral vessels: Parties to a conflict can request neutral vessel commanders to aid
wounded, sick, and shipwrecked, ensuring special protection for responding vessels. Neutral vessels
aiding is shielded from capture for aiding but remain subject to capture for neutrality breaches unless
promised otherwise.
A22: Notification and protection of military hospital ships -- Military hospital ships, that is to say, ships
built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and
shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or
captured, but shall at all times be respected and protected, on condition that their names and descriptions
have been notified to the Parties to the conflict ten days before those ships are employed.
A23: Protection of medical establishments ashore – protected from attack from sea/ bombardment.
A24: Hospital ships utilized by relief societies and private individuals of I. Parties to the conflict –
SAME PROTETCION AS TO MILITARY HOSPITAL SHIPS – THESE SHIPS TO PROVIDE
CERTIFICATES.
A25, ii – Neutral countries: place themselves under control of one party.
A26: Tonnage – protection applies to tonnage, lifeboats when operating.
A27: Coastal rescue aircraft – small craft recognized by state/ officially recognized by life board
institutions.
A28: Protection of sick bays: In the event of fighting on a warship, sickbays must be spared whenever
possible. While subject to laws of warfare, sickbays and their equipment must remain dedicated to
caring for the wounded and sick as long as necessary.
A29: Hospitals should be allowed to leave a port.
A40: Flight over neutral countries landing of wounded: give neutral Powers prior notice of their passage
over the said territory, and obey every summons to alight, on land or water. They will be immune from
attack only when flying on routes, at heights and at times specifically agreed upon between the Parties
to the conflict and the neutral Power concerned. The neutral Powers may, however, place conditions or
restrictions on the passage or landing of medical aircraft on their territory.
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GC III: RELATIVE TO THE TREATMENT OF PRISONERS OF WAR
Art. 4 of GC III provides an extensive definition of POW- it is person belonging to any of the
enumerated categories who has fallen into the power of enemy. The first category covers members of
regular armed forces of party to conflict. The second includes members of other armed groups who:
- Are under responsible command.
- Bear fixed; distinctive sign recognizable at distance.
- Carry arms openly.
- Respect the requirements of IHL.
In GC III, anyone recognized as combatant is pow, Art. 4 adds list of additional categories who may
not be covered under combatant. These include:
- Person who accompanies armed forces but are not members of forces such as civilian members
of aircraft crew, supply contractor and so on.
- Members of crews of merchant marine and civil aircraft
- Inhabitants of region who spontaneously take up arms.
- Former members of armed forces who are caught to rejoin the forces.
The definition of POW has been supplemented by AP I- Art. 44- Any combatant as defined in Art. 43,
who falls into power of adverse party shall be POW. The effect of Additional Protocol I is to slightly
widen the definition of prisoner of war status set out in Geneva Convention III (at least among those
states that are parties to the Additional Protocol).
The main difference between the regimes is that whereas Geneva Convention III requires combatants
to distinguish themselves from civilians through a uniform or other distinctive sign, Additional Protocol
I recognize that this is sometimes too demanding.
Art. 12: Responsibility for the treatment of prisoners

Prisoners of war are in the hands of enemy power, so it is their duty and responsibility to treat them
properly. Pow may only be transferred by detaining power to power which is party to convention. While
Pow are transferred, responsibility for application of convention lies with Power accepting them while
they are in their custody. If power fails to carry provisions of the convention, power by whom they were
transferred shall upon being notified by Protecting power, take effective steps to correct the situation or
request return of them.
Art. 13: Humane treatment of prisoners

- Must be humanely treated.
- Should not be subject to physical mutilation or medical/ scientific experiments of any kind
which are not carried out in his interest.
- Must be protected particularly against acts of violence or intimidation and against insults &
public curiosity.
- Measures of reprisal prohibited- execution of an otherwise illegal act.
- Detaining power should not do any unlawful omission/ act causing death or serious injury-
regarded as breach of this convention.
Art. 18: Property of prisoners

- Articles of personal use with themselves (except for military equipment’s, arms, documents)
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- Clothing and feeding with themselves.
- Prisoners shouldn’t be without identity.
- Badge of rank or decorations and articles to be kept with themselves (sentimental value)
- Sum of money with themselves- taken with order by officer
- Detaining power withdraw articles of value for security reason- withdrawn with procedure laid
down for sum of money impounded.
- Such articles returned to them in initial shape at end of captivity.
Article 19: Evacuation of prisoners

- POW shall be evacuated as soon as captured, to camps situated far from combat area for them
to be out of danger.
- POW owing to wounds/ sickness run greater risk by being evacuated may be temporarily kept
in danger zone.
- POW shall not be exposed to danger while evacuating from fighting zone.
Art. 20: Condition of evacuation

- Evacuation humanely and like detaining power’s change of station
- Supply sufficient food, water, clothing and medical.
- All precaution to ensure their safety and establish list of prisoners who evacuated.
- If staying in transit camp, such period should be short.
Art. 21: Restriction of liberty of movement

- Detaining power (DP) may subject prisoners to internment – imposing obligation of not leaving,
beyond certain limit, if fenced- not outside its perimeter
- Pow not held in close confinement except when necessary to safeguard health.
- May be release wholly or partially on parole if that helps improve their state of mind.
Art. 22: Places and conditions of internment

- Interned only in premise located on land- hygienic and healthfulness.
- Those interned in unhealthy areas, injurious place removed asap.
- DP shall assemble pow acc. to their nationality, language and customs (shall not be separated
from those serving at the time of their capture)
Art. 23: Security of prisoner

- Shall not be exposed to fire of combat zone or used as place immune from military operations.
- Shelter against air bombardment and other hazards of war
- Any other measure taken in their favor [general public] shall also apply to them.
Art. 24: Permanent transit camp

- Transit or screening camp of permanent kind fitted under conditions described above.
- Prisoners shall have same treatment as in other camps.
Art. 25: Quarters

- Shall be quartered in same conditions as DP.
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- Allow room for prisoner’s habits and customs.
- Also apply to dormitories- their bedding, space, blankets
- Premises shall be protected from dampness and adequately heated and lighted.
- In case of men and women- separate dormitories provided
Art. 26: Food

- Daily food ration good in quantity, quality and variety- keep them healthy and prevent weight
loss – account of habitual diet taken.
- Sufficient drinking water and tobacco allowed.
- For preparation of their food shall be employed in their kitchen- given the means of preparing
Art. 27: Clothing

- Clothing, underwear, footwear supplied considering climate of region.
- Uniform of enemy armed force used to clothe prisoners of war.
- Pow who works shall be provided adequate clothing as per nature of work.
Art. 28: Canteen

- Canteen installed in all camps- foodstuff, soap, tobacco and ordinary articles.
- Tariff not in excess of market prices.
- Profit from camp used for their benefit- create special fund.
- If camp closed, such fund given to int’ll org used for pow of that nationality only.
Art. 29: Hygiene

- DP bound to take all sanitary measures to ensure cleanliness and healthfulness of camp, prevent
epidemics.
- If women also, separate convenience accorded.
- Apart from baths and shower, pow also given water and soap for personal toilet and washing
their laundry.
Art. 40: Badge and nationality, decorations – shall be permitted.
Israel Military Prosecution vs Kassem: In the case of Military Prosecutor v. Omar Mahmud Kassem
(1969), a group of Palestinians associated with the Popular Front for the Liberation of Palestine
(P.F.L.P.), a faction of the Palestine Liberation Organization (P.L.O.) were captured during a firefight
after surreptitiously crossing the Jordanian border.
They were carrying weapons and explosives intended for bombing Israeli targets. The Kassem judgment
was one of the first legal texts to contend with the legitimacy of Palestinian struggle against Israel. It
set the terms by which thousands of Palestinians would be tried and defined the way the military law
saw acts of resistance to the occupation.
Kassem testified before the court that he was a Jerusalemite who left the country after the war. In Jordan,
he joined the P.F.L.P. and he was then sent to infiltrate occupied areas and help spark an armed uprising
in the region. He also claimed that as a soldier who fought against soldiers, he should not be regarded
as a felon but as a P.O.W., a term only applicable to those recognized as lawful combatants. In a
precedent-setting decision, the judge in the case ruled that because Kassem's organization, the P.F.L.P.,
had planned and carried out attacks against civilian targets in other operations, Kassem was not eligible
for lawful combatant status.
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The judge wrote, "Members of such an organization have no right to claim the status of 'lawful
combatant.' International law was not written in order to protect terrorists and criminals." Kassem and
his co-defendants received life sentences for armed infiltration, possession of firearms and membership
in an illegal organization.
1. Imp: Conditions for Lawful Combatants: The passage outlines four conditions irregular
combatants must fulfil to be recognized as lawful combatants:
• (a) They must be under the command of a responsible leader.
• (b) They must wear a distinctive badge recognizable from a distance.
• (c) They must openly carry arms.
• (d) They must conduct operations in accordance with laws and customs of war.
2. Prisoner of War Status: It states that for an underground organization member to be treated
as a prisoner of war upon capture, they must clearly fulfil all four conditions. The absence of
any condition means they may not be entitled to prisoner of war status.
3. Belonging to a Belligerent Party: The case highlights a crucial yet often overlooked condition
for combatants to be entitled to prisoner of war status - they must belong to the government or
state for which they fight. If they don't belong to the belligerent party, they may not possess the
right to be considered prisoners of war.
4. International Law and War Crimes: It emphasizes that adherence to international law during
warfare is crucial. Violations of these laws constitute offenses, including war crimes. The
implementation of these rules confers rights and duties, and responsibility for the actions of
both regular and irregular forces lies with the opposing party.
5. Scope of the Convention: The case clarifies that the Geneva Convention applies to military
forces (in a broad sense) belonging to a state engaged in armed conflict with another state.
However, it excludes forces, even regular armed units, that do not submit to the authority of the
state and its government organs. Such forces are not protected by international law concerning
prisoners of war and can be treated as criminals by occupying powers.
Spies, Mercenaries
Anyone falling within the categories of combatants and associated persons listed in Geneva Convention
III and Additional Protocol I who falls into the hands of the enemy is entitled to prisoner of war status.
There are also some detainees who will not qualify as prisoners of war despite playing an active role in
the armed conflict. The three main categories are spies, mercenaries and unprivileged belligerents.
Parties may grant members of these classes’ prisoner of war status if they wish, but they are not obliged
to do so. The position of spies is covered in Article 46 of Additional Protocol I. Spies are defined in
that provision as military personnel engaged in espionage (information gathering, sabotage and the like)
who are acting clandestinely and are not in uniform. The covert nature of spying operations is central
to this definition. The article further states that person is not a POW and may be treated as spy. Article
5 of Geneva Convention IV stipulates that captured spies should be treated humanely and are entitled
to a fair trial before being subjected to any form of punishment. They should be treated as ‘protected
persons’ under the Convention insofar as this is consistent with the security of the detaining power.
However, they are regarded as having forfeited their rights of communication.
Mercenaries are defined under Article 47 of Additional Protocol I as persons who are not nationals of
a party to the conflict or members of the regular armed forces of a state and are specifically recruited to
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fight in the conflict for a substantial material reward. The provision states that mercenaries ‘shall not
have the right to be a combatant or a prisoner of war’. This means that mercenaries, like spies, are liable
to punishment in accordance with the laws of the detaining power. They are however, entitled to be
treated humanely and afforded a fair trial before any punishment is imposed.
Two further points fall to be made about spies and mercenaries. First, Additional Protocol I make it
clear that if there is any doubt as to whether a detainee is a spy or a mercenary, she or he should be
assumed to be entitled to prisoner of war status until the matter is assessed by a competent tribunal.8
Second, they are entitled to protections of GC- IV except as required by security of detaining power.
Also entitled to fundamental guarantees listed in Article 75 of AP I, humane treatment and procedural
justice.
Unprivileged Belligerents
These are persons who are actively engaged in fighting, but for one reason or other do not satisfy the
definition of combatant under GC III or AP I. This may be because the armed group within which they
operate is not sufficiently well organized to count as being under responsible command or having an
internal disciplinary system. Alternatively, it may be because they do not distinguish themselves from
civilian population. [e.g.- not carrying the arms openly]
The underprivileged belligerents, although not pow, still enjoy robust protections. The guarantees
available to them are similar to those enjoyed by spies and mercenaries. They will typically be entitled
to the protections of Geneva Convention IV, unless this is inconsistent with the security of the detaining
power, or they are detained by their own state or its allies. They are further protected by the fundamental
guarantees in Article 75 of Additional Protocol I. Unprivileged belligerents, like spies and mercenaries,
are vulnerable to prosecution for their hostile acts under the law of the detaining power, but they enjoy
robust procedural safeguards.
GC IV: PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR
A3: Conflicts not of an international Character-- humane treatment of individuals not actively
participating in armed conflicts within the territory of a contracting party. Key points include:
1. Protection of non-combatants: All individuals not involved in hostilities, including disarmed

members of armed forces and those incapacitated by illness, injury, or detention, must be treated
humanely without discrimination based on race, religion, sex, or any other criteria. Prohibited
acts include violence, murder, mutilation, torture, hostage-taking, and humiliating treatment.
2. Legal rights: Non-combatants are entitled to legal protections, including fair trial proceedings
by a regularly constituted court before sentencing or execution.
3. Care for the wounded and sick: Parties to the conflict must ensure the collection and care of
wounded and sick individuals. Humanitarian organizations like the International Committee of
the Red Cross can help.
4. Special agreements: Parties are encouraged to establish special agreements to implement

additional provisions of the Convention.
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Overall, the application of these provisions does not alter the legal status of the parties involved in the
conflict.
A4: Protected persons -- Protected persons: Individuals protected by the Convention are those who,
during a conflict or occupation, are in the custody or under the control of a party to the conflict
or occupying power of which they are not nationals. However, nationals of a State not bound by the
Convention are not protected. Nationals of a neutral State in the territory of a belligerent State, and
nationals of a co-belligerent State, are not considered protected persons if their home country has normal
diplomatic representation in the State where they are.
Limitations on protection: The provisions of the Convention do not apply to individuals protected under
other Geneva Conventions pertaining to wounded and sick armed forces personnel or prisoners of war.
The Convention defines the scope of protection for individuals during armed conflicts, specifying who
qualifies as a protected person and establishing limitations on this protection in certain circumstances.
A15: Neutralized Zones-- Any party involved in the conflict can suggest, either directly or through a
neutral state or humanitarian organization, the creation of neutralized zones in areas where fighting
occurs. These zones are intended to provide protection from the effects of war for specific categories of
individuals, including wounded and sick combatants or non-combatants, as well as civilians who do not
participate in hostilities and do not engage in military work while residing in the zones.
Agreement process: Once the parties agree on the location, administration, food supply, and supervision
of the proposed neutralized zone, they must formalize the arrangement through a written agreement.
This agreement, signed by representatives of the conflicting parties, specifies the start and duration of
the zone's neutralization.
A16: Wounded and sick – General Protection: Wounded, sick, infirm, expectant mothers get particular
protection and respect. Each party to the conflict shall facilitate the steps taken to search for killed and
wounded, assist the shipwrecked and other people exposed to grave danger.
A17: Evacuation -- conclude local agreements for the removal from besieged or encircled areas, of
wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers
of all religions, medical personnel and medical equipment on their way to such areas.
A18: Protection of hospitals -- Immunity from attack: Civilian hospitals, established to provide care for
the wounded, sick, and other vulnerable individuals, are not to be targeted or attacked under any
circumstances. They must be respected and safeguarded by all parties involved in the conflict.
Certification and marking: States participating in the conflict must provide civilian hospitals with
certificates affirming their civilian status and ensuring they are not used for military purposes. These
hospitals may be marked with the emblem specified in the Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field, but only with authorization from
the state.
Visibility and protection: Parties to the conflict are required to take measures to ensure that the
distinctive emblems indicating civilian hospitals are clearly visible to enemy forces, including land, air,
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and naval forces. This aims to prevent accidental attacks. Additionally, it is recommended that civilian
hospitals be located far away from military targets to minimize the risk of being caught in the crossfire.
Status and treatment of protected persons
A. 27: Treatment for General Observations -- protections afforded to protected persons during armed
conflicts:
Respect for fundamental rights: Protected persons are entitled to respect for their person, honor, family
rights, religious beliefs and practices, as well as their cultural traditions. They must be always treated
humanely and protected from acts of violence, threats, insults, and public scrutiny.
Special protection for women: Women is to be especially safeguarded against attacks on their honor,
including rape, forced prostitution, and any form of indecent assault.
Equal treatment: Regardless of their health status, age, or gender, all protected persons are to be treated
with the same level of consideration by the party controlling them. Discrimination based on race,
religion, or political opinion is prohibited.
Necessary control and security measures: Parties to the conflict are permitted to implement control and
security measures regarding protected persons as deemed necessary due to the circumstances of war.
A31: Prohibition of coercion – no coercion of any form allowed.
A32: Prohibition of corporal punishment; torture -- HCP agree that no action will be taken by either of
them to cause physical suffering of protected persons in their hands. Not only includes murder, torture,
corporal punishments, mutilation and/or medical scientific experiments but also other measures of
brutality by civilians or military agents.
A33: Individual resp., collective penalties; pillage, reprisals -- Individual responsibility: No protected
person can be punished for an offense they did not personally commit. This principle emphasizes the
importance of individual accountability in administering justice.
Prohibition of collective penalties: Collective punishments, as well as any measures intended to

intimidate or terrorize individuals or communities, are strictly forbidden. This ensures that individuals
are not penalized for the actions of others.
Prohibition of pillage: Pillaging, the looting or plundering of property, is prohibited. This protects the
property rights of individuals and communities during times of conflict.
Prohibition of reprisals: Reprisals against protected persons and their property are also forbidden. This
prevents retaliatory actions that could lead to further harm or escalation of violence.
A34: Hostages – Taking of hostages is prohibited.
A42: Internment necessity: The internment or placement in assigned residence of protected persons can
only be ordered if the Detaining Power deems it absolutely necessary for security reasons. This ensures
that such measures are justified and proportionate to the security concerns at hand.
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Voluntary internment: If a protected person voluntarily requests internment through the representatives
of the Protecting Power and if their situation warrants such action, they shall be interned by the relevant
authority. This provision allows individuals to seek protection if they believe their safety or well-being
is at risk.
A43: Procedure: Right to review: Any protected person subjected to internment or assigned residence
is entitled to have their situation reconsidered by an appropriate court or administrative board designated
by the Detaining Power. This ensures that decisions regarding internment or assigned residence are
subject to periodic review.
Periodic review: If the internment or assigned residence is maintained, the court or administrative board
must periodically, and at least twice yearly, review the case of the protected person. This review aims
to assess whether circumstances have changed and if there are grounds for amending the initial decision
in a favorable manner.
Notification to Protecting Power: The Detaining Power must promptly provide the Protecting Power
with the names of protected persons who have been interned, placed in assigned residence, or released
from such measures. Decisions made by the courts or boards regarding internment must also be notified
to the Protecting Power.
A44: Refugees -- Detaining Power must not automatically consider individuals as enemy aliens solely
based on their nationality from a state in conflict. Specifically, refugees who lack protection from any
government are not to be categorized as enemy aliens when implementing control measures outlined in
the Convention.
A49: Deportation, transfers, evacuations -- Prohibition of forcible transfers and deportations: Individual
or mass forcible transfers, as well as deportations, of protected persons from occupied territory to the
territory of the Occupying Power or to any other country, occupied or not, are strictly prohibited,
regardless of the motive.
Exceptions for evacuation: The Occupying Power may undertake total or partial evacuations of specific
areas if the security of the population or military necessity requires it. However, such evacuations must
not involve displacing protected persons beyond the boundaries of the occupied territory unless
unavoidable for material reasons. Evacuated persons must be returned to their homes once hostilities in
the area cease.
Conditions of evacuation: The Occupying Power must ensure that proper accommodation, hygiene,
health, safety, and nutrition are provided during evacuations. Efforts must be made to keep family
members together.
Notification to Protecting Power: The Protecting Power must be promptly informed of any transfers
and evacuations.
Protection of civilian population: The Occupying Power is prohibited from detaining protected persons
in areas particularly exposed to the dangers of war unless necessary for the security of the population
or imperative military reasons.
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Prohibition of population transfer: The Occupying Power cannot deport or transfer parts of its own
civilian population into the territory it occupies.
A55: Food and medical supplies for the population -- the responsibilities of the Occupying Power
towards the population of the occupied territory, particularly regarding food and medical supplies:
Duty to ensure supplies: The Occupying Power must use all available means to ensure the provision of
food and medical supplies to the population. This includes bringing in necessary supplies if the
resources of the occupied territory are insufficient.
Restrictions on requisitioning: The Occupying Power is prohibited from requisitioning food, articles,
or medical supplies from the occupied territory except for use by the occupation forces and
administration personnel. Even in such cases, requisitioning is only permissible if the needs of the
civilian population are considered. Fair value must be paid for any requisitioned goods, following
arrangements made by the Occupying Power.
Verification by Protecting Power: The Protecting Power has the right to verify the state of food and
medical supplies in the occupied territories at any time. However, temporary restrictions may be
imposed in cases of imperative military requirements.
A70: Offences committee before occupation – no punishment for acts/ opinions expressed before
occupation. nationals of the Occupying Power who sought refuge in the territory of the occupied state
before the outbreak of hostilities are protected from arrest, prosecution, conviction, or deportation from
the occupied territory. Exceptions include offences committed after the outbreak of hostilities or
offences under common law committed before the outbreak of hostilities that would have warranted
extradition under the occupied state's laws during peacetime.
A82: Grouping of internees -- The Detaining Power should, to the extent possible, accommodate
internees according to their nationality, language, and customs. Internees from the same country should
not be separated based solely on language differences.
Family unity: Throughout their internment, family members, especially parents and children, should be
housed together in the same place of internment, unless temporary separation is necessary for reasons
such as employment, health, or enforcement of specific provisions. Internees may request that their
children without parental care be interned with them.
Family housing: Whenever feasible, internees from the same family should be housed together in the
same premises and given separate accommodations from other internees. This arrangement should
include facilities to maintain a proper family life.
A95: Working conditions -- Internees cannot be compelled to work unless they choose to do so. Any
employment that would breach the Convention's articles or involve degrading or humiliating work is
prohibited.
Right to cease work: Internees have the right to stop working at any time after six weeks of employment,
with eight days' notice.
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Exceptions for certain roles: The Detaining Power can employ internees who are doctors, dentists, or
other medical personnel in their professional capacity to assist fellow internees. Internees can also be
employed for administrative, maintenance, domestic, or protective duties against war risks, if they are
physically suitable for the tasks.
Responsibility for conditions: The Detaining Power must take responsibility for all working conditions,
medical care, payment of wages, and compensation for occupational accidents and diseases. These
standards should be in line with national laws and regulations and should not be inferior to those for
similar work in the same area.
Fair wages and compensation: Wages for internees should be determined fairly through agreements
between internees, the Detaining Power, and, if applicable, employers other than the Detaining Power.
Internees engaged in specific work detailed by the Detaining Power should receive fair wages and
compensation for occupational hazards, equal to those for similar work in the same area.
Unit 8 and 9 (pg. 44, 70 chps.)

Limitations on methods of warfare, Protection of cultural property, Enforcement of International
conventions, State Practice- India
Ruses, Perfidy, Obligations of Journalists, India not signing AP II- REASONS
International humanitarian law stresses the distinction between combatants and civilians. This principle
is crucial because combatants are the only ones allowed to directly engage in conflict. Article 43(2) of
Additional Protocol I to the Geneva Conventions reinforces this idea by designating combatants as the
"primary agents of warfare."
However, there are two ways to interpret this article. One view is that only combatants can fight, making
civilian participation illegal. But the passage argues against this view. There's no explicit prohibition
on civilians fighting in the Geneva Conventions, and Article 43(2) doesn't mention it either.
Instead, the passage proposes a different interpretation. Article 43(2) serves two purposes. First, it
emphasizes the importance of distinguishing combatants from civilians, although combatants aren't the
only ones who can fight. Second, it clarifies that combatants can't be punished simply for fighting. The
right to participate in hostilities doesn't mean civilians can't fight, but it ensures captured combatants
aren't penalized for being on the opposing side.
In short, Article 43(2) doesn't restrict civilian participation in warfare. It highlights the distinction
between combatants and civilians while protecting combatants from punishment for fighting.
Even civilians who fight lose their immunity from attack and can be captured and prosecuted. However,
they still have some protections.
As long as they follow the laws of war (no civilian attacks, proportionality, etc.), they aren't breaking
international law by fighting. The Geneva Conventions don't explicitly prohibit civilians from taking
up arms.
There are even some additional protections for captured non-combatants (unprivileged belligerents)
who don't qualify as prisoners of war. These protections come from the Geneva Conventions and
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Additional Protocols, and apply to all armed conflicts (international or internal). These rules ensure a
minimum level of humane treatment for everyone caught up in war, even those who decide to fight.
The traditional view denies combatant status to fighters in non-international armed conflicts. This
means they lose the protections of prisoner of war status and immunity from prosecution for fighting.
However, this approach has downsides. It can weaken the principle of distinction between civilians and
combatants, which is crucial for minimizing civilian harm. Additionally, it might seem like captured
fighters in these conflicts have no rights.
In reality, even without combatant status, international law offers protections for such fighters. These
come from Common Article 3 of the Geneva Conventions and Additional Protocol II.
• Minimizing Suffering in Warfare: The Prohibition on Superfluous Injury and

Unnecessary Suffering
International humanitarian law imposes a fundamental principle on warring parties: they must avoid
inflicting more harm on enemy combatants than what's necessary to take them out of the fight. This
principle is enshrined in Article 22 of the Hague Regulations and Article 35(1) of Additional Protocol
I, which state that the right to injure the enemy is not unlimited. Furthermore, Article 35(2) explicitly
prohibits weapons, projectiles, and warfare methods that cause needless suffering or superfluous injury.
This rule is considered customary law, applying to both international and non-international armed
conflicts.
The concept of unnecessary suffering is closely linked to the doctrine of military necessity. This
principle allows a party launching an attack to use only the level of force required to achieve a specific
military objective with minimal casualties and property damage. Military necessity is often
misinterpreted as permitting any action to achieve victory. However, it's actually a restrictive doctrine;
it allows only what's necessary, not everything.
Numerous international instruments endorse the principle of military necessity. For instance, the Hague
Convention IV of 1907 aims to lessen the horrors of war "as far as military requirements permit."
Similarly, the Hague Regulations limit seizing or destroying enemy property unless absolutely
necessary for war purposes.
Distinction Between Military and Civilian Targets in Warfare
The principle of distinction is a cornerstone of international humanitarian law (IHL), mandating military
commanders to clearly differentiate between civilian objects and military targets at all times. Article 48
of Additional Protocol I emphasizes this as an absolute prohibition: attacks can only be directed against
legitimate military objectives.
This principle goes beyond the doctrine of military necessity. While military necessity allows using
force proportionate to achieving a military objective, the principle of distinction imposes an additional
restriction: civilian objects can never be targets, regardless of potential military advantage.
The clear separation between civilians and combatants created by this principle can be ethically
challenged. Combatants might be seen as legitimate targets due to implied consent (joining the military)
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or as potential aggressors subject to self-defence. Similarly, civilians might be viewed as off-limits
entirely.
However, reality is more nuanced. Combatants may be poorly informed conscripts or young people
unaware of the conflict's true nature. They might play a limited role in hostilities. On the other hand,
some civilians, like political leaders, can be instrumental in starting and sustaining wars. Ordinary
citizens might vote for war or actively support the armed forces. These complexities blur the ethical
lines between the two groups. Additionally, the reason for and initiator of the conflict might influence
how we view combatants and civilians.
The principle of distinction also safeguards humanitarian workers like medical personnel and Red Cross
officials. By making it abundantly clear that targeting them is never justified, it offers crucial protection
for those who risk their lives to alleviate suffering in armed conflicts. They deserve the strongest legal
protection available under international law.
(+ refer to the principles mentioned in the beginning)
Limitation
Chemical and Biological Weapons: A Longstanding Ban
The use of chemical and biological weapons in warfare has been outlawed for nearly a century due to
their capacity to inflict unnecessary suffering. The Hague Regulations of 1923 prohibited the use of
poisonous weapons, and the 1925 Geneva Protocol specifically banned chemical and biological agents.
These treaties were motivated by the horrific use of chemical weapons during World War I. However,
violations continued to occur.
The Chemical Weapons Convention of 1993 and the Biological and Toxin Weapons Convention of
1972 are the cornerstones of contemporary regulation in this area. The Chemical Weapons Convention
enjoys wider support and includes a verification and monitoring regime, unlike the Biological Weapons
Convention. Both treaties prohibit the development, stockpiling, and use of these weapons.
Landmines and Cluster Munitions: Balancing Military Needs with Civilian Safety
Landmines have caused immense civilian casualties, particularly in Asia and Africa. The 1980
Convention on Certain Conventional Weapons restricts indiscriminate mine use and mandates self-
destructing mechanisms or remote control for remotely delivered mines. The 1997 Ottawa Landmines
Convention goes further by imposing a complete ban on anti-personnel landmines. While some
influential states haven't ratified the Ottawa Convention, many adhere to the lower standards set by the
1980 Convention. Customary international law prohibits indiscriminate use of landmines and requires
removal or deactivation after use.
Cluster munitions scatter bomblets over a wide area, posing a danger to civilians long after conflicts
end. Protocol V to the 1980 Convention compels record-keeping and removal of unexploded cluster
bomblets. The 2008 Convention on Cluster Munitions outlaws their use, stockpiling, and production.
Nuclear Weapons: A Legal Gray Area
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The legality of nuclear weapons use in warfare is highly contested. While no specific treaty bans them,
their devastating effects raise serious doubts. The Nuclear Non-Proliferation Treaty aims to limit their
spread but doesn't prohibit them entirely. The Comprehensive Nuclear-Test-Ban Treaty bans all nuclear
explosions, but it hasn't entered into force.
The UN General Assembly has repeatedly questioned the legality of using nuclear weapons. The
International Court of Justice's 1996 Advisory Opinion offered a murky verdict, suggesting a possible
exception for "extreme" self-defence scenarios.
International humanitarian law principles like distinction, proportionality, and prohibition of

unnecessary suffering make a compelling case against nuclear weapons. Targeting limitations,
widespread long-term effects, and lack of alternatives that minimize civilian harm make their use almost
impossible to justify under these principles. The long-lasting environmental damage from nuclear
radiation strengthens this argument.
Other Prohibited Weapons
Several other weapon types are restricted or banned by international treaties. These include:
• Weapons leaving undetectable fragments inside the body: Protocol I to the 1980 Convention
on Certain Conventional Weapons prohibits them.
• Incendiary weapons: Protocol III restricts their use against civilians and civilian objects, and
even against military targets near civilian concentrations. This stricter standard may not be fully
aligned with the principle of proportionality.
• Blinding laser weapons: Protocol IV to the 1980 Convention prohibits them. Customary
international law also bans them.
Ruses and Perfidy
Ruses of war aim to mislead the enemy but stay within the boundaries of international humanitarian
law (IHL). Perfidy, on the other hand, violates IHL by abusing the trust an enemy places in specific
symbols or actions associated with protection under the law.
Article 23 of the Hague Regulations prohibits perfidy, specifically forbidding the misuse of a flag of
truce, national flags, enemy uniforms or insignia, and the distinctive emblems of the Geneva
Convention. In contrast, Article 24 of the Hague Regulations allows ruses of war and methods to gather
enemy intelligence.
A more recent definition of perfidy is provided in Article 37(1) of Additional Protocol I. Here, perfidy
is defined as acts that gain an adversary's trust in expecting protection under IHL rules, with the
intention to betray that trust. Examples include feigning surrender, feigning civilian or non-combatant
status, or feigning protected status by using Red Cross, UN, or neutral emblems.
Ruses of war, as outlined in Article 37(2) of Additional Protocol I, are acceptable. These involve
misleading the enemy but don't violate IHL because they don't gain trust in seeking protection.
Examples include using camouflage, decoys, mock operations, and misinformation.
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The prohibition on perfidy serves a clear purpose: IHL protections for vulnerable groups become
worthless if misused for military gain. A clear violation is using an ambulance with a Red Cross emblem
to transport troops for a surprise attack. Similarly, battlefield combatants cannot feign injury, play dead,
or express surrender to lure the enemy into a false sense of security.
A recent example of emblem misuse involved the Colombian civil war. Colombian forces used fake
communications to trick FARC rebels into releasing hostages to people posing as aid workers. While
the purpose was noble, using the Red Cross symbol violated IHL. The Geneva Conventions restrict the
emblem's use to medical and humanitarian personnel, and wearing it to impersonate an aid worker
constitutes perfidy.
These principles apply to all warfare forms. Article 12 of Additional Protocol II prohibits the improper
use of protected emblems in non-international conflicts.
Forbidden Orders in Warfare
International humanitarian law prohibits military commanders from issuing specific orders. These
include orders to take no prisoners (kill all enemies) and raising a red flag to signal such an order.
There's no excuse for targeting surrendering combatants. Article 40 of Additional Protocol I forbids
such orders, mirroring the Hague Regulations' Article 23. This is also considered customary
international law. Similarly, attacking surrendered combatants is illegal. Article 41(1) of Additional
Protocol I protects those who are recognized or should be recognized as "hors de combat" (out of the
fight) from attack. Article 41(2) clarifies that someone is hors de combat if captured, shows surrender
intent, or is unconscious or incapacitated. The Hague Regulations' Article 23 expresses a similar
requirement. This rule explains why "no quarter" orders are illegal; they pre-emptively instruct
attacking those who are hors de combat.
Environmental and Cultural Protection
International humanitarian law (IHL) offers protections for the natural environment during armed
conflicts. These rules aim to safeguard the environment itself and its role in sustaining civilian
populations.
One key principle is found in Article 35(3) of Additional Protocol I, prohibiting methods of warfare
that cause widespread, long-term, and severe environmental damage. This stands distinct from
provisions like Articles 54-56 of the same protocol, which focus on protecting aspects of the
environment crucial for civilian health and survival. These latter articles fall under the section on
protecting civilian objects.
A notorious example of a deliberate environmental attack is the US chemical defoliation program in

Vietnam using Agent Orange. The long-term health risks this posed to civilians, alongside the wider
environmental damage, make it a clear violation of IHL principles.
Cultural Property and Warfare
Protecting culturally significant buildings and objects has long been a cornerstone of IHL. The Hague
Regulations (Article 27) mandate all possible steps to spare religious, artistic, scientific, charitable, and
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historic structures. Similar protections are enshrined in Article 53 of Additional Protocol I, prohibiting
attacks, military use, or reprisals against cultural or spiritual heritage sites.
The ICRC study on customary IHL translates these principles into specific rules. Rule 38 emphasizes
avoiding damage to cultural objects that aren't military targets. Cultural property can only be attacked
under exceptional circumstances of military necessity (Rule 39). Additionally, any deliberate
destruction, theft, or vandalism of cultural property is strictly forbidden (Rule 40). These customary
rules are applicable in both international and non-international armed conflicts. There's also an
obligation on occupying forces to prevent the illegal export of cultural property during international
conflicts.
The 1954 Hague Convention on Cultural Property, with 124 signatories, emerged in response to the
devastation of cultural heritage in World War II. The Convention outlines both proactive and
preventative measures to safeguard cultural property. Article 4(1) obligates states to avoid using cultural
property or its surroundings in ways that risk destruction during armed conflicts. Protocol II, adopted
in 1999 to strengthen the Convention, is a response to more recent cultural heritage losses in conflicts.
The Protocol is currently in effect with 61 state parties.
Journalists play a crucial role in warzones, braving danger to report on events for the global audience.
The inherent risks of this profession are tragically exemplified by the case of Daniel Pearl, a journalist
kidnapped and murdered in Pakistan in 2002.International humanitarian law (IHL) offers journalists
protections as civilians. However, they are also subject to specific rules acknowledging the dangers of
their investigative work.
Journalists, like any civilian, can be harmed by getting caught in fighting or bombings in populated
areas. But they can also be deliberately targeted for political reasons or due to their work exposing
violence or corruption. The Third Geneva Convention grants accredited war correspondents prisoner-
of-war status if captured by the enemy. Journalists without accreditation fall under Article 79 of
Additional Protocol I, which emphasizes that journalists acting professionally are considered civilians
as long as they don't undermine their civilian status by directly engaging in hostilities. Their home
country can issue them a card verifying their journalist status. While this protocol doesn't significantly
add to existing protections for journalists as civilians, it reinforces the principle that they shouldn't be
targeted because of their profession.
State practice – India
India's position on the Additional Protocols (AP) I and II to the Geneva Conventions is complex.
Despite actively participating in their negotiation and supporting many provisions, India has not ratified
either protocol.
Key Points of Contention:
• International Fact-Finding Commission (AP I): India objected to the mandatory nature of
this commission but can become a party without recognizing its competence.
• Internal Armed Conflicts (AP II): India initially viewed internal conflicts as domestic issues
and saw no need for a separate protocol. However, its later acceptance of treaties related to
internal conflicts suggests a shift in this view.
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Uncertainties and Inferences:
• The Minister's response in Parliament regarding AP ratification was unclear. It mentioned the
lack of a reservation option in the protocols, which is legally inaccurate. Reservations are
possible unless explicitly prohibited by the treaty.
• India's past practice of making reservations to treaties even without explicit provisions suggests
it could have done the same with the APs.
1. Concerns about Internal Conflicts: India has faced and continues to grapple with internal
conflicts and insurgencies in various regions, particularly in areas like Jammu and Kashmir,
Northeast India, and areas affected by left-wing extremism (Naxalism). Signing the Additional
Protocol II could potentially raise questions about the application of its provisions within the
country's borders, especially regarding the treatment of non-state armed groups and insurgents.
2. Sovereignty and Non-Interference: Like many other countries, India prioritizes its
sovereignty and has historically been cautious about signing international agreements that could
be perceived as infringing upon its domestic affairs or granting external entities authority over
internal conflicts.
3. Customary International Law Compliance: India may argue that it already adheres to the
principles and rules outlined in Additional Protocol II through customary international law or
its own domestic laws and practices. Therefore, it might not see the need to sign a separate
treaty.
REFUGEE LAW
Unit 10 and 11
Important concepts :
Article 1, 1951 Convention on Refugees: A refugee is someone who is unable or unwilling to return to
his country of origin owing to well-founded fear of persecution (systematic mistreatment, oppression,
or harassment of individuals or groups based on their race, religion, nationality, political opinion, or
membership in a particular social group. It involves actions or policies that violate fundamental human
rights and dignity, often with the intention of intimidating, discriminating against, or harming
individuals or groups; done by state actors, or social groups or extremist groups) for the following
reasons:
a. Race
b. Religion
c. Nationality
d. Membership of a particular social group or
e. Political opinion.
2. Asylum seeker: An individual who is seeking international protection. Not every asylum-seeker will
ultimately be recognized as a refugee, but every refugee was initially an asylum-seeker.
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Asylum: The grant, by a State, of protection on its territory to persons from another State who are
fleeing persecution or serious danger. Asylum encompasses a variety of elements, including non-
refoulement, permission to remain on the territory of the asylum country and humane standards of
treatment.
3. Internally displaced persons: An individual who has been forced or obliged to flee from their home
or place of habitual residence, “...in particular as a result of or in order to avoid the effects of armed
conflicts, situations of generalized violence, violations of human rights or natural or human-made
disasters, and who have not crossed an internationally recognized State border” (according to the
Guiding Principles on Internal Displacement).
4. Migrants: Persons who leave their countries purely for economic reasons unrelated to the refugee
definition, or in order to seek material improvements in their livelihood.
5. Immigrants: Permanent residency.
6. Stateless persons: Persons who are not considered as nationals by any State under the operation of
its law, including persons whose nationality is not established.
1. Refugee:
• A refugee is an individual who has been granted refugee status by a host country or by
the United Nations High Commissioner for Refugees (UNHCR) based on a well-
founded fear of persecution in their home country.
• Refugees have already undergone the refugee status determination (RSD) process and
have been recognized as meeting the legal definition of a refugee under international
and domestic refugee laws.
• Once recognized as refugees, individuals are granted legal protection and rights,
including the right to remain in the host country, access to basic services, and
sometimes the possibility of resettlement to a third country.
2. Asylum Seeker:
• An asylum seeker is an individual who has fled their home country and applied for
asylum in another country but has not yet had their asylum claim fully assessed and
determined.
• Asylum seekers are in the process of seeking refugee status and are awaiting a decision
on their asylum application.
• During the asylum process, asylum seekers may be provided with temporary protection
or may be held in immigration detention facilities while their claims are being
processed.
• The outcome of the asylum process will determine whether the individual is granted
refugee status and recognized as a refugee, or if their claim is rejected and they are
required to return to their home country.
Case Law: Teitiota v New Zealand

Factual background of the case: The Teitiota v New Zealand case is a landmark legal case that
garnered international attention due to its implications for climate refugees. Teitiota, a Kiribati national,
sought asylum in New Zealand in 2013, claiming that he and his family faced persecution in Kiribati
due to the effects of climate change, specifically rising sea levels and resulting environmental
degradation.
Teitiota argued that his right to life under the New Zealand Bill of Rights Act was being violated due
to the environmental conditions in Kiribati, which he claimed were caused by global climate change.
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His case raised significant legal questions about the status of climate refugees and whether they should
be granted asylum or protected status under international law.
Rule and Application:

The Human Rights Committee rejected the claim for the following reasons:
1. Persecution under the 1951 convention refers to man-made persecution and climate cannot fall
under this definition.
There is no evidence of actual or imminent harm to the author: Regarding the ICCPR, it was
noted that the right to life must be interpreted broadly. The Tribunal cited academic commentary
stating that under article 6 of the Covenant, arbitrary deprivation of life involves interference that
is: (a) not prescribed by law; (b) not proportional to the ends sought; and (c) not necessary in the
particular circumstances of the case. On that basis, the Tribunal accepted that the right to life
involves a positive obligation on the part of the State to fulfil that right by taking programmatic
steps to provide for the basic necessities for life.
Judgment:
1. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is of the
view that the facts before it do not permit it to conclude that the author’s removal to Kiribati
violated his rights under article 6 (1) of the Covenant.
2. 1951 Convention does not cover persecution based on purely climate issues.
3. The Court did not rule out the possibility that environmental degradation resulting from climate
change or other natural disasters could “create a pathway into the Refugee Convention or other
protected person jurisdiction”. (That is it should violate right to life under article 6 of the
ICCPR)
Critical analysis:
While, the court has denied the application of the author in the above mentioned case, the same cannot
be a precedent to conclude that climate refugees find no protection at all under the 1951 Convention
The Human Rights Committee has not outright rejected the idea of the right to life being compromised
due to environmental degradation in the specific case of the author.
1. In order words, while the Applicant’s claim was unsuccessful, the ruling has nevertheless been
lauded as ‘landmark’ because the HRC accepted that states have an obligation not to forcibly
return individuals to places where climate changes pose a real risk to their right to life.
Consequently, it represents a significant jurisprudential development in the protection of
climate refugees under international human rights law.
2. In 2020, the UNHCR too commented on the need and possibility of recognition of climate
refugees: People seeking international protection in the context of the adverse effects of climate
change or disasters may have valid claims for refugee status. They may have a well-founded
fear of persecution under Article 1A(2) of the 1951 Convention, or be compelled to seek
protection outside their own country owing to events seriously disturbing public order. In
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addition, there may be grounds for international protection under general international human
rights law, i.e. non-refoulement obligations, including the right to life.
This is particularly relevant in regions where the 1969 OAU Convention and the 1984
Cartagena Declaration do not apply. Whether such a claim for protection arises from sudden or
slow-onset effects of climate change or disasters, States are bound to ensure access to a fair and
efficient procedures under which the need for international protection is assessed
3. The argument that persecution is man-made can be refuted on the grounds that climate change
is caused by human based decisions and therefore can be covered under the 1951 Convention.
4. To sum up, the convention can include persecution due to climate change along with a
threat to right to life or any other ground of persecution as given under the definition of
refugee.
Convention relating to the Status of Refugees
Article 1: Definition of refugee

1. A person may be considered a refugee if they were recognized as such under certain
international arrangements or conventions predating the 1951 Convention.
2. Alternatively, a person may qualify as a refugee if, due to events occurring before January 1,
1951, and because of a well-founded fear of persecution based on race, religion, nationality,
membership in a particular social group, or political opinion, they are outside their country of
nationality and unwilling or unable to avail themselves of that country's protection. This also
applies to stateless individuals who are unable or unwilling to return to their former habitual
residence.
It's also specified that in cases where a person holds multiple nationalities, each country of nationality
is considered for determining refugee status. Additionally, if a person has not availed themselves of the
protection of one of their countries of nationality without a valid reason based on a well-founded fear,
they will not be considered as lacking protection from their country of nationality.
Circumstances under which a person who falls under the terms of Section A of the Convention (meaning
they meet the criteria for being considered a refugee) will cease to be covered by the Convention. These
circumstances include:
1. Voluntarily re-availing oneself of the protection of their country of nationality.
2. Voluntarily reacquiring nationality if they had lost it.
3. Acquiring a new nationality and enjoying the protection of the new country.
4. Voluntarily re-establishing themselves in the country they left or outside of which they
remained due to fear of persecution.
5. No longer being able to refuse the protection of their country of nationality because the
circumstances leading to their recognition as a refugee have ceased to exist. However, there's
an exception for refugees who can demonstrate compelling reasons arising from past
persecution for refusing the protection of their country of nationality.
6. For stateless persons who were recognized as refugees, being able to return to the country of
their former habitual residence because the circumstances leading to their refugee status have
ceased to exist.
The Convention does not apply to individuals who have committed certain crimes such as crimes against
peace, war crimes, or crimes against humanity. It also excludes those who have committed serious non-
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political crimes outside the country of refuge prior to seeking asylum, as well as individuals who have
been guilty of acts contrary to the purposes and principles of the United Nations.
Article 2: General obligations: Refugees are obligated to adhere to the laws, regulations, and measures
for maintaining public order of the country where they seek refuge.
Article 3: Non-discrimination: Contracting States must apply the provisions of the Convention to
refugees without discrimination based on race, religion, or country of origin.
Article 4: Religious freedom: Contracting States must provide refugees within their territories with
treatment regarding the freedom to practice their religion and the religious education of their children
that is at least as favourable as that provided to their own nationals.
Article 8: Exemption from exceptional measures
Contracting states cannot apply exceptional measures against refugees who are also nationals of a
foreign state solely because of their nationality. In other words, a refugee's nationality from a foreign
state should not be the sole reason for subjecting them to exceptional measures concerning their person,
property, or interests.
Additionally, it is stipulated that contracting states unable to adhere to this principle due to their
domestic legislation should grant exemptions in appropriate cases for refugees affected by such laws.
This clause aims to protect refugees from being unfairly targeted or discriminated against based solely
on their nationality.
Article 12: Personal Status

The personal status of a refugee shall be determined by the law of the country where they have domicile
or, if they have no domicile, by the law of the country where they reside.
Protection of acquired rights: Contracting States must respect rights previously acquired by refugees
that are dependent on personal status, such as rights related to marriage. These rights should be upheld
by the Contracting State, provided that they would have been recognized under the laws of that State if
the individual had not become a refugee. Compliance with any necessary formalities required by the
law of the State may be necessary for this protection.
Article 14: Artistic and Industrial Property Rights
Refugees are entitled to the same protection for industrial property (e.g., inventions, trademarks) and
rights in literary, artistic, and scientific works as nationals of the country where they reside. In other
Contracting States, they should receive the same protection as nationals of the country where they
habitually reside.
Article 15: Right of association
Refugees lawfully staying in a Contracting State must be treated as favourably as nationals of a foreign
country in similar circumstances regarding non-political and non-profit-making associations and trade
unions.
Article 16: Access to courts
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• Refugees have free access to the courts of law in all Contracting States.
• In the Contracting State where a refugee habitually resides, they are entitled to the same
treatment as nationals regarding access to courts, including legal assistance and exemption from
posting security for costs.
• In countries other than their habitual residence, refugees should receive treatment equivalent to
that granted to nationals of their habitual residence concerning access to courts.
Article 17: Wage Earning employment
Contracting States must provide refugees lawfully staying in their territory with the most favourable
treatment given to nationals of a foreign country in similar circumstances concerning the right to engage
in wage-earning employment.
Restrictive measures imposed on aliens or employment of aliens for protecting the national labour
market should not be applied to refugees who were already exempt from them when the Convention
came into force for the concerned Contracting State or who meet specific conditions:
• Completed three years' residence in the country.
• Have a spouse with the nationality of the country of residence, unless the refugee has
abandoned their spouse.
• Have one or more children with the nationality of the country of residence.
Contracting States should give sympathetic consideration to equating the rights of all refugees regarding
wage-earning employment with those of nationals, especially refugees who entered their territory
through labour recruitment programs or immigration schemes.
Article 20 Rationing
In countries where a rationing system exists to regulate the distribution of scarce products to the general
population, refugees must receive the same treatment as nationals.
Housing (Article 21)

Contracting States must provide refugees lawfully staying in their territory with housing treatment that
is as favourable as possible, regulated by laws, regulations, or public authorities. This treatment should
be at least as favourable as that provided to aliens in similar circumstances.
Public education (Article 22):

• Elementary education: Refugees must receive the same treatment as nationals
regarding elementary education.
• Other education: Contracting States should provide refugees with education other than
elementary education as favourably as possible, ensuring treatment not less favourable
than that provided to aliens in similar circumstances. This includes access to studies,
recognition of foreign school certificates, remission of fees, and the award of
scholarships.
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Public relief (Article 23): Contracting States must provide refugees lawfully staying in their territory
with the same treatment concerning public relief and assistance as that provided to their nationals.
Freedom of movement (Article 26): Contracting States must grant refugees lawfully in their territory
the right to choose their place of residence and move freely within the country, subject to any regulations
that apply to aliens in similar circumstances.
Identity papers (Article 27): Contracting States are required to issue identity papers to any refugee in
their territory who does not possess a valid travel document.
Travel documents (Article 28):

• Contracting States must issue travel documents to refugees lawfully staying in their
territory for travel outside the country, except in cases where compelling reasons of
national security or public order require otherwise. The provisions outlined in the
Convention's Schedule apply to such documents.
• Travel documents issued to refugees under previous international agreements by parties
to those agreements should be recognized and treated by Contracting States as if they
were issued pursuant to the Convention's provisions.
Refugees unlawfully in the country of refuge (Article 31):

• Contracting States must not penalize refugees for their illegal entry or presence if they
come directly from a territory where their life or freedom was threatened. Refugees
must present themselves without delay to the authorities and provide a good cause for
their illegal entry or presence.
• Restrictions on the movements of such refugees should only be those necessary until
their status is regularized or they gain admission to another country. Contracting States
must allow these refugees a reasonable period and necessary facilities to seek
admission to another country.
Expulsion (Article 32):

• Contracting States may only expel a refugee lawfully present in their territory on
grounds of national security or public order.
• Expulsion must follow due process of law, allowing the refugee to submit evidence,
appeal, and be represented before competent authorities.
• Contracting States must provide such refugees with a reasonable period to seek legal
admission into another country, while reserving the right to apply internal measures
during that period if deemed necessary.
Prohibition of expulsion or return ("refoulement") (Article 33):

• No Contracting State shall expel or return a refugee in any manner whatsoever to
territories where their life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion.
• However, this provision does not apply to refugees considered a security threat to the
country or those convicted of serious crimes that pose a danger to the community.
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Article 35- cooperation between Contracting States and the United Nations in matters concerning
refugees:
1. Cooperation with UNHCR: Contracting States commit to cooperating with the Office of the
United Nations High Commissioner for Refugees (UNHCR) or any successor agency of the
United Nations. They agree to facilitate the UNHCR's duty of overseeing the application of the
provisions of the Convention.
2. Provision of information: Contracting States agree to provide the UNHCR or any other relevant
UN agency with information and statistical data necessary for making reports to the competent
organs of the United Nations. This includes information on the condition of refugees, the
implementation of the Convention, and laws, regulations, and decrees pertaining to refugees.
The 1967 Protocol Relating to the Status of Refugees builds upon and expands the scope of the 1951
Refugee Convention, addressing some of its limitations and providing additional protections for
refugees.
1. Expansion of Scope: The 1967 Protocol removes the temporal and geographic limitations of
the 1951 Convention. While the Convention only applied to refugees who became refugees
before January 1, 1951, and within Europe, the Protocol extends its coverage to refugees
worldwide without any time restrictions.
2. Non-Discrimination: The Protocol reinforces the principle of non-discrimination by ensuring

that refugees are treated without discrimination as to race, religion, or country of origin. This
aligns with broader human rights principles.
3. Family Unity: It emphasizes the importance of family unity by safeguarding the rights of
refugees to reunite with their family members who may be separated due to persecution or
conflict.
4. Access to Courts and Legal Assistance: The Protocol affirms refugees' rights to access courts
of law and legal assistance, ensuring they can seek justice and protection under the law.
5. Documentation and Travel Rights: It addresses the issue of travel documentation for
refugees, ensuring they have the necessary documents to travel and seek asylum in other
countries.
6. Protection against Expulsion: The Protocol strengthens protections against expulsion or
return ("refoulement") to countries where refugees may face persecution or harm, echoing the
principle established in the 1951 Convention.
7. Cooperation with International Organizations: It encourages cooperation between states and
international organizations like the United Nations High Commissioner for Refugees
(UNHCR) to ensure effective protection and assistance for refugees.
Unit 12
The League of Nations took some initial steps to address the refugee crisis following World War
I: (League of nations ceased to exist in 1946)
• Repatriation and Resettlement: They helped over 500,000 people return home or resettle in
new countries by issuing a special document called the Nansen Passport. This passport wasn't
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issued by any one country, but was recognized by many, allowing refugees to travel more
freely.
• Legal Status: The League played a role in creating a legal definition of a refugee, which was
important for ensuring they received proper treatment.
• High Commissioner for Refugees: The League established the position of High
Commissioner for Refugees, appointing Fridtjof Nansen, a famous explorer and humanitarian,
to the role. Nansen worked to coordinate relief efforts and advocate for refugees.
However, it's important to remember some limitations:
• Limited Resources: The League's power relied on member nations cooperating, and funding
for refugee programs was often scarce.
• Focus on Post-WWI Refugees: While the League addressed refugee issues after WWI, their
efforts weren't enough to handle the massive refugee crises of the 1930s and WWII.
Convention came in 1951- massive displacement because of WWII and humanitarian response.
UN - HRC
Refugees, numbering 26 million worldwide, have the fundamental right not to be returned to their home
countries where they face threats to their freedom or security, as outlined in the 1951 Refugee
Convention. However, the aim should not be for refugees to remain in that status indefinitely.
Advocating for durable solutions involves facilitating their ability to rebuild their lives in the following
ways:
1. Voluntary Return: Refugees should have the option to return home voluntarily when the
situation in their home country becomes safe.
2. Resettlement: For those unable to return home due to ongoing danger or persecution,
resettlement to a third country becomes a viable option. This is particularly crucial for refugees
facing significant risks in their host countries.
3. Integration and Citizenship: Refugees should have the opportunity to integrate into their
country of asylum and eventually become citizens. This ensures their long-term stability and
allows them to contribute positively to their new communities.
Despite legal protections, refugees often face social and economic exclusion in host communities,
especially in low- to middle-income countries where 86% of refugees reside. Many refugees live in
poor urban areas or crowded camps, making finding sustainable solutions essential. By sharing the
responsibility equally among nations and providing support for refugees to build better futures, the
international community can work towards alleviating the challenges faced by refugees and their host
communities.
Eg: “Ali” – fictional refugee from Syria. What all solutions he has
1. Voluntary Repatriation: If Syria becomes safe, Ali may choose to return voluntarily, ceasing
to be a refugee and becoming a "returnee."
2. Resettlement: If Ali is vulnerable or unable to return home, he may be resettled in a third
country like Canada, where he would eventually receive citizenship and lose his refugee status.
UNHCR assists refugees in returning home voluntarily, referred to as voluntary repatriation. In

2020, 251,000 refugees returned to their country of origin with UNHCR's assistance or
spontaneously. Successful repatriation requires a stable political situation to ensure safety and
sustainable reintegration. However, challenges such as destroyed infrastructure and internal
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displacement within the country of origin can hinder the process, leading to back-flows of refugees.
UNHCR assists refugees in need of resettlement to third countries, where they can find permanent
residence. Despite 7% of refugees needing resettlement, only 1% have access to it annually. In
2019, over 63,000 refugees were resettled to 29 countries, with many originating from conflict-
affected regions like Afghanistan, Eritrea, DRC, Syria, and Somalia. Vulnerable individuals, such
as women and girls at risk, who cannot return home, are prioritized for resettlement. However, due
to COVID-19, resettlement numbers in 2020 hit a two-decade low.
3. Complementary Pathways: Ali could access safe and regulated avenues, such as obtaining a
work visa or scholarship in Canada, to establish himself in a third country.
Refugees can access "Complementary Pathways" to find protection in third countries through various
means, including humanitarian visas, community sponsorship, family reunification, work visas, and
education programs. These pathways provide safe and regulated avenues for refugees to seek asylum,
access employment opportunities, reunite with family members, and pursue education and training,
ultimately contributing to their integration and self-sufficiency in the receiving country.
4. Local Integration: If Ali cannot return home or be resettled, he may integrate locally in Jordan,
where he currently resides, by receiving the same rights as other citizens and potentially
becoming a naturalized citizen.
When voluntary repatriation or resettlement are not options, refugees may integrate locally in their host
country. Local integration involves gradually gaining rights such as work, education, and freedom of
movement. However, many refugees face restrictions in these areas, with a majority living in countries
where their rights are limited. Efforts towards local integration are crucial for reducing tensions between
refugees and host communities over resources. While states are encouraged to grant nationality to
settled refugees, they cannot be compelled to do so. Over the past decade, approximately 1.1 million
refugees worldwide have become citizens in their host countries.
UNHCR facilitates the voluntary return of refugees by providing information, organizing visits, and
supporting transportation. They also assist returnees in accessing justice, housing, and participating in
peace efforts. Additionally, UNHCR coordinates resettlement efforts, advocates for higher resettlement
quotas, and develops complementary pathways to third countries. They work to ensure refugees have
access to jobs, education, and services in their host countries, and promote naturalization, especially in
protracted situations. UNHCR collaborates with partners on programs like micro-finance to enhance
refugees' self-reliance. Governments can collaborate with UNHCR through tripartite agreements to
facilitate refugee returns. They can also increase resettlement quotas and establish private resettlement
schemes. Additionally, governments can offer scholarships, family reunification programs, and
humanitarian and work visas to refugees. Legal revisions, such as granting work permits and access to
education, can further support refugees. Some countries also grant citizenship to long-term refugees,
providing a pathway to naturalization.
*Not very important*
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UK Border Agency's approach to considering asylum claims from mandate refugees:
1. Normal asylum process: Mandate refugee asylum applications are processed within the
regular asylum procedure.
2. Weight given to mandate status: While UNHCR recognition of mandate refugee status is not
binding, decision-makers must give due weight to this status when assessing credibility and
determining the risk upon return.
3. Court of Appeal precedent: The Court of Appeal's judgment in MM (Iran) v SSHD 2010
emphasizes the considerable weight given to UNHCR decisions on refugee status, unless there
are compelling reasons not to do so based on the individual case's facts.
4. Dual claims: Mandate refugees may base their asylum claims on persecution fears in their
country of origin or in the country where they were recognized as refugees under UNHCR's
mandate.
5. Examination at interview: Asylum interviews should explore both aspects of the applicant's
fear of persecution, even if not initially raised, to determine the continued well-founded fear in
both the country of origin and the country of UNHCR recognition.
6. Information gathering: Decision-makers should obtain information from UNHCR's Legal
Protection team regarding the applicant's mandate refugee status and relevant documentation.
They should also gather Country of Origin information (COI) to assess the protection available
to refugees in the previous country of residence.
7. Consideration of UNHCR recognition: UNHCR recognition of mandate refugee status, along
with any accompanying information, is part of the decision-maker's assessment of the
application. Once established, mandate status contributes to establishing credibility and
protection needs, which decision-makers should not lightly disregard.
Unit 13
Asylum Law- Gender Paradox + Non Refoulement
The United States' asylum system has presented challenges for victims of gender-based persecution
seeking refuge. Cases like those of the Guatemalan woman and the Iranian woman highlight the paradox
faced by women seeking asylum, with their experiences often deemed either too narrow or too broad to
qualify as refugees. Despite ongoing gender-based human rights abuses worldwide, the UN has urged
states to recognize gender-based persecution as a basis for asylum.
The INS proposed a rule, known as the "R-A- rule," aiming to clarify asylum cases involving gender or
sexual orientation. This proposal followed conflicting decisions in the Alvarado case, where an
immigration judge initially recognized persecution based on membership in a particular social group,
but the BIA later reversed this decision. Attorney General Janet Reno vacated the BIA decision,
remanding the case for review under the proposed rule.
The proposed rule addresses key components of the refugee definition, including "persecution," "on
account of," and "membership in a particular social group." It reaffirms that persecution may be imputed
to a government when it is unable or unwilling to control the conduct of persecutors. Additionally, it
imposes a higher burden of proof regarding the motivation behind persecution and introduces a two-
step test for determining membership in a social group.
Despite the ambiguity surrounding the "social group" category, it is crucial for female asylum seekers
facing gender-based persecution, as the asylum statute does not explicitly include gender as a category
of persecution. As such, victims of gender-based persecution often rely on the "social group" ground
when seeking asylum.
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The 1951 Geneva Convention on the Status of Refugees and its 1967 Protocol provide the framework
for protecting refugees worldwide, with 141 countries being parties to the treaty. Gender was not
initially included as a ground for asylum in the Convention's definition of refugee, reflecting the
primarily male perspective of the drafters and their focus on immediate post-war displacement.
However, as gender-based human rights abuses gained international attention, efforts were made to
address the experiences of women in refugee law.
In 1979, the UN enacted the Convention to Eliminate All Forms of Discrimination Against Women
(CEDAW) to address gender-based discrimination. Subsequently, UNHCR issued guidelines to ensure
the protection of refugee women, urging states to recognize gender-based persecution as grounds for
asylum. Canada was the first to adopt guidelines facilitating the adjudication of gender-based asylum
claims, acknowledging that women may constitute a particular social group.
The United States, however, did not readily acknowledge gender alone as a basis for asylum, despite
guidelines recognizing gender-specific abuse as evidence of persecution. The 1996 BIA decision in In
re Kasinga, which granted asylum to a woman fearing female genital mutilation (FGM), was seen as a
positive development. However, subsequent decisions showed inconsistency in applying the "particular
social group" argument to gender-based persecution cases.
Rodi Alvarado's asylum case highlighted the challenges faced by persecuted women under US asylum
law. Despite presenting arguments based on her political opinion and membership in a social group, her
asylum claim was rejected by the BIA, sparking criticism and drawing attention to the inadequacy of
protection for persecuted women in the US asylum system.
The principle of asylum is a fundamental aspect of international refugee law, rooted in the principle of
non-refoulement. Asylum entails providing protection and refuge to individuals fleeing persecution or
serious harm in their home countries. It ensures that those seeking safety from persecution have the
right to seek asylum in other countries and should not be returned to a place where their life or freedom
would be threatened.
The principle of non-refoulement, enshrined in various international treaties such as the 1951 Refugee
Convention and its 1967 Protocol, prohibits states from returning refugees or asylum seekers to a
country where they would face persecution or serious harm. It is considered a customary norm of
international law and is binding on all states, regardless of whether they are party to specific refugee
conventions.
Together, the principles of asylum and non-refoulement form the cornerstone of international refugee
protection, guaranteeing the right of individuals to seek safety from persecution and ensuring that they
are not returned to situations where their lives or freedoms would be in danger. These principles reflect
the international community's commitment to upholding human rights and providing refuge to those in
need of protection.
Non-refoulement is a principle in refugee law that prohibits the expulsion, deportation, or return
("refoulement") of individuals to a country where they would face persecution, torture, or other serious
harm. It is a cornerstone of international refugee protection and is enshrined in various international
instruments, including the 1951 Refugee Convention and its 1967 Protocol.
The principle of non-refoulement applies to refugees, asylum seekers, and other individuals who may
be at risk of persecution or harm in their home country. It prohibits states from sending these individuals
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back to a country where their life or freedom would be threatened on account of their race, religion,
nationality, membership in a particular social group, or political opinion.
Non-refoulement is considered a customary norm of international law, meaning that it is binding on all
states regardless of whether they have ratified specific refugee treaties. It reflects the international
community's commitment to protecting the rights of individuals fleeing persecution and ensuring that
they are not returned to situations where they would face serious harm.
In practice, the principle of non-refoulement requires states to carefully assess the situation of each
individual asylum seeker and refugee to determine whether they are at risk of persecution or harm if
returned to their home country. States must provide individuals with a fair and effective asylum process
to assess their protection needs and ensure that they are not subjected to refoulement.
Durable Solutions
Durable solutions are fundamental principles in international refugee law aimed at providing long-term
resolutions to the plight of refugees. These solutions seek to address the underlying causes of
displacement and enable refugees to rebuild their lives in safety and dignity. There are three main
durable solutions recognized by international refugee law:
1. Voluntary Repatriation: Voluntary repatriation involves refugees returning to their country

of origin voluntarily and in safety and dignity when conditions in their home country have
sufficiently improved to allow for their return. This solution is considered the most preferred
and sustainable option for refugees as it allows them to return to their homes, lands, and
communities, and reintegrate into society.
2. Local Integration: Local integration entails refugees settling in their country of asylum and
becoming full members of the local community. This solution involves granting refugees access
to rights, services, and opportunities similar to those enjoyed by the host population, including
access to education, employment, healthcare, and documentation. Local integration aims to
enable refugees to live independently and contribute positively to their host society.
3. Resettlement: Resettlement involves the transfer of refugees from their country of asylum to
a third country that is willing to grant them permanent residence and facilitate their integration.
Resettlement is typically offered to refugees who are unable to return to their country of origin
or integrate locally due to ongoing persecution, security concerns, or other protection needs. It
provides refugees with the opportunity for a fresh start and protection in a new country.
These durable solutions are guided by principles of voluntariness, safety, dignity, and sustainability.
They are aimed at addressing the specific needs and circumstances of refugees and ensuring that they
are able to rebuild their lives with security and stability. Effective implementation of durable solutions
requires cooperation and coordination among states, international organizations, civil society, and
refugees themselves to promote lasting peace, stability, and protection for displaced populations.
Safe Haven
Safe haven is a principle in international refugee law that refers to the provision of temporary protection
and shelter to individuals fleeing persecution or conflict in their home countries. While not considered
a durable solution like voluntary repatriation, local integration, or resettlement, safe haven offers
immediate refuge and safety to displaced persons until more permanent solutions can be found.
Key aspects of safe haven include:
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1. Temporary Protection: Safe haven provides temporary refuge to individuals who are unable
to return to their home countries due to persecution, violence, or other forms of serious harm.
It offers a safe environment where refugees can seek protection from immediate threats to their
safety and well-being.
2. Basic Needs: Safe haven aims to meet the basic needs of refugees, including shelter, food,
water, and medical care. Host countries or international organizations often provide assistance
to ensure that refugees have access to essential services and humanitarian aid during their stay
in safe havens.
3. Non-Refoulement: The principle of non-refoulement is a fundamental aspect of safe haven,
ensuring that refugees are not forcibly returned to countries where their lives or freedom would
be at risk. Host countries must respect the principle of non-refoulement and refrain from
deporting or extraditing refugees to situations of danger.
4. Temporary Status: Refugees in safe havens typically have temporary legal status, allowing
them to stay in the host country until conditions in their home countries improve or until they
can be resettled in a third country. Safe haven status may be granted through various legal
mechanisms, such as temporary protection arrangements or humanitarian visas.
5. Coordination and Cooperation: Providing safe haven requires coordination and cooperation
among host countries, international organizations, civil society groups, and other stakeholders.
Effective collaboration is essential to ensure the provision of adequate protection and assistance
to refugees in safe havens.
Safe haven serves as an interim measure to protect displaced persons during times of crisis, offering
them a place of safety and refuge while more durable solutions are sought. While not a long-term
solution, safe haven plays a crucial role in safeguarding the rights and well-being of refugees and
providing them with immediate protection from harm.
Family Unit
The right to family unity and reunification is a fundamental aspect of international refugee law,
recognized in various legal instruments at both universal and regional levels. This right applies to all
individuals, including refugees, regardless of their status. For refugees, family reunification is crucial
for restoring a sense of normalcy and support, as well as facilitating durable solutions. However, there
are challenges in implementing this right, particularly in cases where families have been separated
across international borders.
The 1951 Convention Relating to the Status of Refugees emphasizes the importance of protecting the
refugee's family and declares family unity as an essential right. Despite this recognition, the
implementation of family reunification can be complex, especially for dispersed families seeking to
reunite without returning to a country where they face danger. Women and children left behind are
particularly vulnerable, facing risks both from persecution in their home country and the absence of
male family members' support.
The process of family reunification often takes longer than expected due to asylum and resettlement
procedures, causing additional distress to families. In cases where children arrive alone in a country of
asylum, complexities arise concerning their best interests and eligibility for family reunification. Some
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countries impose restrictive conditions or lack adequate legal structures for family reunification, posing
challenges for refugees seeking to reunite with their families.
Overall, while the right to family unity is recognized in international refugee law, its implementation
faces various obstacles and complexities, highlighting the need for comprehensive and compassionate
approaches to address the needs of refugee families.
The right to family unity and protection is universally recognized and enshrined in various international
human rights and humanitarian law instruments. This right encompasses the fundamental principle that
families should live together without arbitrary interference. Despite the absence of explicit provisions
on family unity in some legal frameworks, such as the 1951 Convention Relating to the Status of
Refugees, the underlying principles of family protection are implicit and must be upheld.
Refugee law principles, including non-refoulement, exclusion, and non-penalization for illegal entry,
must be interpreted in conjunction with evolving international law and State practices. The absence of
specific provisions on family unity in refugee law does not negate the obligation to protect refugee
families. In cases of potential exclusion from refugee status, each family member's situation should be
assessed individually, with a focus on minimizing arbitrary exclusions and preserving family unity.
When considering the deportation or expulsion of a refugee family member, States must balance various
rights and considerations, including protections against refoulement and the best interests of the child.
The Convention on the Rights of the Child provides significant protection against involuntary
separation of families, emphasizing that separation should only occur when necessary for the child's
best interests.
Overall, while international legal frameworks may differ in their approaches to family protection, the
overarching principle remains consistent: families should be safeguarded from arbitrary separation, and
decisions regarding their unity should prioritize the well-being of all family members.
Unit 14 – challenges of IHL
1. Legal Framework and Compliance: One challenge is the lack of universal ratification and
implementation of key refugee conventions, such as the 1951 Refugee Convention and its 1967
Protocol. Not all countries have signed or ratified these instruments, leading to disparities in
legal protections for refugees globally. Additionally, even in countries that have ratified these
conventions, there may be gaps in domestic legislation or non-compliance with international
obligations.
2. Access to Protection: Many refugees struggle to access protection due to various barriers,
including restrictive asylum policies, inadequate legal frameworks, and lack of resources for
asylum systems. This can result in refugees facing risks of refoulement, detention, or
deportation to unsafe conditions.
3. Refugee Status Determination (RSD): RSD processes can be complex, lengthy, and
inconsistent across different jurisdictions. Challenges include lack of trained personnel, limited
capacity, and procedural barriers, leading to delays in granting refugee status and leaving
individuals in limbo.
4. Burden-Sharing and Responsibility: There is a lack of equitable burden-sharing among
countries in hosting and supporting refugees. Many countries, particularly those in regions with
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large refugee populations, face significant economic, social, and political strains in providing
for refugees. The disproportionate burden on certain countries can lead to tensions and hinder
effective protection.
5. Mixed Migration Flows: The distinction between refugees, asylum seekers, and migrants is
often blurred in practice, especially in situations of mixed migration flows. This poses
challenges for identifying and providing appropriate protection to those in need, as well as
managing migration and asylum systems.
6. Climate Change and New Forms of Displacement: Climate change, environmental
degradation, and other drivers of displacement are increasingly contributing to refugee flows.
However, international refugee law may not adequately address these new forms of
displacement, creating gaps in protection for affected populations.
7. Hostility and Xenophobia (intense or irrational dislike or fear of people from other
countries or cultures. It often manifests as prejudice, discrimination, or hostility towards
individuals or groups perceived as foreign or different): Rising nationalism, anti-immigrant
sentiments, and xenophobia in many parts of the world present significant challenges to the
protection of refugees. Hostile attitudes towards refugees can result in discriminatory policies,
social exclusion, and violence, undermining their rights and well-being.
8. Limited Enforcement Mechanisms: While international refugee law provides legal standards
and principles, there are limited mechanisms for enforcement and accountability. This can
weaken the effectiveness of protection efforts and limit recourse for refugees facing violations
of their rights.
India’s Stance: Unit 15

Case: Mohammad Salimullah vs UOI (Indian Court)
The Supreme Court of India (SCI) observed that Rohingya refugees should be deported according to
the prescribed deportation procedure. This decision raises several questions regarding India's
obligations:
a) Whether India is bound by the principle of non-refoulement.
b) b) Whether rights guaranteed under Article 14 and 21 of the Constitution of India (COI) are
available to non-citizens.
c) c) Whether India is bound by non-refoulement obligations despite not being a signatory to the
1951 Refugee Convention.
The Rohingya, ethnic Muslim minorities from Myanmar, have been fleeing persecution since the 1970s.
Most have sought refuge in neighbouring countries like Bangladesh and India. Around 40,000 Rohingya
refugees are estimated to be in India, with 18,000 registered with the UNHCR. However, they face
challenges due to the lack of legal framework regulating refugees in India, relying on ad-hoc
administrative measures for protection. The UNHCR attempts to safeguard these refugees, but Indian
authorities often do not recognize their documents.
The COVID-19 pandemic has led to tightened immigration measures, resulting in the deportation of
Rohingya refugees to Myanmar. Petitioners challenged this decision in the SCI, but the court refused
to grant interim relief and directed the government to deport Rohingya refugees according to established
procedure.
Rohingya refugees detained in Jammu, the petitioners, sought their release and argued against their
deportation. Their contentions included: a) Non-refoulement as part of the right to life under Article 21
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of the Constitution of India (COI). b) Rights under Article 14 and 21 of COI being available to non-
citizens. c) Non-refoulement creating a binding obligation on India despite not being a signatory to the
Refugee Convention. d) Non-refoulement being part of various international treaties and conventions.
e) The recent decision of the International Court of Justice (ICJ) in Gambia v Myanmar highlighting
the risk of genocide if refugees are deported to Myanmar.
The Supreme Court did not rely on Article 21 but instead on Article 19(1)(e), which guarantees the right
to reside or settle, applying to citizens rather than foreigners. The SCI did not grant interim relief and
ordered deportation according to prescribed procedure.
The judgment suggests that refugees are treated similarly to foreigners in India, and special treatment
guaranteed under the refugee convention may not apply. The SCI's reliance on Article 19(1)(e) indicates
that refugee rights were not thoroughly deliberated upon, and non-refoulement in relation to the right
to life was not discussed.
India's treatment of refugees is largely governed by the Passport Act, 1967, Registration of Foreigners
Act, 1946, and Foreigners Order, 1948, which do not differentiate between genuine refugees and other
foreigners. Refugees risk arrest and deportation due to lack of valid documents, and the discrimination
violates global human rights instruments. While refugees from Tibet are issued valid passports, others
face legal uncertainty.
The absence of domestic legislation on refugees and India's non-signatory status to the 1951 Refugee
Convention means refugees have limited legal recourse, relying mostly on administrative measures.
The UNHCR and NHRC collaborate to support refugees, although their interventions are not always
effective.
The judiciary has upheld refugees' rights to life and liberty but has not always ensured protection from
deportation to life-threatening situations. The recent SCI judgment on Rohingya refugees demonstrates
a departure from previous observations, linking the right not to be deported to Article 19(1)(e) rather
than Article 21 of the Constitution.
The principle of non-refoulement, enshrined in international law, prohibits the expulsion or return of
refugees to countries where they face persecution. While India is not a signatory to the 1951 Refugee
Convention, non-refoulement is considered a customary international law norm and endorsed by
various regional conventions and UN resolutions. Its jus cogens status means it binds states regardless
of treaty acceptance.
The court's interpretation that national courts can draw inspiration from international conventions as
long as they do not conflict with municipal laws. This suggests that the principle of non-refoulement,
while recognized in international law, may not apply in India due to conflicts with domestic legislation
such as the Foreigners Act, 1946.
The SCI's observation aligns with India's dualist system, where treaties do not create binding obligations
unless ratified by the legislature. Despite scholarly arguments and UNHCR endorsement of non-
refoulement as a jus cogens norm, there is limited evidence of its acceptance as such in Indian state
practice or legal interpretations.
Historically, Indian courts have linked non-refoulement with Article 21 of the Constitution of India,
which guarantees the right to life and personal liberty. However, the recent judgment appears to depart
from this stance by invoking Article 19(1)(e), which pertains to the right to reside or settle and is
typically available only to citizens. This shift suggests a reflection of executive policy rather than
judicial precedent, indicating a departure from previous observations regarding refugees' rights under
Article 21.
EB
India is not a signatory to the 1951 Convention or the 1967 Protocol relating to the status of refugees.
However, it became a party to the two 1966 Covenants on Civil and Political Rights and Economic,
Social, and Cultural Rights in March 1979. Despite not being enacted into Indian law, these Covenants
still hold international obligations for India. Additionally, India acceded to the Convention on the Rights
of the Child on December 11, 1992. While these international agreements may not be enforceable in
Indian courts due to not being enacted into law, they can still be considered by courts when interpreting
statutory law.
The legal framework for refugee protection in India is largely based on international conventions,
despite India not being a signatory to the 1951 Convention or the 1967 Protocol relating to the status of
refugees. India acceded to other international human rights instruments such as the International
Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and
Cultural Rights, and the Convention on the Rights of the Child. While these instruments haven't been
enacted into Indian law, they still hold significance in protecting refugees' rights, as Indian courts have
recognized and enforced treaty obligations through constitutional provisions such as Articles 14, 21,
and 25.
The judiciary in India has been proactive in ensuring the protection of refugees' rights, invoking
fundamental rights guaranteed by the Indian Constitution. Additionally, the National Human Rights
Commission has played a crucial role in safeguarding refugees' rights, approaching the Supreme Court
for protection in cases of threatened expulsion. Despite India's non-signatory status to key refugee
conventions, refugees in India are entitled to fundamental rights, including the right to equality, right to
life and liberty, and freedom of religion, which can be enforced through legal avenues provided by the
Constitution.
EB

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Unit 1

Principles of IHL [pg. 50]

Case: Israel Targeted killing case [refer paragraph 7]

4. Prohibition on Superfluous Injury/ unnecessary injury

5. Prohibition on Indiscriminate attacks

- Treatment of PoW- principle of compassion base of Buddhism- same to be shown to prisoners

St. Petersburg Declaration

THE HAGUE PEACE CONFERENCES

KW Case: (favoring martens’ clause)

Armed conflict can be categorized into 2 heads:

1. International Armed conflict- involved bet. 2 or more states

1. Status of Individuals in an International Armed Conflict (IAC):

2 Non-international armed conflict

Common Article 3 (only article to bring NIAC within IHL)

* OAG- operating within individual capacity

2. US v. Nicaragua – Effective control test and Overall control test

Unit 4- 7: Treatment of victims and POW

GENEVA CONVENTION I for the AMELIORATION OF THE CONDITION OF THE

A1: Responsibility of High Contracting Parties (states)

Wounded and Sick – 12 to 18

GC II: AMELIORATION OF THE CONDITION OF WOUNDED, SICK AND

• Armed forces members, militias, or volunteer corps of a conflict party.

A19: Record and forward info

A20: Prescriptions regarding dead – same as that of land

A25, ii – Neutral countries: place themselves under control of one party.

A26: Tonnage – protection applies to tonnage, lifeboats when operating.

A29: Hospitals should be allowed to leave a port.

Art. 12: Responsibility for the treatment of prisoners

Art. 13: Humane treatment of prisoners

Art. 18: Property of prisoners

Article 19: Evacuation of prisoners

Art. 20: Condition of evacuation

Art. 21: Restriction of liberty of movement

Art. 22: Places and conditions of internment

Art. 23: Security of prisoner

Art. 24: Permanent transit camp

Art. 25: Quarters

Art. 26: Food

Art. 27: Clothing

Art. 28: Canteen

Art. 29: Hygiene

Art. 40: Badge and nationality, decorations – shall be permitted.

GC IV: PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR

1. Protection of non-combatants: All individuals not involved in hostilities, including disarmed

4. Special agreements: Parties are encouraged to establish special agreements to implement

Status and treatment of protected persons

A31: Prohibition of coercion – no coercion of any form allowed.

Prohibition of collective penalties: Collective punishments, as well as any measures intended to

A34: Hostages – Taking of hostages is prohibited.

Unit 8 and 9 (pg. 44, 70 chps.)

• Minimizing Suffering in Warfare: The Prohibition on Superfluous Injury and

Distinction Between Military and Civilian Targets in Warfare

(+ refer to the principles mentioned in the beginning)

Chemical and Biological Weapons: A Longstanding Ban

Nuclear Weapons: A Legal Gray Area

International humanitarian law principles like distinction, proportionality, and prohibition of

Other Prohibited Weapons

Ruses and Perfidy

Forbidden Orders in Warfare

Environmental and Cultural Protection

A notorious example of a deliberate environmental attack is the US chemical defoliation program in

Cultural Property and Warfare

State practice – India

Not very important