International Humanitarian Law

Introduction and Definition

 IHL: What is it?
-It is a branch of international law that applies to
situations of armed conflict.

- It is a set of rules which seeks, for humanitarian

reasons, to limit the effects of armed conflict.
 International legal context
• The title of the classical book by Hugo Grotius is:
De jure belli ac pacis or ‘Of the law of war and of the law of
peace’,
first published in 1625.

Lassa Francis Oppenheim’s

• International Law: A Treatise
Vol. 1: Peace
• International Law: A Treatise
Vol. II: War and Neutrality
 Terms
• Law of war

• Law of armed conflict (LOAC)

• International humanitarian law (IHL)

 Warfare traditions of the world (methods and means of war)

• Do not set fire to what the

people have accumulated;
do not destroy their houses,
nor cut down the trees
at gravesites or altars…
-Jiang Ziya (Taigong),
Six Secret Teachings,
Ancient China,
11th century BC
 Warfare traditions of the world (methods and means of war)

• The use of non-traditional

Greek infantry arms
(e.g. projectile missiles)
should be limited.
-Koina Nomina,
the ‘common customs’
of warfare, Ancient
Greece,
6th century BC
 Warfare traditions of the world (methods and means of war)

• "When he fights with his

foes in battle, let him not
strike with weapons concealed
(in wood), nor with
(such as are) barbed,
poisoned, or the points
of which are blazing with fire."
-Code of Manu, Chapter VII,
verse 90 (around 2000 years ago,
Indian sub-continent)
  
Warfare traditions of the world (methods and means of war)

• Refrain from betrayal, extravagance, perfidy

or mutilation; never kill small children, old
men or women; never cut or set fire to palm
trees; never cut fruit-bearing trees; never slay
a goat, a cow or a camel except for food. If you
pass by people devoted to worship leave them
to do.
-Khalif Abu Bakr Al-Siddiq, the first caliph after the prophet Muhammed, 6-
7th century
 Warfare traditions of the world (methods and means of war)

• In no circumstances shall women and children

of the enemy be killed, even if they are used as
human shields by soldiers.
-Malik ibn Anas ibn Malik ibn ‘Amr al-Asbahim, distinguished scholar of
Islamic law, 8th century
 IHL in international law
International
law

Rules
Rules governing
governing the International
the conduct of
legality of the Human Rights
hostilities (IHL)
use of force Law (IHRL)
(Jus in bello)
(Jus ad bellum)

United Nations Geneva Conventions, UDHR, ICCPR,

Charter Additional Protocols ICESCR and other
(Arts 2(4), 51 & 42) and other instruments instruments
 Purposes of IHL
-reduce the unnecessary suffering, loss and
damage in time of armed conflicts

-safeguard the fundamental human rights and

dignity of persons

-facilitate the restoration of peace

 Protection
. In two ways

by protecting persons who do not by limiting the choice of means and

or no longer participate in hostile methods of conducting military
action operations

Geneva law The Hague law

 .

Fundamental principles of IHL

 Military necessity
Principle

- It is permissible to use those measures not forbidden by

international law which are necessary to secure the complete
submission of the enemy as soon as possible with the least
expenditure of personnel & resources.

- Recognises that use of force during armed conflict is legal,

within the limits set out by IHL.

- Further recognises that legitimate military targets can be

attacked/destroyed and enemy combatants killed, for
legitimate military purposes.
 Humanity
Principle :

- It is forbidden to inflict suffering, injury or destruction not actually

necessary to accomplish a legitimate military purpose.

- This is the very purpose of IHL and aims at protecting the victims
of armed conflict
 IHL strikes a balance

Military Humanity
necessity

IHL

The balance between military necessity and humanity is

achieved through the application of the principle of
Proportionality
 Proportionality
Principle :

Collateral damage shall be proportionate to the concrete and direct

military advantage anticipated.

- What is a collateral damage ?

Collateral damages are incidental loss of civilian life, injury to civilians

& damage to civilian objects.

- What is a military advantage ?

A military advantage is the total or partial destruction, capture or

neutralisation of a combatant or military objective necessary for the
ultimate submission of the enemy.
 .

Fundamental rules
 Limitation
Rule :

- The right of Parties to a conflict to

choose methods and means of warfare is
not unlimited.
 Distinction...
• IHL recognises two categories of persons in Armed
Conflicts:
– Combatants - Can be Attacked.

(Combatants have the right to participate directly in

hostilities)
– Civilians - Are Protected.

(Civilians have the general right to protection against the

effects of hostilities, but cannot participate in hostilities)
 Distinction
Rule :

- Parties to a conflict shall at all times distinguish between :

. the civilian population and combatants

. military objectives and civilian objects

- Attacks shall be directed solely against combatants and military

objectives.
Distinction
Indiscriminate attacks are prohibited…

(AP I Art 52(2))

Indiscriminate attacks are prohibited…

(AP I Art 52(2))

 Precautionary measures
Rule :

- During military operations, all feasible precautions must be taken

to spare the civilian population and objects and protect them
against the dangers resulting from the effects of hostilities.

- Verify that objectives are legitimate military targets.

- Avoid locating military objectives within or near the civilian

population.
 Superfluous injury and unnecessary suffering

Rule :

- The use of weapons, materials and methods of warfare of a nature

to cause superfluous injury or unnecessary suffering is prohibited.

- (Related) It is prohibited to use methods & means of warfare which

are intended (or may be expected) to cause widespread, long-term
and severe damage to the natural environment.
Victims of armed conflict
Civilian
s

Victims
of
armed
conflict
Persons
Wounded, deprive
sick and
shipwrecked d of
liberty
 Historical development of IHL

-Traditional rules of war

-Rules became more authoritative with the rise of

centralised power and States

-Over time, the traditional rules became formal law

-In 1864 (First Geneva Convention), for the first time, a

multilateral treaty provided for the protection of persons
in wartime.
 Henry Dunant and two ideas
• The Genevese merchant Henry Dunant who, in the Italian War of
Unification, had witnessed the plight of 40,000 Austrian, French,
and Italian soldiers wounded on the battlefield of Solferino
(1859), published his impressions in his book 'A Memory of
Solferino'.
Two ideas
• To create an organization of trained volunteers ready to assist
wounded in war in every country. (Led to the establishment of
the ICRC, 1863)
• To promote an international agreement protecting wounded
soldiers in war and those who care for them (led to the adoption
of the Geneva Convention of 1864)
 Select Landmarks in the Development of
IHL
• 1864: First Geneva Convention (Wounded on the
battlefield
• 1868: St Petersburg Declaration - outlawing of
certain projectiles
• 1899/1907: Hague Conferences
• 1906: Second Geneva Convention (Wounded and
sick in armies)
• 1925: Geneva Gas Protocol
• 1929: Third Geneva Convention (Prisoners of War)
 Select Landmarks in the Development of
IHL (WWII to Present)
• 1949: Four Geneva Conventions
• 1954: Hague Cultural Property Convention
• 1972: Biological Weapons Convention
• 1977: First and Second Additional Protocols
• 1980: Conventional Weapons Convention
• 1993: Chemical Weapons Convention
• 1997: Anti-personnel Landmines Ban
• 1998: International Criminal Court
• 2000: Optional Protocol Child Soldiers
• 2005: Customary Law Study
• 2008: Cluster Munitions Convention
• 2017: Treaty on the Prohibition of Nuclear Weapons
 Treaty clusters

• Protection: GCs and APs, Hague Cultural

Property, Child Soldiers
• Weapons:
• Customary Law
• Enforcement: ICC
• Other related: Genocide, Torture, Enforced
Disappearances
 Two main branches of jus in bello
-Geneva Law -Hague Law

•humanitarian law proper,

which is designed to •the law of war, which
safeguard military personnel establishes the rights and
who are not or are no longer obligations of belligerents in
taking part in the fighting and the conduct of military
persons not actively involved operations and limits the
in hostilities means of harming the enemy
 Four Geneva Conventions of 1949
• Geneva Convention I for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in
the Field (GC I);
• - Geneva Convention II for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (GC II);
• - Geneva Convention III Concerning the Treatment of
Prisoners of War (GC III);
• - Geneva Convention IV Concerning the Protection of
Civilian Persons in Times of armed conflict (GC IV).
 Three Additional Protocols
The three Protocols Additional to the Geneva Conventions are designed to reaffirm
and develop the rules embodied in the laws of Geneva of 1949 and part of the
laws of the Hague of 1907

• Protocol of 8 June 1977 Additional to the Geneva Conventions of 12 August 1949,

and Concerning the Protection of victims of International Armed Conflicts (AP I);

• Protocol of 8 June 1977 Additional to the Geneva Conventions of 12 August 1949,

and Concerning the Protection of victims of Non-International Armed Conflicts
(AP II); and

• Protocol of 8 December 2005 Additional to the Geneva Conventions of 12 August

1949, Relating to the Adoption of an Additional Distinctive Emblem (AP III).
 Conclusion

IHL is a cornerstone of international law. It strives to preserve life and

order in times of utter chaos and anarchy. It is unrealistic to expect
IHL to eradicate all forms of armed conflict. As with other fields of
law, IHL has its own flaws most notably in terms of dealing with the
modern forms of warfare and dealing with such issues as distinction
between combatants and non-combatants, characterizing conflicts as
international or non-international, and in ensuring compliance.
Nonetheless, IHL has managed to achieve remarkable feats. States
have continued to apply customary law and principles of IHL
throughout the ages, and continue to codify new laws and
restatements of many of the customs in the form of treaty
obligations. Despite the limited application of IHL to non-international
conflicts, the sheer fact that there has been a convention that
specifically addresses such situations, which before were considered
outside international law’s scope, cannot be ignored.