INTERNATIONAL

HUMANITARIAN LAW
 What is IHL?
 Forms a major part of public international law
(under public int’l law)
 Comprises rules which in times of armed conflict
seek to protect people who are not or no longer
taking part in the hostilities
 Restrict the means and methods of warfare
employed
 IHL - Geneva and the Hague (2
branches)
 “law of Geneva” – safeguard military personnel
no longer taking part in the fighting & people not
actively involved in hostilities (civilians)

 “law of The Hague” – rights and obligations of

belligerents in the conduct of military operations
 With the adoption of Additional Protocols of
1977 – combined both branches
Who fights whom?
 International armed conflict – fighting of
armed forces between two states

 Non-international armed conflict – fighting

on the territory of a State

 Internal disturbances – serious disruption of

internal order due to acts of violence
 Grotius and the law of nations
 Law of nations synonymous to public
international law or international law

› rules governing relations between States and between

them and other members of the international
community
 Grotius – viewed that law was no longer an
expression of divine justice but the fruit of
human reason and that it no longer preceded
action but arose from it.
 In his book De jure belli ac pacis – he listed
rules which are among the firmest foundations of
the law of war
 Terminology
 International Humanitarian Law, law of armed
conflicts, law of war may be regarded as
equivalents
 International Humanitarian Law – used by
International Organizations, Universities, States
 law of armed conflicts, law of war - used by
armed forces
Branches of Public International
Law
 What are the essential rules of
IHL?
 Conflicting parties must distinguish between
civilian population and combatants to spare
civilian population and civilian property
 Neither civilian population nor individual
civilians may be attacked
 Attacks are to be made solely against military
objectives
 Respect to the lives, physical and mental
integrity of those who cannot take part in the
hostilities (war)
 Such people must be protected in all
circumstances and treated with humanity and
without any unfavorable distinction
 Forbidden to kill or worsen an adversary who
surrenders or can no longer take part in the
fighting
 Forbidden to use weapons/methods of warfare
which are to cause unnecessary losses or
suffering
 Wounded and sick must be collected and cared
for by the party to the conflict which has then in
is power
 Medical personnel/establishments must be
spared
 Captured civilians are entitled respect for their
lives, dignity, personal rights, and political,
religious and other convictions
 These civilians must be:
› protected against acts of violence or reprisal
› entitled to exchange news with family and receive aid
› Enjoy basic judicial guarantees
 What are the origins of IHL?
 Prior to the advent of contemporary humanitarian
law
› First there were unwritten rules based on customs
that regulated armed conflict
› Bilateral treaties
› Regulations which States issued to their troops
 Law then applicable to armed conflict was
limited in both time and space and was only
valid for one battle or specific conflict
 Precursors of contemporary
humanitarian law
 Henry Dunant – chaired the 1864 Diplomatic
Conference
› Suggested the relief to the wounded in the different
European countries
› Idea became a reality through the 1864 diplomatic
conference (attended by 16 states) which adopted the
Geneva convention for the amelioration of the
condition of wounded armies in the field.
 1864 Geneva Convention
 laid foundations for contemporary humanitarian
law
› Standing written rules which covered victims of
armed conflict universally
› Multilateral nature (open to all States)
› Extend care without discrimination to wounded, sick
and military personnel
› Respect for and marking of medical personnel
 The Lieber Code
 Came into force in April 1863
 Marked the first attempt to codify the existing
laws and customs of war
 Did not have the status of treaty unlike the
Geneva Convention
 Intended for the Union soldiers fighting in the
American Civil War
 What treaties make up IHL?
 Contemporary humanitarian law (initiated in the
form of the first Geneva Convention 1864) has
evolved in stages
 Often after the events when they were really
needed
Who is bound by the Geneva
Who is bound by the Geneva Conventions?
Conventions?
 Only Sates may become party to International treaties, and
thus to the Geneva Conventions and their Additional Protocols.

 All parties to an armed conflict are bound by International

Humanitarian Law.

 At the end of 2004, almost all the world’s States were part to
the Geneva Conventions.

 In the case of the Additional Protocols, 162 States were party

to Protocol I and 157 to Protocol II by the same date.
Whose duty is it to spread knowledge of the
Conventions and Protocols?

States have a legal obligation to spread

knowledge of the Conventions and
Protocols.
 Signature, ratification, accession,
reservations, succession
 Multilateral treaties between States require two procedures:

1. Signature followed by ratification

2. Accession

 Succession: A newly independent State may express the

desire to remain bound by a treaty which applied to its
territory prior to independence.

 Reservations: A state may make it in order to

exclude/modify the legal effect of certain provisions of the
treaty.
The ICRC and the task of spreading
knowledge of humanitarian law
 To work for the understanding and dissemination of
knowledge of international humanitarian law
applicable in armed conflicts and to prepare any
development thereof.
 To maintain close contact with National Societies in
matters of common concern and the dissemination
of the Fundamental Principles and
international humanitarian law.
What are Jus ad bellum and Jus in bello?

 Jus ad bellum (law on the use of force)

- is the right to wage war.
 Jus in bello (law in war)
- addresses the reality of a conflict without
considering the reasons for or a legality of
resorting to force.
On the prohibition of war
 End of the WWI, resorting to armed force was
regarded not as an illegal act but as an
acceptable way of settling differences.
 In 1919, the Covenant of League of Nations and
in 1928, the Treaty of Paris sought to outlaw
war.
 The adoption of UN Charter of 1945 confirmed the
trend: “The members of the organizations shall
abstain from resorting to the threat or use of force.”
 When a State or group of States is attacked by
another State or group of States, the UN
Charter upholds the right to individual or
collective self-defense. The UN Security
Council may also decide on the collective use
of force.
 Coercive measures
 Peace-keeping measures
In what situations does Humanitarian Law
apply? For whom is it intended and who does
it protect?
 IHL is applicable in two situations and it offers two
systems of protection:

a.) International armed conflicts in such situations the

Geneva Conventions and Additional Protocol I
apply.
 It is intended for the parties to the conflict and
protects every individual no longer actively involved
in the conflict.
b.) Non-international armed conflicts

 It is intended for the armed forces, regular or

not, taking part in the conflict and protects
every individual no longer actively involved in
the hostilities.
Humanitarian law and non-
international armed conflicts
 Art. 3 is regarded as a sort of treaty in
miniature. The rules on internal armed
conflicts remain less complete than those
dealing with international armed conflicts.

 The rules contained in Art. 3 are considered

as customary law and represent a minimum
standard from which the belligerents should
never depart.
What law applies to internal disturbances
and other situations of internal violence?
 IHL does not apply to situations of violence
not amounting in intensity to an armed
conflict.
 Cases of this type are governed by the
provisions of human rights law.
Does Humanitarian
Law Apply to the
"New" Conflicts?
 “NEW CONFLICTS”

Anarchic Ethnic Cleansing

Conflicts - forcibly
displacing or
-marked by exterminating
weakening state other populations
structures
 Common Article 3: a treaty in
miniature
1. Persons taking no active part in hostilities,
including members of armed forces who have laid
down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely,
without any adverse distinction founded on race,
color, religion or faith, sex, birth or wealth, or any
other similar criteria.
2. The wounded and sick shall be collected and
created for.
 International Humanitarian
Humanitarian Rules
Law
- Applies in these - Hard to apply as
“anarchic” and there is a blurred
“identity-related” distinction between
conflicts fighters and
civilians
International Humanitarian Law
International Humanitarian Law is developed by States
through:

STATE PRACTICE CODIFICATIONS

 The ICRC is the promoter of Humanitarian
Law
- prepare possible developments in
International Humanitarian Law

Other Roles:
1. Monitor the changing nature of armed conflict
2. Organize consultations with a view to
ascertaining the possibility of reaching
agreement on new rules
3. Prepare draft texts for submission to
diplomatic conferences
 Developments in IHL
Prohibits the use and transfer Prohibit the use of nuclear
of laser weapons, one of weapons. Moreover, they
whose specific combat require belligerents to
functions is to cause distinguish at all times
permanent blindness combatants and civilians
Prohibition of the use, The new court will have
stockpiling, production and jurisdiction over war crimes
transfer of anti-personnel committed in either
mines international or non-
international armed conflicts
Prohibition of military or any Prohibitions on the use of
hostile use of environmental certain conventional weapons
modification techniques
 Humanitarian Law Assisstance to the
Victims of Armed Conflict
Art.23: Free passage for consignments of
certain objects necessary to the survival of
the civilian population
Art 55: The duty of the Occupying Power to
ensure essential supplies to the population
of territories it occupies; if its own supplies
are inadequate, the Occupying Power must
agree to relief provided by outside resources
 State's Roles

Protocol I : a state at war must accept

impartial humanitarian relief schemes
Protocol II : state must authorize purely
humanitarian relief operations
THE ICRC AND THE RIGHT TO
ASSISSTANCE
- The ICRC has a right of initiative that enables it to
offer its services to parties in conflict

Humanitarian Law and the “right to intervene on

humanitarian grounds”
- to justify that the armed intervention undertaken for
humanitarian reasons
- ICRC must ensure that those engaged in the
intervention observe the relevant rules of IHL
- ICRC is neither for nor against the “right to
intervene”
What does Humanitarian Law
say with regard to the
restoration of family links?
Consequences of war
Prisoners of war (POW)
Civilian internees
Families
Missing people
International Committee of the Red Cross
(ICRC)
1. Forwarding family messages and other information.
2. Inquiring into the whereabouts of missing persons.
3. Reuniting dispersed families.
National Information Bureaux
Article 22 of the Third Geneva Convention.
Must be established when there is an outbreak of war.
Official information bureau.
If there is no such bureau, the ICRC itself takes place.
Central Training Agency
• Article 123 of the Third Geneva Convention.
• Created in a neutral country.
• Proposed by the ICRC.
• Function:
– Collect all information it may obtain.
– Transmit as quickly as possible.
Dispersed Families
Article 28 of the Fourth Geneva Convention.
Facilitation of enquiries made up by members of families
dispersed due to war.
Renew contract and, if possible, meeting.
 What are the provisions of
Humanitarian Law governing
use of the emblem?
Emblems
Red Cross
Red Crescent
Red Lion and Sun
Red Crystal
Manifestation of protection to the medical
personnel, units and transports.
Link with the International Red Cross and Red
Crescent Movement.
Protective and indicative purposes.
Use of Emblem
As a protective device in times of conflict by:
 Armed forces’ medical services.
 National Red Cross and Red Crescent Movement;
National Societies.
 Civilian hospitals and other medical facilities.
 Voluntary relief agencies.
Misuse of Emblem
Law on emblem protection.
Use of emblem not authorized by IHL.
1. Imitation
2. Usurpation
3. Perfidy
How does Humanitarian
Law protect refugees and
internally displaced
persons?
Refugees
• “owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the
country of his nationality and is unable, or owing to such
fear, is willing to avail himself of the protection of that
country; or who, not having a nationality and being
outside the country of his former habitual residence as a
result of such events, is unable, or owing to such fear, is
unwilling to return to it.”(Art. 1 of the 1951 UN
Convention)
 Refugees
• Protection by:
– Refugee law
– United Nations High
Commissioner for
Refugees (UNHCR)
– IHL
– Fourth Geneva
Conference and
Additional Protocol I
• Vulnerability of refugees
Internally Displaced Persons (IDPs)
• Those who have not left their country.
• Respect for humanitarian law prevents forced
displacement.
• Protected by:
– National law
– Human Rights law
– IHL
• Considered as civilians – entitled to protection afforded to
civilians.
Protection during displacement
Attacks on civilians and civilian objects.
Starvation; destruction of objects essential to its survival.
Collective punishment.
 Relief transfer should reach civilian populations in need.
Preventive measure to comply with IHL
Spreading knowledge of IHL
Training qualified personnel
Appointment of legal advisers

Monitoring compliance
• Action by the
protecting powers
• ICRC
Mechanisms for repression
Obligation for the national courts to repress grave
breaches considered as war crimes
Criminal liability and disciplinary responsibility of
superiors, and the duty of military commanders to
repress and denounce offences
Mutual assistance between States on criminal matters

*repressive measure can also serve as a deterrent

Implementation measures
The enquiry procedure
The International Fact-Finding Commission
The examination procedures concerning the
application and the interpretation of legal provisions
Cooperation with the United Nations
ICRC’s role in ensuring respect for IHL
Dissemination and Advisory Service
 Remind States that they have undertaken to make the
provisions known
 Law applied effectively and respected
Reminding parties in conflict of their obligations
Guardian of IHL
 Respect for humanitarian rules
Prosecution of criminals
Perpetrators of grave breaches must be prosecuted at
all times and in all places
State’s criminal laws apply only to crimes committed
on its territory
Universal jurisdiction
Lack of respect for IHL and violations not
always repressed
Ignorance, nature of war, international law and IHL
is not matched by an effective centralized system
War Crimes
Serious violations of IHL committed during international or
non-international armed conflicts
 Willful killing of a protected person
 Torture or inhuman treatment of a protected person
 Willfully causing great suffering to the body or health of a protected
person
 Attacking the civilian population
 Unlawful deportation or transfer
 Using prohibited weapons or methods of warfare
 Making improver use of the distinctive red cross or red crescent emblem
or protective signs
 Killing or wounding perfidiously individuals belonging to a hostile nation
or army
 Pillage of public or private property
 International
Humanitarian Law and
International Human
Rights Law
International Humanitarian Law
 intended to solve humanitarian problems directly arising from
international or non-international armed conflicts

International armed conflict

Involves two or more states, war of liberation
 The four Geneva Conventions of 1949 and Protocol I of 1977
Non-international armed conflict
 Involves government forces that are fighting against armed insurgents
or rebel groups that are fighting among themselves
Art. 3 common to the Geneva Conventions of 1949 and Protocol II of
1977
International Human Rights Law
 rules from which individuals can expect and/or claim
certain behavior and benefits from governments
 Inherent entitilements

Universal instruments
International Covenants on Civil and Political Rights; Economic, Social
and Cultural Rights (1966); Conventions on Genocide (1948); Racial
Discrimination (1965); Discrimination Against Women (1979); Torture
(1984); and Rights of the Child (1989)
Regional instruments
European Convention for the Protection of Human Rights and
fundamental freedoms (1950); American Declaration of the Rights and
Duties of Man (1948); and African Charter on Human and Peoples’
Rights (1981)
 International International Human
Humanitarian Law Rights Law
 Applicable in times of  Applies all the time (in
conflict (international or peacetime or in situations
non-international) of armed conflicts)
 No derogations from its  Some treaties are
provisions degorable, some are not
Irevocable treaties:
 right to life, prohibition of
torture or cruel, inhuman or
degrading treatment or
punishment, prohibition of
slavery and servitude and the
prohibition of retroactive
criminal laws.
…IHL continuation …IHRL continuation
IHL binds all actors to an lays down rules binding
armed conflict: governments in their
International conflicts relations with
must be observed by the individuals
states involved issue on non-state actors
Non-International with government-like
conflicts functions to respect
IHRL is still unsettled
binds the government
and groups against it or
fighting among
themselves
…IHL continuation …IHRL continuation
 IHL imposes obligations on  Individuals do not have specific
individuals and also provides duties under IHRL treaties
that persons may be held
individually criminally  IHRL provides for individual
responsible
criminal responsibility for
violations that may constitute
 IHL establishes universal international crimes (genocide,
jurisdiction over persons crimes against humanity and
suspected of having committed torture—also subject to
serious violations. universal jurisdiction)

 With the entry into force of the  The ad hoc International

International Criminal Court, Criminal Tribunals for the
individuals will also be former Yugoslavia and Rwanda,
accountable for war crimes as well as the International
committed in non-international Criminal Court, have
armed conflict. jurisdiction over violations of
both IHL and IHRL.
…IHL continuation …IHRL continuation
IHL aims to protect IHRL, being tailored
persons who do not, or primarily for peacetime,
are no longer taking part applies to all persons.
in hostilities
IHL also protects
civilians
System of implementation
National Level
 States
International Level
 States, ICRC; UN, UN Commission on Human Rights and Sub-
Commision on the Promotion and Protection of Human Rights, Office
of the High Commissioner for Human Rights
Regional Level
 Regional Human Rights Courts and Commissions for IHRL
 No equivalent for IHL