Louv16x_chapter_1_Audit_and_verified

CHAPTER 1 : Introduction to International
Humanitarian Law
1.1. Introduction ..................................................................................................................................................…….. 3
1.1.1 Introduction ......................................................................................................................................... 3
1.2 What is International Humanitarian Law? .....................................................................................................……… 4

1.2.1 What do you think? ............................................................................................................................ 4
1.2.2 What's in a name? .............................................................................................................................. 4
1.2.3 Overview of the content and structure of the course ........................................................................ 5
1.3 Law and armed conflicts .................................................................................................................................…….. 8

1.3.1 Introduction ........................................................................................................................................ 8
1.3.2 The paradox of law in conflict ............................................................................................................. 8
What do you think? ...................................................................................................................................... 8
1.3.3 Is International Humanitarian Law really law? .................................................................................... 9
1.4 History of International Humanitarian Law ............................................................................................................ 11

1.4.1 Introduction ......................................................................................................................................... 11
1.4.2 Pre-modern developments ............................................................................................ 11
1.4.3 The development of a legal regime regulating warfare at sea ...................................... 12

1.4.4 The Lieber Code and early attempts at codification ............................................................................ 13
1.4.5 The creation of the Red Cross .............................................................................................................. 13
1.4.6 1945 to the present day ....................................................................................................................... 14
1.5 Jus ad bellum VS Jus in bello ................................................................................................................................... 16

1.5.1 Introduction .......................................................................................................................................... 16
1.5.2 Just war theories ................................................................................................................................... 17
1.5.3 Liberty to resort to war ......................................................................................................................... 18
1.5.4 Outlawry of war .................................................................................................................................... 18
1.5.5 The principles of equality and separation ............................................................................................. 19
1.5.6 Are there exceptions to these principles? ...................................................................... 21
1.5.7 Can jus ad bellum still affect jus in bello? ....................................................................... 21
1.5.8 Can violations of the jus in bello affect the jus ad bellum? ............................................. 24
1.6 International Human Rights Law VS International Humanitarian Law .................................................................... 28

1.6.1 Introduction .......................................................................................................................................... 29
1.6.2 Human Rights Law in armed conflict: legal obstacles?..................................................... 29

1.6.3 Similarities and differences ................................................................................................................... 31
1.6.4 Solution to potential conflicts: "humanitarization" at the world level ................................................. 32
1.6.5 "Humanitarization" at the regional level: America and Africa .............................................................. 34
1.6.6 "Humanitarization" at the regional level: Europe ................................................................................. 36
1.6.7 Solution to potential conflicts: "humanization" .................................................................................... 37
1.6.8 A major salient problem: lethal force .................................................................................................... 39
1
Chapter 1 – Introduction to International Humanitarian Law
1.6.9 Another salient problem: IHRL and armed groups .......................................................... 41
1.7 Wrap-up interview ................................................................................................................................................... 42

1.7.1 Interview with Prof. Marco Sassòli…………………………………………………………………………..……….………………. 42
2
1.1. Introduction
1.1.1 Introduction
Welcome to the MOOC on International humanitarian law!
The first chapter will give you the opportunity to test the complexity of the advanced version of this MOOC
and to decide whether you will opt for the advanced version and upgrade to the Verified Certificate after
that chapter. Please see the “Choose your learning track” page of that course for more information about
this option for an advanced version and the upgrading ot the Verified certificate.
The first Chapter contains advanced level parts, i.e. additional, different or more detailed parts. They are
marked by the following sign:
Those who already know that they do not want to follow the advanced version and upgrade to the verified
certificate can skip those parts. Those who still do not know about their choice may thest themselves and
go through those parts. They will have to choose between the advanced and normal versions after the first
chapter.
Regarding the substance of this chapter, we will give you a general overview of international humanitarian
law and its place in relation to other branches of international law.
We will examine the various expressions used to describe the body of legal rules and principles we will be
studying. In order to fully understand where we are today, we'll also explore the historical foundations of
international humanitarian law (or IHL).
While the course is intended to provide you with a thorough knowledge of IHL, in order to achieve this, it is
necessary to consider, as a preliminary matter, the relationship of IHL to other branches of international
law. In this respect, we will provide you with a brief overview of the relationship between IHL and the
international legal rules prohibiting interstate use of force and protecting human rights.
For all those who will follow the advanced level parts of the first chapter, please be aware that, in order to
accommodate both the introductory and preliminary topics mentioned above, this chapter is one of the
longest in the course. It is also possible that certain issues regarding the relationship between IHL and the
rules regarding the use of force and human rights may initially seem challenging. However, these issues will
become clearer as you progress through the course.
3
1.2 What is International Humanitarian Law?
1.2.1 What do you think?
What comes in your mind when you read the words "International Humanitarian Law"?
Please choose 3 words that come to mind when you think about international humanitarian law.
All of the words you have chosen will be put together in a Word Cloud. The more frequently a word is
chosen, the more prominent it will be in the picture.
1.2.2 What's in a name?
In your response to the Wordcloud, you may have used terms such as the 'law of war' or the 'laws of armed
conflict'...
These words are often treated as synonyms for international humanitarian law, particularly in the media.
However, as experts we should be cautious! Each term has its own politics and history.
In the next video we are going to examine the various terminologies for international humanitarian law.
The various titles of IHL
I am very happy to welcome you to this course, in the gardens of our Faculty, the Faculty of Law of the
University of Louvain.
We will be talking about international humanitarian law. That expression may be understood in a very
broad sense as covering any rule of international law, applying both in times of peace and war, which has a
humanitarian purpose. This would include branches of international law such as Human Rights Law, Refugee
Law, International Criminal Law and so on. It is not in this very broad sense that “International humanitarian
law” is conceived in this course. It is understood in its classical meaning as referring to that body of
international law which aims at regulating armed conflicts.
There are different expressions used to designate that body of law. The “Law of War” or “Laws of War” is
the oldest expression which is still used today. However, the “Law of War” is not the most suitable
expression for the subject of this course. “War” is an old concept in international law. Before the Second
World War, a state of war was normally created, in legal terms, by a declaration of war. A declaration of war
was simply a
statement made by a state that expressed its intention to wage war against another state. It was this formal
declaration of war that triggered the application of the “Law of War” between the belligerent states.
After the Second World War, the application of the law regulating the conduct of belligerents ceased to be
dependent upon a declaration of war, which is a rather subjective act on the part of the state. Instead,
international humanitarian law applies whenever an armed conflict occurs, and an armed conflict is a
4
material situation. This test is not only more objective but it covers a wider range of incidents of armed
violence, both between and within states. Nevertheless, when the expression “Law of war” is still used
today, particularly in the media, you should understand it as synonymous to international humanitarian
law.
The expression jus in bello is also used today to designate international humanitarian law. Given that this
expression simply means the “law in war” in Latin, you would be forgiven for thinking that it is doubly out of
date! However, jus in bello remains a useful term of art because it is often used in contradiction to the term
jus ad bellum. As we will see in detail later in the course, jus ad bellum is a set of international legal rules that
regulate the right to resort to force between states. If we use the old concept of war, we can say that the jus
ad bellum regulates whether a declaration of war was in accordance with international law, while the jus in
bello regulates the methods of pursuing the war once it has begun. It is important to remember that this
course will be limited to the jus in bello and does not cover the jus ad bellum.
After the Second World War, when the material and objective notion of armed conflict replaced the formal
and subjective notion of war, another expression has been used: the Law of Armed Conflict, or its
abbreviations: LOAC.
That expression may be found in treaties in that field and is often used in legal scholarship. A competing
expression, “International Humanitarian Law”, also emerged at that time. Initially, it was only used to qualify
that part of the law of armed conflict that deals with the protection of persons in the hands of the enemy. In
current usage, international humanitarian law is used to cover the whole body of rules regulating all aspects
of armed conflicts, including those rules that regulate the conduct of hostilities.
The use of the term “international humanitarian law” has been criticized as it is argued that not all rules
regulating armed conflict are properly humanitarian. For example, the law of neutrality, which, we will see,
regulates the conduct between belligerent and non-belligerent states, has been designed to protect
international trade, rather than people. However, the expression “international humanitarian law” has the
advantage that it emphasizes the evolution of that law, which has increasingly focused on the protection of
individuals at the expenses of military necessity.
To be in line with this current trend and also with the current scholarship, we will mainly use that expression
in our course and in particular its abbreviation “IHL”. However, keep in mind that it is synonymous with
other expressions such as the law of armed conflict, jus in bello and the laws of war, and designate the same
rules applicable in armed conflict.
1.2.3 Overview of the content and structure of the course
Armed conflicts have been an ever-present threat to human society. Armed conflicts still occur today in
many parts of the world: in particular regions such as the Levant, Africa and Asia are badly affected.
Moreover, we are witnessing the rise of new forms of armed conflict. Notably the emergence of the so-
called Islamic State has seen the rise of ad-hoc and deliberate attacks against civilians, far removed from the
battlefield. Almost every day, the media reports on actions taken in armed conflict and of the horrific
consequences of those actions.
We are sure that many of you have already noticed reports of violations of international humanitarian law
or the commission of war crimes. If you have, it is natural to wonder what this law is.
• Where to find its rules and who is bound by it? What do we mean by armed conflicts?
5
• What is its exact content and what are the legal consequences stemming from its violations?
Let's briefly address these questions in the next video, which will provide you with the general content and
structure of the course.
General overview of the course
Welcome at the Louvain House, at the top of the Aula Magna, one of the main buildings here in Louvain-la-
Neuve. Here we have an excellent vantage point to contemplate the overarching themes of the course.
In this video, we are going to give an overview of the content and structure of the whole course. The first
chapter, which is available to you now, provides an overview of some preliminary issues. We will look into
the history of IHL as well as its relationship to two other branches of international law, namely: human rights
law and the jus ad bellum.
In chapter 2, we will examine the sources and subjects of IHL: where to find that law; who created it and
who is bound by it? IHL is a specialized branch of international law; therefore, the main sources and subjects
of IHL are the classical sources and subjects of international law. This means that treaties and customary law
are the most important sources while states, as well as international organizations, are the most important
subjects. As the sources and subjects of international law are examined in depth in the University of Louvain
MOOC on international law, we will focus on the special features of IHL in relation to this issue. In particular,
this entails an examination of the legal position of armed groups. The inclusion of armed groups in the study
of IHL is becoming ever more important because today classical “international armed conflicts”, between
two or more states, are relatively rare in comparison to what we call internal or “non-international armed
conflicts”, which are contested by a state and an armed group or between armed groups.
In chapter 3, we will consider the scope of application of IHL. IHL only applies in armed conflicts. This
obviously raises the question: what is an armed conflict according to IHL? But answering that question is not
enough to identify which IHL rules apply. The extent to which those rules apply depends upon whether the
armed conflict in question may be qualified as an international armed conflict or non-international armed
conflict, or to use abbreviations, whether it may be qualified as an IAC or a NIAC. These qualifications may
seem straightforward to you but in fact they are both extremely important and very complex. For example,
how should we qualify a series of terrorist attacks conducted on the territory of one state, by groups based,
trained or funded by other states? What about the conflict in Syria and Eastern Iraq involving numerous
rebel groups including the so-called Islamic State; the governments of Syria and Iraq and a number of foreign
states? Complex questions like this also arise regarding the geographical and temporal scope of application
of IHL: how far IHL applies from the battlefield and how long it applies after the hostilities? We will try to
answer these questions in the course.
A third essential question is: what is the content of IHL? What limits does the law place on the conduct of
the belligerents in armed conflict? Generally speaking, as we will see, IHL is the result of a delicate tension
between two major preoccupations: military necessity on one hand, which means that belligerents must
have sufficient freedom to actually fight the war; and, on the other hand, humanitarian considerations which
seek to minimize unnecessary suffering. In other words, IHL is the result of an equilibrium between two
fundamental principles: the principle of military necessity and the principle of humanity.
IHL seeks to achieve this equilibrium by regulating two aspects of warfare. The first aspect, which will be
addressed in chapter 4 of this course, concerns the protection of individuals under the control of “the
enemy”. It is often referred to as the “Geneva Law” because the major treaties that govern these issues
were signed in Geneva. As you will see, the “Geneva Law” regulates a wide range of issues that arise in
6
armed conflict such as the treatment of prisoners of war; medical aid for wounded soldiers and the
detention of civilians. A significant part of the Geneva Law also deals with a particular issue, the occupation
of the territory of a state by another state. This is the law of occupation. The law of occupation sets the
duties and rights of the occupying power in relation to the occupied population. It is particularly relevant in
relation to the occupied Palestinian territories.
The second part of IHL, which will be examined in chapter 5 of this course, concerns the actual conduct of
hostilities. When we talk about IHL regulating the conduct of hostilities, what we mean is the rules regarding
who or what can be lawfully targeted and which arms or methods of warfare can be used. Can a farmer be
killed during the day when it is established that he or she is fighting with an armed group against the
government during the night? Can a school, full of children, be targeted when the commanders of the
enemy armed forces are there? Can chemical weapons be used in the hostilities in retaliation to a prior
attack by such a weapon? All those issues and many more are regulated by the part of IHL which deals with
the conduct of hostilities and which is classically called the “Hague Law.” This is because, as we will see, it is
mainly derived from treaties adopted in The Hague.
Finally, you may also wonder: “what are the legal consequences in case of violations of IHL rules?” This
question will lead us to analyse the mechanisms for implementing and enforcing IHL. In Chapter 6 of this
course, we will examine those general mechanisms provided by IHL itself, such as the International
Committee of the Red Cross, but also the responsibility of states for violations of IHL. Such responsibility is
an issue regulated by the classical international law of state responsibility. In this course, we will not study
the law of state responsibility in detail as it is covered in depth in the MOOC on international law. Instead,
we will pay particular attention to the aspects that have greatest relevance to IHL.
In the final chapter of this course, we will analyse the issue of individual criminal responsibility, that is, the
responsibility of individuals who have committed serious IHL violations which amount to war crimes. We will
analyse the notion of war crimes as well as the tribunals that are competent to try war criminals.
7
1.3 Law and armed conflicts
1.3.1 Introduction
In this section, you are invited to consider some foundational, and somewhat philosophical, questions
regarding international humanitarian law.
Don’t worry! The problems are simple to understand but defy easy answers.
1.3.2 The paradox of law in conflict
What do you think?
Do you think that it is possible for law to operate during warfare?
Please watch the extract of the film "The Bridge on the River Kwai", which suggests that international law is
not adapted to regulate war between two belligerent states.
Consider also in the same way the following statement made by Admiral Lord Fisher, First Sea Lord of the
Royal Navy in 1905 :
“The Humanizing of War! You might as well talk of the humanizing of Hell…As if war could be civilized! If I’m
in command when war breaks out I shall issue my order – ‘The essence of war is violence. Moderation in war
is imbecility. Hit first, hit hard, and hit everywhere”.
Another concern raised by the idea of regulating war is that such regulation risks legitimizing it.
The International Law Commission, a body in charge of codifying international law since 1947, has also
expressed its concern about studying the law of war at the begining of its work. Please consider the
following extract.
"The Commission considered whether the laws of war should be selected as a topic for codification. It was
suggested that, war having been outlawed, the regulation of its conduct had ceased to be relevant. On the
other hand, the opinion was expressed that, although the term "laws of war" ought to be discarded, a study
of the rules governing the use of armed force –legitimate or illegitimate– might be useful. The punishment of
war crimes, in accordance with the principles of the Charter and Judgment of the Nuremberg Tribunal,
would necessitate a clear definition of those crimes and, consequently, the establishment of rules which
would provide for the case where armed force was used in a criminal manner. The majority of the
Commission declared itself opposed to the study of the problem at the present stage. It was considered that
if the Commission, at the very beginning of its work, were to undertake this study, public opinion might
interpret its action as showing lack of confidence in the efficiency of the means at the disposal of the United
Nations for maintaining peace.”
Do you also share the views that there is a risk that, by regulating armed conflict through law, we make it
more likely that war will break out? Is it possible for violence in war to be subject to any regulation?
A twofold paradox
Welcome to the Royal Museum of Armed forces and of Military History in Brussels. As it is a very evocative
environment to consider IHL, we will return to the Museum throughout the course.
8
In the next two videos, we will address some foundational, and somewhat philosophical, questions
concerning IHL.
The first and fundamental question that IHL provokes is whether it is absurd to regulate warfare with law. In
this respect, IHL involves a twofold paradox.
The first paradox is that, by regulating and humanizing war, such law would make it more acceptable and
legitimate. In particular, this would run counter the outlawing of war and undermine the efforts made by
international organizations, such as the United Nations, to prevent armed conflicts. Yet, this does not seem
well-founded. We may first object that this is not the role of IHL to limit or temper resort to war. Its aim is
only to regulate war when it has broken in order to alleviate the suffering of victims of war. It seems
fallacious to think that it may have any impact on the occurrence of wars. It cannot increase resort to wars
and, conversely, its non-existence would not reduce such unhappy phenomenon. The application of IHL does
not imply that war is legal or that collective security mechanisms are themselves inefficient. It is based on
the mere reality that wars still occur today and that it would be disastrous to leave such phenomenon
unregulated, even when it occurs in violation of international law, when legal or political mechanisms for
avoiding it have failed.
The second apparent paradox is that IHL regulates battlefield situations which seem to be the negation of
the law. In other words, “Law” and “Armed Conflicts” would be two incompatible terms. This is what is
meant by the famous Latin formula attributed to Cicerone: “inter armas silent leges” or, in English, “Laws are
silent among [those who use] weapons”. However, this does not seem true either. War, even if it is one of
the worst situations, is still a social reality which, like any other social reality, is subject to regulations. And
constraints may indeed be considered in relation to waging war. War is not an end in itself. It is a goal-
oriented activity so that measures of violence which exceed what is necessary for achieving this goal may be
seen as superfluous and may therefore be proscribed. In addition, decisions regarding the operations
conducted in war are increasingly taken by professionals, removed from the tumult of the battlefield.
Moreover, belligerents have a common interest in limiting the scope of violence. In doing so, they protect
their soldier and civilians. They agree on not conducting unnecessary acts of violence, so they can avoid
wasting resources and retaliations. They also increase the possibility of post-war reconciliations, as such
reconciliations are easier when the hostilities were not unrestrained.
1.3.3 Is International Humanitarian Law really law?
Is IHL really law ?
Is IHL really Law? The legal nature of the rules regulating armed conflicts has sometimes been called into
question for several reasons. The main one is that it is claimed that it is frequently violated. This does not
seem to be a good reason. As a matter of fact, States and armed groups often go to considerable lengths to
adhere to rules of IHL. Many states take care to follow the legal instructions given by their legal advisers on
the subject when conducting military operations. This will become clear as you listen to the interview with a
legal adviser to the Belgian forces, Lieutenant-Colonel Christian de Cock, at the end of chapter 5 of this
course. Sometimes, states even adopt stricter rules. This is for example the case of Belgium with respect to
airstrikes against ISIL in Syria and Iraq. Belgian pilots are prohibited to cause any collateral damage to
civilians, even when such damage would be authorized under IHL.
IHL is no more frequently violated than a number of other legal norms, whose legal nature is uncontested.
The problem is that in the field of armed conflicts a single violation may have huge and disastrous
consequences and often attracts media attention. Just think of the attacks directed against medical units in
recent armed conflicts. This may give the false impression that IHL is ineffective.
9
In addition, as a matter of principle, regular violations of a rule do not deprive it of its legal character. Take
the example of national rules regulating the speed limit. They do not cease to be legal norms because they
are frequently violated. More fundamentally, any legal norm implies that it may be violated, at least to some
extent. The aim of a legal norm is to incite its addresses to adopt the behavior that it prescribes. It would be
useless for a legal norm to prescribe a behavior which is always adopted and followed.
Another criticism against the legal nature of IHL is that there is no sanction when it is violated. Again, this
does not seem to be true. It is true that there is no judicial mechanism specific to IHL to sanction violations
of that law; but there are many other ways through which such violations are legally sanctioned, including
through international criminal tribunals, the United Nations Security Council or the human right bodies. In
addition, there are not only legal sanctions. International disapproval by the world opinion may also be a
form of sanction, putting pressure on the states to respect IHL.
So why is it that we consider IHL law? The simple answer is that states accept it as such. When states are
accused of violating IHL, like international law in general, they will not argue that the violated rule, for
instance the rule against targeting civilians, is not of legal nature. Most often, they will deny the facts by
saying “we did not do what you said”; they will invoke exceptions to the prohibition or give a particular legal
interpretation of their conduct and state that it does not fall into the scope of the prohibition.
Advanced level part
For those who follow the advanced level parts, please read more about the legal status of IHL, in particular
the two views of leading scholars which you can find here (pdf file) and answer the following question.
10
1.4 History of International Humanitarian Law
1.4.1 Introduction
This section aims to provide you with a succinct overview of the history of IHL.
Throughout history, there have been various codes or recognised practices relating to the execution of
warfare. However, it is generally admitted that the modern law of armed conflict only emerged in the
second half of the nineteen century. This era saw the arrival of conscripted armies armed with advanced
weaponry forged by industrialized societies. With respect to the development of the law, the late 19th
century saw the rise of the treaty as a means of creating new obligations.
Hitherto the “Laws of War” were largely customary, thus were vague and the creation of new rules was
difficult. Embodiment in treaties meant that constraints on the use of force in war were applicable to all the
states having ratified the treaty and for all the conflicts in which they were and would be involved. This
contrasts with the limited scope of the constraints that had previously existed
These modern developments may be linked to different events. We will examine some of them, which are
of particular significance:
• the codification projects regarding IHL on land (Unit 1.4.4)

• and the creation of the Red Cross (Unit 1.4.5).
We will then turn to contemporary IHL and describe the main IHL treaties which are still applicable today
(Unit 1.4.6).
Advanced level part
For those who follow the advanced level parts, we will also briefly consider the pre-modern roots of IHL as
usages and customs pertaining to warfare ( unit 1.4.2) and another significant event to which the modern
IHL developments may be linked: the treaty regime created to regulate the law of the sea ( unit 1.4.3).
1.4.2 Pre-modern developments
Advanced level part
Almost all peoples, through time accross the planet, have accepted certain restrictions regarding acceptable
forms of warfare. Whether in China or Rome, ancient civilisations have, at least for certain periods,
recognised such restrictions. It is difficult to argue with any real conviction that modern IHL is derived from
any one of these normative systems. Indeed it is doubtful that, by todays standards, any of these systems
of rules could be described as law. For instance, both the Greeks and Romans believed that violations of the
laws of war would be sanctioned by the gods.
11
Another potential genesis of contemporary IHL is the medieval codes of chivalry. While the codes of chivalry
did regulate certain aspects of warfare, they were in fact codes of etiquette for nobles. They only regulated
warfare because war was seen as the proper pursuit of medieval lords. In reality, the rules which applied to
armed conflicts only benefitted nobles themselves.
Other examples could be cited. Please read in that regard article by C. Greenwood on that subject.
These pre-modern instances of rules regulating warfare have led to what we, today, call IHL. By contrast, as
you will see in the next three sections, developments in the 19th century set the scene for the emergence of
contemporary IHL.
1.4.3 The development of a legal regime regulating warfare at sea
Advanced level part
The first “modern” developments of IHL arose from the expansion of maritime international trade and the
corresponding need for an enhanced protection for commercial vessels. This led to the adoption of a treaty
called the 1856 Declaration of Paris, signed at the end of the Crimean War (1853-1856). The Declaration has
been argued to be the first time states used a treaty to create new rules on the laws of war. Before then
treaties had been used to cement alliances or bring wars to an end, but such agreements were concluded
without purporting to change the law itself. Certainly the Declaration of Paris was the first general IHL treaty
and was centered on the maritime law of neutrality.
The Declaration of Paris regulated three main issues.
1. First, it abolished privateering. Privateering was a former usage of war according to which private vessels
were commissioned by a belligerent government to raid on enemy shipping, including merchant vessels.
Privateering had flourished during the 16th century but remained a persistent threat. Such practice has led
to serious abuses; privateers were motivated by financial gain – under their commissions they were entitled
to keep a proportion of the “prizes” they captured. Therefore, privateers frequently failed to respect the
laws of war and made no distinction between friendly and enemy shipping.
2. The second issue regulated by the Declaration of Paris was the seizure of neutral goods on enemy vessels
or enemy goods on neutral vessels. Such seizures were prohibited unless the goods were contraband of
war; in other words materials that were necessary or at least useful in the prosecution of the war. Merchant
goods were therefore protected against any seizure by the belligerents.
3. The third issue concerns maritime blockades. The Declaration of Paris provides in that respect that
maritime blockades are binding only if they are effective “that is to say, maintained by a really sufficient
force to prevent access to the coast of the enemy”. Blockades have often been used in the past to cut off
maritime communication and supply. The Declaration intends to put an end to the past practice in which
belligerent resorted to a blockade in order to control international maritime commerce even when they
were not able to enforce the blockade. The ban on ineffective blockades was, again, symptomatic of the bias
towards the protection of trade rather than seeking to mitigate the effects of war on civilians.
The maritime law of neutrality and, more generally, the Law of neutrality were both further developed at
the international conference held at The Hague in 1907. Several treaties, which are still in force today, have
12
been adopted on that subject at that conference. This conference was part of a second round of a cycle of
three conferences convened by Russian Tsar Nicholas II: the first conference was held in 1899; the second in
1907 and the third one did not take place since it had been planned in 1914, when WWI outbreaks.
The Law of neutrality is mainly based on the liberty of non-belligerent states to participate or not in an
armed conflict and their right not to be adversely affected by the conflict if they chose not to participate.
However, today the discretionary right to participate in armed conflicts has been significantly curtailed. This
is mainly due to the existence of the UN collective security system, which may require states to take a side in
an armed conflict or forbid trade with one or more of the belligerents. More generally, the importance of
neutrality has been undermined by the prohibition on the use of force under the UN Charter. The cumulative
effect of these more recent developments means that neutrality is less significant than it was in the past,
although it is not obsolete. We will not be addressing the law of neutrality in depth during this course, but
you may read an article written by Michael Bothe on that subject ("The Law of Neutrality", in D. Fleck (ed.),
The Handbook of International Humanitarian Law, 2nd ed, 2008, §§1101-1155).
1.4.4 The Lieber Code and early attempts at codification
The Lieber Code
One of the most important developments of IHL occurred in the context of the American Civil War. During
that war, Francis Lieber, a professor at Columbia University in New York, was asked by the general-in-chief of
the Union forces, General Halleck, to compile all the existing customary laws of war. Besides having served
as a soldier into two conflicts as a young man, Francis Lieber had gone onto becoming a well-known
specialist in the law of war. Lieber took advantage of the interest expressed by General Halleck and
suggested that a code be created. A code would simplify the complex range of customary rules making it a
more useful guide for the officers of the Union forces during the Civil War. The code, completed in 1863,
contained 157 articles and covered many areas. It was the first attempt to codify the laws and customs of
war.
The Lieber Code has had a great influence. In particular, it formed the basis of a draft convention adopted at
an international conference held in Brussels in 1874. Although that convention was not ratified by the states,
and so never became legally binding, its content was closely reflected in the 1880 Oxford Manual on the
laws of land warfare, prepared by the then newly-formed Institute of International Law. The Oxford manual
was, however, only the recommendations of a professional body and as such the text did not constitute a
source of law. Nevertheless, the broad similarities between the three documents were clear evidence of a
growing consensus regarding the content of the customary laws of armed conflict. This consensus was finally
encompassed within legally binding international treaties during the Hague conferences of 1899 and 1907. A
convention on the laws and customs of war was indeed adopted in 1899 and was revised in 1907. That
revised convention remains valid law today. Thus the ongoing relevance of that Convention demonstrates
just how influential the Lieber Code has been on contemporary IHL.
1.4.5 The creation of the Red Cross
The birth of the Red Cross
The final major development that led to the emergence of a modern law of armed conflict is also related to a
specific armed conflict, the battle of Solferino in June 1859, where France was helping Sardinian forces to
push back Austria from the North of Italy. Henri Dunant, a young Swiss businessman who was seeking a
meeting with Napoleon III regarding business opportunities in French colonies, caught up with the French
13
royal entourage in the immediate aftermath of the battle. Dunant was shocked and dismayed by the
thousands of wounded soldiers who were left dying on the ground without water, food or medical care. The
number of the medical military units on both sides was insignificant and those units that existed were
quickly overwhelmed. Dunant therefore organized a group of volunteers to provide assistance to these
soldiers.
In 1862, back in Geneva, Dunant published A memory of Solferino in which he described what he saw and
made some suggestions, including the establishment, in time of peace, of relief societies in each country
which would provide care for the wounded in time of war. This book had a great impact all over Europe. In
Switzerland it was received positively by the Geneva Society for Public Welfare. The Society’s President,
jurist Gustave Moynier, decided to create, in 1863, a Commission in order to formulate plans for the
implementation of Dunant’s ideas. This commission, composed of Gustave Moynier, Henri Dunant and three
other important Swiss men, was named the “International Committee for the relief of wounded military”. It
is the ancestor of the present-day “International Committee of the Red Cross”, which is normally referred to
as the ICRC. Some months after its creation, the International Committee managed to gather together a
significant number of representatives of European governments. Collectively, those present at the meeting
resolved to implement a number of proposals to ameliorate the condition of those wounded in conflicts.
These proposals included Dunant’s proposition regarding the creation of national committees for the relief
of wounded military: the recognition of the central role of the Geneva Committee and the adoption of the
red-cross sign as the distinctive sign of the medical personnel.
Under the pressure of the International Committee, the Swiss Government convened an international
conference to adopt a binding treaty in place of the political commitments expressed in 1863. The
Conference was a success and led to the adoption of the 1864 Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field. Contrary to the 1899 and 1907 Hague Conventions on the
laws and customs of war, the 1864 Convention was only focused on the protection of persons and not on the
conduct of hostilities. Because of this emphasis, the 1864 Convention is widely regarded as the first
humanitarian convention on the laws of armed conflict. The 1864 Convention has been subject to a number
of developments. For instance, in 1899, its provisions were adapted to regulate armed conflict at sea
according to similar principles. On land, the Convention was amended in 1906, 1929 and finally in 1949.
1.4.6 1945 to the present day
The current core of IHL treaties
The final part of our history of IHL focuses on the adoption of the IHL treaties which are still in force today. In
other words, we will briefly look into the origins of many of the rules that we will be studying for the rest of
this course. As we have already seen, several IHL treaties have been adopted before the First World War.
We may notice in that respect that the 1907 Hague Convention on the laws and customs of war, including its
annexed Regulations, is not only an important landmark in the development of IHL but is also binding law
today. The 1907 Convention regulates many aspects of the conduct of hostilities and occupation in
contemporary conflicts.
Another major component of the corpus of contemporary IHL treaties are the four Geneva Conventions
adopted in 1949, just after the Second World War. The “Geneva Conventions” of 1949 were adopted in
order to prevent the abuses seen during that war. The “Geneva Conventions” contain hundreds of
provisions, all dealing with the protection of persons rather than the conduct of hostilities. The two first
conventions concern the protection of wounded and sick in armed forces in the field and at sea,
respectively. They result from the revisions of former conventions on that subject. The third one deals with
the protection of captured combatants, who are entitled to the status of prisoner of war. This is a
14
fundamentally revised version of the 1929 Geneva Convention. Only the fourth Geneva Convention adopted
in 1949 introduced a wholly new category of “protected persons;” namely civilians. The development of new
forms of weaponry and the embrace of a “total war” philosophy meant that the Second World War affected
a far higher proportion of ordinary civilians than conflicts in the recent past. The vast majority of the four
Geneva Conventions apply only to international armed conflicts. Only one provision is applicable to non-
international armed conflicts. This is Article 3 and, as it is written in the same way in all the four conventions,
it is generally called “Common Article 3”. Common Article 3 to the four Geneva Conventions is a
rudimentary provision and grants only the most basic protection.
Despite the radical overhaul of the “humanitarian” aspects of the law of armed conflict in the wake of the
Second World War, it quickly became clear that this body of rules – focused almost entirely on international
armed conflicts – was unfit for purpose. This was because by the 1970s it was clear that classical
international armed conflicts were becoming quite rare. Many post-WWII conflicts were colonial in origin,
where peoples subjected to foreign rule fought for their liberation. These wars of national liberation raised
significant questions for IHL, for example the status of freedom fighters and the qualification of their
struggle against colonial regimes. Questions such as these were addressed through the creation of a first
Additional Protocol to the four Geneva Conventions in 1977. However, that Additional Protocol was mainly
intended to complement and update both the 1907 Hague Convention and the four 1949 Geneva
Conventions. In other words, unlike previous conventions, it sought to regulate both the conduct of
hostilities and the protection of persons in the hands of the enemy.
The increasing number of wars that were purely internal in nature, often termed “civil wars”, also
undermined the prominence of the traditional, international armed conflict. The previous regulations made
little provision for internal armed conflicts and so there was an urgent need for additional protection. This
led to the adoption, also in 1977, of a second Additional Protocol to the four Geneva Conventions. The
provisions of this Protocol also deal with both the protection of persons (and therefore complement
Common Article 3) and the conduct of hostilities. The initial draft of Protocol II, prepared by the ICRC,
contained hundreds of provisions. However, it was significantly shortened during the negotiations between
states because governments were reluctant to encourage and/or legitimize resistance to their rule.
Lastly, a number of specific conventions have also been adopted on a diverse range of subjects. The subject
matter ranges from conventions on the protection of cultural property to treaties that prohibit certain
weapons. Moreover, texts have been adopted in order for IHL to apply to other actors than States, in
particular the United Nations, while non-state actors have agreed to abide to the obligations of IHL through
special agreements or declarations. However, when we talk generally about the core of IHL treaty law
applicable today, we are often referring to the 1907 Hague Convention on the Laws and Customs of War, the
four 1949 Geneva Conventions and the two 1977 Additional Protocols to those Conventions.
15
1.5 Jus ad bellum VS Jus in bello
1.5.1 Introduction
In this section, we will examine the interactions between the jus ad bellum and the jus in bello. But what's
jus ad bellum?
1. Jus ad bellum
Jus ad bellum is a branch of international law which refers to the regulation of the lawful grounds for the
use of force between states. Jus ad bellum regulates interstate resort to force.
It is distinct from jus in bello, as the latter refers to the laws which regulate the hostilities once they have
broken.
Under contemporary jus ad bellum, there is a general prohibition on the use of force (Art. 2, §4 of the UN
Charter). However, there are three undisputable situations in which use of force is allowed:
• the first is self-defense, when a state – either individually or collectively – resorts to force in
response to an armed attack. (Art. 51 of the UN Charter)
• the second arises when the UN Security Council authorizes states to use force in response to “any
threat to the peace, breach of the peace, or act of aggression." (Chapter VII of the UN Charter)
• the third is when a state consents another state's use force within its territory.
This is in light of those rules that many military interventions have been condemned by states or lawyers,
including, for example, the US intervention in Iraq in 2003.
We must also add that certain lawyers and states have argued for other situations in which force would be
allowed under international law, such as the right to humanitarian intervention, that is the right to use
force for humanitarian purpose on the territory of another state even without any authorization of the UN
Security Council and without the consent of that state. However, as we will see in the video of Unit 1.5.5,
such position is very controversial and does not seem to be established under the current state of
international law.
That being said, the purpose of this section is not to examine jus ad bellum in detail. The object is to examine
the relationships between the two bodies of law.
2. Relationships
We will first consider the impact of the evolution of the jus ad bellum on the jus in bello. We will address
that issue by dividing the history of the jus ad bellum into three main 'epochs'.
1. The first epoch lasted from the middle ages until around the 18th century and was defined by the theory
of 'Just War.' In this epoch, international law was biased towards the 'just' belligerent (Unit 1.5.2).
16
2. The second epoch lasted from the abandonment of the theories of 'Just War' until WWI and was notable
for the agnosticism with which international law treated the outbreaks of war. Nevertheless, as we know
already, it was also the period whereby modern IHL took root (Unit 1.5.3).
3. Lastly we will examine the moves towards the outlawry of war which took place at the start of the 20th
century which laid the foundation for the prohibition of war under the UN Charter (Unit 1.5.4).
As you will see, the evolution in the legal status of war had a significant impact on the nature of the laws of
war. Interestingly, we will see the emergence of a common theme: namely that limits imposed on states to
go to war historically had negative effects on the developments of international humanitarian law.
Those negative effects remained until the principle of a clear separation between jus ad bellum and jus in
bello was widely accepted. This is referred to as the principle of separation. We will analyse in depth that
principle as well as its corrolary, i.e. the principle of equality of belligerents, in another unit of that section
(Unit 1.5.5).
Advanced level parts
For those who follow the advanced level parts, we will examine some issues with respect to which the
principles of equality and/or separation have been called into question ( Unit 1.5.6)
• due to alleged remaining influences of jus ad bellum on jus in bello ( Unit 1.5.7)
• or, in the reverse, due to alleged influences of jus in bello on jus ad bellum ( Unit 1.5.8).
1.5.2 Just war theories
The very first limitations on interstate use of force date back to theories of “just war”, which had existed
since antiquity, but were mainly developed in the Middle Age by the Christian church, notably in relation to
religious wars such as the crusades. According to those theories, in so far as a war was just, it was legal. For
example, according to a Christian thinker such as Thomas Aquinas a war was just when it was authorized by
a lawful authority, it intended to achieve a “just” outcome and its ultimate aim was to restore peace.
It was therefore, theoretically at least, possible to distinguish between the just belligerent, whose cause for
resorting to war was just, from the unjust belligerent, whose cause was unjust. Once it was possible to
distinguish between these two types of belligerents, thinkers often gravitated towards the view that the
“just belligerent” should be privileged to the extent that it should not be subject to all the constraints under
the jus in bello. The “unjust belligerent” by contrast was to bear the full weight of the law. This sort of
argument is termed the asymmetrical application of the law of war.
Despite holding a certain superficial attractiveness, the idea of an asymmetrical application of jus in bello in
favor of the just belligerent was a clear obstacle to both the application and development of jus in bello.
The first problem with an asymmetrical application of jus in bello is that it could prove very difficult to
establish which party’s cause was “just” and would therefore enjoy the privileged status of “just belligerent”.
17
This was particularly difficult because many just war theories involved a very personal sense of grievance
and so were highly subjective. Unsurprisingly, it was rare for warring states to agree as to whose cause was
“just.” This is still valid today.
The second problem with an asymmetrical application of the jus in bello is that it runs against the idea of
mutuality, reciprocal assertions of right and reciprocal expectations of protection, which is at the basis of
respect for jus in bello. Basically, belligerents were ready to respect jus in bello because they expected that
the enemy would do the same toward them. Any asymmetrical application of jus in bello would expect one
belligerent to respect the full jus in bello obligations that its enemy is free to disregard. Given the importance
of small advantages in war, there would be little incentive for the state with more onerous obligations to
comply with them. This in turn would create the risk of a downward spiral in terms of compliance with the
rules.
1.5.3 Liberty to resort to war
After the just war theories were rejected because of their subjectivity, any attempt to regulate the grounds
for lawful warfare was abandoned. During the 19th century, and up until the end of the First World War,
states enjoyed complete liberty to declare war.
Although it may seem alien to us, it is extremely important to be aware of this fact in order to understand
the development of IHL. States did not have an express right to wage war against each other under
international law. International law was simply silent on the subject. International law regulated interstate
relations both in times of peace and during war but had nothing to say about the passage from peace to war.
War was simply seen as an unfortunate event which international law was indifferent to.
It was therefore impossible to distinguish the just or legal belligerent from the unjust or illegal belligerent
under jus ad bellum. Likewise, there were no grounds to argue for an asymmetrical application of jus in
bello. It is no accident that modern jus in bello emerged during this period of time. As you will recall, it was
during this time that the first general conventions were adopted in IHL, precisely when jus ad bellum and
ideas of asymmetrical application could not act as an obstacle.
1.5.4 Outlawry of war
In the wake of the First World War, a more restrictive approach to the jus ad bellum emerged. The League of
Nations, with its Assembly, was created in 1919 and the Covenant of the League of Nations – its constitution
– placed restrictions on the freedom of states to resort to war. The Covenant obliged states to at least
attempt to settle their disputes peacefully, before resorting to the use of force. States were obliged to refer
disputes to institutions such as the Permanent Court of International Justice or the Council of the League of
Nations. It is only when they did not succeed in settling their disputes by peaceful means - and following the
lapse of a ‘cooling-down’ period of two months - that they recovered their liberty to go to war. Therefore, if
we read the Covenant, there was no prohibition on use of force but instead an attempt to limit outbreaks
of war. However, looking at the practice and statements of the member states of the League, it may be
argued that the provisions of the Covenant were, over time, interpreted by the member states as a general
prohibition on use of force.
It is also worth mentioning the Kellogg-Briand Pact, which was signed by France and the US in 1929. That
Pact entailed the renouncement of the right to resort to war between its two signatories. Although the Pact
was bilateral in the origin and prohibited war rather than any interstate use of force, almost all states
signaled their intent to adhere to it and the notion of “war” was understood in a general way as meaning any
use of force.
18
While the true meaning of these texts was ambiguous, the inter-war saw a genuine movement towards the
prohibition of war. At the very least, this movement saw the return of the idea that one belligerent’s cause
may be more just than the others. As this prospect emerged, so did the idea of an asymmetrical application
of the law of armed conflict. Again jus ad bellum could act as an obstacle against the development of jus in
bello.
The complete failure of the inter-war system to prevent the outbreak of war led to a stronger commitment
to international institutions and a more robust legal regime in order to prevent future conflicts. Under the
Charter of the United Nations, which was founded in the wake of the Second World War, the use of force
was declared illegal under international law. Only two exceptions existed: self-defence against an armed
attack and authorization by the UN Security Council. It is therefore possible to distinguish between the legal
belligerent, who used force only in self-defense or under a Security Council authorization and the aggressor
state. The idea of asymmetrical application of jus in bello in favor of the legal belligerent remained for a long
time and was particularly present at the time of the work of the United Nations General Assembly on the
definition of aggression. It is only in the seventies that such idea would be completely abandoned and that
jus ad bellum and jus in bello would be clearly separated from each other.
1.5.5 The principles of equality and separation
In recent years there has been an increasing movement towards the principle of the equality of belligerents
and the separation of the jus ad bellum and the jus in bello.
1. The principle of equality of belligerents
We can see textual evidence of this principle of equality in the preamble to the Additional Protocol I of the
four Geneva Conventions, which reads:
“the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all
circumstances to all persons who are protected by those instruments, without any adverse distinction based
on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the
conflict”.
In other words, the jus in bello was to be fully applicable to all belligerents irrespective of the legality of
their resort to force under jus ad bellum, i.e. irrespective of whether they are aggressor or not under that
regime. The jus in bello rights and obligations are the same for all the belligerents. That is the principle of
equality of belligerents.
What’s the legal basis of the principle of equality of belligerents? It is true that the principle of equality of
belligerents is provided in the preamble of Protocol I to the four Geneva Conventions, but the legal effect of
the preamble is controversial. Interestingly, during the preparatory works of the Protocol, some states
proposed to add a provision in the treaty setting the principle of equality of belligerents. The proposal was
rejected - it was considered unnecessary since the principle was already stated in the preamble. Thus, we
can see that the negotiators therefore interpreted the preamble as having a binding force similar to that of a
provision of the treaty.
In addition, as has been argued by a wide range of both states and scholars, the principle of equality of
belligerents could also be directly inferred from some provisions of the four Geneva Conventions, in
particular:
19
- Article 1, which is common to the four Geneva Conventions and which provides that state parties must
respect the conventions in all circumstances; this would mean irrespective of the legality of their use of force
under jus ad bellum;
- Article 2, which is also common to the four Geneva Conventions and which makes their application
dependent upon objective and concrete situations - in particular, the existence of armed conflict - and not
upon the causes or objectives of the uses of force.
Moreover, the principle of equality of belligerents is considered by many states and scholars to be a rule of
customary international law.
2. The principle of separation
The principle of equality of belligerents is now generally considered as being part of a more general principle
which characterized the relationships between jus ad bellum and jus in bello: the principle of separation
between these two fields of international law.
This principle of separation has a number of important implications.
1) Firstly, it means that the application of jus ad bellum does not legally imply the existence of an armed
conflict under jus in bello and vice-versa.
For example, a state may furnish arms to an armed group fighting against another state. This will amount to
a violation of the prohibition on use of force under jus ad bellum, but, as will be detailed later, this does not
lead to an armed conflict between the two states and to the application of jus in bello to them.
This does not however mean that one element relevant for the application of jus ad bellum, such as the lack
of consent of a state for military operations on its soil, cannot be also relevant for the application of jus in
bello. This will be discussed in chapter 3 on the scope of application of IHL.
2) The principle of separation implies that respect for jus in bello cannot legalize the use of force prohibited
under jus ad bellum. This is not because states respect jus in bello when intervening in the territory of other
states that their intervention are necessarily lawful under jus ad bellum. This must be assessed in light of the
jus ad bellum rules.
3) Last but not least, the principle of separation also means that violations of jus in bello do not legally
imply violations of jus ad bellum and vice-versa, as the content of their norms are distinct even if they may
overlap.
4) Finally, the principle of separation means that violations of jus in bello cannot themselves justify any
resort to force under jus ad bellum. However, recent military interventions having a humanitarian purpose,
such as the 2011 intervention in Libya (the purpose of which was officially to protect civilians) have led
scholars to argue that jus in bello could influence jus ad bellum, to the extent that jus in bello violations could
justify resort to force under jus ad bellum. This seems to run counter the principle of separation, by making
jus ad bellum dependent upon jus in bello.
20
These two latter implications will be specifically dealt with under the following units ( Units 1.5.7 and
1.5.8), for those who follow the advanced level parts.
Read the following extract from the judgment of Fonfana and Kondewa before the Special Court for Sierra
Leone (SCSL). Both defendants were military commanders of the Civil Defense Forces (CDF). The CDF had
helped the army of Sierra Leone fight against the Revolutionary United Front (RUF), supported by Liberia, in
the civil war in Sierra Leone.
"In the opinion of the Appeals Chamber, it is manifestly incorrect to conclude that widespread or systematic
attacks against a civilian population cannot be characterized as crimes against humanity simply because the
ultimate objective of the fighting force was legitimate and/or aimed at responding to ‘aggressors’. The
Appeals Chamber deems it necessary to emphasise that rules of international humanitarian law apply
equally to both sides of the conflict, irrespective of who is the “aggressor”, and that the absolute prohibition
under international customary and conventional law on targeting civilians precludes military necessity or any
other purpose as a justification (…)".
1.5.6 Are there exceptions to these principles?
Advanced level part
While the principle of equality of belligerents and the principle of separation between jus ad bellum and jus
in bello have become widely accepted, new developments have led to fresh calls for the jus in bello to be
made subject to the jus ad bellum, and vice versa.
We will therefore examine the two following questions in the next units:
• Can jus ad bellum still affect jus in bello? ( Unit 1.5.7)
• Can violations of the jus in bello affect the jus ad bellum? ( Unit 1.5.8)
1.5.7 Can jus ad bellum still affect jus in bello?
Advanced level part
Despite the general principles of equality and separation, there remain a small number of circumstances
where jus ad bellum is argued to impact on the application of jus in bello.
We will analyze two main issues in that respect.
1. The first one, which is developed in the next video, concerns the relationship between the objective which
may be pursued under jus ad bellum and the notion of military advantage under jus in bello.
21
2. The second one is related to the legality of the threat or use of nuclear weapons.
Influence of jus ad bellum on jus in bello?
Recent military interventions, including the NATO airstrikes in Libya in 2011 in order to protect civilians, have
led scholars to ask again whether the jus ad bellum may influence the jus in bello. It has been suggested
that the notion of military advantage, which belongs to jus in bello, is dependent upon the legal basis for the
military intervention, which belongs to jus ad bellum.
The notion of military advantage is a very important notion under jus in bello. It plays two main roles: firstly
in determining legitimate targets and secondly in assessing the proportionality of civilian destruction caused
by an attack. These concepts will be examined in depth in the chapter on the conduct of hostilities. At
present, a brief explanation will be sufficient.
Firstly, the concept of military advantage is a crucial component of the definition of the notion of military
objective. This is important because only military objectives may be subject to attack. What is a military
objective? It is an object which contributes to the military capacity of the attacked state and whose
destruction gives a specific military advantage for the attacking state. It is necessary for both elements to be
present for the attack to be lawful under IHL.
Secondly, the notion of military advantage also plays a role in assessing the proportionality of an attack.
Proportionality is one of the key concepts of IHL and considers the question of whether the collateral
damage caused by an attack to civilians or civilian objects are excessive or not. An attack will only be lawful if
it does not cause excessive harm to civilians. Damage to civilians or civilian objects will be considered as
excessive if they are out of proportion with respect to the military advantage anticipated from the attack.
Generally speaking, the greater the military advantage is, the more the collateral damage is authorized
under jus in bello.
Under jus ad bellum, military interventions may be authorized to pursue specific aims, for example
humanitarian aims. This was the case in the 2011 intervention in Libya, which was authorized by the UN
Security Council resolution 1973. The objective of this resolution was the protection of civilians against
threat of attacks.
It has been argued by some commentators that, in interventions like in Libya, the military advantage of an
attack under jus in bello should be defined by reference to the specific objective of the intervention
authorized under jus ad bellum, rather than in relation to the general military and strategic aim of defeating
the enemy. Let’s take the example of the destruction of a bridge. The destruction of a bridge may contribute
to defeat the enemy and thus be legal under IHL in classical armed conflicts; however proponents of this
restrictive view would argue that the destruction of this bridge would only be legal under IHL if it contributes
to the humanitarian objectives of the military intervention.
This position is certainly commendable in some respects; its purpose is to give a stricter definition of the
notion of military advantage. This may reduce the number of military objectives which may be targeted or
the extent of collateral damage to civilians and civilian objects that are permissible.
However, this restrictive view raises serious issues.
Firstly, a requirement that objects be qualified according to the underlying objectives of the military
intervention may introduce in jus in bello, requirements which are vague and subject to different
22
interpretations. As in the case of the intervention in Libya, which led to the fall of Kaddafi, it may be very
difficult to establish the real purpose of the intervention: in that case, the protection of civilians or regime
change?
Secondly, while attractive, this restrictive view runs against current practice. In that regard, we may refer to
the Statute of the International Criminal Court and to the document which defines the crimes for which the
Court is competent. This document provides that the notion of “military advantage” (and I quote it) “does
not address justifications for war or other rules related to jus ad bellum”. So the notion of military advantage
must be clearly separated from any considerations pertaining to jus ad bellum.
Thirdly, under the proposed restrictive view, the military objectives which could be targeted, and the
collateral damage which could be caused would potentially vary according to the belligerents. Jus in bello
would be more stringent in that respect for states whose military intervention would pursue a humanitarian
purpose under jus ad bellum. This would break the symmetrical application of jus in bello between
belligerents and create advantages to aggressor states. This would be dangerous for the functioning and
development of IHL.
In any case, military operations conducted in the framework of a foreign intervention will have to respect
both jus in bello and jus ad bellum. This would mean that, although the destruction of a military objective
would be legal under jus in bello, it may be illegal under jus ad bellum if it did not fall within the specific
mandate of the intervention. The operation will therefore have to be considered as illegal under
international law in general.
The second issue where it has been asserted that jus ad bellum may impact on the application of jus in bello
concerns the use of nuclear weapons. This view is primarily based on an interpretation of the 1996 Advisory
Opinion issued by the International Court of Justice on the legality of the threat or use of nuclear weapons.
In this Opinion, the majority of the Court concluded, with the casting vote of the president, that “the threat
or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed
conflict, and in particular the principles and rules of humanitarian law [jus in bello];
However, in view of the current state of international law, and of the elements of fact at its disposal, the
Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake
[jus ad bellum]”.
This has been interpreted by some as meaning that if the use of nuclear weapons conformed with jus ad
bellum - in particular in the exceptional circumstances of self-defence mentioned by the Court - then
belligerents would be released from their obligations to respect jus in bello rules. Jus ad bellum would
therefore impact on the application of jus in bello.
However, this interpretation is controversial. While being a plausible reading of the paragraphs in question,
it does not seem compatible with the rest of the Advisory Opinion. Elsewhere, the Court argues that any use
of force must respect both jus ad bellum (in particular the law of self-defence) and jus in bello in order to be
legal.
Actually, one may envisage – at least from a theoretical point of view – that the threat or use of nuclear
weapons might be legal under both jus ad bellum and jus in bello at the same time.
• First, the Court did not conclude that the use of nuclear weapons was always illegal under jus in
bello but only generally illegal, notably vis-à-vis cardinal jus in bello principles which protect civilians.
23
The Court indicated that it could not conclude with certainty that the threat or use of nuclear
weapons would necessarily be contrary to these principles in any circumstance. This suggested that
the use of nuclear weapons could be in compliance with them in certain circumstances.
• Second, the Court made a similar statement regarding the condition of proportionality under the law
of selfdefence (jus ad bellum). That condition requires that the action of self-defence, including its
effects to the aggressor State, is proportionate to its aim, i.e. the protection of the State against an
armed attack. If the scale and effects of the action in self-defence are excessive in relation to the
objective of protection, the action will be considered as disproportionate and unlawful. The Court
concluded that it could not say with certainty that the use of nuclear weapons would necessarily
be contrary to that condition of proportionality under jus ad bellum, suggesting that it could be
compatible with the condition in certain limited cases.
It is therefore possible that the threat or use of nuclear weapons may be legal at the same time under both
jus in bello and jus ad bellum, precisely in the specific case that the Court mentions:
“an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.
Indeed, in such circumstances, survival constitutes such a fundamental objective that it could justify both
seriously affecting the aggressor State in accordance with the condition of proportionality under jus ad
bellum and causing significant damages to civilians in accordance with jus in bello, in particular the condition
of proportionality of that law.
In any case, one may not read the conclusions of the Court as meaning that jus in bello requirements would
necessarily be violated when nuclear weapons would be used in conformity with jus ad bellum.
Read the following extract from the dissenting opinion of Judge Koroma appended to the ICJ’s Advisory
Opinion on the legality of the threat or use of nuclear weapons:
“Regrettably, the Court refrained not only from performing its judicial function, but, by its "non-finding",
appears to have made serious inroads into the present legal restraints relating to the use of nuclear
weapons, while throwing the regime of self-defence into doubt by creating a new category called the
"survival of the State", seen as constituting an exception to [...] the principles and rules of humanitarian
law”.
1.5.8 Can violations of the jus in bello affect the jus ad bellum?
Advanced level part

So far, we have only considered the influence that the jus ad bellum may have upon the jus in bello.
However, we can now ask the reverse question: are there any situations where violations of the jus in bello
may affect the jus ad bellum? We will examine two issues in that respect.
1. We will first deal with the issue of the influence of jus in bello in assessing the condition of proportionality
under jus ad bellum.
24
2. We will also address, in the next video, the use of jus in bello violations for justifying resort to force under
jus ad bellum.
Influence of jus in bello in assessing proportionality under jus ad bellum?
In recent years, a number of scholars have argued that fulfillment of the condition of proportionality under
jus ad bellum depends upon the respect of requirements of jus in bello related to the conduct of hostilities.
In that sense, an action in self-defence may be considered to be proportionate only if it respects the
pertinent requirements of the jus in bello.
This position – whereby the proportionality of the use of force is dependent on its conformity with the jus in
bello – increased in popularity following the 2006 Israeli intervention in Lebanon. In the 2006 conflict, Israel
acted in self-defence, responding to attacks committed by Hezbollah from Lebanese territory. Many States
condemned the disproportionate nature of the Israeli intervention because of the significant damages
caused to civilians and civilian objects.
Again we can find a measure of textual support for this view in the International Court of Justice’s 1996
Advisory Opinion on the legality of the threat or use of nuclear weapons. The Court stated that
“a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the
requirements of the law applicable in armed conflict which comprise in particular the principles and rules of
humanitarian law”.
Some scholars have interpreted this as meaning that “in order to be proportionate [under jus ad bellum], [a
use of force had to] respect international humanitarian law”.
In so far as we wish to limit the discretion of states to wage war, this position is certainly commendable:
making the condition of proportionality stricter under jus ad bellum by making it dependent upon jus in bello
requirements. However, on closer inspection, this argument is open to criticisms.
It is true that jus ad bellum, in particular the law of self-defence, does not only regulate the outbreak of the
hostilities between States but also the military operations of the State acting in self-defence during those
hostilities. It does so through the condition of proportionality. As you know, this condition requires
selfdefence, including its effects on the aggressor State, to be proportionate to its aim, i.e. the protection of
the State against an armed attack. If the scale and effects of the action in self-defence are excessive in
relation to the objective of protection, the action will be considered as disproportionate and unlawful. In
other words, the condition of proportionality imposes some constraints similar to those required under jus
in bello, including limitations on the damages caused to civilians, the methods of warfare, the targets, etc.
However, those material facts are taken into account in a very different way.
With respect to jus ad bellum, the proportionality of the methods of war is taken into account at the level
of the military intervention as a whole and, especially, in the assessment of the relation between that
intervention and its objective. Those methods of war are referred to in order to assess whether the
magnitude of the military intervention as a whole was proportionate. In other words, the important question
is whether the objectives of the use of force were within the discretion afforded by international law. Let’s
use the example of self-defence to elaborate this point. In the event of an illegal armed attack by one state
on the territory of another, the victim state is entitled to employ the force necessary in order to end the
attack. It is not entitled to carry out violent and punitive reprisals once the enemy has been repelled from its
territory. This is the requirement imposed by the condition of proportionality under jus ad bellum. The
primary underlying logic of this requirement is not to protect individuals - even if it does so indirectly - but to
be sure that a military intervention remains in the limits of the law.
25
This is very different regarding jus in bello. The damages caused to civilians, the means of warfare and the
nature of the targets are taken into account not in relation to the military intervention as a whole but in
relation to each military operation conducted as part of the general intervention. The primary underlying
logic of that regulation is not to safeguard international peace and security but to protect individuals.
Read the following statement made by France about the military action undertaken by Israel in self-defence
in Lebanon to respond to attacks committed by Hezbollah from the Lebanese territory (UN Doc S/PV.5489,
14 July 2016, p. 17):
“Israel has the right to defend its territory and its citizens when they are attacked — and they have been
attacked. But we condemn the disproportionate nature of the response, which has already claimed many
civilian victims and has caused significant material damage. In its breadth and its nature, the Israeli response
threatens to erase efforts undertaken by the Lebanese Government to restore the country’s economy and to
restore State authority throughout the territory.”
Influence of jus in bello on jus ad bellum?
In recent years, again in light of military interventions having a humanitarian purpose, such as in Libya in
2011, scholars have advocated a new way in which the jus in bello may allegedly influence the jus ad bellum.
Proponents of this view argue that violations of the jus in bello may justify resort to force under jus ad
bellum.
However, this claim is difficult to support either according to treaties or customary international law.
Generally speaking, any resort to force cannot be made lawful merely by reference to its objectives, for
example by arguing that force is used to put an end to serious jus in bello violations. Article 5, §1 of the
UNGA Resolution 3314, which defines the notion of aggression, expressly provides that (and I quote it) “[n]o
consideration of whatever nature, whether political, economic, military or otherwise, may serve as a
justification for aggression”.
It is true that jus in bello violations may play a role in triggering some existing jus ad bellum mechanisms. This
may be the case under the UN collective security system. There have already been incidents where the UN
Security Council considered that a situation in which jus in bello violations were occurring amounted to a
threat to international peace and security; and, consequently, it adopted sanctions against States and
authorized to use force. This was for example the case of Bosnia and Herzegovina in 1992, where serious IHL
violations led the UN security Council to adopt sanctions against former Yugoslavia. However, the decision,
on the part of the UN Security Council, whether to take action or not, is a political decision. The Security
Council has a discretionary power with respect to identification of threats to international peace and
security. Sanctions by the Security Council are by no means an automatic consequence of violations of the
jus in bello. More fundamentally, the Security Council is not devoted to sanction violations of international
law, and jus in bello in particular, but rather to protect international peace and security.
Some claim that states may also use force for humanitarian purpose on the territory of another state even
without any authorization of the UN Security Council and without the consent of that state. According to this
perspective, states would have a right to humanitarian intervention. However this is a very controversial
position, in light of both the existing legal texts and current state practice. In contrast to the UN collective
security system, such unilateral military intervention for humanitarian purposes does not seem to be
established under the current state of international law.
26
In order to avoid the dangers inherent in the notion of humanitarian intervention, advocates began to
advance a new conception; Responsibility to Protect, or R2P. This concept emerged in 2001 and was
endorsed by the UN in 2005. It is applicable in four specific situations: genocide, ethnic cleansing, crimes
against humanity and war crimes. As we will see, war crimes mean serious violations of jus in bello
committed by individuals. R2P is divided into three pillars. According to the first pillar, states have the
responsibility to protect their population from those four situations. If they are not able to do it, the second
pillar of R2P obliges them to ask and accept help from anybody else, whether states, NGOs, the UN and so
on.
If they are still unwilling or unable to cope with the situation then - under the third R2P pillar - the
international community has the responsibility to act, including using force. It is through that third pillar that
it was aimed to reintroduce the concept of humanitarian intervention. However, it was clear that the actions
taken by the international community under the R2P third pillar had to be based on existing legal
mechanisms; in other words, an authorization by the UN Security Council or, more generally, the UN
collective security system. Unlike the ‘hard’ doctrine of humanitarian intervention, R2P does not purport to
add anything new grounds for intervention under the jus ad bellum.
27
1.6 International Human Rights Law VS International Humanitarian Law
1.6.1 Introduction
The final section of Chapter 1 is dedicated to examining the relationship between international human rights
law (IHRL) and IHL.
IHRL is another branch of international law dealing with the protection of individuals. The main body of
international human rights law was developed after WWII at both the international and regional levels.
Several treaties have been adopted at the international level, including the two most significant
international covenants: the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights (both adopted in 1966). Moreover, a semi-judicial body,
the Human Rights Committee, has been set up in order to guarantee the performance of those Covenants.
The Human Rights Committee’s competences include the ability to hear individual complaints and to make
general observations on the interpretation of the Covenants. Other treaties have been adopted at the
international level on specific human rights. One of the most widely ratified of such conventions is the
Convention on the Rights of the Child.
Unlike IHL, human rights have also been developed at the regional level. Regional protection for IHRL first
appeared in Europe, with the adoption of the European Convention on Human Rights (1950). Later, regional
instruments were created in the Americas (American Convention on Human Rights (1969)) and Africa
(African Charter on Human and Peoples' Rights (1981)). What characterizes IHRL at a regional level is that
strong judicial mechanisms tasked with guaranteeing respect for human rights have been created in each of
the three regions: the European Court of Human Rights, the Inter-American Court of Human Rights and the
African Court on Human and People’s Rights. They have been set up in addition to political bodies, such as
the Inter-American Commission on Human Rights and the African Commission of Human and People’s
Rights. Other treaties, prepared by the political bodies, have also been adopted on specific human rights at
those regional levels.
IHRL was initially only intended to apply during times of peace as a means for regulating and limiting the
sovereign powers of a state vis-à-vis individuals under its jurisdiction. However, it is now generally admitted
that they are also applicable in wartime and extra-territorially. The International Conference on Human
Rights convened in Teheran in 1968 for the twentieth anniversary of the Declaration of Human Rights was a
turning point with respect to the application of IHRL to armed conflicts. During the Tehran Conference,
several resolutions were adopted, including resolutions I and XXII entitled “Respect for and Implementation
of Human Rights in Occupied Territories” and “Human Rights in Armed Conflict”, respectively.
For the rest of this sub-section, we will not study in detail the IHRL norms and bodies. There is a MOOC
created by the University of Louvain on International Human Rights Law. Instead of repeating this material,
we will focus on the challenges that may emerge from the interactions between that law and IHL.
• This raises a first issue to be addressed in this sub-section: the commonalities and differences
between IHRL and IHL. (Unit 1.6.3)
• After examining that issue, we will then study the potential conflicts between human rights
standards and IHL and how these conflicts may be resolved. We will start by considering how human
rights standards are flexible and can adjust to accommodate IHL at the world level (Unit 1.6.4) and
28
regional levels, including the Inter-American and African levels (Unit 1.6.5) as well as the European
level (Unit 1.6.6.)
• We will then also consider how, in turn, these human rights standards may influence the substance
of IHL. (Unit 1.6.7)
• Finally, we address one of the most significant controversial issues discussed today in relation to the
application of human rights in armed conflict: the use of lethal force. (Unit 1.6.8)
For those who follow the advanced level parts, we will also examine potential legal obstacles to the
application of IHRL in armed conflict ( Unit 1.6.2) before addressing the commonalities and differences
between IHRL and IHL.
We will also developed in more details the interactions between IHRL and IHL at the Inter-American and
African levels (see some developements in Unit 1.6.5).
We will finally examine an additional issue discussed today in relation to the application of IHRL in armed
conflicts: the application of human rights to armed groups. ( Unit 1.6.9).
1.6.2 Human Rights Law in armed conflict: legal obstacles?
Advanced level part
The application of IHRL in armed conflict is widely accepted, but nevertheless retains the potential to
generate controversy. Consequently, it is still instructive to be aware of the four main legal obstacles that
are sometimes alleged to prevent the application of IHRL in armed conflict. We will discuss these four
obstacles in the next video and, as you will see, none of the arguments against the application of IHRL to
armed conflict is conclusive.
Potential obstacles to the application of HRL in armed conflict
We are in the gardens of the Palace of Nations in Geneva, where the United Nations Human Rights Council
and Human Rights Committees meet. It is in this famous place that we will address the next three theoretical
issues on the relationship between human rights law and IHL. We will start by considering four potential
obstacles to the application of human rights to an armed conflict.
A first one would come from IHL itself. Do some provisions of that law exclude the concurrent application of
human rights law? The answer is no. To the contrary, IHL implicitly considers such application. Article 75, §8
of Additional Protocol I indicates that the essential guarantees that it provides to some persons may not
(and I quote) “be construed as limiting or infringing any other more favorable provision granting greater
29
protection, under any applicable rules of international law.” “Any applicable rules of international law”
implicitly refers to human rights law.
A second potential obstacle is the argument that human rights treaties cease to apply during times of war.
War would act as a ground for termination of human rights treaties. To answer this question, we must look
at the ‘Draft articles on the effects of armed conflict on treaties’, a codification of customary international
law recently prepared by the International Law Commission. If we look at Article 7 of the Draft and
paragraph f of the annex to the Draft, we can see that “treaties for the international protection of human
rights continue in operation during armed conflict”.
A third obstacle may be linked to the fact that human rights treaties contain a measure of flexibility to
enable the level of protection to be adjusted, as circumstances require. One of the main ways in which
human rights conventions provide flexibility is through the use of derogation clauses. Derogation clauses
enable the suspension of some obligations during times of crisis. Most of the general human rights treaties,
including the two International Covenants of 1966, the European Convention on Human Rights and the
American Convention on Human Rights, provide that the state parties can derogate from the rights
protected in those treaties when the survival of the nation is at stake.
Recently, states that have been the victims of terrorist attacks, such as France and Turkey, have submitted
derogations to the European Convention on Human Rights. It is clear that an armed conflict can be
considered to be a situation for which derogation is permitted. However, in order for a derogation to be
obtained, it must conform to strict conditions. More importantly, states are not allowed to derogate from
fundamental human rights, such as the right to life and the prohibition on torture. As a result, those rights
could never be derogated in times of armed conflict.
The final problem concerns the geographical scope of application of human rights conventions. This problem
may arise in situations where an armed conflict extends beyond the territory of a state. In those
circumstances, is that state obliged to respect human rights on the territory of another state? This is the
famous issue of the extraterritorial application of human rights law. While this has, historically, been a
controversial question, it is now generally accepted that human rights conventions are binding
extraterritorially. Some human rights instruments, such as the European Convention on Human Rights and
the American Convention on Human Rights, expressly provide that they apply to all persons under the
jurisdiction of the states parties and not just on the territory of those states. What does that mean?
According to the case law of various international human rights bodies, human rights law is also applicable
to persons outside the territory of a state, when that state has an effective control over the area where the
person is located. It is also admitted by some human rights bodies that a person is under the jurisdiction of a
state and therefore enjoys the protection afforded by the relevant human rights law if he or she is under the
physical power and control of agents of the state, even if that state has no effective control over the area
where the person is located. This is particularly relevant for the detention of individuals in contexts where
the detaining states cannot be said to have control over the territory where the individual was captured.
The International Covenant on Civil and Political Rights is the only human rights treaty that expressly refers
to the jurisdiction and territory of the state parties as the criteria for its application.
According to Article 2,
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant […]”.
30
Israel has long maintained that the Covenant, which it is a party to, does not apply to individuals located in
the occupied territories since they are not within Israeli territory. In other words, according to Israel, it is not
enough that the individuals are subject to its jurisdiction. The individuals must also be located on its
territory.
The two conditions ("within its territory" and "subject to its jurisdiction") must be cumulatively met.
In the Advisory Opinion of the International Court of Justice on the legality of the wall built by Israel in the
occupied territories, this argument was rejected by the Court. In order to support its conclusions, the Court
relied on the practice of the Human Rights Committee and on the object, purpose and preparatory works of
the Covenant. It concluded that Article 2 of the Covenant had to be interpreted as “covering both individuals
present within a State's territory and those outside that territory but subject to that State's jurisdiction.” In
other words, according to the Court, it is enough that one of two conditions ("within its territory" or "subject
to its jurisdiction") is met in order to trigger the application of the Covenant. As a result, the Covenant “is
applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”.
1.6.3 Similarities and differences
Both IHRL and IHL are branches of International Law, where the object is the protection of individuals.
There are many similarities between the two branches of law, but also significant differences.
We will examine those similarties and differences from the gardens of the Palace of Nations, where the UN
Human Rights Council and Human Rights Committees have their meetings.
Similar but different
Human rights law and IHL share some obvious common features. They pursue the same general objective: to
protect human beings and human dignity. This object means that they both have some distinct features from
the perspective of the law of treaties, where obligations are usually reciprocal. For instance, a consequence
of the non-reciprocity of IHL conventions is that a violation of an IHL convention by one state does not give
its enemy a right to violate the same convention, as would be normally the case in, for example, a trade
treaty. We will be looking at this issue in greater depth when we come to consider the IHL sources in the
next chapter.
More generally, the content of both legal regimes is often similar. Take, for example, the basic protection
afforded to non-combatants under common Article 3 to the four Geneva Conventions. As we will see in
detail later, common Article 3 prohibits murder, mutilation, torture, taking of hostages, cruel and degrading
treatment as well as summary executions. Each of these acts is also prohibited under human rights law.
That having been said, the differences between human rights law and IHL are far greater than their
similarities. Their origin is different. As we know, modern IHL emerged in the second half of the nineteen
century and its evolution is closely linked to the development of the International Committee of the Red
Cross. The Committee is strictly neutral. By contrast, modern human rights law developed after WWII under
the influence of the United Nations, a political body.
On a more technical level, human rights law and IHL have a different scope of application. In terms of whom
they apply to, IHL provides individuals with different kind of protection depending on the category to which
they belong. For example there are specific rules for sick and wounded people, prisoners of war and civilians
or civilian population. Human rights law does not make any equivalent distinctions. It protects anybody
regardless of his or her status.
31
There is another significant difference. As we will show in detail later, IHL binds not only states but also
nonstate actors, particularly armed groups. By contrast, the application of human rights law to non-state
actors is very controversial. The majority view is that it does not apply to non-state actors, especially to
armed groups.
There are also differences in where the law applies. IHL applies in any armed conflict regardless of where
they take place, while human rights law only applies to persons who are under the jurisdiction or control of
the state in question.
Another significant difference is the fact that the specific rules of IHL that apply to a particular conflict will
depend on the nature of that conflict. As we have mentioned, the whole body of IHL applies in an
international armed conflict, while only some rules apply in non-international armed conflicts. There is no
such distinction under human rights law, except that states may derogate to some human rights when their
survival is at stake.
The final, and one of the most important, differences concerns the existence of international bodies charged
with interpreting or applying the legal rules. Under IHL, there is no judicial or political body that is specifically
in charge of monitoring the application of IHL and sanctioning violations. It is true that international criminal
tribunals, such as the International Criminal Court, are competent to try individuals for serious violations of
IHL (and therefore may sanction those violations); but those jurisdictions are not specific to IHL and extend
into areas not covered by IHL. International criminal tribunals do not judge states and do not sanction all IHL
violations but a set of specific, serious violations referred to as “war crimes.” It is also true, as we will see
that later, that some specific mechanisms for implementing IHL exist, such as the International Committee of
the Red Cross. However, those mechanisms are not judicial mechanisms and are not designed to sanction
IHL violations. By contrast, there are several specific political and judicial bodies that have been established
in order to interpret, apply and develop human rights law.
The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed
conflict is one of the rare IHRL treaties which contains a provision devoted to armed groups. Article 4(1)
provides that “armed groups that are distinct from the armed forces of a State should not, under any
circumstances, recruit or use in hostilities persons under the age of 18 years.”
However, the verb “should” rather than “must” was used because states were reluctant to ascribe human
rights obligations to armed groups. This debate is illustrative as to how controversial the idea of granting
armed groups a status under IHRL.
1.6.4 Solution to potential conflicts: "humanitarization" at the world level
Cross interpretations and humanitarization at the international level
The mere fact that both IHL and human rights law apply in armed conflict does not necessarily mean that
there will inevitably be conflict. For example, on some issues, like the protection of persons in non-
international armed conflict, IHL contains only a few general rules, while human rights law contains a greater
number of more specific rules. More generally, even when a different solution seems to be provided on a
similar issue by IHL and human rights law, in practice, judicial and other bodies made a conscious effort to
reconcile these two branches of international law. How? By interpreting provisions of one branch of law in
light of the other; or, in other words, by cross interpretations. This suggests that when conflicts seem to exist
between IHL and human rights law, they are only apparent conflicts. However, even in cases of genuine
conflict, attempts are made to reconcile the two branches of law. We will see that later, when analyzing the
case law of the European Court of Human Right on the issue of administrative detention.
32
So, the processes of interaction between the two legal regimes can be described in two opposite
movements. The first is what may be called the “humanitarization” of human rights. This refers to the ways
in which human rights are interpreted by reference to IHL. The opposite movement is the humanization of
IHL. This refers to the gradual ways in which IHL rules have been interpreted by reference to the principles
and concepts of human rights law.
Let’s start with the humanitarization of human rights law. The most well-known and most quoted example of
such “humanitarization” is contained in paragraph 24 of the Advisory opinion of the International Court of
Justice on the legality of the threat or use of nuclear weapons. Let’s read it together:
“The Court observes that the protection of the International Covenant of Civil and Political Rights does not
cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be
derogated from, in a time of national emergency. Respect for the right to life is not, however, such a
provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test
of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex
specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of
hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be
considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by
reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself”.
So, what can be inferred from such paragraph? First, that it is clear for the Court that human rights law, in
particular, the International Covenant of Civil and Political Rights, also applies in armed conflict, unless
derogations have been submitted and accepted. But, the right to life cannot be derogated, even in
emergency situations such as armed conflicts.
Second, the Court used the lex specialis principle to conciliate IHL and human rights law. That principle is one
of the few mechanisms provided under international law for resolving conflicts of rules. According to the lex
specialis principle, the rule which is more specific to the situation at stake prevails over the more general
rule. In our field, this would normally mean that IHL would prevail over human rights law. There are other
mechanisms, such as Article 103 of the United Nations Charter according to which UN law prevails over
other norms, but IHL can only be considered UN law in extremely limited circumstances; or, there is also the
very general legal principle of lex posterior, whereby the more recently created rules ought to prevail over
older norms; but, again, the application of this rule can be controversial when the rules in question belong to
different bodies of law, as is the case with IHL and human rights law.
Third, the International Court of Justice did not use the lex specialis principle in its traditional meaning, as a
true mechanism for resolving conflict of norms. The principle of lex specialis has not been used to set aside
the right to life, provided under human rights law, in favour of the right to use lethal force, provided under
IHL. Instead, the principle of lex specialis has been used in order to establish the legal context in which
human rights law must be interpreted. In other words, the right to life under human rights law has to be
interpreted in light of IHL. This means that such right would not be violated if the killing of a person in an
armed conflict conforms to the relevant IHL norms; for example because that person was a combatant. This
is different to saying that human rights are displaced by IHL and do not apply. Thus, the lex specialis principle
allowed the Court to give a conciliatory interpretation of the right to life, thus avoiding any conflict between
the two bodies of law.
This conciliatory approach has also been followed at the regional levels, sometimes based on the same
particular use of the lex specialis principle or sometimes based on other mechanisms. Let’s analyse that in
the next developments before examining the opposite movement, the humanization of IHL.
33
Now please read the following General Comment n°31 of the Human Rights Committee (2004):
“[…] the [International] Covenant [on Civil and Political Rights] applies also in situations of armed conflict to
which the rules of international humanitarian law are applicable. While, in respect of certain Covenant
rights, more specific rules of international humanitarian law may be specially relevant for the purposes of
the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.”
(§11).
1.6.5 "Humanitarization" at the regional level: America and Africa
The human rights bodies at the the three regional levels described above, Europe, America and Africa, have
adopted an approach which is similar to that adopted by the International Court of Justice and the Human
Rights Committee: they also decided to resort to IHL in order to interpret HRL.
We must nonetheless emphasize certain differences, first at the African and American levels. There is a
subtle difference between how the African Commission dealt with the relationship between IHL and IHRL in
comparison with how the issue was treated by the International Court of Justice. Instead of only using the
rules and standards of IHL as a means to interpret human rights, the African Commission decided in some
cases (Communication 227/99 ) that it was competent not only to interpret but also to apply IHL.
A similar approach had been followed in America by the Inter-American Commission of Human Rights,
which also felt competent to form its own conclusions on the substance of IHL.
Advanced level part
For those who follow the advanced level parts, we will briefly examine how the Conventions underpinning
the Inter-American and African regional systems already anticipated situations where it is necessary to
interpret issues involving human rights in armed conflicts. You may think that courts and tribunals whose
task is to protect human rights might interpret the relationship between IHL and IHRL differently to the
attitude of the International Court of Justice described above. In fact, their positions are highly similar.
1. Inter-American regional system
In the Americas, the American Convention on Human Rights deals with the relations between the
Convention and other international instruments granting protection to individuals. Art. 29 states that:
"No provision of this Convention shall be interpreted as […] restricting the enjoyment or exercise of any right
or freedom recognized [...] by virtue of another convention to which one of the said states is a party”.
By subjecting the obligations included within the Convention to the rights granted by (amongst other things)
other conventions, the American Convention may place IHL above human rights.
The Inter-American Court of Human Rights has endorsed this understanding of the relationship between IHL
and IHRL. For instance, in the case of the Ituango Massacres v. Colombia (1 July 2006), the Inter-American
Court of Human Rights stated:
34
“When examining the scope of the said Article 21 of the Convention [Right to Property in this case], the
Court considers it useful and appropriate, in keeping with Article 29 thereof, to use international treaties
other than the American Convention, such as Protocol II of the Geneva Conventions of August 12, 1949,
relating to the protection of victims of non-international armed conflicts, to interpret its provisions in
accordance with the evolution of the inter-American system, taking into account the corresponding
developments in international humanitarian law." (§179)
Like in the Nuclear weapons advisory opinion, IHL is used as the context in which IHRL is interpreted.
2. African regional system
The African Charter on Human and Peoples' Rights similarly qualifies the rights protected by it. According
to Art. 60 :
“The Commission shall draw inspiration from international law on human and peoples’ rights, particularly
from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United
Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other
instruments adopted by the United Nations and by African countries in the field of Human and Peoples’
Rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the
United Nations of which the Parties to the present Charter are members.”
Under Art. 61:
“The Commission shall also take into consideration, as subsidiary measures to determine the principles of
law, other general or special international conventions, laying down rules expressly recognised by Member
States of the Organisation of African Unity, African practices consistent with international norms on Human
and Peoples’ Rights, customs generally accepted as law, general principles of law recognised by African
States as well as legal precedents and doctrine.”
Again, these provisions have been reflected in the decisions of the African human rights bodies.
In Communication 227/99 (concerning the Democratic Republic of Congo/Burundi, Rwanda, Uganda (29 May
2003)), the African Commission stated:
“By virtue of Articles 60 and 61 the Commission holds that the Four Geneva Conventions and the two
Additional Protocols covering armed conflicts constitute part of the general principles of law recognized by
African States, and take same into consideration in the determination of this case." (§70)
As I already indicated above, there is nontheless a subtle difference between how the African Commission
dealt with the relationship between IHL and IHRL in comparison with how the issue was treated by both the
International Court of Justice and the Inter-American Court of Human Rights. Instead of only using the rules
and standards of IHL as a means to interpret human rights, as had been done in the other examples, the
African Commission decided that it was competent not only to interpret but also to apply IHL. A similar
approach had been followed in America by the Inter-American Commission of Human Rights, which also
felt competent to form its own conclusions on the substance of IHL.
Given the lack of international bodies empowered to enforce IHL, you may feel that this is a positive
outcome. However, this practice has been criticized as those bodies lack the knowledge and understanding
to rule on IHL.
35
In its General Comment n°3 on the right to life, the African Commission on Human and Peoples’ Rights
stated:
“The right to life continues to apply during armed conflict. During the conduct of hostilities, the right to life
needs to be interpreted with reference to the rules of international humanitarian law.” (§13)
1.6.6 "Humanitarization" at the regional level: Europe
The European Court of Human Rights (ECtHR) distinguishes itself from the other regional human rights
bodies
in two main respects.
• Firstly, it has long been reluctant to make reference to IHL in order to apply IHRL during armed
conflicts.
• Secondly, the ECtHR did not use the concept of lex specialis to reconcile differences between IHL and
IHRL.
1. Initial reluctance to refer to IHL
We can see the reluctance of the ECtHR to refer to IHL in the 2005 Isayeva cases (here and here).The Court
had to rule on Russia’s alleged violation of the right to life that had taken place during its bombing of
civilians during an internal armed conflict. The Court declined to explicitly refer to IHL in order to interpret
the right to life provided under Art. 2 of the ECHR. However, the Court did employ some concepts, such as
the proportionality of the attack and the obligation of precaution, that were so similar to the concepts of IHL
that it seems very likely that its decision was informed by IHL.
It was only in 2009, in the Varnava case, that the Court expressly referred to IHL in relation to the
interpretation of the ECHR and, in particular, Art. 2. It very briefly stated, without elaborating on it, that:
“Article 2 must be interpreted in so far as possible in light of the general principles of international law,
including the rules of international humanitarian law which play an indispensable and universally accepted
role in mitigating the savagery and inhumanity of armed conflict”.
The ECtHR made its understanding of the impact of IHL on human rights standards much clearer in the
Hassan case in 2014. The Court had been requested to rule on the alleged violation of Article 5 of the ECHR,
which provides for the right to liberty and thus prohibits arbitrary detention. The detention took place in the
framework of an international armed conflict in Iraq. The UK detained Hassan for security reasons in
accordance with IHL, in particular the third and fourth Geneva Conventions dealing with the detention of
prisoners of war and civilians. However, such detention is not authorized under Art. 5 of ECHR. That Article
provides only five grounds for detention and administrative detention for the purposes of security does not
fall under any of those grounds. There therefore seems to be a genuine conflict between IHL and the ECHR.
The Court nonetheless argued that
“by reason of the co-existence of the safeguards provided by international humanitarian law and by the
Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in […] that
provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention
of civilians who pose a risk to security under the Third and Fourth Geneva Conventions”.
36
Article 5 was thus interpreted as including a 6th ground for lawful detention. This 6th ground, of which no
mention was made elsewhere in the Convention, was a direct transposition of the rights of states under IHL
into the legal regime of IHRL.
Similarly the Court relaxed the procedural safeguards provided under Article 5 in order to better
accommodate rules of IHL. In particular, the right for individuals to seek review of their detention by a Court.
The Court argued that this requirement could be read down with respect to individuals detained during
armed conflicts. Instead of a Court – as required by the text of Article 5 of the ECHR – the ECtHR stated that
review by an “administrative body” was sufficient. However, the administrative body had to ensure
“sufficient guarantees of impartiality and fair procedure to protect against arbitrariness” and the review had
to take place “shortly after the person was taken into detention, with subsequent reviews at frequent
intervals.”
2. No reference to the lex specialis principle
The second feature which distinguishes the ECtHR from the other regional human rights bodies and even
from the International Court of Justice, is that it did not rely on some provisions of the Convention or on the
lex specialis principle to justify resorting to IHL to interpret IHRL. Instead it relied on an interpretative
principle known as the principle of systemic interpretation. This principle, enshrined by Article 31, 3, c of
the 1969 Vienna Convention on the Law of Treaties, requires that treaty rules be interpreted so as to be
consistent with any other relevant rule of international law applicable to the case at hand.
The differences between the two interpretative principles – lex specialis and systematic interpretation – can
be very subtle. However, the most significant difference is that under the lex specialis rule, the
interpretation should always be informed by the most specific rule. However, under the principle of
systematic interpretation, the interpreter is given greater freedom to resolve the conflict of rules as they see
fit.
1.6.7 Solution to potential conflicts: "humanization"
The interactions between IHL and IHRL are characterized by another movement, which we may term the
“humanization” of IHL. The “humanization” of IHL is, in crude terms, the opposite of the process described
above.
However, there is a subtle distinction. The process of “humanitarization” of IHRL involves human rights
bodies reinterpreting human rights to take account of the fact that alleged violations took place during an
armed conflict, and so are primarily governed by the law of armed conflict. However, the process of the
“humanization” of IHL refers to the process whereby concepts, which are undefined by IHL, are given
meaning by analogous concepts drawn from human rights. In each of the examples of human rights bodies
deferring to IHL as a means for interpreting human rights, there was a detailed body of law which would
have governed the situation during peacetime. What is important is that body of law was displaced by the
rules of IHL during conflicts.
In this sub-section, we look at how concepts, which are not elaborated in IHL, are brought meaning by
reference to IHRL. Let's examine three examples.
1. Torture
The first example of this phenomenon concerns the definition of torture. If committed during a conflict,
torture may amount to a war crime. However, IHL does not give any definition of torture. The concept of
37
torture may seem self-explanatory to you, but assigning it to concrete cases is highly controversial and many
definitions exist. A famous example of the controversy surrounds the definition of torture was the USA’s use
of simulated drowning - waterboarding. The American Government argued that because the individual
subject to waterboarding was never actually in danger, the practice did not constitute torture. However, this
argument was widely rejected by human rights experts.
Returning to the process of ‘humanization’ of IHL, we can see a clear example of this process of transposition
in the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY had to rule
on whether a suspect committed the war crime of torture. The Court sought the definition of torture by
referring to IHRL, in particular the convention against torture. Yet, as you will see in the following passage of
the ICTY judgment, the Tribunal adapted the definition by taking into account the specific features of IHL,
including that, contrary to IHRL, it also applies to armed groups:
“In attempting to define an offence or to determine whether any of the elements of that definition has been
met, the Trial Chamber is mindful of the specificity of international humanitarian law. Care must be taken to
ensure that this specificity is not lost by broadening each of the crimes over which the Tribunal has
jurisdiction to the extent that the same facts come to constitute all or most of those crimes. In particular,
when relying upon human rights law relating to torture, the Trial Chamber must take into account the
structural differences which exist between that body of law and international humanitarian law, in particular
the distinct role and function attributed to states and individuals in each regime” (Krnojelac, judgment, 15
March 2002, §181)
IHL remains the lex specialis but the definition of torture is borrowed from IHRL in order to determine
whether torture has taken place in a concrete case.
2. Procedural rights
A second example involves a reference to procedural rights. According to common Article 3 of the four
Geneva Conventions,
“[the] passing of sentences and the carrying out of executions [cannot be made] without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples”.
However, the Convention does not define what is meant by “all the judicial guarantees which are recognized
as indispensable by civilized peoples”. In the Hamdan v. Rumsfeld case (2006), the US Supreme Court had to
rule on the legality of the military commissions set up by the Bush administration to try detainees at
Guantanamo Bay. In order to do so, the Court indirectly refers to the International Covenant on Civil and
Political Rights. The Court held:
“Inextricably intertwined with the question of regular constitution is the evaluation of the procedures
governing the tribunal and whether they afford “all the judicial guarantees which are recognized as
indispensable by civilized peoples.” […]. Like the phrase “regularly constituted court,” this phrase is not
defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest
of those trial protections that have been recognized by customary international law. Many of these are
described in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). […]”.
(p. 70)
38
In a footnote (66), the Court indicated that: “Other international instruments to which the United States is a
signatory include the same basic protections set forth in Article 75. See, e.g., International Covenant on Civil
and Political Rights, Art. 14, §3(d ), […]”.
3. Applicable law before the ICC
Finally, Article 21 of the Statute of the International Criminal Court defines the ‘applicable law’ which the
Court is competent to apply. According to that Article, the Court must, in the first place, apply its statute and
other related texts. Moreover, the Court is competent to apply IHL, which it has already done many times.
However, Art. 21 also makes provision for the Court to interpret and apply all applicable law, including IHL,
in a way which is “consistent with internationally recognized human rights […]”. This provision allows the
Court using HRL as a means for interpreting IHL.
1.6.8 A major salient problem: lethal force
To conclude our examination of the mutual impact of IHL and human rights law, we will examine
one particularly important contemporary issue that result from the overlap between the two legal regimes.
We will consider the use of lethal force. As, according to the traditional view, IHL and human rights law
provide different thresholds of legality for the deprivation of life, reconciling these two positions can be
challenging.
The use of lethal force: IHL and HRL paradigms
Some controversial issues are discussed today in relation to the application of human rights law in armed
conflict. One of it concerns the use of lethal force against lawful targets. It is important to examine such
issue in this introductory chapter, even if this will lead us to go into the substance, as it will enable one’s to
grasp some fundamental issues addressed in the next chapters.
As you already know, and you will see it in detail later, IHL allows the use of lethal force against lawful
targets because of their status, in particular as combatants or as civilians directly taking part into the
hostilities. This has classically been interpreted as allowing the killing of such targets without requiring that
capture and arrest of the person must first be attempted. What is therefore crucial in that respect is the
category to which the person belongs. Under human rights law, the use of lethal force is only allowed in
case of absolute necessity, which legally requires attempting to arrest and capture the person. We have
therefore two different paradigms: the traditional IHL paradigm and the human rights law paradigm, which
is more restrictive. The human rights law paradigm is also called the law enforcement paradigm. So, which
of the two paradigms, IHL or human rights law, must be applied? There are four main positions on that
subject.
The classical view, supported by many states and based on the lex specialis principle, is that only the IHL
paradigm applies. In other words, this is always IHL which will regulate the targeting in any situation related
to an armed conflict, allowing to use lethal force against lawful targets because of their status.
However, this traditional position is contested. The first alternative view is that only the human rights law
paradigm applies in certain situations, namely in regions outside of the battlefield, when the targeting by a
state takes place in such regions which are under the control of that state. This view criticizes the opinion
that the lex specialis principle would necessarily displace the application of human rights law. Indeed, it is
not always easy to distinguish the specific norm from the general one. What does “specific” really mean? We
could for example argue that human rights law, rather than IHL, is the specific law applicable to the conduct
39
of armed forces of a State on its territory, of course when that State controls it, especially in case of non-
international armed conflict. We know that IHL only provides for a general protection in non-international
armed conflicts and that the human rights protection is more detailed. It is therefore argued that, in case of
effective control exercised by a State over the area where the target is located, this is the human rights
paradigm which must always apply, instead of IHL.
Another alternative view, which leads to a similar result in terms of targeting, is to consider that, when
applicable, both IHL and human rights law concurrently regulate the targeting in any situation related to an
armed conflict. None of them would displace the application of the other. Their application may either lead
to the same result, in particular when the targeting takes place in the battlefield, or it may lead to different
results, especially when targeting takes place outside the battlefield, in regions effectively controlled by the
targeting state.
In that case, both IHL and human rights law would have to be respected, with the application of human
rights law being stricter than the application of IHL.
There is a last alternative view, which also leads to a similar result but it applies not only to states but also to
armed groups. This view is indeed based not on the application of human rights law, which binds only states,
but on a particular interpretation of IHL, which binds both states and armed groups. It is to consider that
only IHL applies but not the traditional IHL paradigm. That paradigm is indeed called into question. It is
argued that IHL does not give an unlimited right to use lethal force against lawful targets. The notion of
military necessity, which is proper to IHL, would limit that right. In that sense, if the capture of the person is
possible and the use of lethal force not necessary according to military necessity, it is required under IHL not
to use lethal force.
This is a more restrictive IHL paradigm. This may particularly be the case when a legitimate target is located
in a region firmly controlled by the enemy. That position has been supported by the International Committee
of the Red Cross in its famous document called “Interpretive guidance on the notion of direct participation in
hostilities”. This has been contested by states and led several of them not to approve the document.
However, many of them recognize that they adopt such approach as a matter of policy.
Please read paragraphs 32 to 34 of the General Comment n°3 of the African Commission of Human and
Peoples’ Rights, before answering the question below:
"§32. In armed conflict, what constitutes an ‘arbitrary’ deprivation of life during the conduct of hostilities is
to be determined by reference to international humanitarian law. This law does not prohibit the use of force
in hostilities against lawful targets (for example combatants or civilians directly participating in hostilities) if
necessary from a military perspective, provided that, in all circumstances, the rules of distinction,
proportionality and precaution in attack are observed. Any violation of international humanitarian law
resulting in death, including war crimes, will be an arbitrary deprivation of life”.
§33. International humanitarian law on the conduct of hostilities must only be applied during an armed
conflict and where the use of force is part of the armed conflict. In all other situations of violence, including
internal disturbances, tensions or riots, international human rights rules governing law enforcement
operations apply.
§34. Where military necessity does not require parties to an armed conflict to use lethal force in achieving a
legitimate military objective against otherwise lawful targets, but allows the target for example to be
captured rather than killed, the respect for the right to life can be best ensured by pursuing this option.”
40
1.6.9 Another salient problem: IHRL and armed groups
Advanced level part
The application of human rights law in armed conflict also raises specific problems for armed groups. There
is no problem for them when human rights law directly applies in armed conflict, since, as we have seen,
human rights law therefore only applies to States and not to non-state actors. There may have some
problems when human rights law is used to interpret IHL or to contribute to customary IHL. Being integrated
under IHL, the human rights law requirements would therefore indirectly apply to armed groups.
This may first lead to legal problems: for example, as already seen, common Article 3 to the four Geneva
Conventions provides fair trial guarantees and in particular that the trials must be conducted by a regularly
constituted Court. If this is interpreted in light of human rights law, this would mean “established by law”
and, according to some, this refers to the laws and procedure already in force in the country. It is well-
known that no country will ever authorize armed groups creating courts; so such groups will never be able to
comply with Common Art. 3. In the same way, Additional Protocol II to the Geneva Conventions provides
some guarantees with respect to criminal prosecutions and includes the principle of legality. According to
that principle, (and I quote Additional Protocol II): “no one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal offence, under the law, at the time when
it was committed”. Again, if the law is interpreted in light of human rights law as referring to the national
law of the country, armed groups will never be able to comply with the principle of legality contained in
Additional Protocol II.
Indirect application of human rights law may also lead to practical problems for armed groups and make
them difficult to comply with IHL. IHL applies to a variety of armed groups, including those which do not
have any territorial control. Interpreting some IHL requirement applicable to them in light of human rights
law may lead them to comply with requirements which are unrealistic given their capabilities. This may for
example be the case if the fair trial guarantees include in light of human rights law the right for the accused
to have a legal counsel or the obligation to appoint as judges, persons having legal qualification.
41
1.7 Wrap-up interview
1.7.1 Interview with Prof. Marco Sassòli
At the end of each chapter, you will benefit from an interview of an expert in the field, whether academic or
practitioner, who will discuss about the various issues addressed in the chapter. For this first chapter, the
interview is with Professor Marco Sassòli, a well-known expert in IHL, who is a professor at the Law Faculty
of the University of Geneva.
You can find the interview with Professor Sassòli below.
Interview Marco Sassòli
Hello everybody! This week was a quite heavy week: we addressed many issues related to international
humanitarian law. So we'll end each week by an interview of an expert. This week, our guest will be
professor Marco Sassoli. He is a professor at the University of Geneva, he is a well-known expert in IHL he
has worked on many important projects in that field.
So, Professor Sassoli, we are very happy to have you on board in this course, in this MOOC, and so we would
like to hear you about your reflection on the general issues we addressed in this MOOC. And one of the first
issues we looked at this week was whether international humanitarian law is really law, is really binding law.
So my question is: "do you think that it is not a paradox that the purpose of IHL is to regulate situations of
armed violence sometimes of high intensity?". All those situations seem to be the negation of the law.
- Well, indeed, it's more difficult to obtain the respect of international humanitarian law than of
international telecommunication law. But I think it is even the definition of an armed conflict that is
regulated by rules and that is the difference between a crime and an armed conflict, that an armed
conflict is regulated by rules. And the general question whether international law is law, well, it
depends how you define law. And some people coming from domestic law imagine law is only
something which is regularly enforced by sanctions. And this is not the case for most of the rules of
international law, but humanitarian law is simply a branch of international law and has all its
weaknesses but also its forces in our society. And I think international law would not be complete if
it didn't also regulate the sad reality of armed conflicts.
So you think that, at the heart of the battlefield, it is possible for belligerents to limit their conduct, even if
it's a kind of irrational situation?
- Well, this is the problem that, if it gets purely irrrational, then it is difficult to get the respect of rules.
But the idea of an armed conflict is to remain precisely rational and I mean this is an effort the
military but also armed groups make to keep a minimum of rationality because, otherwise, you don't
win if you don't proceed with a minimum of rationality. And therefore it is in the interest of those
who fight to respect rules. Because, otherwise, there is total chaos and total chaos is not useful,
even from a military point of view.
Thanks a lot! The second issue we addressed in this course, in this MOOC, is about the history of IHL, it was a
very brief history of IHL. How would you summarize that history, very briefly? What are the key moments,
for you, in the evolution of IHL?
42
- Well, I think it's a very long history. And one thing which is true is that, often, most of the time, the
treaty law (and in my view also the customary law) is one war behind, because it is taking into
account the humanitarian problem which arose in a conflict that states (hopefully the last 50 years
this didn't happen) adapt the law to new realities. And it's very rare that we have regulations which
avoid something which never happened.
Yes, and so, historically, can we, as we said in the MOOC, can we put the beginning of the modern IHL to the
development of the Red Cross and such even like that?
- Well, perhaps because I come from Geneva, I don't want to overemphasize Henri Dunant. The only
thing which was really new, with Henri Dunant, and which is threatened today, is the idea that
enemy wounded soldiers are no longer enemies and, therefore, even by caring for them, one does
not contribute to the military potential of the enemy. But I mean the idea that civilians are
protected, that war should not be as indiscriminate, and so on... These ideas existed in all cultures
and at all times, but these were mostly either religious rules or bilateral treaties. So it was only, as in
the rest of the international law, the idea of codification in multilateral treaties came up in the
second half of the 19th century, and it came also in the international humanitarian law.
Okay, if we talk about more contemporary issues, could you point, at any area of contemporary IHL, where
we might see some developments in the near future?
- We would need developments, but the sad thing is that but perhaps I hope I'm too pessimistic is that
today states are no longer ready to adapt the law to new challenges, especially when it is hard law.
So the only possible perspective is to agree on both best practices and new interpretations. But this
is also a general phenomenon in international law. So it's not specific to humanitarian law that
perhaps the area of the great codifications is over. And this is particularly regrettable in
humanitarian law, where we would need universal rules, which are adopted in a transparent way.
So the third issue we examined is about the relationship between IHL, which is also called jus in bello, and jus
ad bellum. So we know that those relationships are characterized today by this principle of separation
between these two bodies of law. So is it still relevant today? What happened before and so is it still valid
today ?
- Well, I think it's a very important principle, which is very difficult to get accepted on the ground in
the field. And, I mean, when I tell my wife for instance, that our son (who is a Swiss soldier, because
everyone in Switzerland has to make military service) it's legitimate to kill our soldiers if France
attacks Switzerland, she is shocked. And in my experience with the ICRC, a lot of people in the field
are shocked when we treat them, telling them: "look, for us, both parties are equal". Because they
don't feel such an equality, because of the jus ad bellum: they are convinced "we are fighting for a
just cause, we were attacked, we are unlawfully occupied and we only defend ourselves". But it is
essential, as you know, because otherwise humanitarian law would never be respected, because it's
always controversial who is right and who is wrong. But, perhaps, today it becomes even more
difficult to have this accepted because of the asymetry, both in terms of material means but also
morally, between the parties, between Boko Haram and Nigeria to say both are equal and both have
the same rights and same obligations. It becomes slightly difficult. It's much easier with the Syrian
regime and the Islamic state, because they are, I would really say they are equal. But you see, the
point is: when it moves to the idea of more an international or domestic police operations, the
police and the criminals are not equal... Why? Because the police is subject to all kind of human
rights restrictions while the criminals simply may not commit crimes. That's the difference between
an armed conflict and outside armed conflict. The more the armed conflict as such becomes a crime,
43
the more difficult it is to have this separation accepted, which I think is nevertheless essential, if we
want to have a minimum of respect in armed conflict.
So your conclusions are also relevant for the peacekeeping operations of the United Nations, the
peacekeeping operations we consider that they are legitimate operations by contrast to the others.
- But you see, I mean, if Switzerland defends itself, it's also legitimate on the international law, but no
one (even the Swiss) claim that they don't have to comply with IHL if they defend themselve.
So, thanks a lot. So the final issue we have looked at this week is about the relationship between human
rights law and an IHL. So what are, in your view, the main common features but also differences between
these two bodies of law?
- Well, as you know, the two branches developed separately. They have had originally a different
philosophy and, still today, many rules have a different structure. Because in human rights, it's about
subjectives rights, while humanitarian law is more objective law rules of behavior for parties and for
individuals. But the result is, in nearly all situations, the same. So today, the non respect we see in
many armed conflicts, it's not a problem that they apply the wrong branch, but they simply don't
comply with any rules. It's only, in my view, in non-international armed conflict, and only on very few
issues, that really the two lead to different results and then, in my view, one has to try to reconcile
the two and to determine, for every situation, which rule is more adapted to the situation. So I
would say: while for lawyers the relationship between the two is a very fascinating issue, in reality,
the problem, say in Syria, if, instead of IHL, they were complying with human rights, everyone would
be happy and if there were not a compliance with human rights but with IHL, today, in Aleppo, not
everyone would be happy because the armed conflict will nevertheless be there, but the fate of the
persons affected would be totally different.
So, in your view, there are now really practical problems which may arise?
- There are, there are... For instance, the issue of when member of an armed group may be killed: the
rules of IHL and of human rights law are different. Therefore, we have to determine when one or the
other prevails. The same thing is true on detention because, in human rights law, it is essential that a
person may only become detained with judicial control. And it is controversial whether in non-
international armed conflicts, under IHL, we can apply the same rule than in international armed
conflict for prisoners of war, who do not have any right to have a judicial control, but who are
interned for an indefinite time, which is until the end of active hostilities but no one knows when
that this is, and here, there is a real clash between IHL and human rights law. But I think the real
question is: does IHL of non-international armed conflict contain the same rules than IHL of
international armed conflict? Because for prisoners of war in international conflict, I think it's rather
reasonable and uncontroversial that they may be detained without an individual procedure,
because, anyway, they are not detained for individual reasons?
So, thanks a lot for those reflections and now we would like to ask another kind of question, more about
your personal experience, because you practice IHL and, at the same time, you are professor. So I'm sure
that students would be facinated to hear a bit about your personal experience. Maybe you could start with
this question: what are the differences (main differences) between working in academia and working for for
very practical projects?
- Well I'm a little concerned about the growing gap between what academics write and what
practitioners are concerned about. And also how little practitioners consult what most academics
44
write, but also how little academics are concerned about the practicability of what they write. I don't
know, for instance, to suggest a new convention on long-term occupation. Do they really think that
states would ever say okay? If there is long term occupation, then we do this... No States will always
say "we don't want occupation". But maybe we need some idealistics ideas to push states further
than they could do Yeah, but reality check is often an important thing. But also, on the other hand, I
mean I see it in some humanitarian organizations, where they even say: "let's hire people who do
not know too much about the IHL because, otherwise, they will not be pragmatic enough and too
much shocked about what happens often in the field". But I'll say practice can also make us
optimistic, because I must say, for instance, what I see in the media about Syria depresses me very
much, while when I was in the field, both in the former Yugoslavia and in the conflict between Iran
and Iraq, I have seen a lot of instances of respect. But obviously NGOs and the medias,
understandably, they don't speak about this and therefore, in my view, there's if you are only
outside, you have a wrong impression that IHL is most of the time violated well, as all rules of
international law, most of the time it is respected, simply, unfortunately, not often enough
respected.
And this comes back to our first question, about the respect of IHL, which is not so much violated as we can
say, of course. So, another question about your personal experience maybe, just to ask you how responsive
are the governments to the views of experts such as yourself?
- Well, I must have colleagues who are much better than I, because my personal experiences is that
governments and NGOs are looking for experts who say: "all right", what they anyway want to hear.
So, to influence a government or an NGO, even a humanitarian NGO, to say "don't do this, do
something else" is very difficult. While, where I see an important impact of experts, is those of us
and most of us teach. Our students then go to work for governments, for NGOs and they got a
certain idea on how the law works and this has an impact, much more impact, in my view, on how
states behave. Because states are abstract entities; it's human beings who work for states, and those
human beings are trained by us from the academia.
So, professor Sassoli, many thanks for having accepted to be part of this MOOC and for sharing your views,
your thoughts on IHL. Thanks a lot!
- You're welcome!
45

Louv16x_chapter_1_Audit_and_verified

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Louv16x_chapter_1_Audit_and_verified

Uploaded by

Copyright:

Available Formats

CHAPTER 1 : Introduction to International

1.2 What is International Humanitarian Law? .....................................................................................................……… 4

1.3 Law and armed conflicts .................................................................................................................................…….. 8

1.4 History of International Humanitarian Law ............................................................................................................ 11

1.4.2 Pre-modern developments ............................................................................................ 11

1.4.3 The development of a legal regime regulating warfare at sea ...................................... 12

1.5 Jus ad bellum VS Jus in bello ................................................................................................................................... 16

1.5.6 Are there exceptions to these principles? ...................................................................... 21

1.5.7 Can jus ad bellum still affect jus in bello? ....................................................................... 21

1.6 International Human Rights Law VS International Humanitarian Law .................................................................... 28

1.6.2 Human Rights Law in armed conflict: legal obstacles?..................................................... 29

1.7 Wrap-up interview ................................................................................................................................................... 42

Welcome to the MOOC on International humanitarian law!

1.2.1 What do you think?

1.2.2 What's in a name?

The various titles of IHL

1.2.3 Overview of the content and structure of the course

General overview of the course

1.3.2 The paradox of law in conflict

What do you think?

Do you think that it is possible for law to operate during warfare?

1.3.3 Is International Humanitarian Law really law?

Is IHL really law ?

Advanced level part

• the codification projects regarding IHL on land (Unit 1.4.4)

Advanced level part

1.4.2 Pre-modern developments

Advanced level part

1.4.3 The development of a legal regime regulating warfare at sea

Advanced level part

The Declaration of Paris regulated three main issues.

1.4.4 The Lieber Code and early attempts at codification

The Lieber Code

1.4.5 The creation of the Red Cross

The birth of the Red Cross

1.4.6 1945 to the present day

The current core of IHL treaties

Advanced level parts

1.5.2 Just war theories

1.5.3 Liberty to resort to war

1.5.4 Outlawry of war

1.5.5 The principles of equality and separation

1. The principle of equality of belligerents

2. The principle of separation

This principle of separation has a number of important implications.

Advanced level parts

1.5.6 Are there exceptions to these principles?

Advanced level part

• Can jus ad bellum still affect jus in bello? ( Unit 1.5.7)

1.5.7 Can jus ad bellum still affect jus in bello?

Advanced level part

We will analyze two main issues in that respect.

Influence of jus ad bellum on jus in bello?

However, this restrictive view raises serious issues.

Advanced level part

Influence of jus in bello on jus ad bellum?

Advanced level parts

1.6.2 Human Rights Law in armed conflict: legal obstacles?

Advanced level part

Potential obstacles to the application of HRL in armed conflict

1.6.3 Similarities and differences

Similar but different

1.6.4 Solution to potential conflicts: "humanitarization" at the world level

Cross interpretations and humanitarization at the international level