Part VI Finals ‘23 Study Guide by Emil & Andrena

International Humanitarian Law •

IHL is a branch of public international law which:

(1) Protects persons who do not take part in the hostilities (e.g. civilians, medical
personnel, etc.) and those who can no longer fight (wounded, sick, ship-wrecked
members of armed forces, and prisoners of war); and
(2) Regulates the conduct of hostilities by limiting the choice of means and methods of
warfare.
It is a law that regulates the conduct of armed conflict or hostilities (jus in bello)

Rationale behind IHL

- The rationale behind the requirement of IHL is that if it is not possible to fully prevent
war, then at least warfare should be regulated or made subject to certain
humanitarian restrictions.
- It is essentially for humanitarian reasons which is to reduce or limit the suffering of
individuals and to circumscribe the area within which the savagery of armed conflict
is permissible.

Definition of armed conflicts

Prosecutor v Dusko Tadic: Armed conflict exists whenever there is a resort to armed force
between states or protracted armed violence between governmental authorities and
organised armed groups or between such groups within a state.

Types of armed conflicts

International armed conflicts:

- Geneva Convention and Additional Protocol I applies

- Common Article 2: An international armed conflict occurs whenever there is a resort
to armed forces between States.
- Article 1(4) of AP 1: International armed conflicts include those in which people are
fighting for self-determination against colonial and alien occupation and against racist
regimes in the exercise of their rights to self-determination.

Non-international armed conflicts

- Common Article 3 of Geneva Convention and AP II applies

- Common Article 3: A non-international armed conflict is an armed conflict occurring
in the territory of a State (civil war).
- Prosecutor v Dusko Tadic: It exists whenever there is protracted armed
violence between governmental authorities and organised armed groups, or
between such groups within a State.
- Parties to the conflict must observe that persons taking no active part in the
hostilities is protected from:
- Violence to life and person in particular murder of all kinds, mutilation,
cruel treatment, and torture;
- Taking of hostages;
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- Outrages upon personal dignity, humiliating or degrading treatment;

- The wounded and sick are collected and cared for.
- Article 8(d) Rome Statute: Situations of internal disturbances such as riots, isolated
and sporadic acts of violence do not amount to a non-international armed conflict.
- Juan Carlos Abella v Argentina: Situations when it is not considered as a
not a non-international armed conflict:
- Riots or disturbances which from the start are not directed by a leader
and have not concerted talent.
- Isolated and sporadic acts of violence as distinct from military
operations carried out by armed forces or organised armed groups.
- Other acts of similar nature which incur in particular mass arrest of
persons because of their behaviour or political opinion.

The concept of armed conflict in principle requires the existence of organised armed groups
that are capable of actually engaging in combat and other military actions against each
other.

- In order for Common Article 3 to apply, an armed conflict must be established.

- La Tablada case: The concept of armed conflict requires the existence of
organised armed groups that are capable of and actually do engage in
combat and other military actions against each other.
- Common Article 3 is generally understood to apply to low intensity and open
armed confrontations between relatively organised armed forces or groups
that take place within the territory of a particular State. It typically involves
armed strife between governmental armed forces and organised armed
insurgents.
- The application of Common Article 3 does not require the existence of
large-scale and generalised hostilities or a situation comparable to a civil war
in which dissident armed groups exercise control over parts of national
territory.
- AP 2 is intended to supplement Common Article 3:
- In order for AP 2 to apply, a conflict must have taken place within the territory
of the State:
- Between its armed forces and dissident armed forces, or other
organised armed groups;
- Under responsible commands;
- Exercises control over a part of the State’s territory as to enable them
to carry out sustained and concerted military operation.
- Article 1(2): The Protocol is not applicable to situations of internal
disturbances and tensions such as riots, isolated sporadic (infrequent) acts of
violence:
- Riots, all disturbances which from the start are not directed by a
leader and have no concerted intent;
- Isolated and sporadic acts of violence, as distinct from military
operations carried out by armed forces or organised armed groups;
- Other acts of a similar nature which incur in particular mass arrests of
persons because of their behaviour or political opinion
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- La Tablada case: The case concerned an attack launched by 42 armed

persons on military barracks of the national forces in 1989 at La Tablada,
Argentina. The attack resulted in a battle lasting approximately 30 hours and
resulting in the deaths of 29 of the attackers and several State agents.
- The inter-American Commission on Human Rights held: The violent acts
which occurred at La Tablada military cannot be characterised as a situation
of internal disturbances. The concerted nature of the hostile acts undertaken
by the attackers, the direct involvement of governmental armed forces and
the nature and level of violence present at the events at the La Tablada base,
particularly the careful planning, coordination and execution of an armed
attack by the attackers against the military base constituted an internal armed
conflict to which IHL could be directly applied.

Internationalised armed conflict

Prosecutor v Dusko Tadic: A non-international armed conflict may become international if:

- Another State intervenes in that conflict through its troops;

- Some of the participants in the internal armed conflict act on behalf of that other
State. It must be proven that a State has control over the particular group, and is not
merely assisting through financial or military means;
- It is not only equipping or financing the group but is coordinating or helping in the
general planning of its military activity.

Main sources of IHL

Customary IHL:

- Used particularly where a party to a conflict is not a party to a relevant convention.

- The application of customary IHL is through the Martens clause provided in Article
1(2) of AP 1.
- AP 1: In situations not covered by the Protocol or existing conventions, civilians and
combatants remain under the protection and authority of the principles of
international law derived from custom, principles of humanity and dictates of public
conscience.

Treaties:

The four Geneva Conventions for the Protection of War Victims 1949:

1. Geneva Convention for the Amelioration of the Condition of the Wounded and SIck in
Armed Forces in the Field (GC I)
2. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and
Shipwrecked Members of Armed Forces at Sea (GC II)
3. Geneva Convention Relative to the Treatment of Prisoners of War (GC III)
4. Geneva Convention Relative to the Protection of Civilian Persons in the Time of War
(GC IV).
The Protocols Additional to the Geneva Convention were adopted to cater to more complex
situations of armed conflict:
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1. Protocol Additional to the Geneva Convention and Relating to the Protection of

Victims of International Armed Conflicts (AP I)
2. Protocol Additional to the Geneva Convention and Relating to the Protection of
Victims of Non-International Armed Conflicts (AP II)
3. Protocol Additional to the Geneva Convention and Relating to the Adoption of an
Additional Distinction Emblem (AP III)
Others:

- Judicial decisions
- Various international bodies (ICRC)
- Manuals of Military Law and Related Texts
- Writings of legal specialists

Principles of IHL

Principle of distinction

- Protects the civilian population and civilian objects from the effects of military
operation.
- Only combatants and military objectives may be intentionally targeted during an
armed conflict.
- Article 48 of AP 1: Parties to the conflict must be able to distinguish at all times
between combatants and the civilian population and between military objectives and
civilian objects.
- Article 43(1) of AP 1, “combatant”: Any member of the armed forces of a party to
the conflict. May be the target of any deliberate attack.
- Article 4 of the Third Geneva Convention and Hague Regulations provide
features of combatants.
- Article 44(4) of AP 1: Combatants are obliged to distinguish themselves from the
civilian population while they are engaged in an attack or in a military preparation for
an attack. If an armed combatant cannot distinguish himself, he must carry his arms
openly. If they fail to do so, they can be prosecuted.
- Article 50(1) if AP 1 “civilians”: Persons who do not belong to the category of
combatants, prisoners of war and armed forces.
- Prosecutor v Tihomir Blaskic: Persons who are not, or no longer members
of the armed force.
- Article 53(1) of AP 1: Civilians enjoy general protection (immunity) during an
international armed conflict for as long as they refrain themselves from taking any
direct part in the hostilities.
- The Public Committee Against Torture in Israel v The Government of
Israel: A direct part in hostilities is when a civilian bears arms, in an open or
concealed manner and is on his way to a place where he will use them or is
using arms, or is on his way back from such a place.
- Position of ICRC, Interpretive Guidance on the notion of direct participation on
humanitarian law: To establish direct participation, there are three requirements that
must be satisfied:
1) Degree of harm
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a) Direct participation refers to specific hostile acts carried out by

individuals to disrupt the military capacity or causing death, injury or
damage to property during the armed conflict.
b) They use weapons to conduct violence against enemy forces.
2) There must be direct causation between the act and the harm
a) The act must be integral to the military operation such as identification
or marking of targets.
b) If civilians during armed conflict help armed forces to identify or mark
targets, they have participated directly.
c) The analysis and transmission of tactical intelligence to attack the
enemy and the instruction and assistance given to the troops then
they have participated directly in armed conflict.
3) Belligerent nexus
a) The act must be done to support the party to the conflict for the
purpose of harming the enemy force.
b) Intention of the parties is irrelevant because the objective is reflected
in the design of the operation.
- Article 52(2) of AP 1 “military objectives”: Objects which make an effective
contribution to military action, the destruction of which would offer a definite military
advantage.
- Article 52(3) of AP 1 “civilian objects”: Objects normally dedicated to civilian
purposes, such as place of worship, a house, a school (general protection under
Article 52(1))
- Civilian objects become military objectives if it can be established that it is
being used to make an effective contribution to military action.
- In the event of doubt, it shall be presumed to be a civilian object.

Principle of necessity

- Military necessity is the need to employ measures which are indispensable in

securing the ends of the war (Lieber Code)
- Any measure resorted to for the purpose of securing the submission of the enemy is
justified provided that it is not inconsistent with the modern law and usages of war.
- Article 35 of AP 1: Although military necessity allows armed forces to engage in
conduct that will result in destruction and harm, it prohibits the infliction of
unnecessary sufferings and excessive injury or the causing of widespread, long-term
and severe damage to the natural environment.
- Nuremberg Tribunal in the Hostage case: The principle of military necessity allows
parties to apply any amount of force necessary with the least expenditure of time, life
and money to achieve that partial or complete submission of adversary provided that:
- The force is subject to the law of wars;
- The force is no greater than needed to achieve this;
- The force is not prohibited.

Principle of proportionality

- Limits and protects potential harm to civilians.

- A military advantage (upper hand in the conflict) gained from an attack launched
must not be disproportionate to the amount of civilian casualties or damage caused.
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- Article 51(5)(b) of AP 1: Attacks resulting in harm towards civilians (collateral

damage) must not be excessive as against the military advantage.
- Parties are prohibited from causing excessive collateral damage.
- The Public Committee against Torture in Israel v The Government of
Israel: The attack must be directed against a military objective with means
which are not disproportionate but are suited to destroying only that objectve.
- The Israeli Strike Against Hamas Leader Salah Shehadeh: An Israeli
fighter plane that dropped a one-tonne bomb to kill Shehadeh also killed 14
bystanders, nine of whom were children, and injured more than 70 others.
Although the bomb landed with precision, the attack caused tremendous
destruction (excessive collateral damage).
- Article 57(2) of AP 1: To ensure that civilian lives and civilian objects are
spared from harm and destruction, precautionary measures must be taken
before an attack is launched.

Principle of humanity

- All humans are deemed to have the capacity and ability to show respect and care for
everyone, even their enemies.
- The principle of humanity is the core of IHL (inspired by the establishment of ICRC),
which is also upheld by all the other principles of IHL.

Principle of non-discrimination

- Prohibits unlawful distinctions based on race, nationality, religious belief, or political

opinion in the treatment of prisoners of war, civilians, and hors de combat.
- All protected persons are to be treated with the same consideration by parties to the
conflict.
- Article 75 of AP 1: Each person affected by the armed conflict is entitled to his
fundamental rights and guarantees without discrimination.

Protected persons in an armed conflict

Article 27, GC IV: Protected persons shall at all times be humanely treated and protected
against violence or threats.

1) Civilians
- Article 53(1) of AP 1: Grants civilians immunity from any form of attack
during an armed conflict.
- Article 51(40 of AP 1: Indiscriminate attacks which either destroys all life in a
specific area, or causes excessive collateral damage against civilians are
prohibited.
- The use of civilians as human shield:
- Barake v Minister of Defense: Human shields is the use of protected
persons under IHL as a shield to deter attacks on combatants and
military objectives.
- Article 51(7) of AP 1 & Article 13(1) of AP 2: Prohibits the use of
civilians as a human shield.
- In line with the precautionary measure to remove the civilian population from
the vicinity of military objectives (Article 58(a) of AP 1) and to avoid locating
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military objectives within or near densely populated areas (Article 58(b) of

AP 1).
2) Wounded, sick and shipwrecked (GC I & II)
- Article 8 of AP 1, “wounded” and “sick”: Persons, whether military or
civilian who because of trauma, disease or other physical or mental disorder
or disability are in need of medical assistance of care and who refrain from an
act of hostility.
- Article 12 of GC I: Members of the armed forces who are wounded or sick
shall be respected and protected at all times.
3) Prisoners of war (GC III)
- “Prisoners of war” are captured, surrendered or wounded soldiers that are no
longer considered a threat to a party.
- Once a soldier attains such status, he is automatically entitled to extensive
protection and is prohibited from being attacked.
- Article 13 of GC III: Prisoners of war must at all times be humanely treated.
They must be protected, particularly against acts of violence or intimidation
and against insults and public curiosity. Any act that would seriously endanger
their health is prohibited.
- Articles 25 & 26 of GC III: They are to be granted an adequate amount of
space within the premise that they are kept and to be fed sufficient amounts
of food.
- Article 118 of GC III: Once hostilities have come to an end, all prisoners of
war must be released and repatriated (sent back to their State) without delay.
- Prisoners of war cannot be discriminated based on their sex:
- Article 14 of GC III: Female prisoners of war shall be granted the
same treatment given to male prisoners of war.
- Article 88 of GC III: Women cannot be subjected to harsher or
heavier punishment than men.
- Article 97 of GC III: Female prisoners of war shall be confined in
separate quarters from male prisoners of war and will be under
immediate supervision of women.
4) Special protection for women
- Article 27 of GC IV (General protection): Women shall be protected at all
times during the period of an armed conflict.
- Article 75(1) of AP 1 (Fundamental guarantees): Each person is entitled to
her fundamental guarantees without any adverse distinction based on sex.
- Article 76(1) of AP 1: Women shall be granted special respect and protected
especially against rape, forced prostitution and any indecent assault.
5) Special protection for children
- Article 77(1) of AP 1: Children shall be granted special respect and protected
against any form of indecent assault.
- Article 77(2) & (3) of AP 1 and Article 4 of AP 2: Parties must give due care and
aid to the children in need and if they are under 15 years old, they shall not be
enlisted to take part directly or indirectly in armed forces but if they do and are
captured, they shall continue to benefit from this protection.
6) Medical personnel
- Article 24 of GC I and Article 15 of AP 1: Medical personnel shall at all
times be respected and protected.
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Protected objects in an armed conflict

- Article 52(1) of AP 1 (General protection): Civilian objects (houses, schools) shall

not be the object of an attack.
- Article 53(1) of AP 1: Any act of hostility against historic monuments, works of art, or
places of worship is prohibited.
- Article 19 of GC I: Hospitals may in no circumstances be attacked but shall at all
times be respected and protected by the parties to the conflict.
- Article 54(1) of AP 1: Objects which are considered indispensable to the survival of
the civilian population (agricultural areas, crops, livestock, supplies of drinking water)
are prohibited from being attacked, destroyed, removed, or rendered useless.
- Article 55 of GC IV: In any occupied territory, the State in control has the duty to
ensure goods and medical supplies for the civilians are sufficient.

Methods of warfare

- Although States may employ the necessary means to attain the overall military
advantage, they do not have unlimited freedom of choice in the methods or weapons
that they use.
- Article 35(2) & (3) of AP 1: Weapons, projectiles and material and methods of
warfare used to cause superfluous injury or unnecessary suffering or widespread,
long term and severe damage to the natural environment are prohibited.
1) Nuclear Weapons
a) Legality of the Threat or the Use of Nuclear Weapons: The use of nuclear
weapons is contrary to Article 35(2) & (3) of AP 1 as well as unlawful under
Article 2(4) of UN Charter as it fails to meet all the requirements relating to
self-defence.
b) Shimoda v Japan: The use of nuclear bombs against the cities of Hiroshima
and Nagasaki was held to be a blatant violation of the international law of
armed conflict.
2) Chemical weapons
a) The 1993 Chemical Weapons Convention prohibits the development,
production, stockpiling, transfer, use and destruction of chemical weapons.
b) Article 1 CWC: Imposes upon States the obligation to never use chemical
weapons under any circumstances, either in international or non-international
armed conflicts, including any production or manufacture of such chemical
weapons.
c) US Assails Soviet for Reported Use of Toxic Waste: The Soviet Union was
liable for using chemical weapons that destroy human skin by cancer-causing
agents which also produced other forms of unnecessary injury and suffering
in Afghanistan.
3) Blinding laser weapon
a) Article 1 of 1995 Protocol on Blinding Laser Weapons (to the 1980
Conventional Weapons Convention): Laser weapons are specifically designed
to cause permanent blindness to unenhanced vision that is to the naked eye
or to the eye with corrective eyesight devices.
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b) Juan de Fuca Strait Incident: In 1997, the US Navy Lieutenant Daly and
Canadian Forces Pilot Captain Barnes sustained eye injuries aboard a
military helicopter during the surveillance of a Russian merchant vessel
suspected of espionage in US territorial waters. The effects of the injury were
consistent with the effects of a blinding laser. Since the incident, the injured
Daly and Barnes suffered ‘agonising chronic pain’ and constant deterioration
of eyesight which led to a lawsuit being instituted against the shipping
company that was partly owned by the Russian government.
c) The use of blinding laser weapons is prohibited under the Protocol and Rule
86, Customary IHL as it is said to cause unnecessary suffering.
4) Mines and booby traps
a) The 1996 Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and other Devices (to the 1980 Conventional Weapons
Convention) restricts the use of landmines, remotely delivered mines, and
booby traps.
b) The Protocol, which applies to both international and non-international armed
conflicts, prohibits the use of landmines, remotely delivered mines, or booby
traps to kill civilians or to cause superfluous injury or unnecessary suffering to
soldiers.
c) It also prohibits the use of booby traps that are attached to or associated with
any of the protected objects under IHL.
d) The 1997 Anti-Personnel Mine Ban Convention prohibits the use,
development, production, stockpiling and transfer of anti-personnel mines and
requires the destruction of stockpiles within 4 years for each State party.
5) Incendiary weapons
a) The 1980 Protocol on Prohibitions or Restriction on the Use of
Incendiary Weapons (to the 1980 Conventional Weapons Convention)
prohibits the aerial delivery (throwing it from a great distance above) in
relation to the conduct of hostilities during armed conflict or incendiary
weapons within a concentration of civilians.
b) The weapon or munitions must be ‘primarily designed’ to act through flame
and/or heat (e.g. flamethrowers)

Prosecution at the International Criminal Court (ICC) (Rome Statute)

- Article 15(1) of the Rome Statute, Proprio motu power of the ICC Prosecutor: The
Prosecutor may decide to initiate an investigation into a situation without referral to
the UNSC or a State Party.
- Article 15(1) of the Rome Statute: In conducting a preliminary investigation, he may
request information from UN organs, States, NGOs and other reliable sources to aid
this process.
- Article 15(3) of the Rome Statute: Only after he has analysed the seriousness of
the information and concluded that there is a reasonable basis to commence an
investigation, can a request be made to the Pre-Trial Chamber to launch an
investigation.
- The applicable standard that the Prosecutor must meet is that of a reasonable basis
under Article 15(4). Information presented to the Chamber need not. Be conclusive
or eliminate all other possible interpretations of the information, but the Chamber
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must be satisfied that a reasonable justification exists for the belief that a crime within
the ICC’s jurisdiction is being or has been committed.
- Article 8(2) “war crimes””
- Grave breaches of the Geneva Conventions;
- Other serious violations of the laws and customs applicable in an international
armed conflict;
- Serious violations of Common Article 3 (in the case of a non-international
armed conflict);
- Other serious violations of the laws and customs applicable in a
non-international armed conflict.

Individual criminal responsibility

- Nuremberg trial: The purpose of international law is to combat international crimes

and it is not artificial entities like the State or organisation that breaches the law but it
is the individual working behind them. Only by punishing individuals who commit
such crimes can the provisions of international law be enforced.
- Article 27 of the Rome Statute: The Statute applies equally to all persons without
distinction based on their official capacity. A Head of State or Government shall not
be exempted from criminal responsibility under the Statute.
- Arrest warrant against Sudanese President Omar al-Bashir: The Sudanese
President was issued an arrest warrant for masterminding a campaign of crimes
against humanity and war crimes by government troops and Arab militias in the
Darfur region.
- The ICC Pre-Trial Chamber I held: Al-Bashir’s official capacity as a sitting
Head of State does not exclude his criminal responsibility nor does it grant
him immunity against prosecution before the ICC.
- Thus, any person found to be criminally responsible for the commission of
war crimes can be prosecuted for a crime if he:
- Commits a crime, individually or jointly, with or through another
person;
- Orders, solicits or induces the commission of such crime;
- Aids, abets or assists in the commision of the crime;
- Contributes in any way to the commission of the crime;
- In regards to genocide; directly or publicly incite others to commit
genocide;
- Attempts to commit the crime by taking an action that commences its
execution.
- Prosecutor v Dusko Tadic: The accused was convicted by
the ICTY for grave breaches of the Geneva Conventions and
crimes against humanity related to the torture and murder of
Muslims in Bosni and Herzegovina.;
- Article 30 of the Rome Statute: A person shall be criminally responsible and liable
for punishment for a crime only if it was committed with intent and knowledge of the
effect of the harm it will cause.

Superior responsibility
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- Article 28(b) of the Rome Statute: A superior shall be criminally responsible for
crimes committed by subordinates under his effective control where:
- He knew or consciously disregarded information that his subordinates were
committing or about to commit such crimes;
- The crimes concerned activities within his effective command and control;
- He failed to take all the necessary and reasonable measures to prevent the
commission of the crime, or to submit the matter to competent authorities.
- Nuremberg Tribunal in United States of America v Wilhelm List
and Others: A superior cannot absolve his liability simply by saying
that he did not have knowledge of his subordinates’ actions, as a
superior is accountable for all conduct within his territorial jurisdiction.
- The accused was charged for the murder of civilians in Greece,
Yugoslavia, Norway, and Albania between 1939 and 1945 by the use
of troops of the German armed forces under the command of and
acting pursuant to orders issued, distributed, and executed by the first
accused.

State responsibility

- The ICC can only be used to charge private persons and not a State as a State
cannot be criminally responsible.
- However, violations of IHL entail the international responsibility of a State.
- Article 91 of AP 1 imposes the payment of compensation by a State responsible for
acts committed by persons in its armed forces.
- Japan’s Second World War Rape case: Japan was obligated to pay compensation
to Korea for raping captured Korean women and making them “comfort women”
during the World War.