History and Development of IHL

Kelisiana Thynne
Legal Adviser
ICRC Advisory Service on IHL

British Red Cross IHL Summer School

September 2018
Kelisiana Thynne, ICRC
 Outline

 Definition and purpose

 Origins and sources

 Scope of Application

 Repression of war crimes

 IHL in Action
Is this a violation of IHL – how do we find out?
 Overview: International Humanitarian Law

 a branch of public international law;

 established by custom or treaty;
 applicable in time of armed conflict;

 protects persons who are not, or no longer,

participating in the hostilities, as well as certain
places and objects;
 restricts the rights of the warring parties to use the
methods and means of warfare of their choice;
Protection of persons not taking part,
or no longer taking part, in hostilities
Limitations on means and methods of warfare
Jus ad bellum & jus in bello
UN Charter: War is prohibited!

3 possible cases under the UN Charter :

• Collective security operations
• War of national liberation
• Legitimate self-defence

IHL: War is a reality!

Rules of international law

applicable between the parties to
an armed conflict regardless of the
legality of their use of armed force
How old is IHL?
For 1000s of years, countries and armed
groups have had rules of warfare, whether
permanent or temporary, or based on custom
or tradition which respected the needs of
wounded, captured and civilians during armed
conflict.
 The origins of modern
international humanitarian law

1859 – Battle of Solferino

• 1862 – "A Memory of
Solferino"
– creation of relief societies for
the care of the wounded
– international treaty for the
protection of the sick and the
wounded on the battlefield
 The origins of modern
international humanitarian law

• 1864 – (First) Geneva

Convention
 protect soldiers wounded during
combat, regardless of nationality
 protect those providing assistance
 protect military ambulances and
hospitals, which are recognized as
neutral
 use of the red cross emblem as the
sign of identification for medical
services
 The origins of modern
international humanitarian law
• 1868 –Additions to
the Geneva
Convention of 1864
• 1906 – Convention
of 1906 (revision of 1864
Convention)
• 1929 – Convention
of 1929 (revision of 1906
Convention)
• 1929 – Convention
relative to the
Treatment of
Prisoners of War
 The origins of modern
international humanitarian law

• 1863 – Lieber Code

• 1868 – Declaration of
St-Petersburg

• 1899/1907 – The
Hague Conventions
Declaration of St Petersburg (1868)
Considering:
 That the progress of civilization should have
the effect of alleviating as much as possible the
calamities of war;
 That the only legitimate object which States
should endeavor to accomplish during war is to
weaken the military forces of the enemy;
 That for this purpose it is sufficient to disable
the greatest possible number of men;
 Declaration of St Petersburg (1868)

 That this object would be exceeded by the

employment of arms which uselessly aggravate
the sufferings of disabled men, or render their
death inevitable;

 That the employment of such arms would,

therefore, be contrary to the laws of humanity;
The Hague Conventions of 1899 and 1907
Geneva Conventions of 1949

 Wounded and Sick (Land)

 Wounded, Sick and

Shipwrecked (Sea)

 Prisoners of War

 Civilian Persons (in the

power of the enemy)
Additional Protocols of 1977 and
2005
 International Armed
Conflicts (IAC)

 Non International Armed

Conflicts (NIAC)

 Additional Distinctive
Emblem
Can you name other IHL treaties?
1899/1907 – The Hague Conventions (laws & customs of war)

• 1925 – Protocol for the Prohibition of the Use of Asphyxiating Gases

1949 – Four Geneva Conventions

• 1954 – Hague Convention on the Protection of Cultural Property

• 1972 – Biological Weapons Convention

1977 – Two Additional Protocols to the GC

• 1980 – Conventional Weapons Convention (and Protocols)

• 1993 – Chemical Weapons Convention
• 1997 – Convention on the Ban of Anti-personnel Landmines
1998
• – Statute of the International Criminal Court
1999 –Protocol II to the Hague Convention of 1954
• 2000 – Opt. Prot. on the Involvement of Children in Armed Conflict
• 2005 – Additional Protocol III on an Additional Distinctive Emblem
• 2008 – Convention on Cluster Munitions
 Customary International
Humanitarian Law

161 rules identified:

 13 only applicable in international armed
conflicts (IAC)
 2 only applicable in non international
armed conflicts (NIAC)
 146 rules applicable in both IAC and NIAC
 When considering the application
of IHL:

 Must first characterise the violence / conflict /

hostilities by asking:

1. Is it an Armed Conflict?

2. If so, is it an International Armed Conflict

(IAC) or an Non-International Armed Conflict
(NIAC)?
What is an “armed conflict”?
And why does it matter?
 Legal frameworks applicable to
situations of violence

IHL IHL IHL

IHRL IHRL IHRL IHRL

IHRL
National National National National National
law law law law law

Armed
conflict
Scope of application
International Armed
Conflict (IAC) (Art. 2)

Non-international
Armed Conflict (NIAC)
(Art. 3)

Internal Disturbances
and Tensions
IHL DOES NOT APPLY
International Armed Conflict (I)

STATE A STATE B

"all cases of declared war or of any other armed

conflict which may arise between two or more of the
High Contracting Parties, even if the state of war is not
recognized by one of them"
(Common Art. 2, GC I – IV)
International Armed
Conflict (II)
National liberation
Movement

Government

"armed conflicts in which peoples are fighting against

colonial domination and alien occupation and against
racist regimes in the exercise of their right of self-
determination"
(art. 1(4) AP I)
Non-International Armed Conflict (I)

Armed Group Armed Group

1 2

Government
A

"In the case of armed conflict not of an international

character occurring in the territory of one of the High
Contracting Parties"
(Common Art. 3, GC I – IV)
 CRITERIA OF A NIAC
1- Level of Intensity
• Types of weapons and
military equipment involved
• Quantity and caliber of arms
used
• Number of people and type of
forces involved in hostilities
• Number of victims
• Extent of property damage
• Number of civilians fleeing
hostilities, notably internally
displaced persons
• Extent of fighting occurring
2- Organization of armed
group(s)
• Command structure
• A certain level of logistics
• Capacity to conduct and
sustain coordinated military
operations
• Capacity to respect and
ensure respect for IHL
Non-International Armed Conflict (II)

STATE A
governmental zone

rebel zone

"all armed conflicts…which take place in the territory of a High

Contracting Party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to
enable them to carry out sustained and conerted military operations
and to implement this Protocol"
(Art. 1(1), AP II)
 Law of IAC: IAC "by proxy"

STATE A STATE B

Ove
rall
c
(ICT ontrol
Y, IC
C) Rebels of
State B

Financing Coordinate or help

Training general planning
Equipping of military activities
Operational Support
 Law of IAC: Occupation => specific rules of
the law of IAC

STATE A STATE B
STATE B

 all cases of partial or total occupation of the territory of a

High Contracting Party, even if the said occupation meets no
armed resistance (Common article 2 GC)
Hague Regulations of 1907 and GCIV (section III – Art. 47-78)
Intervention of a State in support of
the Government: Law of NIAC only

STATE A INTERNAL Rebels of

STATE A

N AL
ER
SUPPORT

T
IN

AL
E RN
T
IN
STATE B
 Intervention of a State in a pre-existing
NIAC in support of non-State party

Rebels of
INTERNAL State A
State A

SUPPORT
IN
TE
RN
AT
IO
NA
L
STATE B

Armed conflict with "double legal

classification"
Law of IAC and law of NIAC apply in parallel (ICRC view)
 Many armed conflicts

Rebels of
STATE A INTERNAL
State A
A L
R N
IN TE
TE IN

SUPPORT
SUPPORT

RN
A TI O
L NA
R NA L
TE
IN

STATE B INTERNATIONAL STATE C

internal conflict charaterized by the intervention of the armed

forces of at least one foreign power
Geographical scope of IHL
• In IACs, IHL applies to the territory of the
parties to the conflict.
• In NIACs, IHL applies to the territory of the
warring parties, i.e. the territory of the
State.

Issues:
• NIACs with an extraterritorial
element ?
• Spillover scenario ?
 Temporal scope of IHL
• When does an IAC
end?
– What if there is no
peace treaty or
ceasefire agreement?
– What if there is one but
it is not respected?
• Answer: De facto
general close of
military operations
– Not only active hostilities
– Likelihood of resumption
– Stability / permanence
• When does a NIAC
end?
– Higher threshold of
hostilities for
applicability of IHL
– “Peaceful settlement” =
vague criteria
• Answer: 2 elements
assessed based on
facts
– Cessation of all
hostilities
– Absence of a real risk of
resumption
How do we enforce IHL?
 International crimes
Crimes against
War Crimes Genocide Agression
Humanity

Grave Acts Acts The planning,

breaches committed as committed preparation,
+ part of a with intent initiation and
Other widespread or to destroy, execution of
systematic an act of
serious attack directed
in whole or aggression, by
violations of against any in part, a a person in a
the laws civilian national, position of
and population, ethnical, control,
customs of with racial or manifestly a
knowledge of religious violation of the
war in IAC
the attack UN Charter
and NIAC group.
Serious Violations
Grave
War Crimes
Breaches
of IHL
 Grave Breaches of IHL
Specific violations of the rules of IHL applicable to international
armed conflicts and specifically listed in the GC and AP I that are
considered as particularly serious
Art. 50/51/130/147 GC I-IV; art. 85 AP I
Pe
us rfidio
e
Wilful killing dis of us
Tort em tinct
u
inhu re and Cau ble ive
m s ms
deg an an
r d injur ing serio
trea ading
of

y u
body to healt s
pr ppr uc ve

Hos
ne ilita ied n tion
ju op op tion

tme
/a str nsi

nts h an tage
d takin
m stif erty ria
de te

ce ry by ot

g
Ex

e
Wilfully depriving a k ing th a is
M k
a POW of the v ili an e t t ac
ho a t”
i
ity

c h
ion t To a on w com b
a t
ss

rights of fair and u l

pop o f an pers s de
regular trial c t
obje h or
prescribed in the k “
Conventions
attac
 War Crimes
• Graves breaches as covered
by the Geneva Conventions
and Additional Protocol I

• Art. 85 AP I: Grave breaches =

war crimes

• Other serious violations of the

laws and customs of war in IAC
and NIAC (incl. violations of art.
3 CG & of AP II)
Non-International Armed Conflicts
No individual criminal liability explicitly referred to in the
Geneva Conventions or their Protocols

ICC Statute
ICTY/ICTR

“… customary international law

imposesUNcriminal
Securityliability for serious violations
of common Article 3, as supplemented by
Council
other general principles and rules on the
protection of victims of internal armed conflict,
State and for breaching certain fundamental
principles and rules regarding means and
practice
methods of combat in civil strife.”

Tadic Case (ICTY, Appeal Chamber)

National Trials
 Primary responsibility of States to repress serious IHL violations
 Establishment of National legislation mechanisms
 Growing number of national prosecutions and trials
 Universal Jurisdiction

International Trials
Nuremberg and Tokyo
Ad hoc Tribunals
Special Courts
ICC
Generating Respect For The Law
NEW PERSPECTIVES ON IHL PROMOTION

CHANGING THE NARRATIVE ON IHL

RESEARCH INITIATIVES

IHL in action IHL Impact

SUCCESS STORIES COSTS & BENEFITS

Case studies IHL & Displacement

IHL & Peace building

More…
IHL in Action

ihl-in-action.icrc.org