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Basic Concepts of IHL

1. Military Necessity
2. Necessity and Proportionality
3. Distinction
Principle of Military Necessity
Military necessity is a legal concept used in international humanitarian law (article
52, IAP) as part of the legal justification for attacks on legitimate military
targets that may have terrible consequences for civilians and civilian objects.
Even under the laws of war, winning the war or battle is a legitimate consideration,
though it must be put alongside other considerations of IHL. Military necessity does,
however, not give the armed forces the freedom to do what they want.
Principle of Necessity and Proportionality
The principle of proportionality (article 51(5)(b) IAP) is another basic principle. It
states that even if there is a clear military target it is not possible to attack
it if the harm to civilians or civilian property is excessive to the expected
military advantage.
For example, a TV or a radio station can be a legitimate military target if used as a
military command or communication center but if it is used for civilian purposes
only it cannot be targeted.
Principle of Distinction
It prohibits all means and methods that cannot make a distinction between those
who do take part in hostilities, and are therefore considered combatants, and those
who do not and are therefore protected (Article 48 IAP). The sick and wounded,
medical personnel, civilians and prisoners of war (POWs) are all called protected
persons.
Combatants
Combatants are members of armed forces or groups that may be considered POWs
if captured.
Armed groups that are not part of the armed forces need to follow four conditions:
1. Commanded by a person responsible for his subordinates.
2. Having a fixed distinctive emblem recognizable at a distance. Article 44(3) of
the First Additional Protocol (IAP) sets an exception to this rule when the
nature of the hostilities prevents the combatant from distinguishing himself

or herself. There is an ongoing legal debate about the scope of a distinctive


sign which combatants of non-regular armed forces need to wear.
3. Carrying arms openly.
4. Conducting their operations in accordance with the laws and customs of war.
In case of doubt, a person/s should be considered a POW until a competent court
decides otherwise.
Members of groups that do not follow these conditions, and individuals that are not
part of armed groups that take direct part in the hostilities (violent resistance) are
not regarded as combatants and do not enjoy the status of POWs. They are
therefore protected civilians and lose their immunity only for such time as they take
direct part in hostilities.
Civilians
Civilians must not be attacked. They do not take part in the hostilities and should be
protected and respected.
Principle of Precautions in Attack
Whenever civilians are present, the parties to an armed conflict must:
1. Take precaution during military operations to spare the civilian population and
civilian objects (article 57 of the First Additional Protocol IAP).
2. Take precaution to protect the civilian population and civilian objects, which is
under their own control, against the effects of military attacks (article 58 IAP).
Other precautions:
1. Location of military objectives (separate civilians under its control from
military objectives)
2. Choosing weapons and methods of warfare (verify military targets,
consider that which causes the least danger to civilians)
3. Warnings (The parties to armed conflict must, as much as possible, give
effective warnings before an attack. Warnings increase the chance for
civilians to protect themselves from any possible harm caused by the war)

THE SPECIFICS OF IHL


I.
II.
III.

Personal Scope and Application


Material Scope and Application
Rights and Obligations
Method of Warfare
Protected Persons

Personal SCOPE AND APPLICATION


1. States (parties to conflict and to IHL)
2. Non-state armed groups (parties to the conflict)
3. Individuals (members of parties to the conflict, e.g. civilians
and combatants)
Material SCOPE AND APPLICATION:
The Rules of IHL apply to situations of ARMED CONFLICT
1. International Armed Conflict
Armed conflicts between two or more states
Total/partial military occupation
2. Non-International Armed Conflict
Prolonged conflict between governmental authorities and
armed organized groups or between such groups within a
State. Generally, only Common Article 3 of the Geneva Convention
applies, BUT there has been a trend of applying rules applicable to
international armed conflict, except:
In IACs, the parties to the conflict are (at least) two equal sovereigns.
Lawful participants in the hostilities who in effect represent
those sovereigns thereby have combatant status, and enjoy
the privilege of belligerency. They cannot be prosecuted by the
other party for their mere participation in the hostilities, but
solely for violations of IHL. In NIACs, however, the parties are
fundamentally different most commonly a government and a
rebellious non-state actor. Because governments have every right to
suppress rebellions against them, no combatant status or privilege
exists in NIACs. A rebel can be prosecuted for the mere fact that
he is a rebel, even if he has been completely observant of the
rules of IHL. Thus, for example, the government of Afghanistan has
every right to imprison a Taliban soldier, even if that soldier committed
no war crime.

Additional Protocol II expands IHL rules in Non-international


armed conflicts

3. Internationalized Armed Conflict


Conflicts that initially begin as a non-international armed
conflict but develop into an international armed conflict.
If a state intervenes with its armed forces on the side of another state
in a non-international armed conflict, it is generally agreed that this
does not change the qualification of the conflict. The situation would

give rise to both international (the state versus the intervening state),
and non-international (the state versus the rebel group) conflicts.
Where a state intervenes indirectly without the use of its armed forces
in a non-international armed conflict on the side of the rebels, the Tadi
case, decided by the International Criminal Tribunal for the former
Yugoslavia (ICTY), concluded that overall control of a rebel group
would be sufficient to internationalize the conflict

The RULES of IHL do not apply in situations of internal disturbances and


tensions, e.g. riots, isolated and sporadic acts of violence and other acts
of a similar nature.
RIGHTS and OBLIGATIONS
Means and Methods of War
International humanitarian law (IHL) limits the means and methods of
warfare. IHL covers the conduct of military operation by stating what
weapons and military tactics can be used in armed conflict. The only
legitimate object during war is to weaken the military forces of the
enemy. Civilians can never be legitimate targets of attack.
Weapons that cause superfluous injury or unnecessary suffering

They are PROHIBITED under IHL.


The use, production, stock-piling, and transfer of anti-personel
landmines are prohibited according to the Ottawa Treaty of
1997.
The 1980 Convention on Certain Conventional Weapons (CCW)
includes five protocols covering landmines, incendiary
weapons (weapons that set fire to objects or cause burn injuries
to persons), blinding laser weapons, and explosive
remnants (weapons and ammunition left behind after war),
undetectable fragments (weapons with the effect to injure by
fragments that are non-detectable by x-ray).
These treaties are binding on states that have signed and
ratified them.
Biological and Chemical weapons are PROHIBITED as well,
specifically by the 1952 Geneva Protocol. This is binding on any
state regardless of whether they signed or not.

The First Geneva Convention


(The Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field of August 12, 1949)

The WOUNDED and SICK in the Armed Forces

The terms wounded and sick apply to persons who as the result of
trauma, suffer from disease or other physical or mental illness or
disability, and who require medical treatment while abstaining from
any hostile acts. (Article 8(a) Additional Protocol I to the Geneva
Conventions)
Protects soldiers who are hors de combat (out of the battle)
Protection specifically accorded to:
1. Wounded and sick soldiers.
2. Medical personnel, facilities, and equipment
3. Wounded and sick civilian support personnel accompanying the
armed forces
4. Military chaplains.
5. Civilians who spontaneously take up arms to repel an invasion.

Relevant Specific Provisions:


Be respected and protected without discrimination on the basis of sex,
race, nationality, religion, political beliefs, or other criteria. (Art. 12)
Not be murdered, exterminated, or subjected to torture or biological
experiments. (Art. 12)
Receive adequate care. (Art. 15)
Be protected against pillage and ill-treatment (Art. 15)
All parties in a conflict must search for and collect the wounded and
sick, especially after battle, and provide the information to the Central
Tracing Agency of the International Committee of the Red Cross (Art
15-16)
This Convention, like the others, recognizes the right of the ICRC to
assist the wounded and sick. Red Cross and Red Crescent national
societies, other authorized impartial relief organizations, and neutral
governments may also provide humanitarian service. Local civilians
may be asked to care for the wounded and sick. (Art. 9)

The Second Geneva Convention


(The Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of
August 12, 1949)

Adapts the protections of the First Geneva Convention to reflect conditions at


sea
Protects wounded and sick combatants while on board ship or at sea.
Shipwrecked It covers those persons who find themselves in a perilous
situation at sea or in other waters due to misfortune affecting them or
affecting the vessel or aircraft carrying them, and who refrain from
committing any hostile acts.
Specifically, the Second Geneva Convention applies to:
1. Armed forces members who are wounded, sick, or shipwrecked.

2. Hospital ships and medical personnel.


3. Civilians who accompany the armed forces.
Relevant Specific Provisions
1. This Convention mandates that parties in battle take all possible
measures to search for, collect, and care for the wounded, sick, and
shipwrecked. Shipwrecked refers to anyone who is adrift for any
reason, including those forced to land at sea or to parachute from
aircraft. (Arts. 12, 18)
2. Appeals can be made to neutral vessels, including merchant ships and
yachts, to help collect and care for the wounded, sick, and
shipwrecked. Those who agree to help cannot be captured as long as
they remain neutral. (Art. 21)
3. Religious, medical, and hospital personnel serving on combat ships
must be respected and protected. If captured, they are to be sent back
to their side as soon as possible. (Art. 36-37)
4. Hospital ships cannot be used for any military purpose. They cannot be
attacked or captured. The names and descriptions of hospital ships
must be conveyed to all parties in the conflict. (Art 22)
5. While a warship cannot capture a hospital ships medical staff, it can
hold the wounded, sick, and shipwrecked as prisoners of war, providing
they can be safely moved and that the warship has the facilities to
care for them. (Art. 14)

The Third Geneva Convention


(The Geneva Convention Relative to the Treatment of Prisoners of War of
August 12, 1949)

Sets out specific rules for Prisoners of War.


Who is a prisoner of war? Any person captured or interned by a belligerent
power during war. In the strictest sense it is applied only to members of
regularly organized armed forces, but by broader definition it has also
included guerrillas, civilians who take up arms against an enemy openly, or
noncombatants associated with a military force.
Relevant Provisions of the Third Geneva Convention:
Prisoners of war MUST be:

Treated humanely with respect for their persons and their


honour.
Enabled to inform their next of kin and the Central Prisoners of
War Agency (ICRC, the International Red Cross) of their capture.
Allowed to correspond regularly with relatives and to receive
relief parcels.
Allowed to keep their clothes, feeding utensils and personal
effects.
Supplied with adequate food and clothing.

Provided with quarters not inferior to those of their captor's


troops.
Given the medical care their state of health demands.
Paid for any work they do.
Repatriated if certified seriously ill or wounded, (but they must
not resume active military duties afterwards).
Quickly released and repatriated when hostilities cease.

Prisoners of war must NOT be:


Compelled to give any information other than their name, age,
rank and service number.
Deprived of money or valuables without a receipt (and these
must be returned at the time of release).
Given individual privileges other than for reasons of health, sex,
age, military rank or professional qualifications.
Held in close confinement except for breaches of the law,
although their liberty can be restricted for security reasons.
Compelled to do military work, nor work which is dangerous,
unhealthy or degrading.

The Fourth Geneva Convention


(The Geneva Convention Relative to the Protection of Civilian Persons in
Time of War of August 12, 1949)

Protects Civilians in areas of armed conflict and occupied territories.


Covers all individuals "who do not belong to the armed forces, take
no part in the hostilities and find themselves in the hands of the
Enemy or an Occupying Power"
Relevant provisions of the Fourth Geneva Convention
o Protected civilians MUST be:
Treated humanely at all times and protected against acts or
threats of violence, insults and public curiosity.
Entitled to respect for their honour, family rights, religious
convictions and practices, and their manners and customs.
Specially protected, for example in safety zones, if wounded,
sick, old, children under 15, expectant mothers or mothers of
children under 7.
Enabled to exchange family news of a personal kind. - Helped to
secure news of family members dispersed by the conflict
Allowed to practise their religion with ministers of their own
faith. Civilians who are interned have the same rights as
prisoners of war. They may also ask to have their children
interned with them, and wherever possible families should be
housed together and provided with the facilities to continue
normal family life. Wounded or sick civilians, civilian hospitals
and staff, and hospital transport by land, sea or air must be

specially respected and may be placed under protection of the


red cross/crescent emblem.
o

Protected civilians must NOT be:


Discriminated against because of race, religion or political
opinion. - Forced to give information.
Used to shield military operations or make an area immune from
military operations.
Punished for an offence he or she has not personally committed.
- Women must not be indecently assaulted, raped, or forced into
prostitution.